The case was set down to be heard in the South Gauteng High Court over a two-week period, commencing on 29 August. On the eve of the court hearing, Qwelane presented himself in person at a police station in Dawn Park to commission an affidavit applying for a postponement. Qwelane argued that he was unable to present himself in person in court due to a progressively degenerative medical condition.
In granting the postponement, Judge Moshidi refused to allow both PsySSA (‘friend of the court’) and the South African Human Rights Commission (first applicant) to submit answering affidavits opposing Qwelane’s application. This amounts to the court having effectively granted a permanent stay of the trial without having considered all the relevant facts as to whether Qwelane is indeed unfit to appear in court, and, if so, whether there are other means through which his testimony might be given.
“PsySSA made an appeal to the court to put forward evidence in opposition to the postponement, however this was denied by the court. By implication, the postponement was granted without the full facts having being objectively considered”, states Kerry Williams, partner at Webber Wentzel and PsySSA’s attorney.
The granting of the indefinite postponement means that Qwelane is highly unlikely to ever be held to account, publicly, for his hate speech. It also suggests that the court has given more consideration to Qwelane’s claims of ill health, than to the infringements of the rights and well-being of the LGBT community that is the target of his hate speech.
In July 2008, following the publication of Qwelane’s article in the Sunday Sun, a flood of complaints were submitted to the South African Human Rights Commission in reaction to the article’s hateful and prejudicial content. This week’s further postponement of the case, eight years on, denies the seriousness of the impact of hate speech on LGBT people and on society at large.
“Recent cases of racist hate speech, for example statements that likened black people to animals, have been dealt with far more swiftly by our courts, and rightfully so. Failure to actively condemn harmful insult sends a strong social message that it is in fact acceptable to dehumanise gays and lesbians and to liken them to animals, as Qwelane did in his article”, says Prof Juan Nel, PsySSA’s Past President.
PsySSA is preparing an application for leave to appeal against the postponement.
PsySSA believes that it is travesty of justice that this matter has not yet been concluded. If indeed Jon Qwelane is of such poor health that he is found to be unfit to stand trial – which is yet to be determined – we call on him to give the South African Human Rights Commission the relief it seeks, namely:
• To publicly apologise unreservedly for the harm his article caused to the LGBT community
• To pay R100 000 in damages to an LGBT organisation