Thembeka Ngukaitobi of the South African Human Rights Commission (SAHRC) criticised Jon Qwelane in court on Tuesday for failing to appear for his trial, to file an affidavit or to provide witnesses.
In April Qwelane was found guilty of hate speech against the LGBTI community and was ordered to apologise and pay R100000 to the South African Human Rights Commission. He believes his “free speech” rights are being violated and wants to restart the proceedings.
Qwelane’s lawyer George Kairinos argued that his client would fight any action against him and did not intend to apologise. Kairinos argued that the judgment was handed down erroneously and that the court had exceeded its jurisdiction.
Kairinos asked for the case to be referred to the Constitutional Court. “This is a constitutional matter. Did the article constitute hate speech? Was it hurtful? Did it incite harm? Because Mr Qwelane denies all that and that is why an inquiry is needed,” he said. Qwelane had provided the court with a reasonable explanation for his absence, Kairinos said.
But Thembeka Ngukaitobi, appearing for the commission, criticised Qwelane saying that, not only had the former columnist failed to appear before the court, he had also failed to file an affidavit or provide witnesses.
Ngukaitobi’s colleague Jason Brickhill argued that the Equality Court had the jurisdiction to grant a default judgment that included a damages reward. Judgment will be handed down on September 1.
Qwelane was found guilty in April of hate speech for his 20 July 2008 article “Call me names, but gay is NOT okay…” which equated same sex relationships with bestiality. The Equality Court ordered Qwelane to make an unconditional apology to the LGBTI community in two newspapers and pay R100,000 to the South African Human Rights Commission (SAHRC) for awareness and education about LGBTI rights.