By Michael Clements | Head of Programmes
Over the course of the reporting period, Lawyers for Human Rights continued to fight for social justice through some of South Africa's highest courts, securing victories in respect of a challenge to hate speech, confirming the state's responsibiltiy to prosecute for apartheid-era crimes, and more.
On 30 July 2021, the Constitutional Court handed down its judgment in the matter of Jonathan Dubula Qwelane v South African Human Rights Commission and Another, considering the constitutionality of a “hate speech provision” under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA).
The substance of the case concerned Jon Qwelane, a journalist with the Sunday Sun tabloid newspaper, who had authored a homophobic article bearing the title “Call me names, but gay is NOT okay…” in 2008. The article had the intention to harm, dehumanise and strip the gay community of its dignity. Mr Qwelane was subsequently appointed as South Africa’s ambassador to Uganda by the Zuma administration in 2010, amidst widespread public opposition. In 2017, the South African Equality Court in Johannesburg held that Mr Qwelane’s article constituted hate speech under section 10 of PEPUDA.
LHR, representing the Southern African Litigation Centre admitted as a friend of the Constitutional Court on appeal of this matter, made submissions on the international legal framework regarding i) the limits to free speech and the constitutive elements of hate speech; ii) the principles of in international human rights law regarding the rights and protection of LGBTI persons.
In a victory for protection against hate speech, the Constitutional Court, in a considered opinion, held that the relevant publication authored by Mr Qwelane indeed constituted hate speech. The judgement is important in confirming that although the right to freedom of expression is essential in a constitutional democracy, the limitation thereof is equally important in protecting vulnerable groups. LHR is hopeful that the judgement will create an opportunity for the South African Human Rights Commission to address hate speech more effectively.
Over the same period, LHR was delighted with the outcome of the Joao Rodrigues v National Director of Public Prosecutions and Others matter. Rodrigues, a former member of the Security Branch under the apartheid regime, is accused of having murdered Mr Ahmed Timol whilst in custody in 1971. The South African Supreme Court of Appeal dismissed an appeal from Rodrigues, who sought a permanent stay of prosecution based on an alleged violation of his constitutional rights. In the matter, LHR represented the Southern African Litigation Centre admitted to make submissions as a friend of the court, arguing that the murder of Mr Timol amounted to at least three categories of crimes against humanity and that South Africa has a duty to investigate and prosecute such crimes, regardless of the time period before prosecution.
The outcome of this matter is critically important not only in ensuring proper prosecution for crimes committed during apartheid and achieving justice for families affected by these heinous acts, but also in terms of clarifying South Africa’s commitment to prosecuting crimes against humanity.
Looking ahead, LHR will continue to pursue justice in South Africa courts, by helping to clarify and highlight South Africa’s obligations regarding human rights under both domestic and international law. Upcoming matters concern gay asylum seekers’ right to just, non-discriminatory analysis of their claims to refugee status, South Africa’s obligation to avoid exporting arms to countries accused of committing war crimes in Yemen, and challenges in respect of the rights of mining communities to access information that will fundamentally affect their quality of life.
Watch this space for continued updates on the outcome and impact of LHR’s bold, creative approach to litigation in pursuit of justice on behalf of South Africa’s most marginalised.
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By Michael Clements | Acting National Director
By Michael Clements | Acting National Director
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