Wednesday, March 31, 2010

SA GLAAD Condemns Media24 Challenge To Promotion of Equality and Prevention of Unfair Discrimination Act

In an update from the South African Human Rights Commission, SA GLAAD today learned that not only is Media24, which is named as the first respondent in the Jon Qwelane Hate Speech case, challenging the case on merit - but the media conglomerate is also cavalierly challenging the validity of the Promotion of Equality and Prevention of Unfair Discrimination Act, No 4 of 2000 - or, as it is euphemistically stated - "certain provisions" of it, in the High Court.

At this stage, the Act is the main defence which is used - via the Broadcasting Complaints Commission, Press Ombudsman and SA Human Rights Commission - against hate speech and defamation by human rights groups and also individuals lodging complaints on the basis of discrimination against sexual orientation and gender. A famous example was the Moreletta Park court case of 2008, which was effectively decided by this Act.

Point 2 of the communique from the SAHRC says: "[Attorneys for Media24]...lodged an Interlocutory Application at the Equality Court challenging certain provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act, that we have relied on in the main application." and point 4: " Counsel has advised us to agree to a stay of proceeding in the main application so that the issues raised by Media 24 in the interlocutory application can be thrashed out in the High Court – this is where we are at the moment." Which basically means nothing more will happen in this regard until Media24 goes to the High Court and their challenge is heard and settled first. This matter could even end up having to go as far as the Constitutional Court. Aside from the fact that Media24 (or possibly, Jon Qwelane) would not be prosecuted until then, if at all - depending on the outcome - this could take years to settle - and could be described as a very clever legal maneuver.

Of course one has to wonder what will happen should the High Court agree with Media24 and strike down Act no 4 of 2000, or even part of it - because then they will have cleared a path to directly challenge the remaining anti-discrimination clauses in the SA Constitution itself.

As some may be aware, Act No4 of 2000 was specifically designed to fill the gap in the SA Constitution (in sec 16.2c which is the location of a loophole) through which hate speech and discrimination against sexual orientation and gender used to slip. Should Act No4 be amended to remove any of the groups protected within it, or to alter the terms of protection, then it could very well mean "open season" on any of the groups now using this Act to ensure equality in the workplace - and to take on perceived hate speech.

It is for this very reason that human rights groups were very disappointed that the provisions within the Act were not included directly in the Constitution itself, but instead embodied separately in the Act - and as Media24 may be about to prove - it is far easier to challenge an Act than to challenge the Constitution of South Africa.

One does not wish to make assumptions, but it is hard to think of any reasons why Media24 would do this, other than because it may agree with the remarks made by Jon Qwelane in his now infamous article "Call me names, but gay is NOT okay..." of July 2008 - and that it may feel that such unadulterated hate speech against a minority group truly belongs in public media.

It is a sad day indeed when a media conglomerate which owns enough of South Africa's news industry to warrant thinking of it as a monopoly, indirectly attacks the Constitution by brazenly questioning an Act envisaged in section 9 of the Bill of Rights because it might not agree with restrictions on who it is - or not - allowed to publicly express hate speech against with impunity.

The opening line of the address made by Dr Mixael De Kock at the protest outside the Media24 offices in Johannesburg, only a few days after the publication of the hateful column in question, quite succinctly sums up what a lot of people feel - in that "“Media 24 is the pretty new dress replacing the Nazi-uniform of the old NASIONALE PERS". One wonders why the public expression of hatred and incitement to hatred deserves to be - or should be - protected.

Further, according to the SAHRC document, Jon Qwelane was (finally) traced by the clerk of the Equality Court and was served his court papers - and has given no indication within the given deadline that he would defend himself - or whether he would even appear in court at all. The HRC is still debating whether to proceed without him.

It is of course, entirely likely that Mr. Qwelane may be far too busy to attend his trial at the Equality Court, as according to our last update, he has been appointed by President Zuma as Ambassador to Uganda - where they treat gay people exactly as he suggested in his hateful column, if not actually worse.

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