Bougardt judgment indicates likely legal limit of religious speech

Pastor gets prison sentence for offensive remarks towards gays

On Friday, 18 May 2018 Pastor Oscar Bougardt – who found himself in trouble with the law again after making certain “highly insulting, demeaning and uncharitable” statements regarding the LGBT community – was convicted of contempt of court and sentenced to 30 days in prison.

The Cape High Court (sitting as an Equality Court) suspended the sentence for five years, on condition that he does not again make such statements during that period.

In his judgment, Judge Bozalek observed that while Bougardt has a right to freedom of speech and to his religious beliefs and to express these, none of the particular statements made by him fell within those parameters. In short, “they dehumanise and demonise gay and lesbian persons and, without a shred of proof, make wide and damaging assertions that members of such community engage in criminal and anti-social conduct”.

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The Constitution protects freedom of speech, and freedom of religion (including religious speech), as fundamental human rights. In particular, it is important to mention that in the Constitutional Court case of National Coalition for Gay and Lesbian Equality v Minister of Justice (1998), Judge Albie Sachs observed that “those persons who for reasons of religious belief disagree with or condemn homosexual conduct, are free to hold and articulate such beliefs”.

While (religious) persons therefore have a right to believe and express their views on homosexuality (for example), they nevertheless must do so within the boundaries of the law i.e. in a manner that does not amount to “hate speech”.

While there is currently inconsistency in South African law with regards to the definition and elements which constitute “hate speech” (and the definition of “hate speech” in the Equality Act is being challenged in the Qwelane case before the Supreme Court of Appeal, as being inconsistent with its definition in the Constitution), the Bougardt judgment does give some indication of the boundaries of (religious) speech.

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Freedom of Religion South Africa (FOR SA) strongly encourages all ministers (and indeed, all persons of faith) to take note of the Bougardt judgment, which is a good example of what (content, and manner of speech) will probably not be regarded by our courts as acceptable speech. While we can never compromise on Biblical truth, it is important that, as Christians, we always strive to bring the Good News of Jesus Christ in a manner that is both loving and true, and in so doing bring glory to God.

FOR SA has worked with a broad cross section of the faith community to lobby for an amendment to the proposed Hate Crimes and Hate Speech Bill, so as to give specific protection to bona fide religious preaching and teaching which does not amount to an advocacy of hatred with an incitement to violence. This defence is not contained in the “hate speech” section of the Equality Act — hence FOR SA’s submission and recommendation that the definition of “hate speech” in the Hate Speech Bill should replace all other definitions of hate speech contained in other existing or proposed legislation in order to bring more legal certainty to this area.

Background facts
In October 2013, the South African Human Rights Commission (SAHRC) opened a case against Bougardt in the Cape High Court (sitting as an Equality Court), complaining that Bougardt had sent unsolicited emails in which he made denigrating and offensive remarks regarding gay and lesbian people, as well as making similar remarks on Facebook.

This, the SAHRC alleged, infringed the prohibition on “hate speech” in s 10 of the Equality Act (which prohibits any speech “based on one or more of the prohibited grounds [including sexual orientation] that could reasonably be construed to be hurtful; be harmful or incite harm; or promote or propagate hatred”).

In terms of a settlement agreement between the SAHRC and Bougardt on July 28 2014 (which Bougardt expressly agreed could be made an Order of Court):
a) Bougardt admitted that he has not carefully thought through his statements and properly taken account of the fundamental right of others, in particular the right not to be discriminated against;
b) Bougardt stated that he understood that these statements, in circumstances where gay and lesbian persons have historically suffered and continue to suffer marginalisation, discrimination and persecution, are likely to encourage hatred and cause emotional, psychological and physical harm in members of this community;
c) Bougardt undertook not to make such statements in the future. In particular, he would not make statements in which he:
a. blamed gay and lesbian people for social problems or disease;
b. advocated hatred towards them, their removal from communities or institutions, or any harmful behaviour towards them.
d) Bougardt undertook not to make statements that go beyond what the Bible says in respect of these matters or in a manner that will incite hatred and harmful behaviour towards gay and lesbians.

Following this settlement agreement, Bougardt allegedly made further offensive statements regarding gay and lesbian people, including:
a) In an article on News24, Bougardt was quoted as saying regarding homosexual people: “Why should we be tolerant of their criminal lifestyle? Ninety-nine percent of paedophiles stem from homosexuality”; and “I’m saying so because it is proven that 99% of the paedophiles have a homosexual background. They are blaming their previous lifestyle on what happened. Go and read up on it.”

b) In an article on MambaOnline, Bougardt essentially commended the President of Nigeria (where, in certain states, homosexuality is punished by death by stoning) for his stance against homosexuality. He said, amongst other things, that “if I was a president of my country, I will lock them in cages where they belong. They behave worst (sic) than animals in bed, and don’t even deserve a prison cell with prisoners. They belong in a cage …”

c) In another article on MambaOnline, Bougardt commented on a Senegalese journalist who had been jailed for six months on homosexuality charges, and said that “six months are too short for animal like behaviour. We need more countries that are bold enough to take a stance against perverts.”

d) In another article on MambaOnline, he said “we need ISIS to come to countries who are homosexual friendly. ISIS please come rid South Africa of homosexual curse.”

As a result of these (further) statements, the SAHRC opened up a case of contempt of court against Bougardt, for breaching the earlier settlement agreement that had been made an order of Court. In their papers, the SAHRC asked the Court to sentence Bougardt to a R500 000 fine, as well as commit him to prison for thirty (30) days.
In the contempt of court proceedings, Bougardt effectively admitted to all of the above statements, but denied encouraging violence against homosexuals and relied on his s 15 right to freely express his “religious beliefs and opinions”.

Contempt of court proceedings
A person can only be found guilty of contempt of court, if it is clear – beyond reasonable doubt – that there was a court order (which there was in this case); that the accused knew of the court order (which he did – Bougardt agreed that the order could be made an order of Court); that there was wilful non-compliance with the court order by the accused, who also acted in bad faith.

On the question of non-compliance with the court order, the Court observed that save in one instance (i.e. with regards to the article in News24, which Bougardt alleged misquoted him), Bougardt admitted to making the relevant statements. The only question is thus whether the statements made were “hurtful or incite hatred or harm or propagate hatred” on the grounds of sexual orientation (in terms of the Equality Act). In this regard, the Court – after considering each of the statements made by Bougardt individually – found that his statements were in fact discriminatory against, and did in fact advocate or incite hateful or harmful behaviour towards, the LGBT community.

On the question of wilfulness and mala fides, the Court did not accept Bougardt’s defence that he was not informed that the settlement agreement would be made an order of Court or the consequences of breaching same, as the agreement – which Bougardt signed – expressly says that it can be made an order of Court.

The Court also did not accept Bougardt’s second defence that he believed he was exercising his right to freedom of speech (and, in particular, to air his religious beliefs). In this regard, the Court found that in the original settlement agreement, Bougardt acknowledged that his statements harmed the dignity of gay and lesbian people and were likely to “encourage hatred and cause emotional, psychological and physical harm to members of the community”.

He apologised for making these statements and undertook not to make similar statements in future. Although he reserved his right to “preach the Word of God and what the Bible directs”, he undertook not to make statements going beyond these limits in relation to gay and lesbian persons. Importantly, no attempt was made in the contempt of court proceedings (and the Court observed, “correctly so”) to justify the statements made on biblical or religious grounds.

The Court noted that Bougardt has a right to freedom of speech and to his religious beliefs and to express these, but none of the statements made by him fell within those parameters. In short, “they dehumanise and demonise gay and lesbian persons, and without a shred of proof, make wide and damaging assertions that members of such community engage in criminal and anti-social conduct”.