Qwelane ruling: Concourt seeks to silence debate on its ‘unconstitutional’ same-sex marriage decision — Philip Rosenthal

Constitutional Court judge Stevan Majiedt (PHOTO: Facebook)

Philip Rosenthal of ChristianView Network sounds the alarm about a Constitutional Court judgment which he says threatens the constitutional freedoms of South African citzens

The July 30 judgment by Judge Majiedt of the Constitutional Court found journalist Jon Qwelane guilty of hate speech for an article in 2008 calling for amendment of the Constitution against so called “same-sex marriage”. The Concourt ruled that calling for such law reform constitutes “hate speech”. The Constitutional Court effectively attempts to outlaw criticism and constitutional law reform and public debate against its own unconstitutional 2005 decision — which is itself unconstitutional.

The ruling is wrong and itself unconstitutional:

  • Firstly, the South Africa Constitution permits and provides for its own amendment. There have been several amendments to the SA Constitution, and the constitutions of many other countries such as Hungary, Poland, Russia,
    Zimbabwe specifically define marriage as between a man and a woman only. So, effectively, the judges seek to ban what the Constitution explicitly permits.
  • Secondly, the Concourt contradicts the judgment of Sachs 1996, which legalised sodomy, which specifically said that the right to speak against homosexuality would be protected.
  • Thirdly, same-sex sexual relations and thus so-called “same sex marriage” is opposed by 9/10 South Africans, which the Concourt seek to silence.
  • Fourthly, there was a campaign against the legalisation of same-sex marriage during the period 2003-2006, which was supported by almost all church denominations in South Africa (only two exceptions). The Concourt ruling seeks thus to silence the church.
  • Fifth, the Concourt ruling rules the election platform positions of some political parties such as the African Christian Democratic Party as “hate speech”, thus prejudicing the political electoral and free speech process.
  • Sixth, there is no indication of there ever being any intent by any of the participants at CODESA to redefine marriage. The original 2006 Constitutional Court decision was a fiction they invented themselves with no basis in the intended meaning of the text of the Constitution.
  • Seventh, in the Concourt hearing Advocate Mark Oppenheimer read Bible verses which make statements against homosexuality that are stronger than Qwelane’s (Leviticus 20 and 1 Corinthians 6). He argued that the Bible was legal. In response a judge said: “Let us not draw inspiration from the text”. The question remains whether the Concourt intends banning the Bible next. If they try that, they will fail. The willingness of thousands of people to die, go to jail and lose their property rather than lose their right to quote the Bible is what has given our civilisation free speech.
  • Eighth, Qwelane’s article itself, while written in tabloid language, included a strong legal argument against so-called “same-sex marriage” which the Constitutional Court apparently didn’t understand or failed to consider. Qwelane argued from absurdity, in that someone could argue a “‘sexual orientation” in favour of animals in terms of the Bill of Rights. Assuming this is agreed as absurd, he then argues the absurdity of deriving two men marrying from the Bill of Rights. Since “sexual orientation” is undefined by law, there is no reason why its meaning cannot in future be extended by those attempting to change the law as Qwelane said could happen. Qwelane’s argument is not implying that homosexual people are animals, as wrongly interpreted by the South African Human Rights Commission and the High Court. It is unfortunate that a cartoonist made a joke out of this, which Qwelane had no part in — but seems to have resulted in deflected anger and misinterpretation of his article. We put our views in a tone much more respectful than tabloid newspapers, but the ruling is broad enough to threaten those who do put their views in a respectful tone.
  • Ninth, in 2006 Parliament heard objections to legalisation of so called same-sex marriage for weeks and in every province. The Concourt seeks to silence all such people.
  • Tenth, according to Judge Albie Sachs and Kader Asmal, the decision to include “sexual orientation” in the Constitution was made in Asmal’s kitchen in Dublin while in exile (personally heard from both of them). It was thus not a democratic decision supported by the majority of South Africans, but a decision made by two political intellectuals outside our borders.
  • Eleventh, in 1994-96, numerous South Africans opposed the inclusion of “sexual orientation” in the Constitution and the ACDP political party voted against the Constitution on this basis. Does the Concourt seek now to ban the ACDP?

The ruling also imposes a costs order on Qwelane. Three reasons were given. One being his failure to produce a medical certificate for being unable to testify (which seems absurd since his death earlier this year proves his claim to be very ill). “The second to being ‘ (b) his lack of remorse and grievous undermining of the Constitution; and (c) the egregious nature and extent of his abuse of free speech.” So Judge Majiedt not only finds him guilty, overturning the Supreme Court of Appeal finding that he was innocent, but then wants to penalise him for failing to “express remorse” in which case he would have been pleading guilty. So, effectively the Concourt also condemns the Supreme Court of Appeal, who ruled Qwelane innocent.


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ChristianView Network has been the lead agent in the campaign for a Constitutional Amendment to redefine marriage as between a man and a woman only — which we have repeatedly affirmed in submissions to Parliament, the government and the South African Law Reform Commission. We will continue the campaign.

A partial victory for Qwelane is the ruling that the Equality Act definition of hate speech is unconstitutional and the requirement to amend it. ChristianView Network has campaigned for this reform for 20 years since the Equality Act was first proposed. Nevertheless, the ruling says that even under a reformed “hate speech” definition, Qwelane is still guilty.

The Constitutional Court has made a ruling which itself is obviously unconstitutional — outlawing Constitutional reform against their own judgment, which in fact was never intended by the Constitution. If the South African public accepts this, then we are no longer under the rule of law or the Constitution, but of a committee of lawyers who have set themselves up as the Supreme rulers of South Africa, deeming themselves above the Constitution. We would then no longer be under law, but under tyrants.

There is special free speech protection for discussion of court decisions. We must use it now to speak up to condemn this judgement or lose our freedoms. In future South Africans will need to pay close attention to the selection of judges to overturn this and other unjust and tyrannical rulings.

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