Qwelane v South African Human Rights Commission and Others, In Re: South African Human Rights Commission v Qwelane and Others; Qwelane v Minister of Justice and Correctional Services and Others (EQ44/2009) [2018] ZAGPJHC 67 (20 April 2018)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: EQ44/2009 (EQ13/2012)

CASE NO: 36314/2013

Not reportable

Not of interest to other judges

Revised.

20/4/2018

In the matter between:

QWELANE, DUBULA JONATHAN Applicant

And

SOUTH AFRICAN HUMAN RIGHTS COMMISSION First Respondent

MINISTER OF JUSTICE AND CORRECTIONAL

SERVICES Second Respondent

FREEDOM OF EXPRESSION INSTITUTE First amicus curiae

PSYCHOLOGY SOCIETY OF SOUTH AFRICA Second amicus curiae

In re: the consolidated matter between:

SOUTH AFRICAN HUMAN RIGHTS COMMISSION Applicant

and

QWELANE, DUBULA JONATHAN Respondent

AND

SERVICES First Respondent

SOUTH AFRICAN HUMAN RIGHTS COMMISSION Second Respondent

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

MOSHIDI, J:

INTRODUCTION

[1] This is an application for leave to appeal against the whole of my judgment and order delivered on 18 July 2017. The applicant in

the present application for leave to appeal is Mr Jonathan Dubula Qwelane, who was the applicant in the constitutional challenge and respondent in the Equality Proceedings before me. I shall henceforth and for convenience refer to Mr Qwelane as "the applicant, and the opposing parties as "the respondents".

[2] The grounds of appeal are as set out in the applicant's notice of publication for leave to appeal dated 7 September 2017. As shown

later below, the application is not opposed by the respondents.

[3] In regard to the complaint launched by the South African Human Rights Commission ("the Commission") against the applicant in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ("the Equality Court Proceedings") several issues are involved. These are not only issues of fact or common law, or mixed and fact, but involve complex and controversial legal principles, and concern the correct and proper interpretation of certain provisions of the Equality Court Proceedings. The provisions dealing with the social conflict emanating from alleged hate speech, the yardstick of hate speech, include sections 1, 10, 11 and 12 of the Equality Court Proceedings. These are therefore more than factual considerations which include constitutional considerations. In regard to the applicant's constitutional challenge, which I dismissed, the applicant essentially challenged the constitutional validity of the provisions of sections 1, 10 and 11 of the Equality Court Proceedings. The applicant alleged that these provisions constitute an unreasonable and unjustifiable limitation of his right to freedom of expression as enshrined in section 16(1) of the Constitution. In this regard, it was contended that the constitutional challenge was competent by virtue of the operation of sections 167 and 169 read with section 172(1)(a) of the Constitution. Once more, it is more than plain that

the determination of the issues involved here are not mundane factual considerations only, but the correct and proper construction and interpretation of the legislation involved in, the interest of justice. On proper reflection, I ay have been incorrect in my

construction and interpretation of the provisions of the Equality Court Proceedings, as well as the constitutional challenge, which led to my finding. The Equality Court Proceedings is relatively novel in our democratic dispensation, and it is in the interest of justice that some level of certainty is achieved by appellate courts. For the above reasons, I conclude that there are reasonable prospects of success on appeal. This is my view, in spite of the consensus in this application, and for the additional reasons mentioned below.

[4] In the application for notice of leave to appeal, the applicant seeks leave to appeal to the Supreme Court of Appeal, alternatively, to the full court of this division. In spite of the agreement reached by the parties in the present application for leave to appeal in regard to the appropriate appellate forum, it remains my duty to determine such appropriate forum (see Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC and Others 2003 (5) SA 354 (SCA) at paragraph [23]). On the basis of cases such as Gardener v Whitaker [1996] ZACC 11; 1996 (4) SA 337 (CC), and Member of Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and Others 1998 (4) SA 1157, and S v Shongwe [2003] ZACC 9; 2003 (5) SA 276 (CC), and Wallach v High Court of SA, Witwatersrand Local Division [2003] ZACC 6; 2003 (5) SA 273 (CC), I have come to the conclusion that leave to appeal ought to be granted to the Supreme Court of Appeal in this matter. This, on my finding based on the above nature of the matter, that there are reasonable prospects of success on appeal. This accords with the proposed draft order agreed to by the parties, which shall be made an order of court incorporated in order 1 below.

ORDER

[5] In the result the following order is made:

5.1 Leave to appeal is granted to the Supreme Court of Appeal.

5.2 The costs shall be in the cause.

______________________

D S S MOSHIDI

JUDGE OF THE HIGH COURT

Counsel for the applicant: Brook Stevens

Instructed by: Jurgens Bekker Attorneys

Counsel for the Commission: Z Ngwenya

Instructed by: Bowman Gilfillan Attorneys

Counsel for the Minister of

Justice and Constitutional

Development: N H Maenetje SC

Instructed by: The State Attorney, Johannesburg

Counsel for the first amicus curiae: S Yacoob

Instructed by: Ms M Xele Attorneys

(Freedom of Expression Institute)

Counsel for the second amicus curiae: K Hofmeyr

Instructed by: Webber Wentzel Attorneys

Dates of hearing: 29 March 2018 and 5 April 2018

Date of judgment: 20 April 2018