The South African Human Rights Commission V. Qwelane 44/2009 EX JHB

The matter proceeded in the Johannesburg High Court on the 29^th August 2016 as scheduled. The court hearing the matter was sitting as both the equality and constitutional court.  All parties interested in the matter were represented, however Mr Qwelane was not present and it is on this basis that his Advocate applied for postponement of the matter. The application for postponement was on the ground of Mr Qwelane’s ill health preventing him to appear in court. His Doctors statement explained that he has a condition of hypertension, severe chronic respiratory problem, to which he is on oxygen support for 24 hours in a day, he also has pneumonia and cannot walk for more than 200 meters.

Council for both sides including the amicus curiae in the matter were allowed to present their answers to the application to postpone the matter. The SAHRC and the Psychology Society of South Africa opposed the application. Their grounds for opposing the application were that, there is nothing in the Doctor’s note that shows a likelihood of Mr Qwelane’s condition improving in order for him to be in a position to appear in court, further that as his health is deteriorating it could be better to use other available options to urgently get necessary evidence from him without him physically coming to court, this was because if the case is postponed the court might never have an opportunity to get such evidence as Mr Qwelane has been ill since 2015 and since then been in and out of hospital. Lastly the Doctors statement does not have any information suggesting that he is not fit to give evidence or that his ill health has affected his cognitive capabilities.

The finding of the court was to postpone the matter up until the time to be determined by the court and there was no order on costs. The reasons Judge’s decision were that the application to postpone was well grounded and in the interest of “ubuntu” he does not feel that the application was a delaying technique, irrespective of the fact that the Applicants in the matter stressed that equality proceedings of this nature public interest has to be taken into consideration and the interests of the victims of Mr Qwelane’s homophobic statements.   The matter ended with the applicants showing an intention to apply for leave to appeal against the decision of Judge.

As POWA supporting the Applicant’s case, we feel discouraged, because the court is not leaving us with any options that will make sure that the matter proceeds for justice to be served in this matter. The matter has already delayed since 2009, and with Mr Qwelane’s ill health conditions there is no likely probability of improvement for him to appear in court, says Palesa Mpapa- POWA Legal Manager.