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Court rules that religion cannot be used as a defence for anti-gay hate speech

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An explanation of the Equality Court’s ruling against against Pastor Oscar Bougaardt

Photo of man protesting for LGBT rights
Gcimikhaya Mamtame protests in support of LGBT rights in front of Parliament in 2016. Archive photo: Kayla Molander
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The Equality Court has found a Cape Town-based pastor in contempt of court for making hateful comments against gays and lesbians. The court sentenced the pastor to imprisonment for a period of 30 days. The sentence however has been suspended for a period of five years.

Background

In October 2013, the South African Human Rights Commission (SAHRC) laid a complaint with the Equality Court against Pastor Oscar Bougaardt for alleged hate speech against gay and lesbian people. The SAHRC alleged that comments which the pastor had made via email and on social media platforms were derogatory and offensive.

The complaint was made in terms of the Equality Act which prohibits any person from making comments which are hurtful, harmful or promote hatred against any person/persons on the grounds of sexual orientation.

The complaint was eventually settled through a mediation process and a settlement agreement was drafted. In the agreement, Bougaardt acknowledged that the statements he had made about gays and lesbians were “likely to encourage hatred and cause emotional, psychological and physical harm to members of this community.” Also, he undertook to refrain from making such statements in future. He also agreed not to make comments which blame gays and lesbians for social problems or disease; advocate hatred against them; call for their removal from social institutions or advocate any harmful behaviour towards them. Lastly, he undertook to not make any statements that go beyond what the Bible says about gays and lesbians.

The settlement agreement was signed by the parties and made an order of court on 28 July 2014.

The SAHRC alleged that in spite of this court order, Bougaardt had continued to make hateful comments towards gays and lesbians. For this reason, the SAHRC approached the Equality Court to hold Bougaardt in contempt of court.

What the pastor said

The SAHRC alleged that several comments made by Bougaardt constituted hate speech.

A News24 article published on 30 December 2016, quoted Bouagaardt saying, “Ninety-nine percent of paedophiles stem from homosexuality.” Bougaardt denied that he said this. Instead, he claimed that he had merely said that 99% of paedophiles were either abused or had previously been in a homosexual relationship. The court pointed out that in substance there was no real difference between these two versions.

On 27 July 2015, Bougaardt commented on an article published on MambaOnline, a leading gay online news publication in South Africa. The article in question highlighted the fact that homosexuality is illegal in Nigeria and in some states, it may be punished by being stoned to death. Furthermore, the President of Nigeria said that homosexuality will not be tolerated in that country.

In the comments section of that article, Bougaardt said amongst other things that homosexuals are an “abomination to God’; that they should be locked up in cages and that “they behave worse than animals in bed”. He ended by saying, “Homosexuals make me sick and I wish South Africa will deal with them like Nigeria.” Bougaardt did not deny that he made these comments.

On 24 September 2015, MambaOnline published a story about nine men and a boy who were executed by ISIS radicals in Syria for homosexuality. Bougaardt commented, “We need ISIS to come to countries who are homosexual friendly. ISIS please come rid South Africa of homosexual curse.”

In this case, Bougaardt admitted making the comments, but he disputed the interpretation advanced by the SAHRC. He contended that he never intended to invite ISIS to come and kill gays and lesbians in South Africa.

He denied that any of his comments encouraged violence or hatred towards gays and lesbians. Instead, he argued that he was merely expressing his religious views which are protected by the Constitution.

Contempt of Court

To be held in contempt of court, there must be a court order which prohibited you from certain conduct. Also, you must have been notified of the order, and then you must have deliberately failed to comply with it, and do so in bad faith.

Judge Lee Bozalek of the Western Cape Equality Court found that Bougaardt was aware of the court order handed down in 2014. This was evident from the fact that he agreed to make the settlement agreement an order of court and a copy of the order had been delivered to him.

The court then considered whether Bougaardt had failed to comply with the court order. In the main, the order prohibited Bougaardt from publishing hate speech on the grounds of sexual orientation.

The court found that Bougaardt’s various comments undoubtedly incited hatred and harm towards gays and lesbians. The comments were discriminatory and dehumanised gays and lesbians, the court said.

All that remained for the court to consider was whether Bouagaardt breached the order deliberately and in bad faith. Here, the court considered his defense that he was merely expressing his religious views and exercising his right to freedom of speech.

The court rejected this defense. First, in the settlement agreement Bougaardt had acknowledged that his previous commentary harmed the dignity of gays and lesbians. Also, he agreed that although he would still be able to preach, he would not make comments about gays and lesbians that go beyond what the Bible says about them.

The court found that Bougaardt had failed to justify how his comments were protected by his religious views. In fact, the court found that none of the comments he had made fell within the “parameters” of his right to religious belief or freedom of speech.

Instead the court emphasised that his comments demonised gays and lesbians and made damaging assertions about them, even linking them to criminal activities and anti-social conduct, without a shred of proof.

The sanction

Next the court considered what would be an appropriate punishment for being in contempt of court. The SAHRC asked the court to imprison Bougaardt for a period of 30 days and issue a fine of R500,000.

Bougaardt tendered evidence in his defense that among other things he had decided to refrain from making any more provocative comments online; to apologise to gays and lesbians and to end his relationship with a controversial American pastor who was notorious for homophobic commentary and preaching.

In light of these undertakings, the court decided to suspend the 30-day imprisonment for a period of five years. This means if Bougaardt spews hate against gays and lesbians again within a five-year period he will be imprisoned.

Importance of the judgment

The judgment sends a clear message that potentially even religious beliefs cannot be a defense to liability for hate speech in terms of the Equality Act. The judgment comes at a time when the US Supreme Court has recently ruled in favour of a businessman who refused to make a cake for a same-sex couple’s wedding on the grounds of religious belief. Whether a person can rely on religious views as a defense to discrimination against the gays and lesbians is yet to be definitively decided by South African courts. The Bougaardt judgment suggests however, that such a defense may fail.

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TOPICS:  Freedom of Expression Human Rights LGBTI