South Africa has the most extensive legal protection of human rights of any country in Africa, and more than most other parts of the world. Those protections include gay rights. A recent episode provides an example of how the South African constitutional, judicial, and legal system works against discrimination and hate speech. It also demonstrates that there are boundaries to the use of religion as a defense against discriminatory language, even if the extent of such limits are still unknown.
Section nine of South Africa’s constitution guarantees equal rights to all South Africans and outlaws discrimination, including that based on ethnicity, gender, religion, as well as sexual preference. Pursuant to that provision, Parliament passed the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) in 2000. In turn, PEPUDA led to the creation of Equality Courts to adjudicate infringements of equality such as unfair discrimination and hate speech.
In 2013, the South Africa Human Rights Commission (SAHRC), an independent agency with jurisdiction derived from the constitution that monitors human rights complaints, laid a complaint before an Equality Court. It alleged that a pastor in Cape Town named Oscar Bougardt engaged in hate speech against the LGBT community. The case was ultimately resolved through arbitration. Under its terms, the pastor signed an agreement in which he acknowledged, among other things, that his words were “likely to encourage hatred and cause emotional, psychological and physical harm to members of this [gay and lesbian] community.” He promised to refrain from making such statements in the future.
Nevertheless, he continued to do so. For example, in 2015 following the report that the Islamic State (ISIS) in Syria had executed nine men and a boy for homosexuality, Bougardt commented online that, “we need ISIS to come to countries that are homosexual friendly. ISIS please come rid South Africa of the homosexual curse.”
In response, the SAHRC asked the Equality Court to hold Bougardt in contempt of court for violating the 2013 agreement. While Bougardt did not deny the statements attributed to him, he did deny having invited ISIS to come to South Africa or that he was encouraging violence against gays and lesbians. Instead, he claimed that he was expressing his constitutionally protected religious views.
In May 2018, the Equality Court found that Bougardt violated the agreement he had signed in 2013 and that he had failed to show how freedom of religion protected his comments. When the Court began to consider an appropriate punishment, Bougardt promised to refrain from online comments about gays and lesbians, to apologize to gays and lesbians, and to end his relationship with an American pastor, Steven Anderson, known for his homophobic preaching. The judge ultimately sentenced Bougardt to thirty days of imprisonment, along with five years of suspension.
Despite the case against Bougardt, the South African courts have not addressed the broader question of whether religious views can be a defense against charges of discrimination against LGBT persons. However, this Equality Court judgement sets a precedent, increasing the likelihood that such a claim will fail.