South African court rules religion isn't a defence for anti-gay hate speech

South Africa’s Equality Court has found a Cape Town-based pastor in contempt of court for making hateful comments against gay men and lesbians.

The court sentenced the Pastor Oscar Bougaardt to imprisonment for a period of 30 days. The sentence has been suspended for a period of five years, so if he says something hateful against the LGBT+ community during that time, he’ll go straight to jail.

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 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 that are hurtful, harmful or promote hatred against people on the grounds of sexual orientation. The SAHRC alleged 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 per cent of paedophiles were either abused or had previously been in a homosexual relationship. The court pointed out that there was no real difference between these two versions.

On 27 July 2015, Bougaardt commented on an article published by 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 homosexuality will not be tolerated in that country.

In the comments section of that article, Bougaardt said, among other things, that homosexuals are an “abomination to God” and should be locked up in cages. He continued:

They behave worse than animals in bed. Homosexuals make me sick and I wish South Africa will deal with them like Nigeria.

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.

The judgment sends a clear message that potentially even religious beliefs cannot be a defence to liability for hate speech in South Africa. 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 defence for discrimination against LGBT+ people is yet to be definitively decided by South African courts. The Bougaardt judgment suggests, however, that such a defence may fail.

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