Psychological Society of South Africa v Qwelane and Others

In 2008, Mr Dubula Jonathan Qwelane published a newspaper article in the Sunday Sun expressing derogatory views about gay and lesbian people. The South African Human Rights Commission (SAHRC) lodged a hate speech complaint in the Equality Court under the Promotion of Equality and Prevention of Unfair Discrimination Act. The matter became protracted due to rescission proceedings and constitutional challenges brought by Mr Qwelane to sections 10(1) and 11 of the Equality Act. The Psychological Society of South Africa (PsySSA) and the Freedom of Expression Institute participated as amici curiae. In August 2016, shortly before a consolidated High Court hearing of the equality and constitutional proceedings, Mr Qwelane sought a postponement on medical grounds. The High Court granted a postponement sine die without allowing SAHRC or PsySSA an opportunity to file answering affidavits. PsySSA, as an amicus curiae, sought leave to appeal directly to the Constitutional Court against the postponement order.

The application for leave to appeal was dismissed.

The case is significant for clarifying that, in appropriate circumstances, an amicus curiae may be granted standing to seek leave to appeal in the public interest. It also reaffirms the centrality of the audi alteram partem principle in procedural fairness, particularly in postponement applications, and underscores the Constitutional Court’s restrained approach to intervening in interim orders of lower courts.