SAHRC rules on complaints of hate speech made against Julius Malema

On 27 March 2019, the South African Human Rights Commission (SAHRC) published its findings regarding certain statements made by Julius Malema and another member of the Economic Freedom Fighters (EFF). The complaints pending before the SAHRC had alleged that these statements constituted hate speech as prohibited in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA).

As a point of departure, the SAHRC noted that: “Context is crucial in assessing whether words constitute hate speech, although the subjective intent is irrelevant. Regard must be had to the factual, social and historical context in which the utterances were made. The identity of the offender and target group as belonging to a vulnerable group will have an impact on any determination of hate speech, in line with Constitutional Court jurisprudence.”

The SAHRC went on to find as follows in respect of the impugned statements:

• Statement 1, made by Mr Malema in November 2016 (para 7): “They found peaceful Africans here. They killed them. They slaughtered them like animals. We are not calling for the slaughtering of white people, at least for now. What we are calling for is the peaceful occupation of the land and we don’t owe anyone an apology for that.”

The SAHRC noted that even to the extent that the statement might have a severe impact on a proportion of white South Africans, it would still fail the objective test for hate speech. It noted further that Mr Malema explicitly did not call for the slaughtering of white people, and therefore it could not be said to be an incitement to imminent violence.

Accordingly, the SAHRC concluded that this statement did not constitute hate speech.

• Statement 2, made by Mr Malema in August 2017 (para 8): “Here in Durban, here in KZN, everything strategic is given to Indian families … every big tender is given to Indian families… they are the ones who own everything strategic here in KZN. We don’t have a problem: We are saying share with our people. We also want to call upon our fellow Indians here in Natal to respect Africans, they are ill-treating them. We don’t want that to continue here in Natal. They are treating them worse than Afrikaners will do. This is not an anti-Indian statement, it’s the truth. If we tell whites the truth; if we tell blacks the truth, we can as well tell Indians the truth. They must treat our people properly here in Kwa-Zulu Natal.”

The SAHRC noted that an objective and contextual assessment of the statements shows that while both population groups were disadvantaged under apartheid rule, the African group was and remains significantly more vulnerable than the Indian group. Furthermore, the SAHRC noted that the calling of Indians to share economic prosperity and the reference to fellow Indians, show that, objectively interpreted, these statements do not demonstrate an intention to be hurtful, harmful or to promote hatred. In particular, the SAHRC concluded that the statement did not lead to severe psychological impact, and therefore could not be construed as hurtful.

Accordingly, the SAHRC concluded that this statement did not constitute hate speech.

• Statement 3, made by Mr Malema in March 2018 (para 9): Singing of “Kiss the Boer” at the end of a speech made at an EFF rally.

An appeals committee of the SAHRC had previously ruled that the singing of ‘Kill the Boer’ constituted hate speech, and the Equality Court subsequently ruled that changing the word ‘kill’ to ‘kiss’ did not change its nature as hate speech. In this matter, the SAHRC concluded that “[o]n an objectively construed meaning of the song as figurative and political, it can accordingly not be held to evince an intention to have a severe psychological impact on white Afrikaners, to harm or incite harm against them, or to promote or propagate hatred against them”.

• Statement 4, made by Mr Malema in June 2018 (para 10): “We were not all oppressed the same. Indians had all sorts of resources Africans didn’t have, Coloureds as well… The majority of Indians hate Africans. The majority of Indians are racist. I’m not saying all, I’m saying majority.”

The SAHRC noted that “[g]iven the importance of freedom of expression – and particularly robust political speech – to facilitate debate and thereby potentially expose divisive statements as wrong, space must be left for controversial opinions to be aired in our relatively new democracy.” It was noted further that “vulnerable groups that were the most disadvantaged during apartheid, and who continue to suffer most under poverty and inequality, must be allowed a space to share their lived experience and anger, even if the public ultimately exposes their opinions as unacceptable”.

The SAHRC concluded that, in view of the applicable context, it was doubtful that the statements would cause severe psychological impact on the dignity interests of Indians. The SAHRC stated in this regard that “[h]olding that unpopular, divisive or controversial opinions constitute hate speech would ultimately stifle freedom of expression, and thereby cast further doubt on the constitutionality of section 10 of PEPUDA”.

• Statement 5, made by an EFF member of Parliament in May 2018 (para 11): Referring to the leader of the Democratic Alliance, Mmusi Maimane, as a “garden boy”.

The SAHRC noted that the statement can objectively be construed as demonstrating a clear intention to be offensive and demeaning. However, it noted further that “the fact that the statement was uttered by a black Member of Parliament to a fellow black Member of Parliament shows power symmetry between the offender and the target audience.” In this regard, the SAHRC stated that in light of the identity of the offender and the recipient of the statement, it was unlikely that the use of the term by a black man is objectively intended to be hurtful in the sense of visiting severe psychological impact on the target audience.

The SAHRC noted further that Mr Maimane’s remedy may lie in the common law of defamation, crimen iniuria or be brought to the attention of the Parliamentary Ethics Committee.

In conclusion, the SAHRC stated that:

The impugned statements … constituted robust political speech, which enjoys special protection as expression that lies at the heart of the right to freedom of expression. It is found that although offensive and even disturbing, the statements – viewed in their full context – do not amount to hate speech. These statements enjoy some constitutional value in dealing with matters such as land reform and inter racial relations. The [SAHRC] nevertheless notes that although not passing the legal threshold for hate speech, public figures should refrain from making statements that erode social cohesion.

The complete findings of the SAHRC are accessible here.

Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice. Power Singh Inc. was not involved in this matter. For any enquiries, please contact us at [email protected].