Case Summary and Outcome

An Equality Court in South Africa, held that statements made by a politician calling on his party members to “kill” as part of the revolution against white supremacy constituted hate speech. The politician delivered these remarks at a party conference, and referred to an incident two years prior in which members of the party had been assaulted by a community group, including white men, but had not “retaliated” in the way the politician said the “revolution” expected. The South African Human Rights Commission and members of the original community group brought legal proceedings against the politician and his party to interdict them from making similar comments in future. The Court found that the repeated reference of the perpetrators of the assault as white males had singled them out as the targets of retribution on the prohibited grounds of race and gender and that the speech was non-metaphorical in nature, but rather a direct and instructive endorsement for violence as a form of retribution. As a result, the Court held that the offending portions of the speech constituted an incitement to violence and therefore hate speech.

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Facts

In September 2020, as a result of the Covid 19 pandemic, Brackenfell High School in Cape Town informed its students that their annual school-leavers’ farewell function would not be permitted at the school premises. As a result, the parents of one of the school children organised a function at a wine farm on October 17, 2020 and invitations were sent to all graduates and teachers.

On November 1, 2020 a parent of one of the children in the school posted on social media that the invites had only been extended to white scholars. In response, the South African political party, the Economic Freedom Fighters (EFF) held a protest at the school on November 6 considering this “an instance of racist behaviour”. [para. 6] On November 9, a larger collection of female and male EFF members arrived at the school for a second protest where they were confronted by a group of parents, security guards and local residents led by a resident, Dante van Wyk, where the security as well as some of the residents were armed with “sticks and baton-like” weapons. [para. 7] One of the leaders of the EFF group, Luvuko Ntakana, was confronted by the residents group and Ntakana (while this was not heard in the video evidence) alleged that EFF members were called derogatory terms including the K word, a derogatory racial word in South Africa, and were told to “go back to the townships [areas established during apartheid for non-White South Africans]”. [para. 8]

The video evidence shows that a physical confrontation between the residents group and the EFF members took place.

Numerous attacks against EFF members followed including an EFF member being held on his knees by van Wyk and two other male resident and a male resident “pushing a retreating female EFF member and hitting her on her back and buttocks with a baton or baseball bat, and then viciously striking at someone who is lying on the ground.” [para.12] The South African Police Service arrived to control the confrontation, during which the resident group proceeded to throw insults at the EFF, with van Wyk shouting to a black woman to “come here”. Eventually, through what appeared to be tear gas smoke, the residents’ group began to disperse.

Van Wyk stood trial at the Kuilsriver Magistrate Court for the assault of Ntakana and was found not guilty on November 10, 2020.

Two years later, on November 16, 2022, Julius Malema, founder and president of the EFF, gave a public address at the EFF Western Cape Provincial Peoples Assembly. Malema criticized the way the EFF members, including Ntakana, responded to the confrontation in 2020, claiming that there should have been a follow up with the residents who were attacking the EFF members. He asked rhetorically, “[w]hat type of revolutionaries get beaten and they don’t have a follow-up?” and said “[t]ell that white man to try me. I’ll come many times here in Western Cape, appearing (in) a court case, because no white man is going to beat me up and (I) call myself a revolutionary the following day.” [para. 18] In addressing the necessity of murder in a revolution, Malema declared that “[y]ou must never be scared to kill. A revolution demands that at some point there must be killing because the killing is part of a revolutionary act.”. [para. 18] He further addressed this point in reference to former South African anti-apartheid activist and later President Nelson Mandela, where he said “Why did he take up a gun, was he taking a gun to distribute roses? He took up a gun because the revolution had reached the point where there is no longer an alternative but to kill. Why are you scared? That anything that stands in the way of the revolution, it must be eliminated.” [para. 18] Malema discussed the role of the EFF and its members in combatting racism and said that “[t]he EFF must be known that it is not a playground for racists, that any racist that plays next to the EFF and threatens and beats up the membership and the leadership of the EFF, that is an application to meet your maker with immediate effect.” [para. 18] He emphasised the EFF ideology of the necessity of violence to combat racism, commenting that “[r]acism is violence and violence can only be ended by violence, not any other necessary means” and that “when it comes to racists we have no understanding for violence, you come with violence, we shall respond with violence.” [para. 18] Malema concluded by instructing the listeners that “when a white supremacist raises his or her ugly head you ought to stand up immediately and say this is what we do not tolerate as black consciousness people. We don’t accept dominance of the white race over a black race.” [para. 18]

Following Malema’s speech, the South African Human Rights Commission (SAHRC) received numerous public complaints and were contacted by van Wyk’s attorney who indicated van Wyk was the person Malema had referred to in his speech.  Due to threats from EFF members and the greater public, van Wyk and his life partner had been forced to go into hiding.

The SAHRC believed that the speech contained statements that constituted hate speech and, on November 9, 2022, sent the EFF a letter instructing them to issue a written public retraction and apology and “an undertaking that they would desist from making any future statements which exhorted or encouraged EFF members or supporters to kill or physically inflict violence, or harm, on any person or group, and which promoted or propagated an incitement to hatred, unfair discrimination or harassment.” [para. 20]

The EFF issued a media statement in response, stating that the SAHRC had failed to understand the political speech in the context of its “metaphorical, literary and historical sense” nor in the context of relevant academic literature, “falling into a ‘trap’ at the ‘altar of the egos and fragility of whiteness’,” and so had “incorrectly and ignorantly labeled the statements as hate speech and incitements to violence. [para. 21] The EFF argued that the statements were based on Frantz Fanon’s argument on the necessity of violence as a means to end the “violent systems of white supremacy and colonialism”. [para. 21]

On November 11, 2022, the EFF’s attorney wrote to the SAHRC, referring to two cases where similar EFF statements had been found to be “acceptable political rhetoric” and criticized the SAHRC for not giving them an opportunity to respond to the complaints. [para. 22] The EFF requested that the SAHRC withdraw its instruction for an apology and retraction and reserved its rights to review the SAHRC’s decision in court.

On November 15, the SAHRC attorneys responded by letter that it had acted at all times within its statutory mandate and a week later brought an urgent application to interdict the EFF from making further statements, which it believed to be hate speech.

On December 3, van Wyk instituted his own legal action against the EFF.

On February 27, 2023 the two applications were consolidated and after a failed mediation attempt, the matter went to trial in the Cape Town High Court, sitting as an Equality Court.

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Decision Overview

Judge M Sher delivered the decision of the Court. The central issue for the Court’s determination was whether a reasonable reader could construe the words in a way that demonstrated a clear intention of the author to incite “likely harm” and the “propagation of hatred”.

Van Wyk called on Prof Karien Van Der Berg, a linguist and senior lecturer, as an expert witness. Dr Van den Berg used a combination of linguistic techniques to interpret the offending portion by the “consideration of the words uttered in their context, the linguistic and ‘social’ intention of the utterance, and the impact or likely effect of it on the target/members of society.” [para. 46] She expressed that the political activist nature of the speech inherently aimed to “inspire action” which included violence as a means to combat racism. [para. 51] She emphasised that the speech lacked a metaphorical basis and was structured in a precise and active manner such as with the instructions for EFF members to “never be afraid to kill because killing is part of a revolutionary act”.  [para. 53] Dr van den Berg concluded that a reasonable listener would interpret the offending statements as “deliberate incitement to violence towards white males, who were racists.” [para. 56]

The EFF argued that the SAHRC and van Wyk had “cherry-picked” statements in its speech and had ignorantly understood the speech as literal, ignoring the South African context and history resulting in an interpretation of an “unreasonable and uniformed” person. [para. 26] It maintained that the speech was “nuanced and political” at a political event which fell within Malema’s right to freedom of expression and could not be construed as “incitement to violence or hatred towards white people.”. [para. 26] It submitted that Malema’s aim was to address the pressing issue of the prominence of racial inequality in the Western Cape province and to stimulate debate on important matters relevant to the EFF and its members concerning “land repossession, poverty, racial discrimination and increasing EFF membership.” [para. 26] The EFF argued that the speech should be interpreted in the context of the Marxist-Lenin and Fanonian schools of thoughts to which the EFF subscribe, which espouse “anti-racism, black consciousness and black liberation, and decolonisation; and denounced racism and white supremacy”. [para. 26] The EFF reiterated that it believed the SAHRC had failed to provide it with an opportunity to respond to the complaints and that it had acted outside of its constitutional mandate. The EFF called on Prof. Steven Friedman, a political scientist, as an expert witness, who argued that the offending passage could not be construed as hate speech as it was directed towards the racist behaviour of a group of people, as opposed to their identity and was not based “purely on race”. [para. 104]

The Court referenced section 10 of the Equality Act, which defined hate speech as the propagation of words based on one or more of the prohibited grounds against a person “that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred”. The Court clarified that section 10 must be interpreted in conjunction with the Bill of Rights and to ensure an optimal balance between the intersection of the fundamental South African constitutional rights of equality, dignity and freedom of expression. In demonstrating the order of importance of the rights, the Court clarified that while freedom of expression is of utmost importance in democratic society, the right to dignity and equality “lie at the heart” of the South African Constitution and compose core “foundational values”. [para. 35] In recognizing the importance of political speech in a democracy, the Court acknowledged that the right is not absolute and stated that “the fact that a speech or expression is political in nature does not immunize it.” [para. 38] It noted that “hate speech is the antithesis of the constitutional values that have been outlined: whereas freedom of speech and expression serve to advance democracy, hate speech is destructive of it”. [para. 38]

The Court noted that South African courts have followed the Canadian hate speech jurisprudence, as set out in Canada (Human Rights Commission) v. Taylor, R v. Andrews, R v. Keegstra and Saskatchewan (Human Rights Commission) v. Whatcott. It explained that in South African law, for an act to constitute hate speech, it must be “based on one or more of the prohibited grounds of discrimination” set out in the Equality Act and must contain an expression which “could reasonably be construed to demonstrate a clear intention to be harmful’ or to incite harm, and to promote or propagate hatred.” [para. 40] The Court referred to the Constitutional Court case, Qwelane v. SAHRC, which stipulates that the test for hate speech is “a reasonable reader test”. [para. 40] This objective test requires the speech to be interpreted alongside the facts, context and circumstances of the case to understand the effect of the speech beyond the author’s intention and target’s interpretation. In determining the characteristics of a “rational reader”, the Court explained that such a person would understand the speech in context, considering the implications of speech beyond what is literally uttered and the context can include but is not limited to “the identity and status of the speaker and the audience and the circumstances in which the speech or expression was uttered”. [para. 40] The Court further clarified that harm extended beyond the physical dimension but also included emotional and psychological harm and that a direct causal link did not have to be shown between the expression and the harm experienced.

The Court noted that while determining the meaning of words is ultimately decided by the Court, it would consider illuminatory evidence, including expert evidence in their determination. The Court examined expert evidence, the ideological, political and contextual context, the textual context and the offending portion and its meaning, in their evaluation.

The Court found Dr Van Der Berg’s evidence to be “illuminating and of some assistance” but dismissed Prof Friedman as an “unsatisfactory witness”. [para. 57]

The Court explained that “[t]he meaning to be afforded to the offending portion of [Malema’s] speech must be derived at by considering the text in its political, ideological and textual context.” [para. 76] The Court accepted the EFF’s description in its constitution as a radical left party guided by anti-capitalism and anti-imperial ideologies in its understanding of South African class, race and state realities. As described in their constitution, the EFF is  a “cogent alternative to the post-colonial economic system, which perpetuates colonial domination and suppression.”. [para. 77] The Court acknowledged the EFF’s understanding of both Marxist-Lenin ideology, concerning the working class instituting a one party state controlling the means of production, and of Fanonian ideology highlighting the necessity of violence to overthrow the violent colonial state.  The Court found the “basic program” of the EFF, to be “‘the complete overthrow of the neo-liberal, anti-black state as well as the bourgeoisie and all other exploiting classes, the establishment of the dictatorship of the people in place of the dictatorship of the bourgeoisie, and the triumph of socialism over capitalism” and an objective to be the capture of political power through “whatever revolutionary means necessary.”  [para. 80] The EFF’s constitution allows for Malema, as party leader, to make announcements on its behalf.

In examining the textual context of the speech, the Court noted that Malema was addressing the role of the EFF in looking for solutions to the prevalence of poverty and income inequality resulting in economically divided areas in the Western Cape, a remnant of colonial apartheid spatial planning and segregation.

The Court examined the “offending portion” of the speech in its “political, ideological and textual context”, describing it as “noticeably incongruous with the rest of the speech”. [para. 91] It added that this part of the speech dealt with “avenging a past wrong” which, based on the party’s Fanonism “required that it be met with the inflicting of violence in return”. [para. 93] The Court examined whether the statements concerned the prohibited grounds in the Equality Act by defining who the targets of the speech were, and whether there was clear incitement to violence or hatred by analysing the textual mechanisms of the speech.

The Court stressed that Malema had indicated that it was the “white men” who had participated in the earlier assault on EFF members who should be beaten up in retaliation, and that the listeners to the speech should not be afraid of killing as part of the revolution; it said that “they were clearly being told that violent retribution should be exacted for what had been done to them” [para. 98] The Court described this as “no figure of speech but a clear instruction”. [para. 98]

Accordingly, the Court concluded that the individuals chosen to be targeted with violence were “males who were selected on the basis of their race.” [para. 103] The Court addressed the perceived urgency of the retribution in the speech, where Malema reassured the listeners by referencing Nelson Mandela to having used a gun “because the revolution had reached the point where there was no longer an alternative but to kill”. [para. 96] The Court found that this reference, taken in conjunction with being told to not be afraid of killing and that any threat to the revolution should be eliminated, showed the listeners that “now was the time for killing”. [para. 96] The Court concluded that the contextual message in the text was to respond to future acts of racist violence with the “ultimate response: killing of those responsible.”. [para. 97]

The Court dismissed Prof Friedman´s argument that the offending passage could not be construed as hate speech as it was directed towards the racist behaviour of a group of people and against what they had done, as opposed to their identity as “facile”. [para. 100] In comparing the situation to that in the Canadian case of Whatcott, the Court described how instances where victims of hate speech have been accused of repulsive and repugnant behavior have often been used as a means of overshadowing what they are actually being targeted for. As the Court previously demonstrated, the repeated reference to the race and gender of the people who were to be targeted for retribution clearly singled out the targets to be white males, both prohibited grounds under the Equality Act.

The Court demonstrated how Prof Friedman’s argument that the text could not constitute hate speech as it referred to a single white person and not white people as a whole, was not grounded in South African legal procedures in hate speech determination. In reference to Section 10(1) of the Equality Act, the Court showed that the prohibition on communication based on prohibited grounds can be against any “person” without the requirement for it to be towards a group. In referencing Qwelane, the Court showed that “hate speech subverts the dignity and self-worth of human beings because it marginalises and delegitimizes individuals” which can result in hostility from society at large and that hate speech is often directed at individuals “because of their membership of a group.” [106]

The Court argued that even if the argument posed by Prof Friedman were to be correct, Malema had not only targeted a single man, but rather the group of white men who had assaulted the EFF members by referencing two different white males. As such the court contended that it was “implausible and improbable, if not ludicrous, that revenge was only to be exacted on a single white man who had assaulted members of the EFF in a racist attack, and not the others.” [para. 109] The Court further held that even if Malema’s reference to “white man” was singular, this person would have been selected and targeted on the prohibited ground of race.

In acknowledging the legacy of Apartheid in South Africa, the Court accepted that calling someone a racist will undoubtedly result in malicious intent and ill will and that “[w]hilst calling out someone who behaves as a racist may be acceptable, calling for them to be killed is not [and] calling for someone to be killed because they are a racist who has acted violently, is an act of vigilantism and an incitement of the most extreme form of harm possible”. [para. 113] The Court highlighted that considering the context of the speaker as a leader of one of the largest political parties in the country, there is a higher danger of “racial violence on a large scale”. [para. 113] It stressed that there are legal remedies available to respond to racism, including through the Equality Act and criminal law.

Accordingly, the Court held that the offending statements in Malema’s speech “constituted an exhortation to kill white males who had participated in the incident of 9 November 2020 at the Brackenfell High School and to kill, or respond violently, to any other persons who engaged in racist behaviour towards members of the [EFF] in the future” and as the comments were based on prohibited grounds and clearly had intention to incite “harm and to promote or propagate hatred”, the statements constitute hate speech. [para. 115] The Court held the EFF equally liable as the comments were made by its president at an assembly organised by it and where the EFF also endorsed the statements in a media advisory issued for the proceedings.

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