Malema could face criminal or civil charges over ‘killing is a revolutionary act’ speech

Economic Freedom Fighters (EFF) leader Julius Malema has been instructed to apologise for hate speech, but what legal action can be taken if he refuses do so?

The South African Human Rights Commission (SAHRC) this week, found Malema’s address and some of the posters and banners displayed at EFF’s Provincial People’s Assembly in the Western Cape, held last month, constituted “incitement of violence and hate speech”.

ALSO READ: Malema warned to retract, apologise for hateful comments, but EFF say no

On 16 October, Malema, in reference to an incident at the Brackenfell High School last year and footage of a white person “beating up” an EFF member, questioned why the person was not taken to “an isolated space and attend to the guy properly”.

He went on to tell EFF members that they must “not be afraid to kill” and that “killing is a revolutionary act”. 

Following a complaint laid by AfriForum, the SAHRC investigated the matter and gave Malema and the EFF until 18 November to retract and apologise for his statements.

Criminal charge

Malema and the EFF, however, have since indicated that they won’t retract the statements – so what further action can the SAHRC take?

According to law expert Llewelyn Curlewis, the commission can choose to go both the civil and criminal route to ensure compliance to its orders.

“In essence they can file a criminal charge and insist on prosecution by the NPA [National Prosecuting Authority] for example or it may initiate a civil contempt application by means of notice of motion to name, but two possible outcomes,” Curlewis told The Citizen on Thursday.

READ MORE: AfriForum granted leave to appeal application in ‘Kill the Boer’ case

Curlewis also pointed out that Malema can be criminally charged for incitement to commit violence.

Asked whether the EFF can claim that their leader’s statements were taken out of context given South Africa’s history of public violence like the 2021 July riots, sparked by the arrest of former president Jacob Zuma, Curlewis insisted that “each case must be determined on its own facts”.

“But as pointed out… the history in South Africa and that of the EFF is self-explanatory. It will be difficult to prove his statements were not what it purports to be, which was found to be exactly that what the SAHRC determined,” he continued.

‘No neutrality’

Although the SAHRC says it wrote a letter to the EFF before the investigations were complete, Malema criticised the commission for not hearing “their side of the story”.

“How do you, as a neutral body, just make a decision without talking to the other side? They never said to me – ‘We received this complaint about you, what is your explanation?’ All I hear is that ‘retract this statement in the next 10 days or else we’re going to court’. So you can see there’s no neutrality,” Malema said during an interview with Newzroom Afrika on Thursday.

In its findings, the SAHRC also found that Malema’s speech and the banners may have constituted a possible transgression of other provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act. 

ALSO READ: AfriForum argues ‘Shoot the Boer’ song is hate speech

But Malema has argued that the banners and posters, which read “Honeymoon is over for white people in South Africa”, were old.

“They say there was a display of posters at the EFF people’s assembly in the Western Cape. Those posters, you will know, are from the 2013 launch of the EFF in Marikana, so someone went to remanufacture those posters and sent them to the SAHRC.

“Now the commission says they were displayed in the Western Cape. If they had asked for an explanation from the EFF before coming into this determination, we would have given them information that this is wrong and it’s from 2013 and the EFF is on record distancing itself from this,” the Red Berets leader said before adding that “rather they take me to court”.

The SAHRC has since confirmed that it will go to the Equality Court for appropriate interim interdictory relief.

Additional reporting by Vhahangwele Nemakonde