Freedom of Expression Institute assists BLF in appealing hate speech ruling

Marginal political party Black First Land First (BLF) has filed papers in its court bid to overturn a ruling that declared its slogan Land or Death hate speech.

It has been assisted in the case by lawyers from the Freedom of Expression Institute (FXI), a post-democratic NGO based in Johannesburg.

The Equality Court last month gave Andile Mngxitama’s party a month to remove its political slogan from its regalia, social media, and website, and also to tender a written apology to all South Africans within the same period. The apology was to be published on the SAHRC website.

That deadline for this would have passed this week.

The clerk of the Equality Court was also directed to send a copy of the judgment to the director of public prosecutions for possible institution of criminal proceedings against the party and its leaders.

At the time, the BLF accused those who had complained against the party and its slogan of attempting to keep them from contesting the elections on May 8.

In court papers filed to the high court in Johannesburg on Monday, the BLF has argued that the Equality Court magistrate erred on a number of matters in his ruling, in the main having “misdirected himself in that the literal interpretation he attached to the impugned struggle slogan ‘Land or Death'”.

They have argued that the phrase should not have been interpreted literally.

They said the magistrate’s interpretation was at odds with the objective historical meaning of the slogan as “a legitimate form of political expression that is worthy of constitutional expression”.

They called the ruling “a denial of democracy … at variance with our courts’ jurisprudence on freedom of expression”.

The “hurt feelings” of the complainant, Lucy Strydom, should also not have been “elevated” to override freedom of expression in the constitution.

The BLF further argued that the slogan was not an incitement to imminent violence, hatred based on race or hateful speech, and therefore did not meet the requirements for being hate speech.

“The learned magistrate ought to have found that even though the respondent found the political expression ‘Land or Death’ deplorable, however, public debate, diversity of views and plurality of voices in the scheme of our constitutional democracy on historical injustices dictated that it be afforded constitutional protection.

“The learned magistrate erred and misdirected himself, with respect, in failing to consider the impugned statement ‘Land or Death’ as a form of political expression that is common among political formations which are historically considered as liberation movements, is part of a political lexicon of political debate and that, in any event, this political slogan or expression predates the formation of the [BLF].

“The learned magistrate, with respect, erred in failing to apply the equality jurisprudence of the Constitutional Court when considering struggle songs and slogans as legitimate forms of political expressions.”

They also included, among other objections, that the magistrate should not have accepted the complaint that the slogan was intended to cause harm to white people and landowners.

The BLF and the FXI have asked for an order setting aside the whole judgment, with the papers submitted by the FXI’s Law Clinic.

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