SAHRC suffers defeat in court over hate speech finding against Malema

For the second time in less than a month, lobby group AfriForum has emerged victorious in legal battle involving Economic Freedom Fighters (EFF) leader Julius Malema.

The Johannesburg High Court this week delivered its judgment on AfriForum’s review application, which challenged the findings of the South African Human Rights Commission (SAHRC) on Malema.

The SAHRC cleared Malema in 2019 after concluding that the EFF leader’s comments “calling for the slaughtering of white people, at least for now” did not amount to hate speech.

Malema made his utterances during a speech in 2016 in Newcastle, KwaZulu-Natal (KZN).

‘Binding powers’

On Friday, Deputy Judge President Roland Sutherland ruled that the SAHRC was not empowered to make definitive decisions or findings on whether certain comments constituted hate speech or not.

Such conclusions can only be made by the Equality Court.

“It follows that it is not within the power or authority of the SAHRC to pronounce that an alleged violation is indeed a violation and moreover, it is not within the power of authority of the SAHRC to exonerate a person from an allegation of having violated human rights,” the court judgment reads.

Sutherland set aside the SAHRC’s decision to exonerate Malema and declaring the finding unlawful.

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The commission was ordered to pay the costs of AfriForum’s application.

The organisation has since welcomed the judgment.

“This is a double victory for AfriForum over the SAHRC, as our position is that Julius Malema committed clear hate speech in 2016, and that the SAHRC does not have binding powers. Both have now been confirmed by the court,” Ernst van Zyl, Campaign Officer for Strategy and Content at AfriForum, said in a statement.

“There is a further success in this great victory, and that is that it also sets the precedent that findings made by the SAHRC may be challenged in court.”

Land grabs ruling

Last month, the Supreme Court of Appeal (SCA) dismissed the EFF’s application seeking to appeal a judgment prohibiting the party from inciting illegal land invasions.

The EFF approached the SCA earlier this year after AfriForum was granted an interdict, dating back to 2017.

But the appeal court, in its judgment, ruled that there was no other compelling reason why an appeal should be heard and dismissed the EFF’s application with costs.

READ MORE: EFF blasts courts ‘captured by white establishment’ following land grabs ruling

The ruling meant Malema and his party have exhausted all legal avenues to continue to fight the battle.

The Red Berets attempted to appeal AfriForum’s interdict in January this year at the Pretoria High Court, but failed.

Despite this, the party a few weeks later then directly turned to Constitutional Court (ConCourt), where the appeal application was also rejected.