How ‘problematic’ Malema dodged another hate speech bullet

EFF leader Julius Malema’s utterances were “problematic” in a democratic society committed to healing the divisions of the past and establishing a society based on democratic values and fundamental freedoms.

That’s according to South African Human Rights Commission (SAHRC) CEO Bongani Majola yesterday, who cleared Malema and EFF secretary-general Godrich Gardee of hate speech complaints brought against them.

“The impugned statements made by Mr Malema constituted robust political speech, which enjoys special protection as expression that lies at the heart of the right to freedom of expression,” the SAHRC found.

“It is found that although offensive and even disturbing, the statements – viewed in their full context – do not amount to hate speech.”

In 2011, Malema was found guilty of hate speech when he sang the song Kill The Boer.

“The meaning of the words is such a gross infringement of the target group’s rights that it cannot be that Malema did not know he was acting wrongfully towards them,” Justice Colin Lamont said at the time.

A statement signed off by EFF spokesperson Mbuyiseni Ndlozi noted the complaints wanted to “suppress legitimate criticism that should help society confront its ills”.

“We reiterate that it does not help the country when people try to shut down debates, by abusing the resources and time of courts and Chapter 9 institutions,” Ndlozi said.

“The EFF makes no apology for being robust and naming issues as they are. To end racism and white privilege we must always speak the truth and name issues for what they are.”

The Commission also found although the statements by Gardee and Malema did not pass the legal threshold for hate speech, “public figures should refrain from making statements that erode social cohesion”.

Sanja Bornman is the managing attorney of the Gender Equality Programme at Lawyers for Human Rights.

“The only definition of hate speech we currently have is set out in the Promotion of Equality and Prevention of Unfair Discrimination Act,” said Bornman.

“This might change, if parliament decides to enact the Prevention and Combating of Hate Crime and Hate Speech Bill, which will add a criminal law definition to the statute books.”

Bornman noted hate speech was typically interpreted narrowly because of the constitutional right to freedom of expression which was a cornerstone of a free and democratic society.

“Freedom of expression is, however, not an absolute right, and the facts of each case must be carefully assessed,” Bornman said.

“The SAHRC’s finding centres on the conclusion that, on an objective assessment of the facts, Mr Malema lacked the intention to be hurtful, and was instead ‘calling for the proper treatment of black people by Indians’.”

Bornman explained offensive speech was not something the law could remedy.

“People say offensive things all the time, in accordance with their right to freedom of expression. Over-interfere with that right leads to fascism. Hate speech is something that goes much further than ‘offensive’,” Bornman noted.

“It is something our law considers to be serious and unwanted in our constitutional democracy based on human dignity, equality, and freedom, so there are legal remedies for it.”

Except, one particular remedy was still dragging through parliament, and South Africa’s most notorious racists have never been prosecuted for hate speech, only ever under the Equality Act or directly for crimen injuria.

“This was only because we do not currently have a criminal law definition of “hate speech”,” Bornman said.

“At the moment, hate speech in our law exists only as a civil law concept, in the Promotion of Equality and Prevention of Unfair Discrimination Act. This will change if the Prevention and Combating of Hate Crime and Hate Speech Bill becomes an Act, and a criminal charge of hate speech will then exist in our law.”

Until then, Bornman said, people would have to continue using the courts – either criminal or civil – or a Chapter 9 organisation such as the SAHRC.

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