Why Malema's "slaughter" remarks were not hate speech (II) - Wim Trengove
Adv Wim Trengove SC |
09 May 2023
In external opinion for SAHRC advocate says EFF leader's remarks were intended to provoke dislike rather than hate of white people
On the 7th November 2016 EFF leader Julius Malema delivered a speech in Newcastle where he repeated his earlier calls for “White People” to be racially dispossessed of their land and property and ownership transferred into the “hands of the people” from whom it had been “stolen”.
“Victory will only be victory if the land is restored in the hands of rightful owners. And rightful owners unashamedly is black people. No white person is a rightful owner of the land here in South Africa and in the whole of the African continent. This is our continent, it belongs to us.”
He proceeded to accuse white people of being collectively guilty of genocide against black people. As he put it:
“We, the rightful owners, our peace was disturbed by white man’s arrival here. They committed a black genocide. They killed our people during land dispossession. Today, we are told don’t disturb them, even when they disturbed our peace. They found peaceful Africans here. They killed them! They slaughtered them, like animals! We are not calling for the slaughtering of white people, at least for now.”
Various complaints were laid with the South African Human Rights Commission over these remarks. The underlying issue that the SAHRC’s human rights lawyers had to adjudicate was whether calls for the total racial dispossession of members of a relatively prosperous racial minority, along with the suggestion that they could and should be physically annihilated at some indeterminate point in the future – on the basis of all the misfortunes this minority had allegedly visited upon the majority in the past - should be considered proscribed speech.
In the end, on the basis of an internal and external legal opinion from top human rights lawyers, the SAHRC decided that Malema’s rhetoric should not be regarded as hate speech. This decision has been taken on legal review by AfriForum and the FW de Klerk Foundation and argument on the matter was heard in the Gauteng High Court this week.
Below is the external opinion the SAHRC relied upon in making its original finding.
Text of document
THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION
STATEMENTS MADE BY MR JULIUS MALEMA
Wim Trengove SC - Kerry Williams
5 November 2018
1 The Human Rights Commission received complaints about four statements Mr Julius Malema made in his public speeches in recent times. It seeks an opinion on the question whether the statements contravened sections 10,11 or 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
2 Mr Malema's statements were clearly racially divisive. We have little doubt that they offended many people and promoted racial division in South African society. We are not asked, however, whether we approve of what is said. We are asked merely whether his statements were unlawful.
3 The Constitution protects the right to freedom of expression. People are accordingly given some leeway to express controversial views, untruths and even offensive speech. However, the Constitution also protects the right to dignity and equality. The people at whom words are directed, and who may be damaged by such words, are entitled to claim the protections that the rights to dignity and equality offer.
4 Our courts have on occasion protected freedom of expression in the face of words which are broadly speaking damaging. In Islamic Unity Convention v Independent
Broadcasting Authorityl the Constitutional Court struck down a provision of a broadcasting code which prohibited words which "prejudice ... relations between sections of the population"2 and explained as follows:
"South Africa is not alone in its recognition of the right to freedom of expression and its importance to a democratic society. The right has been described as "one of the essential foundations of a democratic society; oneof the basic conditions for its progress and for the development of every one of its members. As such it is protected in almost every international human rights instrument. In Handyside v The United Kingdom the European Court of Human Rights pointed out that this approach to the right to freedom of expression is —
`applicable not only to 'information' or `ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb . . . . Such are the demands of that pluralism, tolerance and broadmindedness without which there is no `democratic society""" (our emphasis, para 28)
5 However, even in a case where the right to freedom of expression prevailed, the
Constitutional Court was acutely aware that freedom of expression may be limited particularly where democratic pluralism is undermined or where there are breaches of the right to dignity. In this regard, the Court in Islamic Unity Convention went on to explain:
"The pluralism and broadmindedness that is central to an open and democratic society can, however, be undermined by speech which seriously threatens democratic pluralism itself. Section 1 of the Constitution declares that South Africa is founded on the values of "human dignity, the achievement of equality and the advancement of human rights and freedoms." Thus, open and democratic societies permit reasonable proscription of activity and expression that pose a real and substantial threat to such values and to the constitutional order itself. ...
There is thus recognition of the potential that expression has to impair the exercise and enjoyment of other important rights, such as the right to dignity, as well as other State interests, such as the pursuit of national unity and reconciliation. The right is accordingly not absolute; it is, like other rights, subject to limitation under section 36(1) of the Constitution. Determining its parameters in any given case is therefore important, particularly where its exercise might intersect with other interests. Thus in Mamabolo, the following was said in the context of the hierarchical relationship between the rights to dignity and freedom of expression:
'With us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression. How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law.'"(our emphasis, paras 29-30)
6 Where speech is prohibited it will always be necessary to consider both the rights to
freedom of expression on the one hand and dignity (and equality) on the other and more specifically how they are appropriately balanced through the limitation of one right at the expense of the other.
SECTION 10 OF THE EQUALITY ACT
7 The focus of this opinion is on section 10 of the Act and the manner in which it proscribes
particular types of speech. We address whether the speech is harassment (in terms of section 11) or amounts to the publication of unfairly discriminatory speech (in terms of section 12) at the end of the opinion.
8 Section 10 READS as follows:
"(1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to:
(a) be hurtful;
(b) be harmful or to incite harm;
(c) promote or propagate hatred.
(2) Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to theDirector of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation."
9 Section 10 is not eloquently worded and its interpretation has been the subject of much judicial and academic debate and disagreement. In our view, the following is clear:
9.1 Section 10 prohibits speech falling into the categories in subsections (1)(a) to
(c), but does not criminalise it. It provides a unique civil remedy to those affected by such speech.
9.2 The enquiry, whether particular speech meets the definition requirements of subsection (1) and can be "reasonably construed to demonstrate a clear intention" to cause the particular harms listed in subsection (1) is objective.3 The actual subjective intention of the speaker is irrelevant.4
9.3 The phrase to "be hurtful' means that the person or group of persons at whom the words are directed experience significant psychological hurt. As was found in Qwelane the phrase to be hurtful means a "deep traumatising impact" or a "severe psychological impact"5. In that case extensive evidence was led as to the psychological impacts that homophobic speech had on LGBTI people.
9.4 The phrase to "be harmful" means to unjustifiably infringe the right to dignity or equality of the person or group of persons affected by the speech.6 The word "be" suggests a state of being which is created. The word "harmful" is unlikely to mean physical harm but must still have some quantifiable or measurable meaning. Examples of this type of speech include where black people are referred to as "baboons" or "monkeys" and also includes the use of derogatory language vis-a-vis a particular group of persons such as "kaffir" or "coolies" or "chinks".
9.5 The phrases to "incite harm" and to "promote or propagate hatred" are noticeably different from the phrases used in subsections (1)(a) and (b) as they are not preceded by the verb "be" but are rather preceded by the verb "incite"! "promote" / "propagate". The latter types of verbs suggest the enquiry is no longer on the calculated effects of the words on persons or groups of persons but is rather on what the words are calculated to mean or do. Therefore:
9.5.1 Words which "incite harm" are words which are calculated to cause a serious infringement of dignity or equality (when considered objectively). Examples of this include referring to black people as "baboons" and "monkeys" and referring to black people, Indian people and Chinese people as "kaffirs", "coolies" and "chinks" respectively.
9.5.2 Words which "promote or propagate hatred" are words which are calculated to cause others to hate a particular person or group of persons (when considered objectively). This does not require an enquiry into whether the words did in fact cause hatred but the focus of the enquiry is on whether the speaker objectively speaking intended the words to cause hatred. An example of this would be the reference to foreign nationals as "cockroaches" where the context is such that it is clear the reference is intended to be that cockroaches are vermin which are to be exterminated.7
9.6 Although there is some judicial difference on whether the subsections (1)(a) to (c) should be read conjunctively or disjunctively,8 the better view is that they should be read disjunctively. First, there is no "and" between subsections (1)(a) to (c). Second, reading it disjunctively gives effect to the purposes of the Act which include the achievement of equality and the transition to a democratic society which is guided by the principles of equality and human dignity. A disjunctive reading of subsections (1)(a) to (c) gives effect to these purposes, for example, by prohibiting speech which is "hurtful" or "harmful" and thereby gives an opportunity to claimants to restore their sense of dignity where they have suffered significant psychological hurt or a serious infringement of dignity.9
10 We now turn to consider whether Mr Malema's statements constituted hate speech prohibited under section 10.
11 On 1 November 2016, in Newcastle, KwaZulu Natal, Mr Malema said the following:
"They [referring to white people] found peaceful Africans here. They killed them. They slaughtered them like animals. We are not calling for theslaughtering of white people, at least not for now. What we are calling for is the peaceful occupation of the land and we don't owe anyone an apology for that." (https://www.youtube.com/watch?v=rj8i3z-1yAs; first 6 mins).
12 In the lead up to statement 1, Mr Malema makes an argument for occupying land on the basis that land belongs to black people. He argues he is willing to go to prison for occupying land — but not for corruption. He states that the black African masses own the land and that land is everything and without land you are nothing.
He argues that land is part of black identity. He then goes on to state that despite this black people painfully have nothing to prove that they are from a particular place - because they cannot show a title deed. He states that this land belongs to "mlungus" and then questions why it is so that no one must disturb the peace of white people? He asks rhetorically, how are you to disturb the peace of white people - is it because "white people are from heaven"?
He then says white people are untouchable, if you touch a white person you will go to jail and that even under the ANC black people are subjects of white people. He says that he does not serve white masters and that he is here to disturb the white man's peace. He states that black people have never known peace and in contrast white people have been "swimming in a pool of privilege" because they always owned our land.
Finally he says that black peoples' peace has been disturbed by white people and makes Statement 1 at this point in the speech. Mr Malema then goes on to critique the ANC for laying a complaint against him for disturbing the peace of white people and that the revolution is about disturbing the peace of those who are comfortable.
13 Statement 1, objectively interpreted, means that white colonial settlers killed peaceful black Africans as if they were animals (this comes from his use of the word "slaughtered"). Despite this, Mr Malema does not call for the slaughter of white people now. He calls for the peaceful occupation of land.
14 Statement 1 is critical of white people historically and as a result calls for the occupation of white people's land currently. This may be offensive and upsetting for many white people. Some white people may experience this as hurtful and may suggest it is racist. However, it is clear that white colonial settlers did occupy black land, by both violent and non-violent means. It is also clear that currently white people, albeit a political minority, have significant economic power.
15 Importantly, statement 1 is about how white people behaved historically. It is not about how they are behaving now. Mr Malema also specifically says he is not calling for the killing or slaughtering of white people now. He is only calling for the occupation of their land.
16 In our view, statement 1 is not hurtful or harmful. There is no reason to conclude that white people have suffered significant psychological hurt or a serious infringement of their dignity or equality as a result of Mr Malema characterising the actions of their forefathers in these ways.
17 Statement 1 does not incite harm or propagate or promote hatred. Mr Malema does not use language which, objectively interpreted, can be said to be calculated to cause hatred of white people. Noticeably he does not call for the killing of white people, which would be calculated to cause hatred.
At most his words were calculated to cause his audience to dislike white people. But this is not enough to interpret such words as inciting harm or propagating or promoting hatred.
18 Statement 1 does not therefore amount to hate speech as proscribed by section 10 of the Act.
HARASSMENT AND THE PUBLICATION OF DISCRIMINATORY INFORMATION
44 Section 12 of the Equality Act builds on the general prohibition of unfair discrimination
in section 6 of the Act. Section 12 specifically proscribes the dissemination of inter alia information which unfairly discriminates. It is not concerned with conduct which amounts to unfair discrimination (as is section 6) but rather with the uttering of words which might unfairly discriminate. Because it is difficult to know how words themselves unfairly discriminate (usually laws, conduct and policies rather than words unfairly discriminate) it is necessary to turn to other provisions of the Act which are intended to give meaning to section 12.
45 The only provision of the Act which can sensibly be used to understand the section 12 prohibition is section 7(1)(a) which provides that unfair discrimination itself includes "the dissemination of any propaganda or idea, which propounds the racial superiority or inferiority of any person, including incitement to, or participation in, any form of racial violence". Section 12 should accordingly be interpreted in light of section 7(1)(a). Section 12 therefore prohibit words which i) propound or promote racial superiority or inferiority; and ii) propound, promote or incite racial violence.
46 For the reasons we have given above, we are satisfied that Mr Malema's Statements do not propound or promote racial superiority or inferiority and neither do they propound, promote or incite racial violence.
47 Section 11 simply prohibits harassment and defines it to include particular forms of "unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile environment" relating to sex, gender, race and other listed and non-listed grounds.
48 The prohibition on harassment is it is probably intended to proscribe forms of conduct which take place between particular individuals in relationship to each other. It is not intended to regulate individuals making public speeches, where the words or conduct are not directed at a particular individual. For this reason, we do not consider further whether Mr Malema's speeches amount to harassment.
49 None of Mr Malema's statements amount to hate speech within the meaning of section 10 of the Act.
50 Mr Malema's statements also do not amount to harassment or the publication of information which is unfairly discriminatory.
Wim Trengove SC Kerry Williams
Chambers, Sandton 5 November 2018
' 2002 (5) BCLR 433 (CC).
2 The Court ordered that "Clause 2(a) of the said Code of Conduct for Broadcasting Services is declared to be inconsistent with section 16 of the Constitution and invalid to the extent that it prohibits the broadcasting of material that is "likely to prejudice relations between sections of the population"; provided that this order does not apply to (i) propaganda for war; (ii) incitement of imminent violence; or (iii) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm" (at para 60).
3 The South African Human Rights Commission v Velaphi Khumalo, case no EQ6/2016 & EQ1/2018 (unreported) ("Khumalo"), at para 88.
4 South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku  3 All SA 1029 (EqC,J) ("Masuku"), at para 47.
5 At para 65.
6 In Khumalo, Sutherland J identifies a range of harms which section 10 aims to protect (see para 94-97). One such harm is what he refers to as the harm to "social cohesion" and "nation building" in South African society which he suggests is a harm caused by the words in that case (whites should be ostracized, marginalized, excluded, indeed totally 'othered', de-humanised, and legitimately subjected to violence" — at para 91). In our view he interprets harm too widely as a wide category of speech may undermine social cohesion.
We note that in ANC and others v Harmse and another: In re: Harmse v Vawda  4 All SA 80 (GSJ) the Court took a different approach to promoting or propagating hatred. The case involved a threat to display a banner reading "shoot the boer". The Court found that the words advocated hatred. More specifically the Court found that the "chant was therefore directed at white people, or at least an element amongst this race group; and it still is. The chant was designed to install fear in the heart of the white oppressor and it undoubtedly did, It is therefore reasonable to say that its use today still incites fear in the heart of many white beholders, (for more than one and a half decades no longer the oppressor), and I am not at liberty to dictate to them, (or to Harmse), that they should perceive it otherwise" (at para 67). The promotion of hatred appears to have been interpreted as the incitement of fear. This may be a useful addition to interpreting the scope of promoting or propagating hatred but it would have to be limited by an enquiry into whether the words objectively interpreted were calculated to cause fear. The subjective experience of fear should not be relevant to the enquiry.
8 A conjunctive reading was adopted in SAHRC v Qwelane 2018 (2) SA 149 (GJ) ("Qwelane"), at para 60; and Khumalo, at para 83. A disjunctive reading was adopted in Herse!man v Geleba  ZAQC 1), at para 3.3(f).
9 This is persuasively argued in Geleba where Dawood J explained that it would be odd to deprive the black claimant of a claim where he has been called a "baboon" on the basis that he could not establish the speech promoted or propagated hatred of a particular group (at para 3.3 (f) to (g)).