TAU SA's legal arguments in the hate speech case against Julius Malema

TAU SA's legal team hereby wants to clear any misinterpretations on its arguments in the trail of Mr Malema, and hereby present its legal arguments as it have been stated in the opening arguments of adv. Roelof du Plessis SC:

1. The Constitution provides for freedom of expression, however, this right, incitement of imminent violence, and/or advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm.

2. The Constitution defines boundaries beyond which fundamental rights do not extend. In accordance with that hate speech is not afforded Constitutional protection.

3. Utterances such as those of Malema cause emotional damage and have grave psychological and social consequences such as humiliation, degradation, attacking self-worth and impairment of dignity.

4. The promotion of equality legislation in South Africa prohibits the publication, propagation and advocacy of words against any person that can be construed to demonstrate a clear intention to be hurtful, be harmful or to incite harm, promote or propagate hatred. Such prohibited grounds for hate speech are inclusive of language, culture and sexual orientation or birth.

5. Regard being had to the South African authorities we are of the view that it is binding law that such utterances are perceived by the receiver amongst others the Afrikaner minority and that it is not limited to direct physical harm but also extends to an attack on dignity. A test can be formulated as follows :

5.1 Are the words communicated based on one or more prohibited grounds?

5.2 May any reasonable person consider the words to be intended to hurt, harm or incite hatred?

If the answer to either of the questions are in the positive the words amount to hate speech. Very important is that the intention on the part of the addressor is not required. Accordingly, the question is whether a reasonable person would construe the speech as demonstrating a "clear intention" to be harmful. His Lordship Mr Justice Bertelsman in the Gauteng North High Court already considered the singing and in fact found that prima facie it constitutes hate speech.

6. Mr Malema is a very influential public figure whose utterances are widely reported.

7. The TAU has called the following witnesses:

7.1 Prof C Bezuidenhout;

7.2 Prof D Goosen;

7.3 Gen C van Zyl;

7.4 Prof A Kick

Statement issued by TAU, April 15 2011

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