Malema off the hook, but others get a hate speech hammering
Human Rights Commission says being ‘hurt and upset’ by a comment does not make it hate speech
EFF leader Julius Malema is off the hate speech hook for a series of “offensive” remarks against white and Indian people, but another firebrand politician, the BLF’s Andile Mngxitama, will have to answer in court for threatening to kill white people.
The SA Human Rights Commission said on Wednesday Malema’s utterances were “problematic” but did not amount to hate speech.
Lobby group AfriForum has vowed to oppose the SAHRC's ruling in court. “With this, the HRC insinuates that white people are not a vulnerable group, despite the fact that this group is a minority group in South Africa.
“It is also concerning that the HRC argues that individuals from certain race groups must be allowed to utter racist things, provided that it is done in the right context,” AfriForum’s deputy CEO Ernst Roets told Times Select.
SAHRC Chairperson Bongani Majola said the commission had received five complaints against Malema between 2016 and 2018. When the commission had considered the complaints, it had looked at the facts, context, the applicable law and the constitution in the process.
“We came to the conclusion that while the acts forming the subject of the complaints may be offensive, they do not meet the legal threshold to qualify as hate speech,” Majola told reporters in Johannesburg.
But at the same briefing, the commission’s Osmond Mngomezulu said there had been matters that did amount to hate speech which had been taken to court. “There are those matters that are received by the commission, we assess them, we take them through the same legal reasoning [as in Malema’s cases] and the commission reaches a conclusion that, indeed, that this is not constitutionally-protected speech but amounts to hate speech,” said Mngomezulu.
He said several courts had found in the favour of the commission in the past, citing the hate speech cases against Gauteng government employee Velaphi Khumalo and Bongani Masuku from the Congress of South African Trade Unions (Cosatu).
Khumalo wrote on Facebook in 2006 that blacks should do to white people what “Hitler did to the Jews”.
He was found guilty of hate speech in 2018 and had since apologised.
The SAHRC found Masuku guilty of hate speech in 2009 and in 2017, and the Equality Court sitting in the South Gauteng High Court in Johannesburg ordered Masuku to make an “unconditional apology” to the South African Jewish Board of Deputies (SAJBD) for the comments.
Mngomezulu said the commission had also lodged an application in court against Black First Land First (BLF) leader Andile Mngxitama for his comments at a rally in Potchefstroom, North West.
Mngxitama threatened to kill five white people for every black person killed.
“You kill one of us, we kill five of you. We will kill their children, we will kill their women, we will kill anything that we find on our way,” Mngxitama was quoted as saying.
BLF could not be reached for comment.
Majola said the commission had to be guided by the constitution and the law, saying it should not be driven by “hurt and anger” to define hate speech.
“We will be taken on review and our decisions will be set aside. We will be accused of not having properly applied our minds and law to the matter.
“We can’t on the basis of the fact that a person is feeling hurt about it, that we call it hate speech. It will lead to chaos,” he said.
The four complaints against Malema
• At the Newcastle Magistrate’s Court in November 2016, Malema said: “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. What we are calling for is the peaceful occupation of the land and we don’t owe anyone an apology for that.”
The commission found that Malema did not violate the rights of white people in this instance.
• At the party’s fourth anniversary celebrations held in Durban on July 29 2017, he said: “Here in Durban, here in KZN, everything strategic is given to Indian families. Every big tender is given to Indian families. They are the ones who own everything strategic in KZN. We don’t have a problem, we are saying: Share with our people. “We also want to call upon our fellow Indians here in Natal to respect Africans. They are ill-treating them. We don’t want that to continue here in Natal.”
The commission found that this statement did not constitute hate speech. “It does not promote [a] severe psychological impact to the Indian community,” said the commission’s Shanelle van der Berg.
• On Human Rights Day in 2018, Malema urged his supporters to sing “kiss the boer” which, the commission ruled, did not amount to hate speech.
• At the EFF’s Youth Day commemoration at Matlosana stadium in Klerksdorp, North West, in 2018, Malema said: “Indians had all sorts of resources Africans didn’t have, coloureds as well. The majority of Indians are racist. I’m not saying all, I’m saying a majority.”
A fifth complaint was lodged against the party’s secretary-general, Godrich Gardee, for describing DA leader Mmusi Maimane as a garden boy in a post on social media. The original tweet has since been deleted.
The commission said neither of the latter two complaints comprised hate speech.