In a significant legal ruling, the Western Cape Equality Court has found Economic Freedom Fighters (EFF) leader Julius Malema guilty of hate speech for remarks made during a political rally in October 2022.
The case stemmed from comments made by Malema in Brackenfell, following prior clashes between EFF members and residents over allegations of racism at Brackenfell High School. In his judgment, Judge Mark Sher found that Malema’s statements demonstrated “a clear intention to incite harm and promote hatred,” thereby violating South Africa’s Equality Act.
The ruling has ignited a fresh debate on the boundaries of political speech and the legal definition of hate speech in South Africa.
The South African Human Rights Commission (SAHRC), which brought the complaint alongside an individual whose identity was withheld, welcomed the decision. The individual reportedly testified to feeling personally threatened by Malema’s words.
However, the judgment was met with criticism from free speech advocates who pointed to a perceived inconsistency in the courts’ application of hate speech laws. Anton Harber, Director of the Campaign for Free Expression, expressed his primary concern.
“There doesn’t seem to be any consistency in the rulings of what is hate speech and what isn’t,” Harber stated. He highlighted that Malema was previously found not guilty of hate speech for leading the song “Kill the Boer,” yet was now convicted for comments Harber viewed as “less serious.”
Harber argued that for speech to be classified as hate speech, there needs to be a clear and present threat of violence or harm resulting from the statement. He warned that without clearer guidelines from the Constitutional Court, the broad application of hate speech rulings could infringe on the right to robust, even unpleasant, political expression.
“We do have to lean over backwards to ensure that political speech is as free and as open as possible,” he said.
The EFF has vehemently rejected the ruling, labeling it an “attack on the democratic space and the right to political expression.” The party has announced its intention to challenge the outcome in the Supreme Court of Appeal.
Harber supported this move, stating that an appeal is the necessary mechanism to achieve clarity in the law. The case appears poised to become a landmark legal battle, set to further define the delicate balance between protecting citizens from harm and upholding the right to freedom of speech.
