News24.com | Judgment reserved in Malema hate speech case

• Judgment was reserved in the hate speech case against Julius Malema. 
• The FW de Klerk Foundation and AfriForum had asked the court to review and set aside a SAHRC ruling.
• The SAHRC found that Julius Malema did not commit hate speech in 2016.

The Johannesburg High Court on Tuesday reserved judgment in the application to review a SA Human Rights Commission (SAHRC) decision to let EFF leader Julius Malema off the hook for hate speech. 

The second day of the two-day hearing was dominated by legal teams representing the FW de Klerk Foundation and AfriForum making submissions as to why they believe the decision was incorrect.

As part of a speech in 2016, Malema said: "We are not calling for the slaughtering of white people, at least for now."

But, after 18 complaints were filed with the SAHRC, it found that Malema had not violated any human rights.  

Advocate Greta Engelbrecht, for the foundation, said the SAHRC had failed to consider Malema's status and the power his words wielded over his supporters.  

Engelbrecht said consideration should be given to the responsibility placed on people who are thought leaders, particularly how their words could be acted upon.  

"He [Malema] described white people as the real criminals in his speech. He turned his attention away from criticising the EFF's political opponents, in the form of the ANC, and directed it at white people. 

READ | Why 2 organisations are in court to challenge a SAHRC decision which let Malema off the hook

"He directed his anger at white people, who, in his estimation, have been too comfortable for too long. He described white people as criminals and said the land would be taken from them, using whatever means possible," said Engelbrecht.  

She said Malema was "waving the proverbial point the finger at white people, saying, if you don't behave, there will be consequences".

"At the end of his appearance, he chants the words 'shoot to kill'." 

She said Malema was a very skilled orator. Given this, "a racist joke is still racist, a call for hatred by a skilled orator that employs comedic tones is no less a call for hatred".

The controversial words came during an impassioned speech to a crowd who had come out to support him outside the Newcastle Magistrate's Court in 2016 when he appeared on charges of contravening Section 18 2(b) of the Riotous Assemblies Act of 1956 - he had called on his supporters to occupy vacant land illegally.  

Beyond his "we are not calling for the slaughtering of white people, at least for now" quote, Malema also said "they all agree, by the way, that land belongs to us.

"But they say we must buy it. How can you say you must buy something that belongs to you? It is funny that they all agree that the land belongs to us.

"It is like somebody saying to you, 'Hey, this Mazda 323 belongs to you. I stole it. I am sorry. But give me R100'. I will take your teeth out when I find you possessing my stolen vehicle. Why should you negotiate with a thug, the land thieves, the criminals!? The real criminals are not in the court."

READ | EFF asks for cows, donations to 'fund revolution' ahead of 10th-anniversary bash

When asked by Deputy Judge President of the Gauteng High Court, Judge Roland Sutherland, whether the speech might have been performative, rather than to agitate, Engelbrecht said the SAHRC, in its own findings, did not take Malema's tone as joking, but believed they were severe in the historical context of land disposition.  

"A reasonable listener could conclude after listening to Malema's utterances that white people are still the enemy to the majority… even a juvenile rant poses harm, harm more than just to the white race, but the constitutional project that seeks to do away with the marginalising of any race over another," said Engelbrecht.  

She argued that the commission failed to consider Malema's significant influence as a leader of the third biggest party and only considered him as part of a dispossessed majority fighting for redress.  

Engelbrecht said:

Outlining the contours of her client's case, Engelbrecht requested that the court review and set aside the portions of the SAHRC report relating to the November 2016 utterances.  

"We ask the court to also remit the complaints back to the commission for investigation and determinations," said Engelbrecht.  

She asked the court to guide the commission on how it should carry out the investigation this time around.  

Suggestions included the court instructing the commission to call on all the complainants to make submissions as to why they believe Malema's words constituted hate speech, as well as for a preliminary report to be handed over to the complainants for them to give feedback, before a final report is made public.  

Initially, the SAHRC took more than two years to complete its investigation, with the complainants arguing they were never contacted within that time period.  

The EFF's legal representative, advocate Kameel Premhid, argued that the high court did not have the legal jurisdiction to hear the matter. He said the appropriate court to hear the matter was the Equality Court. 

Premhid said the SAHRC's findings did not prevent any of the 18 applicants, who had approached the SAHRC, from going to the Equality Court, which was competent enough to adjudicate on whether Malema's words amounted to hate speech. 

He also argued that calls for Sutherland to provide clear outlines to the SAHRC would be encroaching on the commission's constitutionally allocated powers to decide on its own parameters as to how to conduct investigations.  

Sutherland said he would hand down the judgment via email.