08 March 2019
Our ref: KZ/1617/0259/HO (Kindly quote our reference number in all correspondences with the SAHRC)
RE: YOUR COMPLAINT AGAINST JULIUS MALEMA
1. We refer to your complaint lodged with the Commission.
2. In your complaint, you alleged that in November 2016, Mr Malema made the following statement about White people:
“…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…” You alleged that this statement incites violence against White people and constitutes hate speech.
3. The South African Human Rights Commission (“Commission”) has now concluded its investigation on the matter with the view to determine whether the statements complained of amount to hate speech.
4. In assessing whether the statement complained of constitutes hate speech, it is necessary to consider section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (PEPUDA), which provides:
“10 Prohibition of hate speech
(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.”
5. Section 10 of PEPUDA comprises an objective test to determine whether utterances constitute hate speech. In applying section 10 of PEPUDA, it is necessary to determine whether the provision should be read ‘conjunctively’ or ‘disjunctively’. A conjunctive reading of section 10(1) means that words must be hurtful ‘and’ ‘harmful’ ‘and’ promote hatred to constitute hate speech. A disjunctive reading means that words may be hurtful ‘or’ harmful ‘or’ promote hatred to constitute hate speech. Currently, contradictory case law exists as to which approach should be followed. A conjunctive reading was supported in the judgments of South African Human Rights Commission v Khumalo 2019 (1) SA 289 (GJ) and SAHRC v Qwelane 2018 (2) SA 149 (GJ), while a disjunctive reading was supported in Herselman v Geleba (231/2009)  ZAEQC 1.
6. 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. The actual subjective intention of the speaker is irrelevant. (SAHRC obo South African Jewish Board of Deputies v Masuku and Another 2018 (3) SA 291 (GJ)).
7. 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”. In that case extensive evidence was led as to the psychological impacts that homophobic speech had on LGBTI people.
8. 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. 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. Example 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-à-vis a particular group of persons such as “kaffir” or “coolies” or “chinks”.
9. The phrases to “incite harm” and to “promote or propagate hatred” are noticeably different from the phrases used in subsection 1(a) and (b) as they are not preceded by the verb “be” but 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 rather on what the words are calculated to mean or do. Therefore:
9.1. 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, Indian people and Chinese people as “kaffirs”, “coolies” and “chinks” respectively.
9.2. 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 there 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.
10. Further in assessing whether the statement amounts to hate speech, context is crucial. Regard must be had to the factual, social and historical context in which the utterances were made. The identity of the offender and target group as belonging to a vulnerable group will have an impact on any determination of hate speech, in line with Constitutional Court jurisprudence.
11. In the lead up to the statement, 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”?
12. 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 people’s peace has been disturbed by White people and makes the statement complained of 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. This statement 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. This statement 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 racially biased. 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, this statement 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. Viewed in its context, the statement does not appear to amount to hate speech:
16.1. The historical context in which the statement is made is one of unjust land dispossession by white colonists and the apartheid government. Reference to the ‘slaughtering’ of people is first made in expressing an opinion as to the actions of colonialists.
16.2. The social context in which the statement is made is one of continued landlessness, poverty and inequality, giving rise to anger and frustration by the black majority. The statement should thus be read, bearing in mind the Supreme Court of Appeal’s caution that vulnerable groups must be able to express anger and pain through robust speech (Hotz and Others v University of Cape Town 2017 (2) SA 485 (SCA) para 67).
16.3. The factual context of the statement shows that the subject of the statement was not perpetrating harm against white people, but the highly emotive and contested issue of land reform. The statement calls for the ‘peaceful’ occupation of land. Furthermore, Mr Malema explicitly states that he is not calling for the slaughter of white people. Mr Malema expanded the factual context by subsequently stating that ‘not under my leadership will I call for the slaughter of white people, even though I cannot guarantee what will happen after me.’ (Huffington Post ‘Malema: 'We Have Not Called For The Killing Of White People... At Least For Now'’ (12-06-2018) Huffington Post).
17. Regardless of whether a conjunctive or disjunctive reading of section 10 is adopted, a determination of hate speech in this case hinges on whether the addition of ‘at least for now’ to the statement that Mr Malema is ‘not calling for the slaughter of white people’ can be reasonably construed to demonstrate a clear intention to incite harm at some indeterminate time in the future. Such incitement is not ‘imminent’ as per the language of section 16(2)(c) of the Constitution, or foreseen at the time when the utterances are made. Moreover, viewed in its context, the statement deals with the subject matter of land dispossession and redistribution, and is not aimed at inciting harm to white people.
18. Thus it is the Commission’s view that the statement in this context, does not amount to hate speech.
19. In view of the above, your complaint is hereby concluded in terms of clause 11(d)(i) of the gazetted Complaint Handling Procedures of the Commission on the basis that the conduct of Mr Malema did not violate the rights of White people.
20. The Commission will now accordingly proceed to close its file in the matter.
21. Should you not be satisfied with this decision, you may challenge the decision through the high court by way of judicial review. An application for judicial review must be made within 180 days of the date on which you became aware of the decision. A person who seeks judicial review after this period will not be successful, unless the court is satisfied that it is “in the interest of justice” to allow the review.
Advocate Priscilla Jana
South African Human Rights Commission
PW: A transcript of Malema's remarks can be found here. They can also be viewed below: