Playing with Matches in the Gunpowder Store

Last Saturday, Julius Malema addressed a packed FNB stadium in Johannesburg to mark the 10th anniversary of the EFF. The scarlet-clad masses undulated to the rhythm of African music and the chanting of EFF slogans, while red and black balloons, confetti and streamers were discharged into the stadium. It was a cross between a rock concert, a soccer match and a religious revival.

In his keynote speech, Malema painted a rosy - or rather red - vision of South Africa under EFF rule: land would be returned to the people; the EFF would defeat corruption and there would be prosperity, employment and free university education for all. Foreign policy would be decidedly anti-West, pro-Putin and pro-socialism. Africa should be a single country, with a single currency and a single president (guess who?). At the climax of the event, Malema led the crowd in singing “Shoot to kill! Hamaza! (hurry up!); Kill the Boer! Kill the farmer! Kill the Boer! Kill the farmer!” - and then imitated the sound of gunfire - enthusiastically echoed by the crowd, “Pa! Pa! Brrr! Brrr!”

Malema was, no doubt, emboldened in using the controversial chant by the 25 August 2022 judgement of the Gauteng Equality Court that “a reasonable listener would conclude that the song does not constitute hate speech but rather that it deserves to be protected under the rubric freedom of speech”.

Two weeks before the EFF anniversary, the Gauteng High Court set aside the South African Human Rights Commission (SAHRC) decision of 8 March 2019, which had cleared Malema of hate speech charges for a statement that he had made on 7 November 2016 in which he had said: "We are not calling for the slaughtering of white people, at least for now".

Malema had also referred to white South Africans as “visitors” who must “behave”, and had said that “no white person is the rightful owner of land here”. He told his supporters that “we are here unashamedly to disturb the white man’s peace”. He concluded with: “white minority be warned, we will take our land. It doesn’t matter how… The land will be taken by whatever means necessary”.

The court found that the SAHRC “is not empowered by the Constitution or by the SAHRC Act to make definitive decisions about whether or not a contravention of Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (regarding hate speech) has or has not occurred”.

The FW de Klerk Foundation - which, together with AfriForum, had brought the case against the SAHRC - welcomed the judgement and the awarding of costs. However, neither the substance of its initial complaint against Mr Malema - nor its deep concern over the manner in which the SAHRC dealt with its complaint - have been addressed.

The SAHRC, as the South African agent of the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), should also have followed ICERD’s guidelines on hate speech, which require consideration of the content and form of the impugned speech; the economic, social and political climate at the time of the speech; the position and status of the speaker; and the reach and objectives of the speech.

Malema’s statement would seem to have fitted all these criteria. Most seriously, the SAHRC simply brushed aside Malema’s threat that, at some time in the future, the EFF might call for the slaughtering of white people. This constituted not only a breach of the ICERD Convention but possibly also of the International Convention on the Punishment of the Crime of Genocide.

The Foundation was deeply disturbed by the SAHRC’s open advocacy of a double standard when dealing with hate speech complaints by black and white South Africans - despite the right of all South Africans to equality before the law and despite the constitutional requirement that the SAHRC should be impartial and perform its functions without fear, favour or prejudice. In reasoning drawn directly from the Critical Race Theory primer, the Commission expressed the view that:

“The statement (by Mr Malema) may be construed as ‘hurtful’ by a white audience. However, a consideration of context requires that the identity of both the target group and the offender should be taken into account. The white group is socio-economically powerful. In contrast, Mr Malema belongs to the vulnerable black population group, which remains predominantly poor and landless.”

In fact, Mr Malema, a multi-millionaire, is one of the most powerful politicians in the country and belongs to a population group that has a virtual monopoly of power at the national level. White South Africans, although economically prosperous, cannot - in the current political context - be regarded as powerful. As the experience of Jews throughout history; of the Chinese in Malaysia and Indonesia; Asians in Uganda; and whites in Zimbabwe illustrates, it is precisely ethnically distinct and economically prosperous minorities that are often most at peril in multiethnic societies.

The Foundation lodged its complaint with the SAHRC because of its fear that inflammatory rhetoric might one day lead to inter-racial violence, with catastrophic consequences for everyone in South Africa. The country has, in recent years, experienced ugly racial incidents in Coligny, Schweizer-Reyneke, Brackenfell, Senekal and, during the July 2021 riots, KwaZulu-Natal. The EFF has been actively involved in all but one of these incidents.

In December last year, the SAHRC found that statements made by Mr Malema the previous month in the Western Cape were hate speech. Mr Malema had said that EFF supporters should “never be scared to kill” and that “a revolution demands that at some point there must be killing, because the killing is part of a revolutionary act”. The SAHRC ruled that if Mr Malema did not apologise for the statements within a week, the matter would be referred to the Equality Court. He refused to apologise - but there is no indication of any further action against him.

Perhaps the most serious aspect of the SAHRC’s decision of 8 March 2019 was its failure to observe the requirement that key state institutions must act without fear, favour or prejudice. In multicultural, multiethnic and multi-faith societies such as South Africa, politically disempowered minorities must necessarily rely on the Constitution, and the institutions that have been established under the Constitution, for the protection of their fundamental rights.

We are left with some very serious questions:

To what extent can minorities still rely on the institutions of the state for the protection of their rights?

What can be done to protect society against inflammatory rhetoric that is clearly intended to incite racial hostility?

Why has the ANC government not condemned Mr Malema’s repeated incendiary racial statements?

Who, under all these circumstances, will stop Mr Malema from playing with matches in the gunpowder store of our volatile country?

Issued by the FW de Klerk Foundation, 4 August 2023