Background
On the 7th November 2016 EFF leader Julius Malema delivered a speech in Newcastle where he repeated his earlier calls for “White People” to be racially dispossessed of their land and property and ownership transferred into the “hands of the people” from whom it had been “stolen”.
“Victory will only be victory if the land is restored in the hands of rightful owners. And rightful owners unashamedly is black people. No white person is a rightful owner of the land here in South Africa and in the whole of the African continent. This is our continent, it belongs to us.”
He proceeded to accuse white people of being collectively guilty of genocide against black people. As he put it:
“We, the rightful owners, our peace was disturbed by white man’s arrival here. They committed a black genocide. They killed our people during land dispossession. Today, we are told don’t disturb them, even when they disturbed our peace. 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.”
Various complaints were laid with the South African Human Rights Commission over these (and other) remarks. The underlying issue that the SAHRC’s human rights lawyers had to adjudicate was whether calls for the total racial dispossession of members of a relatively prosperous racial minority, along with the suggestion that they could and should be physically annihilated at some indeterminate point in the future – on the basis of all the misfortunes this minority had allegedly visited upon the majority in the past - should be considered proscribed speech.
In the end, on the basis of an internal and external legal opinion from top human rights lawyers, the SAHRC decided that Malema’s rhetoric should not be regarded as hate speech. This decision has been taken on legal review by AfriForum and the FW de Klerk Foundation and argument on the matter was heard in the Gauteng High Court in early May 2023.
The following Heads of Argument sets out the basis on which AfriForum is challenging the SAHRC’s original decision.
- Politicsweb
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO:14370/19
In the matter between:
AFRIFORUM Applicant
and
THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION - First Respondent
THE CHAIRPERSON:
BONGANI CHRISTOPHER MAJOLA N.O. - Second Respondent
COMMISSIONER PRISCILLA JANA N.O. - Third Respondent
JULIUS MALEMA - Fourth Respondent
ECONOMIC FREEDOM FIGHTERS - Fifth Respondent
HEADS OF ARGUMENT
INTRODUCTION
1. On 7 November 2016, Mr Malema gave a speech at a rally of the Economic Freedom Fighters held in Newcastle, Kwa-Zulu Natal. On 10 November 2016, the Applicant submitted a written complaint to the First Respondent on the basis that Mr Malema’s statements amounted to hate speech and unfair discrimination in terms of PEPUDA.[1]
2. On 8 March 2019, the First Respondent issued a decision, determining that the statements did not amount to hate speech. It made no finding on whether the statements amounted to unfair discrimination.[2]
3. This application seeks to review and set aside that decision.
ISSUES
4. There are two points in limine and two points of merit in this matter.
Points in limine
5. First, whether this Honourable Court has jurisdiction to determine whether the statement made by Mr Malema constitute hate speech and unfair discrimination in terms of S10 and S12 of PEPUDA.
6. Second, whether the decision made by the SAHRC is reviewable under PAJA or the principle of legality.
Merits
7. First, whether the decision by the SAHRC ought to be reviewed and set aside.
8. Second, if the decision is reviewed and set aside, whether it should be referred back to the SAHRC for reconsideration or whether this court should substitute the decision with its own.
POINT IN LIMINE: JURISDICTION
9. The SAHRC alleges that this court has no jurisdiction to determine whether the statement uttered by Mr Malema constitutes hate speech and unfair discrimination in terms of PEPUDA on the basis that it is not sitting as an Equality Court.
10. In terms of S20 and S21 of PEPUDA, if proceedings are launched in terms of the Act then it is indeed the Equality Court that has the power determine whether a particular statement amounts to hate speech or unfair discrimination. However, the Act does not provide the Equality Court with the exclusive jurisdiction to do so. This is self-evident, because both the Supreme Court of Appeal and the Constitutional Court made determinations about whether the statements made by Jon Qwelane amounted to hate speech and neither of those Courts are Equality Courts.
11. The current complaint did not emanate from Equality Court proceedings but rather from a complaint to the SAHRC. This Court is similarly placed to a Court of appeal in that it must assess a prior decision and determine whether it was correct. In performing this exercise there is no hindrance to it referring to the relevant sections of PEPUDA to determine whether the statements amount to hate speech and unfair discrimination.
POINT IN LIMINE: PAJA
12. The SAHRC contends that its decisions are analogous to those of the Public Protector and not subject to review under PAJA.
13. First, the Constitutional Court decisions in Public Protector and Others v President of the Republic of South Africa and Others[3] and Public Protector v South African Reserve Bank[4] cast doubt on the notion that the decisions of the Public Protector are not subject to PAJA reviews.
14. Even if the Public Protector’s decisions are not subject to PAJA review and the conduct of the SAHRC is sufficiently analogous to that of the Public Protector such that its decisions are only susceptible to legality review, the Supreme Court of Appeal in the very case relied on by the SAHRC (Minister of Home Affairs v Public Protector) has stated that:
“It does not matter in this case that the application for the review is based on the principle of legality rather than PAJA. No procedural differences arise and the grounds of review that apply in respect of both pathways to review derive ultimately from the same source – the common law – although, in the PAJA, those grounds have been codified.”[5]
15. If PAJA is the incorrect avenue for review, then the relief sought by AfriForum can being granted under the principle of legality.[6]
BACKGROUND FACTS
Statements by Mr Malema
16. On 7 November 2016, Mr Malema made, inter alia, the following statements at a rally of the Economic Freedom Fighters held in Newcastle, Kwa-Zulu Natal.
When you try to occupy an unoccupied land you are committing a crime. Do you know why? Because you are taking a white man’s land. You are taking the land and this land belongs to mlungu, so we must protect the Europeans against the non-Europeans that is why we are called here. Because no-one must disturb the peace of white people. Who are you to disturb the piece of white people? How do you disturb the peace of white people because you want to take the land… of white people!?
And the ANC shall punish you for disturbing the peace of white people. Because white people are untouchable. White people are from heaven. No one dares touch white people. You touch a white person you will go to jail. You must ask Mandela. You must ask Sobukwe. You must ask Steve Biko. They have not doing anything wrong, except to disturb the peace… of the white man.
So, black people, you are subjects of white people. Even under ANC, even under so-called democracy. You are subjects, you are servants, of white people.
No white man will be served by me. I do not serve white masters! I will never serve white masters! I am here to disturb the white man’s peace.
They are right, the white man has been too comfortable for too long. We are here unashamedly to disturb the white man’s peace. Because we have never known peace. We don’t know what peace looks like.
They have been living peacefully. They have been swimming in a pool of privilege. They have been enjoying themselves because they always owned our land.
We, the rightful owners, our peace was disturbed by white man’s arrival here. They committed a black genocide. They killed our people during land dispossession. Today, we are told don’t disturb them, even when they disturbed our peace. 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 peaceful occupation of the land. And we don’t owe anyone apology about that.
We will not chase white people into the sea. We will give them portion. That is where you stay. And you can’t own bigger than us. You are a visitor. Visitors must behave. They must know the land belongs to the people of South Africa, the indigenous people of South Africa.
Victory will only be victory if the land is restored in the hands of rightful owners. And rightful owners unashamedly is black people. No white person is a rightful owner of the land here in South Africa and in the whole of the African continent. This is our continent, it belongs to us.
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? What is funny is 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 in possession of my stolen vehicle. Why should you negotiate with a thug, the land thieves, the criminals!? The real criminals are not in the court. The people who are saying “bring back what belongs to us”, they are the ones who are in a court.
The people who belong to the court is FW de Klerk and all those whites who stole our land. But white minority’s be warned, we will take our land. It doesn’t matter how. It is coming unavoidable, it is coming inevitable. The land will be taken by whatever means necessary. This land will be returned to black people.[7]
17. On 23 November 2016, James Myburgh wrote an article entitled: Malema, Goebbels & the dark art of racial propaganda. He stated the following about the statement made by Mr Malema:
The language used here (“White People”, “they”, “them”) combines all white individuals – the young and old, the long dead and the yet to be born – into a single group. Highly negative attributes (murder, criminality, genocide, viewing black people as “animals” etc.) are then ascribed to each member of this entity. This is done by taking crimes committed or allegedly committed by members of this group – recently or hundreds of years ago - and then attributing guilt to the group as a whole. The suggestion is then made that “White People” deserve to be punished, but because of the great powers of patience and forgiveness of “Black People” they have not (yet) been. However, if “they” continue with their crimes and “racism” against Black People, and refuse to return that which they stole, all bets are off the table.
In Malema’s rhetoric the propaganda technique of projection is very strongly evident. The claim that “White People” stole what they have is, if you think about it, simply a way of mobilising support around a programme of robbing a once politically powerful, but now powerless, racial minority of their possessions. As his “at least for now” slip revealed the claims of white on black genocide stem from fantasies – currently prevalent in the Fallist movement and elsewhere - of a final, violent black reckoning with the white minority in South Africa.[8]
The Impugned Decision
18. The SAHRC found that Mr Malema’s statement, objectively viewed, is about the history of land dispossession of Blacks by Whites, including that Whites slaughtered Blacks; that Mr Malema’s statement is critical of Whites “historically” and is “about how White people behaved historically” and that he is not calling for the “slaughtering of White people now…only…for the occupation of their land.”
19. It found that the statement does not amount to hate speech and relies on the historical, social and factual context as follows:
19.1. Historically, the statement is found to be about “unjust land dispossession” of Blacks by Whites;
19.2. Socially, this is in the current context of continued landlessness and in light of the caution that vulnerable people should be able to express their anger in robust debate;
19.3. Factually, Mr Malema was only calling for “peaceful” occupation, and not for the slaughter of White people. In support of this latter point, the First Respondent relies on a statement of Mr Malema made on or about 12 June 2018 that “not under my leadership will I call for the slaughter of white people, even though I cannot guarantee what will happen after me.”[9]
20. The SAHRC found that on either a conjunctive or a disjunctive reading, the statement regarding the slaughter of White people does not amount to hate speech. In other words, the First respondent finds that not one of the three elements under section 10(1)(a)-(c) of PEPUDA are met. The First respondent finds that the wording “at least for now” does not make the statement hate speech as this wording cannot be seen as incitement that is “imminent” as considered under section 16(2)(c) of the Constitution.
21. The First Respondent does not deal with the issue of discrimination based on S12 of PEPUDA at all in its decision.
The 27 March 2019 Media Briefing
22. On 27 March 2019, when the decision was released, the SAHRC held a press conference at which Dr Shanelle van der Berg presented the findings of the impugned decision.
23. At the media briefing, Dr van der Berg made the following comments:
“[The Constitutional Court] takes into account the fact of who utters the word, the perpetrator, makes a difference and who receives the insult or the hate speech makes a difference.”
“Clearly the Constitutional Court is of the view that certain words and expressions will depend on whether it is uttered by a white person or a black person and against a white person or a black person. That is very important to take into account.”
“Although the statement may be construed as hurtful by a white audience, we need to look at the context and identify both the targeted group and the identity of the utterer.”
“The white group remains socio-economically powerful. In contrast the audience of the group that this statement was directed at remains largely poor and landless. We also need to remember that hurtful means severe psychological impact. If we apply an objective test and we ask what the reasonable listener would make of this we have to of course think who is the reasonable listener in South Africa, in a South African context. So, the reasonable listener would be a member of the black majority.”
HATE SPEECH LAW
Escalating Racial Tensions
24. In August 2016, The United Nation Committee on the Elimination of Racial Discrimination produced a report about hate speech in South Africa[10]. The report stated that:
The Committee is further concerned at the rise of hate crimes and hate speech in the State party including physical attacks against certain ethnic groups and non-citizens, discriminatory statements by State officials and politicians, and the increase in the use of media and the internet to propagate racist hate speech…The Committee further recommends that the State party ensure all incidents of hate crimes and hate speech are investigated and prosecuted and that the perpetrators are punished, regardless of their official status. The Committee calls on the State party to conduct educational campaigns to address the root causes of prejudices and promote tolerance and respect for diversity, with a focus on the role and responsibilities of journalists and public officials in that regard.
Hate Speech
25. In Qwelane, the Constitutional Court held that:
It is a truth universally acknowledged that “[t]o be hated, despised, and alone is the ultimate fear of all human beings”. Speech is powerful – it has the ability to build, promote and nurture, but it can also denigrate, humiliate and destroy. Hate speech is one of the most devastating modes of subverting the dignity and self-worth of human beings. This is so because hate speech marginalises and delegitimises individuals based on their membership of a group. This may diminish their social standing in the broader society, outside of the group they identify with. It can ignite exclusion, hostility, discrimination and violence against them. Not only does it wound the individuals who share this group identity, but it seeks to undo the very fabric of our society as envisioned by our Constitution. We are enjoined by our Constitution “to strive for a society built on the democratic values of human dignity, the achievement of equality, the advancement of human rights and freedom”.[11]
Hate speech is the antithesis of the values envisioned by the right to free speech – whereas the latter advances democracy, hate speech is destructive of democracy.”[12]
26. In Qwelane, the Constitutional Court held that section 10(1)(a) of PEPUDA was unconstitutional and held that in the interim, section 10(1) must read as follows:
“Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.”[13]
27. The prohibited grounds are specified in section 1(a) of the Act as "race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth".
28. The Constitutional Court noted that there is an internal disjunction between “harmful” and “to incite harm” as follows:
“Lastly, it is of some significance that the impugned section distinguishes between 'harmful' or 'to incite harm' in clear disjunctive terms. This reveals that, even on an overall conjunctive reading, it may be sufficient to demonstrate harm, absent incitement of harm. Thus, the section postulates prohibiting expression that either harms or evokes a reasonable apprehension of harm to the target group.”[14]
29. The proper test arising out of Qwelane appears to be that a statement will be struck by section 10 if it can reasonably be construed to demonstrate a clear intention to (i) be either harmful or incite harm; and (ii) promote or propagate hatred. So long as at least one element of both (i) and (ii) are met, the statement falls foul of section 10. This is an objective test.
30. In finding that the test for assessing hate speech is an objective one, the Court in Qwelane held:
Before this Court, the parties debated whether the phrase “that could reasonably be construed to demonstrate a clear intention” postulates a subjective or objective test. In my view, it is plainly an objective standard that requires a reasonable person test. This is based on the gloss “reasonably be construed” and “to demonstrate a clear intention”, implying an objective test that considers the facts and circumstances surrounding the expression, and not mere inferences or assumptions that are made by the targeted group.”[15]
This approach accords with the interpretation advanced in SAHRC v Khumalo that “[t]he objective test in section 10(1) implies in the terminology used to articulate it, that an intention shall be deemed if a reasonable reader would so construe the words. Because the objective test of the reasonable reader is to be applied, it is the effect of the text, not the intention of the author, that is assessed.” I endorse this approach. [16] (own emphasis)
31. The court in Khumalo explicitly endorsed non-racialism in the application of the objective test and held that:
“In South Africa, however, our policy choice is that utterances that have the effect of inciting people to cause harm is intolerable because of the social damage it wreaks and the effect it has on impeding a drive towards non-racialism. The idea that in a given society, members of a ‘subaltern’ group who disparage members of the ‘ascendant’ group should be treated differently from the circumstances were it the other way around has no place in the application of the Equality Act and would indeed subvert its very purpose. Our nation building project recognises a multitude of justifiable grievances derived from past oppression and racial domination. The value choice in the Constitution is that we must overcome the fissures among us. That cannot happen if, in debate, however robust, among ourselves, one section of the population is licensed to be condemnatory because its members were the victims of oppression, and the other section, understood to be, collectively, the former oppressors are disciplined to remain silent.” (own emphasis)
Meaning and Context
32. In South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another the Constitutional Court held:
“Making a determination as to the meaning of words is a task that rightfully falls to the expertise, competency, and responsibility of courts. That said, it would be remiss of me not to acknowledge that words are naturally coloured by the context in which they appear and are used. Indeed, this Court, in Le Roux, discussed the importance of determining the meaning of words with recourse to their context:
“The primary meaning is the ordinary meaning given to the statement in its context by a reasonable person . . . . The reasonable reader or observer is thus a legal construct of an individual utilised by the court to establish meaning.”
What this means is that, whilst the determination as to whether words are likely to be harmful and propagate hatred, and thus constitute hate speech, falls within the exclusive aegis of a court, evidence that shines a light on the context of those words may be of assistance to that court in conducting this exercise.[17]
Hatred
33. In Islamic Unity Convention v Independent Broadcasting Authority and Others held:
Expression that advocates hatred and stereotyping of people on the basis of immutable characteristics is particularly harmful to the achievement of these values as it reinforces and perpetuates patterns of discrimination and inequality. Left unregulated, such expression has the potential to perpetuate the negative aspects of our past and further divide our society.[18]
34. In the Canadian case of R v Keegstra the court held that:
A person's sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded the groups to which he or she belongs. . . .The derision, hostility and abuse encouraged by hate propaganda therefore have a severe impact on the individual's sense of self-worth and acceptance. This impact may cause target group members to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity through, amongst other things, respect for the many racial, religious and cultural groups in our society.[19]
35. In their highly-regarded commentary the authors of the Constitutional Law of South Africa state that:
Hate speech can increase social tensions, and the risk of violence, discrimination and other anti-social behaviour both because the hateful message may persuade (or incite) people to hateful views and actions and because the targeted persons may react violently to the speech. Hate speech also undermines the values of pluralism and diversity, by communicating a message that some members of the community are less worthy than others merely by virtue of their membership of a particular group. In the South African context, hate speech thus undermines the pressing goals of overcoming our divisive past and pursuing the tasks of reconciliation and the building of a democratic society. As Neisser says, hate speech may weaken 'the community-building necessary for democracy to be sustained'.[20] (own emphasis)
36. In Qwelane, the Court cited the Whatcott case, where the Supreme Court of Canada held:
Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimise them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims.[21] (own emphasis)
Harmful Words
37. In Qwelane the Constitutional Court stated held that:
“harmful” can be understood as deep emotional and psychological harm that severely undermines the dignity of the targeted group.[22] (own emphasis)
Similarly, in SAHRC v Khumalo, three types of harm were illustrated. First, “the reaction of persons who read the utterances and who are inclined to share those views and be encouraged by them to also shun, denigrate and abuse the target group”. Second, the type of harm experienced by the target group which includes “demoralisation and physiological hurt” and “the harm caused from responding in kind thereby creating a spiral of invective back and forth”. And third, “harm to the social cohesion in South African society” which can undermine our nation building project.[23] (own emphasis)
Incitement to harm
38. In Qwelane, the Court held:
Considering next the phrase “to incite harm”, it is imperative to point out at the outset that there is no requirement of an established causal link between the expression and actual harm committed. [24] (own emphasis)
39. The ordinary meaning of the phrase ‘incitement to cause harm’, “suggests that one should not look to the harm caused by the speech itself but rather to the impact of the speech on third parties, i.e. does the speech encourage, stimulate or call for others to cause harm?”[25] In addition, in order to amount to “incitement” the expression ought to amount to an instigation or active persuasion of others to cause harm.[26]
40. The term is defined in Black’s Law Dictionary as “[t]he act or an instance of provoking, urging on, or stirring up.”[27]
41. On the issue of imminence, the Court in Qwelane was clear that:
“To require a causal link would in and of itself undermine the very same objectives of the Equality Act to prohibit unfair discrimination, in that not every instance of harmful and/or hurtful speech will result in imminent violence. There may be expression which certain groups find hurtful and/or harmful, which does not actually result in violence, but that does not take away from the fact that such expression would have been hate speech.”[28]
Context and Likelihood of Harm
42. In Qwelane, the Court held:
Various factors have been identified in international law that justify the curtailment of freedom of expression. These include: (i) the prevailing social and political context; (ii) the status of the speaker in relation to the audience; (iii) the existence of a clear intent to incite; (iv) the content and form of the speech; (v) the extent and reach of the speech; and (vi) the real likelihood and imminence of harm.[29]
UNFAIR DISCRIMINATION LAW
43. S12 of PEPUDA states:
Prohibition of dissemination and publication of information that unfairly discriminates
No person may-
(a) Disseminate or broadcast any information;
(b) Publish or display any advertisement or notice,
That could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person: Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution is not precluded by this section.
44. In President of The Republic of South Africa and Another v Hugo[30] Goldstone J held that:
The prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.[31]
45. In President of The Republic of South Africa and Another v Hugo O’Regan J held that:
The more invasive the nature of the discrimination upon the interests of the individuals affected by the discrimination, the more likely it will be held to be unfair. [32]
46. Section 9 of the Constitution states that:
(1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
47. Section 1 of the Constitution states that:
The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism
LAW ON REVIEW
48. In terms of S6(2) A court or tribunal has the power to judicially review an administrative action if
a) the administrator who took it (iii) was biased or reasonably suspected of bias.
d) The action was materially influenced by an error of law.
e) the action was taken –
(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;
(iv) because of the unauthorised or unwarranted dictates of another person or body;
g) The action consists of a failure to take a decision.
h) the exercise of the power or performance of the function authorised by the empowering provision, in pursuit of which the administrative action was purportedly take, is so unreasonable that no reasonable person could have so exercised the power or performed the function.
i) the action is otherwise unconstitutional or unlawful.
49. The grounds listed in PAJA mirror the grounds under the principle of legality.
APPLICATION OF THE LAW TO THE FACTS
The Written Decision
Error of Law
50. While there is historical context to the statement, the major import of the statement as a whole was directed not at the behaviour of Whites historically (as the SAHRC found), but at what the behaviour of Blacks should be now in respect of Whites on the land issue.
51. Mr Malema proposes “peaceful” land occupation, but makes it clear that if that approach fails, in that event it becomes necessary in Mr Malema’s view to take land “by whatever means necessary”, including “the slaughtering of white people”. It is in that context that the phrase “at least for now” is made. In other words, so long as peaceful land occupation is successful, there is no need for “the slaughtering of white people.”
52. It is clear from the context that Mr Malema is calling for the occupation of land by any means necessary, that this is “inevitable”, and that this dispossession will include, should peaceful occupation not succeed, violent occupation including the murder of white people. Given that the occupation of land owned by any other person (irrespective of that person’s race) is prima facie unlawful, it is inevitable that Mr Malema’s supposed “peaceful” occupation is untenable.
53. Mr Malema’s threat to slaughter white people demonstrates an intention to propagate hatred and incite harm against them as a group. Hearing the statement amounts to a harm in its own right.
54. The statement, including the threat that “white minorities be warned, we will take our land… [i]t doesn’t matter how…[t]he land will be taken by whatever means necessary”, in its proper context, clearly amounts to words that reasonably can be construed to demonstrate a clear intention to be harmful or incite harm. The taking of another’s property is a deprivation of that person’s rights and is by that mere fact harmful. For the leader of the third largest political party to make statements that such conduct is “inevitable” is also clearly an incitement to his followers to engage in the very activity that is proposed, therefore being an incitement to cause the harm in question.
55. That the statement is made in the form of Blacks taking from Whites; that the “peace” of the Whites must be disturbed; that Whites are mere “visitors” and must “behave”; and that the possibility exists that Whites can be slaughtered if needs be, can clearly and reasonably be construed as demonstrating a clear intention to either promote or propagate hatred. The meaning of the statement is obvious – Whites are nothing more than thieves of land; “visitors”; perpetrators of genocide; and liable to be slaughtered like animals by Blacks if that becomes necessary.
56. Furthermore, in respect of the requirement that the statement “incite harm” the First Respondent found that there was no imminence as required by section 16(2)(c) of the Constitution, and so this requirement was not met for purposes of PEPUDA.
57. Neither section 10(1)(b) of PEPUDA nor section 16(2)(c) of the Constitution have an imminence requirement in relation to an incitement to cause harm. In finding on this basis that the requirement of section 10(1)(b) of PEPUDA was not met, the SAHRC’s decision was materially influenced by an error of law and the decision stands to be reviewed and corrected or set aside.
58. Even if generously read that the First Respondent was referring to section 16(2)(b) of the Constitution, this too would be a material error of law, as section 10 of PEPUDA does not require “incitement of imminent violence” at all. That section 10 of PEPUDA might restrict categories of speech more broadly than those delimited in section 16(2) of the Constitution is not in issue here and so PEPUDA must be applied on its own terms in line with the principal of subsidiarity.
Unreasonable Decision
59. The statements amounted to hate speech as set out in section 10 of PEPUDA when read conjunctively and, as a result, the decision of the SAHRC that even if section 10 is read disjunctively the statement is not hate speech is so unreasonable that no reasonable decision maker could have made such decision. It therefore stands to be reviewed and corrected or set aside.
Unfair Discrimination and a Failure to Decide
60. AfriForum stated in its complaint that the statement was not only hate speech, but also discrimination based on race and a breach of section 12 of PEPUDA. A specific request was made for this aspect to be considered.
61. Despite this, the SAHRC at no stage considers whether the statement could amount to discrimination or the dissemination of information that could reasonably be construed or understood to demonstrate a clear intention to unfairly discriminate, as provided for in section 12 of PEPUDA.
62. Mr Malema’s statement sought to impose on Whites the burden of having their land removed from them, potentially by force of violence, based on their racial classification. Mr Malema therefore could reasonably be construed as having the clear intention of seeking to impose burdens on Whites which would not be imposed on Blacks and therefore being discriminatory in nature.
63. In failing to deal with this aspect at all, the SAHRC failed to consider relevant considerations in coming to its decision. The decision therefore stands to be reviewed and corrected or set aside on that basis.
Irrelevant Considerations
64. Additionally, when the SAHRC deals with the “factual context”, it relies on a statement made by Mr Malema on or about 12 June 2018 purportedly qualifying and further contextualising the statement that he was not calling for the slaughter of White people “at least for now.” That subsequent statement of Mr Malema was made almost two years after the statement in question and cannot reasonably be considered part of the context within which the 7 November 2016 statement was made. By unduly considering these later statements, the SAHRC impermissibly expanded the actual context of the relevant earlier statement. It has taken into account irrelevant considerations as a basis for its decision. The decision stands to be reviewed and corrected or set aside on that basis.
Failure to Take Relevant Considerations into Account
65. Furthermore, the SAHRC incorrectly interpreted the statement of Mr Malema, in part, by focussing only on the historical aspect, and not on the fact that the vast majority of the speech was focussed on what ought to be done presently or in the future, and how such conduct could (and should) unfold.
66. The SAHRC ignores the true status and position of Mr Malema, and simply states that he “belongs to the vulnerable black population group”. This was an error of law, as the identity and status of the speaker must be properly considered as part of the context, and not simply reduced to one aspect of his identity. In Qwelane, the Constitutional Court expressly considered Mr Qwelane’s “significant stature as a seasoned journalist, commentator of note and veteran of the liberation struggle”. Furthermore, the Court considered the fact that he “wrote for a predominantly Black township audience which took his views seriously.” [33]
67. The SAHRC completely ignored the simple and obvious facts that Mr Malema is the leader of the third largest political party in the country. That he has tremendous support. That his party is well-known for its stance on the issue of land possession, nationalisation of private industries, and its professed support for the poor and working classes, who are predominantly Black. It simply discounts Mr Malema’s actual position of power in society, the degree of support he has, and the seriousness with which his audience takes his views. It instead reduces him to nothing more than the fact that he belongs to a particular race group. This was a fundamental misdirection.
The 27 March 2019 Media Briefing
Bias and Breach of Constitutional Value of Non-Racialism
68. Dr van der Berg, on behalf of the SAHRC, proposes that the test itself for whether words are hate speech is different depending on whether the words are uttered against black people as opposed to against white people. It therefore appears that had the races of the utterer and the targeted group been reversed, then identical language would be treated differently – i.e. had a white person stated that they were not “calling for the slaughter of black people, at least not for now” this would almost certainly have been found to constitute hate speech. There is therefore a reasonable apprehension that the stance the SAHRC takes in respect of hate speech is not objective and is biased against finding that words amount to hate speech, if directed at white people. The decision stands to be reviewed and corrected or set aside on that basis.
69. Furthermore, the race based double standard put forward by Dr van der Berg is a breach of the Constitutional values of non-racialism and equality before the law regardless of race.
70. The decision stands to be reviewed and corrected or set aside on the basis that it is unconstitutional and unlawful.
Error of Law
71. In addition, the test applied in determining who is the objective reasonable person is a material error of law. The mere fact that the majority of the population is constituted by black persons does mean that the objective reasonable person should be equated with a black person. The decision stands to be reviewed and corrected or set aside on that basis.
Unlawful Dictation
72. In Mathipa v Vista University and Others[34] the court held:
Baxter Administrative Law at 442 states:
'A discretionary power vested in one official or body may not be usurped by another, whether the former is subordinate to the latter or not. This constitutes an unlawful dictation and a failure by the person upon whom the power has been conferred to exercise his own discretion. In Mabi v Venters post Town Council1950 (2) SA 793 (W) the C Court pointed out that, where a superintendent had cancelled a residential permit on the instructions of another official (who did not possess the power to do so himself), the superintendent had failed to comply with his statutory duty.
''For the superintendent so to give effect to the instructions of a person not charged with the duty of considering cancellation under the regulation was not, I consider, a proper discharge of his function D under the regulation. He allowed another to usurp his function, and gave the matter no consideration himself.''
To my mind, this is what has happened here. The council allowed the second respondent to usurp its function and gave the matter no consideration itself.
73. The SAHRC’s decision is almost identical to the opinion of Dr van der Berg. It is nothing more than a cut-and-paste exercise in which the overwhelming majority of Dr van der Berg’s opinion is replicated word-for-word, including its formatting. [35]
74. In its own decision, the SAHRC makes no reference to Dr van der Berg or her opinion. It has simply rubber-stamped her views. That external legal opinions reached similar conclusions is likewise of no assistance. The SAHRC is the party vested with the power and obligation to decide on the claim. To ask the opinions of others (even its internal researcher), then to simply repeat them without applying any of its own assessment and reasoning, is not a discharge of that obligation, but its abdication.
LAW ON SUBSTITUTION OF DECISION
75. In terms of S8(1)(c)(ii) (aa) pf PAJA
The court or tribunal, in proceedings for judicial review in terms of section 6 (1) may grant an order that is just and equitable, including orders- in exceptional cases substituting or varying the administrative action or correcting a defect resulting from the administrative action.
76. In Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another[36] the Constitutional Court held that:
A case implicating an order of substitution accordingly requires courts to be mindful of the need for judicial deference and their obligations under the Constitution. As already stated, earlier case law seemed to suggest that each factor in the exceptional circumstances enquiry may be sufficient on its own to justify substitution. However, it is unclear from more recent case law whether these considerations are cumulative or discrete.
To my mind, given the doctrine of separation of powers, in conducting this enquiry there are certain factors that should inevitably hold greater weight. The first is whether a court is in as good a position as the administrator to make the decision. The second is whether the decision of an administrator is a foregone conclusion. These two factors must be considered cumulatively.
Thereafter, a court should still consider other relevant factors. These may include delay, bias or the incompetence of an administrator. The ultimate consideration is whether a substitution order is just and equitable. This will involve a consideration of fairness to all implicated parties. It is prudent to emphasise that the exceptional circumstances enquiry requires an examination of each matter on a case-by-case basis that accounts for all relevant facts and circumstances.
Court in as good as position
77. In Theron v Ring van Wellington van die NG Sendingkerk[37], the court found the offending action, a disciplinary decision, to be purely judicial in nature and therefore one which the court was fully qualified to deal with.
78. In Trencon, the court held that:
A court will not be in as good a position as the administrator where the application of the administrator's expertise is still required and a court does not have all the pertinent information before it. This would depend on the facts of each case. Generally, a court ought to evaluate the stage at which the administrator's process was situated when the impugned administrative action was taken. For example, the further along in the process, the greater the likelihood of the administrator having already exercised its specialised knowledge. In these circumstances a court may very well be in the same position as the administrator to make a decision. In other instances some matters may concern decisions that are judicial in nature. In those instances — if the court has all the relevant information before it — it may very well be in as good a position.
Forgone Conclusion
79. In Hartman v Chairman, Board for Religious Objection[38] the Court held that there was no point in remitting the mater for reconsideration because the board would be bound to follow the Court’s interpretation of the Act.
Bias
80. In Minister of Local Government and Land Tenure v Inkosinathi Property Developers (Pty) Ltd and Another[39] the court held that:
There is, however, what I consider another cogent reason not to remit the matter. The appellant has given a clear impression that he is convinced that his refusal was correct and that no further consideration or hearing was required. In Essack v Durban City Council1953 (4) SA 17 (N) I Holmes J (as he then was) said (at 23) that on the facts of that case, in which the principle involved is relevant to this appeal, the matter should not be sent back because, inter alia, of an attitude which impaired 'the prospects of respondent's fairly applying its mind afresh along the correct lines' …
It can be said that it would be unfair to both parties if appellant was required to have to decide on matters on which he has expressed such categorical opinions. It is obviously not possible to do what is done in certain appeals from lower courts, namely to remit it to another magistrate or in this case to another Minister.
APPLICATION
81. In this matter, this Honourable Court is in as good a position as the SAHRC to determine whether the statements of Mr Malema amount to hate speech. All of the relevant information is present, and it is merely a matter of applying the relevant provision of PEPUDA. If this Court finds that a correct application of the law would result in the statements being found to be hate speech and unfair discrimination, then the outcome would be a foregone conclusion.
82. The SAHRC has been adamant that its decision was correct, and it has demonstrated bias in its sentiment that different rules should apply to different races.
83. Furthermore, there has been an immense delay in the determination of this dispute. The original statement was made in 2016. The SAHRC only rendered its decision in 2019. It is now 2023.
84. Therefore it would be preferable for this court to substitute its own decision.
CONCLUSION
85. This Court has jurisdiction to hear this matter and determine whether the statements amount to hate speech and unfair discrimination.
86. If PAJA is not the correct legislation to review the decision of the SAHRC, then the principle of legality should be used.
87. Upon a proper application of the law, this Court should find that the statements amount to hate speech and unfair discrimination.
88. The exceptional circumstances test in PAJA has been met for this Court to substitute its own finding for that of the SAHRC. Alternatively, it should referrer the decision back to the SAHRC for reconsideration.
RELIEF
89. Ordering that the First, Second, and Third Respondents decision be set aside and replaced with a decision that the comments do constitute hate speech and unfair discrimination in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000;
90. Alternatively ordering that the matter be referred back to the First Respondent for reconsideration.
91. That the costs of this Application be paid by the First Respondent, the Fourth Respondent, and the Fifth Respondent jointly and severally.
Counsel for the Applicant
Mark Oppenheimer
4 February 2023
Footnotes:
[1] Complaint attached at Caselines 1-38 to 40.
[2] Decision attached at Caselines 41 to 46.
[3] 2021 (6) SA 37 (CC)
[4] 2019 (6) SA 253 (CC)
[5] Minister of Home Affairs and Another v Public Protector of the Republic of South Africa 2018 (3) SA 380 (SCA), Para 38
[6] AfriForum filed a Supplementary Founding Affidavit seeking a review on the principle of legality in the alternative to a review in terms of PAJA, at Caselines 1-252 to 253
[7] The complete speech is attached at Caselines 1-179 to 185
[8] Full article attached at Caselines 1-31 to 37
[9] Article attached at Caselines 1-47.
[10] “Concluding observations on the combined fourth to eighth periodic reports of South Africa” UN Doc CERD/C/ZAF/CO/4-8, available at http://www.politicsweb.co.za/documents/un-cerds-observations-on-sa.
[11]Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 1
[12] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 78
[13] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 162
[14] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 112
[15] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 96
[16] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 97
[17] [2022] ZACC 5,at paras 143-144
[18] Ibid, at paras 33 and 45.
[19] R v Keegstra [1990] 3 SCR 697, (1990) 3 CRR (2d) 227-8
[20] D Milo, G Penfold & A Stein ‘Freedom of Expression’ in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa Chapter 42, at page 75-6.
[21] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 80
[22] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 145
[23] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 154
[24] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 98
[25] D Milo, G Penfold & A Stein ‘Freedom of Expression’ in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa Chapter 42, at page 82.
[26] Ibid page 83
[27] Garner et al (eds) Black’s Law Dictionary 1999 7ed page 766
[28] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 111
[29] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 89
[30] 1997 (4) SA 1 (CC).
[31] President of the RSA v Hugo 1997 (4) SA 1 (CC) para 41 at 22G - 23A.
[32] President of the RSA v Hugo 1997 (4) SA 1 (CC) para 112 at 49C-E.
[33] Qwelane v South African Human Rights Commission and Another [2021] ZACC 22, para 177
[34] 2000 (1) SA 396 (T), at 402
[35] SAHRC decision at Caselines 4-144 to 174. Opinion of Dr Van Der Berg at Caselines 4-175 to 205.
[36] 2015 (5) SA 245 (CC), at paras 46-7
[37] 1976 (2) SA 1 (A)
[38] 1987 (1) SA 922 (O), at page 935
[39] 1992 (2) SA 234 (TkA), at page 239
