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 by Advocate MJ Engelbrecht sets out the basis on which the FW de Klerk Foundation is challenging the SAHRC’s original decision.

- Politicsweb

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 31328/19

In the matter between:

FREDERIK WILLEM DE KLERK N.O. - First applicant

DAVID WHITEFOORDT STEWARD N.O. - Second applicant

HERMAN BAILEY N.O - Third applicant

BEN COETZEE BESTER N.O. - Fourth applicant

WARREN ALEXANDER MORTEN CLEWLOW N.O. - Fifth applicant

ELIZABETH DE KLERK N.O. - Fifth applicant

THEUNIS ELOFF N.O. - Sixth applicant

DEENADA YALEN KONAR N.O. - Seventh applicant

FORTUNATE MASHEBU MATHEBULA N.O. - Eighth applicant

and -

THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION - First respondent

THE CHAIRPERSON OF THE SOUTH AFRICAN

HUMAN RIGHTS COMMISSION: BONGANI CHRISTOPHER MAJOLA N.O. - Second respondent

COMMISSIONER PRISCILLA JANA N.O. - Third respondent

JULIUS SELLO MALEMA - Fourth respondent

APPLICANTS’ HEADS OF ARGUMENT

INTRODUCTION AND BACKGROUND

The nature of the case

1. This is an application under the Promotion of Administrative Justice Act 4 of 2000 (PAJA) to review and set aside a decision of the South African Human Rights Commission (SAHRC) of 8 March 2019 in which it concluded that certain utterances of the fourth respondent (Mr Malema) did not amount to hate speech, having regard to the context in which they were uttered.¹

2. The review has its genesis in a complaint lodged by the FW De Klerk Foundation (FWDKF) in November 2016.²

The complaints

3. Mr Malema is the leader of the Economic Freedom Fighters (EFF), referred to by that party as its “Commander in Chief” or “CIC”, and also a Member of Parliament. He is an influential political leader and a skilled orator who identifies himself with “the people”, and he is proficient at arousing the prejudices and passions of the populace by rhetoric, sensational charges, catchwords and the like.³

4. Mr Malema has repeatedly expressed race-based resentment in the course of making highly charged political and politically-orientated speeches. In doing so, he seeks to make capital of the social discontent and to incite the populace, in the name of the causes that he supports and with a view to gaining political support.⁴ So, for example, in 2011, the Equality Court found that Mr Malema had made himself guilty of hate speech through the repeated singing of a struggle song calling for the shooting of Boers and calling Boers rapists and dogs.⁵

5. On 7 November 2016, Mr Malema appeared in the Newcastle Magistrate’s Court on two charges of violating the Riotous Assemblies Act of 1956. In an address to supporters after his appearance, Mr Malema made clear his view that white people were not entitled to own any land in South Africa. In that context, he indicated that he was not calling for the slaughter of white people “at least for now”, although he communicated his intention “to disturb the white man’s peace” and called for the occupation of land. He referred to white people as “visitors” who must “behave”, and who “stole our land”. During the course of his address, Mr Malema made the statement that the “land will be taken by whatever means necessary”.⁶

6. The FWDKF brought the utterances to the attention of the SAHRC,⁷ asserting that the statements were “a direct contravention of section 16(2) of the Constitution which prohibits ‘propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm’.” The FWDKF pointed out that the statements held the threat of racial conflict that would “destroy our constitutional democracy and leave South Africa in ruins”.

7. AfriForum also lodged a complaint,⁸ and asked for an official investigation.⁹ Its position was that the utterances were in breach of sections 10 and 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act). In other words, it asserted that the utterances amounted to hate speech, but also that the statements were discriminatory in nature and amounted to the unlawful dissemination of information that discriminates.

8. Various other complaints were received by the SAHRC – 18 in total, according to the SAHRC.¹⁰ Indeed, the Record contains 135 pages of correspondence concerning complaints,¹¹ including from Phumzile Van Damme on behalf of the Democratic Alliance.¹² The identities of the complainants have largely been redacted, but a review of the complaints indicated that they came from various race groups, including Africans.¹³

The investigation and decision

9. The SAHRC consolidated all complaints for investigation.¹⁴ It communicated to the FWDKF that it was “aware that hate speech and race relations continue to be an area of significant contention and that there are evolving challenges in addressing racist attitudes and behaviour in South Africa”. Despite this, the SAHRC took more than two years to issue its decision. When it did so in March 2019, it concluded that Mr Malema’s utterances did not constitute hate speech.¹⁵ In reaching this conclusion, it relied heavily on certain historical, social and factal context that it had identified.¹⁶

The review

10. This review is made under section 6 of PAJA, on the basis that the decision (i) was materially influenced by an error of law; (ii) was unconstitutional and unlawful; (iii) is not rationally connected to the information that was before the SAHRC; (iv) was so unreasonable that no reasonable person could have come to that conclusion; (v) reveals that irrelevant considerations were taken into account and relevant considerations were not considered.¹⁷

11. The review is being heard simultaneously with a review instituted by AfriForum, in respect of the same decision.

12. In answer to the review, the SAHRC takes several preliminary points, namely that (i) this Court lacks jurisdiction to entertain teh review and grant the relief sought; (ii) that the FWDKF seeks to appeal the decision in the guise of review; (iii) that PAJA cannot be relied on to review the decision of the SAHRC; and (iv) that the FWDKF has not made out a cause of action or pleaded ina way that allows for the SAHRC to respond to the allegations. There is no merit to these preliminary points, as is discussed in the next section of these heads of argument.

13. On the merits of the review the SAHRC relies on an internal legal opinion concerning these and other statements made by Mr Malema,¹⁸ as well as external opinion form counsel.¹⁹ Both concluded that Mr Malema’s statements did not constitute hate speech under the Equality Act.²⁰ The SAHRC accepted this advice.²¹

14. The SAHRC asserts that it took the time properly to consider the FWDKF’s complaint, and that it properly considered the impugned statements “looking at the facts, the context, the applicable law and the Constitution”.²² Its position is that its conclusion is the result of an analysis of the impugned statements “against the legal framework and having regard to the factual, social and historical context in which the utterances were made”.²³ The SAHRC denied the FWDKF’s allegation that the relevant context to be taken into account in the evaluation of hate speech includes

(i) the content and form of the speech; (ii) the economical, social and political climate; (iii) the position and status of the speaker; (iv) the reach of the speech; and

(v) the objectives of the speech.²⁴

15. The SAHRC’s answer to the allegation that the SAHRC did not invoke its investigative powers under the SAHRC Act and that its decision appears to have been the result of a desktop exercise,²⁵ was denied.²⁶ However, the SAHRC placed no facts before the Court to show that it indeed conducted an investigation that went further than a desktop exercise.²⁷ Its earlier assertion that it accepted legal advice suggests that it did not conduct an investigation in the true sense of the word.

16. The FWDKF submits that the oppostion to the review cannot be upheld, for reasons more fully discussed in the remainder of these heads.

POINTS IN LIMINE FALL TO BE DISMISSED

Alleged lack of jurisdiction

17. The SAHRC contends that this Court “lacks the jurisdiction to replace the decision of the Commission with an order that declares the comments made by Mr Malema, on 7 November 2016, to be hate speech in terms of the [Equality Act]”.²⁸ Its complaint is that “a complaint of hate speech provided for by the Equality Act is susceptible to adjudication by the Equality Court. The Equality Court was especially set up to deal with unfair discrimination and other issues provided for in sections 10 to 12 of the Equality Act”.²⁹

18. The submission is wrong.

19. Section 16(1)(a) provides that every Division of the High Court or local seat thereof is an Equality Court for its area of jurisdiction. Section 20(2), for its part, provides that a person “wishing to institute proceedings in terms of or under this Act must … notify the clerk of the equality court of their intention to do so”.³⁰ In accordance with section 21, the equality court before which proceedings are instituted in terms of or under the statute, must hold an inquiry in the prescribed manner “and determine whether unfair discrimination, hate speech or harassment, as the case may be, has taken place”.³¹ The Equality Court is afforded the power to make appropriate orders, including a declaratory order.³²

20. The Equality Act confers these powers, but by no means confers exclusive jurisdiction on the Equality Court to make orders concerning unfair discrimination and hate speech.

21. Moreover, no provision of the Equality Act confers upon it jurisdiction to entertain reviews under PAJA, or of any other kind, in respect of decisions of the SAHRC.

22. The only review power that is referenced in the statute is in respect of a determination by a Magistrate’s Court relating to a ground of discrimination, in respect of which the statute expressly confers jurisdiction on the High Court.³³ In such a case, the Equality Act provides that the High Court, in such a case, must “make a determination in respect of the ground referred to … and thereafter may make any order in terms of this Act as it deems fit”. These provisions confirm that the legislature intended for the High Court entertaining a review of a determination under the Equality Act to make the necessary orders consequent upon the exercise of review jurisdiction. Why the High Court should enjoy jurisdiction to review decisions of the Magistrate’s Court sitting as the Equality Court, and make determinations on whether utterances amount to hate speech, but not enjoy that power in a review of the SAHRC’s decisions, would be illogical.

23. That the High Court has the power to make determinations concerning contraventions under the Equality Act also appears from section 23 of the Equality Act, which provides that “Any person aggrieved by any order made by an equality court in terms of or under this Act may, within such period and in such manner as may be prescribed, appeal against such order to the High Court having jurisdiction or the Supreme Court of Appeal, as the case may be”.³⁴ The High Court or the Supreme Court of Appeal “may make such order in the matter as it may deem fit”.³⁵

24. The legislative scheme clearly illustrates that the Equality Court enjoys neither exclusive nor final jurisdiction to make orders concerning alleged unfair discrimination or hate speech. Indeed, since it enjoys no ordinary review jurisdiction, it is the Equality Court that would have no jurisdiction to entertain a review of a decision of the SAHRC.

25. Finally, regard must be had to section 169 of the Constitution of the Republic of South Africa Act 108 of 1996 (Constitution), which sets out the powers of the High Court. As the Constitutional Court explained in The Competition Commission of South Africa v Group Five Limited,³⁶ section 169 is couched in broad terms and affords original jurisdiction to the High Court to resolve any dispute that is capable of being resolved by resort to law, unless that jurisdiction has been assigned to another forum.

25.1. The majority held that it is well established that ouster of the High Court’s jurisdiction must be in unambiguous terms and there is a strong presumption against it.

25.2. It held further that this entails a high threshold, as ouster must be either expressly excluded or must appear by necessary implication from the statute’s provisions, and then only to the limited extent of that necessary implication.

25.3. Moreover, the majority found that section 169(1)(a)(ii) of the Constitution specifically provides that the High Court may decide any constitutional matter, “except a matter that is assigned by an Act of Parliament to another court of similar status”.

25.4. It reasoned that the High Court therefore has no jurisdiction to determine constitutional matters which fall within the statutorily assigned purview of specialised forums with similar status.

25.5. But it held further that it is trite that review applications, whether brought under PAJA or the principle of legality, are constitutional matters. The majority thus found that the word “assign” in section 169(1)(a)(ii) implies exclusivity; and that if a constitutional matter is not placed within the exclusive jurisdiction of a specialised forum, the High Court’s jurisdiction is not ousted.

26. The SAHRC cannot, and has not met the high bar set by the Constitutional Court. It cannot do so when regard is had to section 169 of the Constitution and the provisions of the Equality Act.

27. The objection to jurisdiction must be dismissed outright. Pplainly, the High Court enjoys the power to entertain a review, set aside a deicsion of the SAHRC, and make consequential orders that incude substitution of the decision of the SAHRC.

Allegation of appeal in the guise of a review

28. The SAHRC pleads that the FWF “seeks to appeal the [SAHRC’s] decision in the guise of a review application. A review is not concerned with the correctness of the decision made by the [SAHRC], but with whether (and how) it performed the function with which it was entrusted”.³⁷

29. Hoexter & Penfold observe in this regard that “At least in theory, review tests the legality and not the merits of the decision”.³⁸ But, so they observe “the questions of process and merits are not necessarily capable of clear distinction. Indeed, reasonableness review, which is now an established ground for judicial review of administrative action, undoubtedly involves scrutiny of the merits”.³⁹ Indeed, as they explain, “In practice, … the distinction is not nearly as clear as it is made to seem. The focus of judicial review in administrative law frequently falls on the decision itself as opposed to the decision-making process. In truth it may be impossible is omse cases to separate the merits from the rest of the matter, since a court cannot effectively judge the legality of the decision without considering its merits as well”.⁴⁰

30. As Wallis JA pointed out, writing for the SCA in National Credit Regulator v Lewis Stores (Pty) Ltd and Another⁴¹ “common experience teaches us that there may be considerable overlap between appeal and review grounds”.⁴²

31. In Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration⁴³ also observed “under PAJA the merits to some extent always intrude, since the court must examine the connection between the decision and the reasons the decision-maker gives for it, and determine whether the connextion is rational. That task can never be performed without taking some account of the substantive merits of the decision”.⁴⁴

32. Hoexter & Penfold, in their analysis, argue that:

“…it is difficult, if not impossible, to tell without entering into the merits of the decision whether sufficient weight was given to a relevant consideration, or whether an ulterior purpose or motive was pursued by the decision-maker, or whether the decision was dictated by an unautorised person or body, or whether the decision- maker adhered rigidly to a policy or precedent. Review of errors of law or fact invites scrutiny of the merits in an even more direct way, for it allows the court to say that an administrator got the law or the facts ‘wrong’.”⁴⁵

33. In all of these circumstances, the objection that the review in casu is in truth an appeal may be dismissed out of hand. It is in any event not a proper prelimimary ground: this Court will examine the facts and submissions, and reach the conclusion on whether or not a proper basis for review has been made out.

Objection to reliance on PAJA

34. The SAHRC contends that the FWDKF “incorrectly bases its grounds of review on section 6 of PAJA and fails to bring this application under the rule of law and principle of legality, either at all, or in the alternative”.⁴⁶ Elesewhere it asserts that decisions of the SAHRC “are subject to review under the principle of legality, rationality pertaining to procedure and substance. The FWDKF has brought its review on the basis of PAJA and has not relied, in the alternative, on the rule of law and the principle of legality. This is fatal to its application”.⁴⁷

35. For these submissions, the SAHRC relies on the judgment of the Supreme Court of Appeal (SCA) in Minister of Home Affairs and Another v Public Protector of the Republic of South Africa,⁴⁸ which dealt with the reviewability of exercises of public power by the Public Protector. In that case, the SCA found that the principle of legality found application, and that the decisions taken by the Public Protector do not constitute administrative action.

36. However, the Constitutional Court in Public Protector and Others v President of the Republic of South Africa and Others (Feedom Under Law as amicus curiae)⁴⁹ commented that the judgment appeared to be at variance with its judgment in Public Protector v South African Reserve Bank,⁵⁰ and explained that “This Court implicitly endorsed the application of [PAJA] in the decision-making process followed by the Public Protector when she takes remedial action”.⁵¹ The Constitutional Court explained further that:

“I am not convinced that the factors on which the [SCA] relied in support of the view that those decisions do not constitute administrative action. The fact that a power is derived directly from the Constitution does not mean that its exercise cannot be administrative. Indeed, the [SCA] characterised that power as being of a public nature. It will be recalled that administrative action comes into existence from the exercise of public power”.⁵²

and

“Evidently, the [SCA] contrary to the jurisprudence of this Court, laid more emphasis on the identity of the functionary that exercised the power than the nature and impact of the power on those against whom it was exercised. This Court has ruled that the focus of the enquiry into whether the exercise of power amounts to administrative action should be on the nature of the power itself rather than the functionary who exercises it.”⁵³

37. In the circumstances, it is of no moment that the SAHRC is a Chapter Nine institution. The question is whether the decision falls within what PAJA treats as “administrative action”.

38. It does.

39. In accordance with PAJA, administrative action encompasses “any decision” by an “organ of state” when exercising a power in terms of the Constitution, or “exercising a public power or performing a public function in terms of any legislation”, which decision “adversely affects the rights of any person and which has direct external legal effect”.⁵⁴ It excludes certain specified executive powers of functions of the National Executive.⁵⁵

39.1. A “decision” is defined as “any decision of an administrative nature made, proposed to be made, or required to be made, as the case may be, under an empowering provision.”⁵⁶ This includes in particular giving a “direction”,⁵⁷ “imposing a condition or restriction”,⁵⁸ or “making a … requirement”.⁵⁹

39.2. An “empowering provision” is a “law, a rule of common law, customary law, or an agreement, instrument or other document in terms of which an administrative action was purportedly taken”.⁶⁰

39.3. An “organ of state” is, as contemplated in section 239 of the Constitution:

(a) any department of state or administration in the national, provincial or local sphere of government; or

(b) any other functionary or institution –

(i) exercising power or performing a function in terms of the

Constitution or a provincial constitution; or

(ii) exercising a public function in terms of any legislation, but does not include a court or judicial officer.”⁶¹

39.4. Courts enjoy the power to judicially review actions falling within this class.⁶²

40. The decision of the SAHRC undoubtedly falls within this class.

40.1. Under the Constitution, the SAHRC “must monitor and assess the observance of human rights in the Republic”,⁶³ and it enjoys the power “to investigate and to report on the observance of human rights”⁶⁴ and also to “take steps to secure appropriate redress where human rights have been violated”.⁶⁵

40.2. The SAHRC functions in terms of the South African Human Rights Commission Act 40 of 2013 (the SAHRC Act).⁶⁶ In terms of section 13(3), the SAHRC may “investigate, on its own initiative or on receipt of a complaint, any alleged violation of human rights, and if, after due investigation, the [SAHRC] is of the opinion that there is substance in any complaint made to it, it must, in so far as it is able to do so, assist the complainant and other persons adversely affected thereby, to secure redress, and where it is necessary for that purpose to do so, it may arrange for or provide financial assistance to enable proceedings to be taken to a competent court for the necessary relief or may direct a complainant to an appropriate forum”.⁶⁷

40.3. The SAHRC is conferred with broad-ranging powers to allow it to exercise its powers and perform its functions, including to “conduct or cause to be conducted any investigation that is necessary for that purpose”.⁶⁸ The SAHRC is supposed to “make known publicly the particulars of the procedure which it has determined” with due regard to the circumstances of the case.⁶⁹ The SAHRC must “as soon as possible” make available to the complainant and the person implicated thereby the findings of the investigation.

40.4. On this basis, the SAHRC is undoubtedly an organ of state. It enjoys powers both under the Constitution and under national legislation.

40.5. In accordance with the jurisprudence, where the SAHRC exercises a “power it is sanctioned to exercise in terms of law (Constitution and the SAHRC Act) those against who such power is exercised is obliged to obey same”.⁷⁰ In other words, the decision of the SAHRC has external legal effect. In the present case, where the SAHRC dimissed a complain of the FWDKF, that decision had an adverse effect on the FDWKF and the interests it represented in lodging the complaint.

41. Al of these observations lead to the ineluctable conclusion that PAJA is indeed the appropriate source of the review grounds. Added to this are the following considerations.

42. In Minister of Health & Another v New Clicks South Africa (Pty) Ltd & Others⁷¹ the Constitutional Court held that PAJA was the national legislation passed, as enjoined by section 33 of the Constitution, to give effect to the rights enshrined in that provision: it clearly was intended to be, and in substance was, a codification of these rights. It was required to cover the field and it purported to do so.⁷² A litigant cannot avoid the provisions of PAJA by going behind it, and seeking to rely on section 33(1) of the Constitution or the common law.⁷³

43. In Minister of Defence v Xulu⁷⁴, the SCA upheld the principle that when dealing with the executive and administrative arms of government the starting point is whether the conduct in question constitutes administrative action:

“If it is, the principle of subsidiarity demands that it be dealt with under PAJA. If it

falls outside PAJA, then the principle of legality may come into play, bearing in mind that this is a threshold requirement and that the concept of rationality that it invokes is a narrow one, not necessarily the same as that applied in a review under s 6(2)(f)(ii) of PAJA. The development of a coherent administrative law demands that litigants and courts start with PAJA, and, only when PAJA does not apply, should

they look to the principle of legality and any other permissible grounds of review

lying outside PAJA.”⁷⁵

44. Thus, if PAJA appropriately finds application, the dispute must be adjudicated under it.

45. There is no merit to the position of the SAHRC that the FWDKF ought to have relied on the principle of legality in bringing this review, and this point in limine also falls to be dismissed.

Allegation that no cause of action is properly pleaded

46. According to the SAHRC, the FWDKF “fails to disclose its cause of action or to make out a case for the relief sought, sufficiently clearly or precisely for the respondents to be able to respond”.⁷⁶

47. In submission, this is a make-weight point and not truly an objection in limine. The FWDKF has pleaded its case. The SAHRC has answered to the allegations. The Court, in its evaluation of the facts and submissions before it will make a determination on whether the facts pleaded by the FWDKF, taken together with the facts pleaded by the SAHRC and the Record serving before the Court, and in light of the applicable law, has made out a case for review. That will depend on an evaluation of all of the relevant facts and circumstances that may appropriately be taken into account by the Court.

EVALUATING THE REVIEW

48. As indicated in the introduction, the FWDKF bases its review in the submission that the SAHRC’s decision was:

48.1. materially influenced by an error of law;

48.2. unconstitutional and unlawful;

48.3. brought into account irrelevant considerations and left relevant considerations out of account;

48.4. not rationally connected to the information that was before the SAHRC; and/or

48.5. was so unreasonable that no reasonable person could have come to that conclusion.

49. As a precursor to the submissions on these specific topics, it is useful to consider:

49.1. the utterances made by Mr Malema that gave rise to the complaint;

49.2. the constitutional, statutory and jurisprudential materials concerning hate speech;

49.3. relevant contextual matter; and

49.4. the process of investigation, the materials ostensibly in the possession of the decision-maker at the time of making the decision, and the content of the SAHRC’s decision.

50. It is to this exercise that we now turn.

MR MALEMA’S UTTERANCES

51. It is worthwhile to consider the full content of Mr Malema’s speech, during the course of which the impugned statements were made. A transcript appears as annexure HRC5 to the answering affidavit.⁷⁷ It would add unduly to the length of these submissions to reflect the full transcript herein, but it must be read as if fully incorporated herein.

52. For present purposes, the following is highlighted.

53. Mr Malema spoke of alleged protection of white people by the governing party, so that black people were said to be the subjects of white people. He asserted that he was different “I am here to disturb the white man’s peace”, on the basis that “the white man has been too comfortable for too long. We are here unashamedly to disturb the white man’s peace”.

54. Referring to the history of violent land dispossession, he asserted that “They found peaceful Africans here. hey 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”.

55. Although Mr Malema professed that “If we act in line with the constitution everything else will be in order”, he nonetheless said that “This battle of the land is in the hands of the EFF. We will fight for it”, ultimately concluding that “Our strategic objective is the defeat of White Monopoly Capital. And that defeat of White Monopoly Capital means the ownership of property must change and be transferred into the hands of the people. The mines must be nationalized! The banks must be nationalized! The land must be expropriated, without compensation!”.

56. Yet further, Mr Malema explained that “We will not chase white people into the sea.

We will givem 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”. Later, in the same vein, he continued that “Victory will only be victory if the land is restored in the hands of the rightful owners. And rightful owners unashamedly is black people. Now 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.”

57. On this basis he objected to the notion that black people must buy land, likening it to a requirement to pay for your own stoen car. On the back of that, he commented: “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 court”. Yet further, he said “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”.

THE RELEVANT LEGAL FRAMEWORK

58. The question that must engage this Court is whether a case for review has been made out and, if so, what relief should follow.

59. Those questions, inevitably, requires an assessment of the law concerning freedom of speech and, of course, hate speech. This is so given the fact that the decision concludes on whether Mr Malema’s utterances amounted to hate speech, and the FWDKF contends that the SAHRC misdirected itself, and made an error of law in its assessment.

60. In this regard, there is a peculiarity that implicates the decision-making of this Court. It is this:

60.1. At the time of the complaint being made, and the SAHRC assessing it, section 10 of the Equality Act read:

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.

60.2. While this application was pending, the Constitutional Court handed down judgment in Qwelane.⁷⁸ Pursuant to that judgment, section 10(1) of the Equality Act now reads 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.”

61. In other words, in consequence of the decision in Qwelane, the bar to be met for a finding of hate speech has been lifted. In consequence, the FWDKF submits that:

61.1. the evaluation of the SAHRC’s decision must be made by reference to the statutory provision and jurisprudence available at the time of its decision, when the Court considers whether that decision falls to be reviewed and set aside; ⁷⁹

61.2. however, the evaluation of whether this Court can issue a decision declaring the utterances to be hate speech⁸⁰ must be made by reference to the statutory provision as it reads now.

62. The disctinction may appear subtle, but it is important nevertheless. The FWDKF submits that, even on the higher threshold now applicable, the SAHRC erred in its conclusion that the impugned statements did not amount to hate speech. This underscores just how grave the error was.

THE LAW ON HATE SPEECH

The constitutional prohibition

63. Section 16(1) of the Constitution guarantees the right to freedom of expresssion. In accordance with section 16(2), that right does not extend to propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Relevant provisions of the Equality Act

64. The provisions of the Equality Act relevant to this controversy are section 10(1) and

the definition of “prohibited grounds” in section 1.

65. As indicated above, pursuant to the judgment of the Constitutional Court in

Qwelane,⁸¹ section 10(1) of the Equality Act reads 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.”

66. The definition of “prohibited grounds” in section 1 are:

“(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status; or

(b) any other ground where discrimination based on that other ground—

(i) causes or perpetuates systemic disadvantage;

(ii) undermines human dignity; or

(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a)”

67. The determination of whether hate speech has taken place as alleged, for purposes of section 21(1) of the Equality Act, requires:

67.1. identification of the content and ambit of the prohibition relied on;

67.2. consideration of the jurisprudence that gives meaning to the prohibition, and gives guidance on the limits of the prohibition in light of the constitutional protection of freedom of expression.⁸²

The constitutional context

68. The evaluation of this review calls for an understanding of the so-called “hate speech provision” in a proper constitutional context. Section 2(b)(v) of the Equality Act expressly subordinates the Equality Act to section 16(2)(c) of the Constitution, and section 3(1)(a) of the Equality Act mandates interpretation that gives effect to the Constitution. Moreover, the principle of constitutional subsidiarity calls for legislation to be interpreted so as to be consistent with the Constitution.⁸³

69. The Constitutional Court in Qwelane explained the constitutional context.⁸⁴ It is that the Equality Act overall seeks to protect categories of persons disadvantaged by unfair discrimination, and to heal the wounds of our painful past:

“One of the ways in which the Equality Act realises this commitment is through prohibiting hate speech in s 10. The Legislature was alive to the reality that unfair discrimination can be perpetuated by both conduct and the dissemination of words (or more broadly, through expression). Through this prism, s 10 is located at the confluence of three fundamental rights: equality, dignity and freedom of expression, and we ought to navigate an interpretation of that section within this terrain.”⁸⁵

70. The Constitutional Court’s treatment of the hate speech provision in section 10 of the Equality Act makes the important link between equality, dignity and freedom of speech. As it explained in Qwelane, it is “not only the rights to equality and dignity that our Constitution seeks to protect. The right to free speech is equally protected. The right to freedom of expression, as enshrined in s 16(1) of the Constitution is the bench mark for a vibrant and animated constitutional democracy like ours”.⁸⁶

71. Indeed, since the advent of democracy, the right to enjoy freedom of expression has been “fiercely promoted and jealously guarded in this country”.⁸⁷

71.1. In SANDU⁸⁸ O’Regan J highlighted the importance of the right to freedom of expression as follows:

“Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form, and express opinions and views freely on a wide range of matters.”⁸⁹

71.2. In Democratic Alliance⁹⁰ it was held that the right to freedom of expression:

“is valuable for its intrinsic importance and because it is instrumentally useful in protecting democracy, by informing citizens, encouraging debate and enabling folly and mis-governance to be exposed. It also helps the search for the truth by both individuals and society generally. If society represses views it considers unacceptable they may never be exposed as wrong. Open debate enhances truth finding and enables us to scrutinise political argument and deliberate social values.”⁹¹

71.3. Therefore, “[s]ociety must be exposed to and be tolerant of different views, and unpopular or controversial views must never be silenced”.⁹²

71.4. In Laugh it Off⁹³ it was recognised that we are “obliged to delineate the bounds of the constitutional guarantee of free expression generously”.⁹⁴

71.5. The freedom of expression right must be “treasured, celebrated, promoted and even restrained with a deeper sense of purpose and appreciation of what it represents in a genuine constitutional democracy, considering our highly intolerant and suppressive past”.⁹⁵

71.6. For that reason it “bears emphasis that expression of unpopular or even offensive beliefs does not constitute hate speech”.⁹⁶

71.7. As Wallis JA observed in Hotz,⁹⁷ “A court should not be hasty to conclude that because language is angry in tone or conveys hostility it is therefore to

2022 (4) SA 1 (CC) (Masuku) at para 79, citing Handyside v United Kingdom (1976) 1 EHRR 737 ([1976] ECHR 5). be characterised as hate speech, even if it has overtones of hate or ethnicity”.⁹⁸

71.8. Expressions that are merely hurtful are insufficient to constitute hate speech.⁹⁹

72. In Qwelane,¹⁰⁰ against this backdrop the Constitutional Court referred to

Whatcott,¹⁰¹ where the Supreme Court of Canada held:

“Restricting expression because it may offend or hurt feelings does not give sufficient weight to the role expression plays in individual self-fulfillment, the search for truth, and unfettered political discourse. Prohibiting any representation which ‘ridicules, belittles or otherwise affronts the dignity of’ protected groups could capture a great deal of expression which, while offensive to most people, falls short of exposing its target group to the extreme detestation and vilification which risks provoking discriminatory activities against that group. Rather than being tailored to meet the particular requirements, such a broad prohibition would impair freedom of expression in a significant way.”¹⁰²

and

“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 law less, 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.”¹⁰³

73. In light of the prominence of the freedom of expression right in the Constitution, and its central role in a democratic dispensation, the bar for finding hate speech is high. The requirements for prohibition must be applied fully, painstakingly, methodically and meticulously before the conclusion is reached that hate speech in contravention of section 10(1) is established. To demand less would be to disregard the centrality of the right to freedom of expression in our constitutional order. The FWDKF accepts this. It is to the requirements that we now turn, in recognition of the fact that the free speech right is not absolute, but nevertheless important.

Requirements for a finding of hate speech

74. Through the jurisprudence, and in light of the constitutional recognition of the value of freedom of speech, it becomes evident that certain requirements must be met for an utterance to be treated as hate speech.

75. The requirements evident from the case law are:

75.1. publication or communication of verbal and non-verbal expressions;¹⁰⁴

75.2. the expressions (words) must be based in the prohibited grounds, and accordingly must be targeted at group identity rather than the individual; and

75.3. the expressions (words) must objectively demonstrate both a harmful and hateful intention. ¹⁰⁵

76. In the present case, it is common cause that the utterances complained of were made. That requirement does not call for any further discussion. The questions that arise are whether the words were based in the prohibited grounds and can objectively be shown to demonstrate a clear intention on the side of Mr Malema to have been both harmful and hateful. It is against that standard that the decision of the SAHRC must be evaluated.

Hate speech and group identity

77. The jurisprudence of the Constitutional Court, in explaining what hate speech is in Qwelane, recorded that “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 marginalizes and deligitimises 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”. ¹⁰⁶

78. The connection between group identity and hate speech is important. The prohibited grounds are all concerned with an affront to the rights of groups.

79. As the Constitutional Court recognised in Qwelane that the “very purpose of regulating hate speech” is that public hateful expression “undermines the target group’s dignity, social standing and assurance against exclusion, hostility, discrimination and violence”.¹⁰⁷ The purpose of hate speech prohibitions is to “remedy the effects of such speech and the harm that it causes, whether to the target group or to the broader societal well-being. The speech must expose the target group to hatred and be likely to perpetuate negative stereotyping and unfair discrimination”.¹⁰⁸ The prohibition of hate speech “seeks to protect against the dissemination of hatred that causes or incites harm, in that it undermines the dignity and humanity of the target group”.¹⁰⁹

80. It went further to explain that “hate speech prohibitions focus on the negative impact on the targeted group and the greater societal harm, as opposed to the specific impact on an individual (it is not based on their individual characteristics). Put differently, the focus ought to be on the group or societal harm, not solely on

individual harm”.¹¹⁰ Thus, while the speech is directed at an individual, it is speech that causes harm not just to the individual to whom the words were directed. ¹¹¹

81. This is because, as the Supreme Court of Canada explained in Whatcott,¹¹² and the Constitutional Court accepted in Qwelane:¹¹³

“Hate speech is an effort to marginalise individuals based on their membership of a group. Using expressions that exposes the group to hatred, hate speech seeks to delitimise the group members in the eye of the majority, reducing their social standing and acceptance within society.”¹¹⁴

82. The Constitutional Court in Qwelane specifically distinguished “hurtful speech” from “hate speech”, making the point that “hurtful speech does not necessarily seek to spread hatred because of their membership of a particular group, and it is that which is being targeted by s 10 of the Equality Act”.¹¹⁵ This informed the reasoning of the Court in Qwelane that the earlier inclusion of the term “hurtful” in section 10(1) of the Equality Act constituted an unjustifiable limitation on the freedom of expression right.¹¹⁶

The test is objective

83. In Qwelane the Constitutional Court placed beyond question the notion that the test in section 10(1) is objective:

“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.”¹¹⁷

84. It restated that position in Masuku.¹¹⁸

85. Since the test is objective, the subjective intention of the speaker is not a relevant consideration.

86. The FWDKF accepts, further, that the objective standard does not allow for the subjective perception of the target group to be brought into account: “it would unduly encroach on freedom of expression, since claims could be based on ‘a multiplicity of trivial actions by hypersensitive persons’”.¹¹⁹ In the same vein, the Constitutional Court in Masuku recorded as a point of commonality between the parties in that case that “witnesses may not be asked what they understood the words to mean or what they meant by the words as this undermines the objective test”.¹²⁰ In other words, neither the intention of the speaker nor the subjective response of the recipient are relevant to the determination.

87. In applying the objective test in Qwelane, the Constitutional Court held that the following considerations are important to the determination: “who the speaker is, the context in which the speech occurred and its impact, as well as the likelihood of inflicting harm and propagating hatred”.¹²¹ This must be read with the remaining case precedent:

87.1. In Le Roux¹²² the Constitutional Court held that “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”.¹²³

87.2. In Bester¹²⁴ the Constitutional Court explained that it is “accepted that the test to determine whether the use of the words is racist is objective – whether a reasonable, objective and informed person, on hearing the words, would perceive them to be racist or derogatory”.¹²⁵ And, as the Court in Masuku clarified, “context, to the objective person, is important and instructive of meaning”.¹²⁶

88. Context is reiterated in all of these cases.

89. This is consistent with the observation in Le Roux¹²⁷ that “the reasonable reader would understand the statement in its context”.¹²⁸ In Bester¹²⁹ the Constitutional

Court also held that “context is axiomatically important”.¹³⁰

90. Appreciation of context¹³¹ is significant in hate speech cases: once the issue is situated in a particular way, certain understandings appear far more plausible than others. Certain facts immediately become more relevant and thus susceptible to being found, while others become irrelevant. Accordingly, context matters in the application of the objective test: as the Court said in Masuku, “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 the exercise”.¹³²

91. So, for example, in Gordhan¹³³ the Court deal with passages that spoke to “hitting” the complainant as a “dog of White Monopoly Capital”, and of an “attack”. Mr Malema had said in that case that “We’ve now taken a decision to fight Pravin … There will be casualties. There can even be loss of life”.¹³⁴ This Court found that the utterances were “plainly metaphorical”,¹³⁵ and even though the utterances conjured the “image … of real physical injury”, “this literal meaning is not the meaning a reasonable person would attribute to the utterances”. This, because “the allusion to loss of life is a mere example of an extravagant juvenile rant stretching hyperbole to the extreme in the course of a demonstrably demagogic speech … The dominant impression is that it is puerile self-aggrandisement, not a threat to the applicant or anyone else”.¹³⁶

92. In accordance with the precedent referred to above, the application of the objective test requires this Court to consider at least:

92.1. the identity of the speaker;

92.2. the ordinary meaning of the utterance;

92.3. the context of the speech;

92.4. the meaning that a reasonable reader or hearer would attach to the utterance in context;

92.5. the impact of the speech; and

92.6. the likelihood of inflicting harm and propagating hatred.

RELEVANT CONTEXTUAL MATTER

Introduction

93. The complaint in the present case was one of hate speech.

94. As we have explained, context matters in the evaluation of hate speech allegations.

Indeed, The High Court in Qwelane held that “speech ought to be assessed objectively in its factual and societal contexts”.¹³⁷ Importantly, the Constitutional

Court in that case also made the point that “The purpose of hate speech regulation in South Africa is inextricably linked to our constitutional object of healing the injustices of the past and establishing a more egalitarian society. This is done by curtailing speech which is part and parcel of the system of subordination of vulnerable and marginalised groups in South Africa”.¹³⁸ The Constitutional Court therefore links the use of hate speech specifically to the South African context.

95. To be sure, the SAHRC firmly considered the importance of context in its evaluation.

The issue raised in the review is not that context was not taken into account; rather, it is that all relevant context was not brought into account. For this reason certain context is provided.

The speaker, his position and status

96. In its founding affidavit, the FWDKF explained:

“The utterances in question were made by a man who is the leader of a radical and militant political party, one who contantly applies violent rhetoric and who describes himself as a militant, radical and revolutionary. He is known as a ‘firebrand’ who does not hesitate to threaten violence in his political statements.”¹³⁹

97. This is borne out by the jurisprudence of various courts, including:

97.1. Sonke Gender Justice Network v Malema,¹⁴⁰ where the learned judge referred to Mr Malema as “a man of vast political influence”.¹⁴¹

97.2. AfriForum v Malema,¹⁴² a High Court judgment in which Mr Malema was interdicted from uttering words and singing songs which could reasonably be capable of instigating violence, distrust and/or hatred between black and white citizens.

97.3. Gupta v Malema,¹⁴³ where an interdict was issued against Mr Malema, so that he not incite violence against the applicants, their employees and their property.

97.4. The judgment in in Gordhan v Malema,¹⁴⁴ which recorded that the utterances made in that case were “a mix of allegations of fact and opinion. The utterances were, it can be inferred, aimed at rousing the crowd to endorse [Mr Malema’s] opinions. The content and tenor of the utterances were clearly intended to … promote hatred of [Mr Gordhan] for the reasons advanced in the speech”.¹⁴⁵

98. In this context, it is worth noting the judgment of the Constitutional Court in

Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another,¹⁴⁶ opening with the ringing words of Moegoeng CJ (as he then was):

“[1] It is no exaggeration to characterise the right to freedom of expression as the lifeblood of a genuine constitutional democracy that keeps it fairly vibrant, stable and peaceful. When citizens are very angry or frustrated, it serves as the virtual exhaust pipe through which even the most venomous of toxicities within may be let out to help them calm down, heal, focus and move on. More importantly, free expression is an indispensable facilitator of a vigorous and necessary exchange of ideas and accountability.

[2] Expression of thought or belief and own worldview or ideology was for many years extensively and severely circumscribed in this country. It was visited, institutionally and otherwise, with the worst conceivable punishment or dehumanising consequences. The tragic and untimely death of Steve Biko as a result of his bold decision to talk frankly and write as he liked, about the unjust system and its laws, underscores the point. This right thus has to be treasured, celebrated, promoted and even restrained with a deeper sense of purpose and appreciation of what it represents in a genuine constitutional democracy, considering our highly intolerant and suppressive past.

[3] That said, no constitutional right is absolute or ranks higher than all others in this country. In our enjoyment of these rights, a greater sense of responsibility is demanded particularly of those who are thought-leaders whose utterances could be acted upon without much reflection, by reason of the esteem in which they are held and the influence they command. After all, leaders from all walks of life ought to bear heavier responsibilities than all others, to help preserve our ubuntu, justice and equality-based heritage and actualise our shared aspirations.”¹⁴⁷

The immediate context of the utterances

99. The utterances were made by Mr Malema in the course of an address to supporters after he appeared in court on two charges of violating the Riotous Assemblies Act.¹⁴⁸

100. The circumstances surrounding this appearance in Court is recorded in Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another.¹⁴⁹ The judgment records that the National Prosecuting Authority (NPA) preferred criminal charges against Mr Malema, based on statements he allegedly made in 2014 and 2016, including:

100.1. “I can’t occupy all the pieces of land in South Africa alone. I cannot be everywhere. I am not [the] Holy Spirit. So you must be part of the occupation of lawnd everywhere else in South Africa”;¹⁵⁰

100.2. “If you see a piece of land, don’t apologise, and you like it go and occupy that land. That land belongs to us”;¹⁵¹

100.3. “Occupy the land, because [the State has] failed to give you the land. If it means going to prison for telling you to take the land, so bei t. I am not scared of prison because of the land question. We will take our land, it doesn’t matter how. It’s becoming unavoidable, it’s becoming inevitable – the land will be taken by whatever means necessary”.¹⁵²

101. The latter statement formed part of the speech on the day after his appearance, and which forms part of the subject-matter of this review.

The broader societal context (economical, social and political climate)

102. It is true that Mr Malema’s utterances were made against the backdrop of a history of colonization and land dispossession. That history (valid as it is to take into account) is, however, not the complete history. What followed was the transition to democracy.

103. The Interim Constitution of 1993 constituted a “historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the reocognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.”¹⁵³ Accordingly, the adoption of the Interim Constitution laid “the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge”.¹⁵⁴ Ultimately, the legacy could be “addressed on the basis that there is a need for understanding, but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation”.¹⁵⁵

104. In 1996, South Africa adopted the final Constitution. It prohibits discrimination on the basis of race.¹⁵⁶ The injunction to promote equality through measures that address past disadvantage does not justify the creation of new patterns of disadvantage.¹⁵⁷

105. As the SCA noted when it considered the case of Renate Barnard, we should be “reminding ourselves that the ultimate objective is to ensure a fully inclusive society – one compliant with all facets of our constitutional project.”¹⁵⁸ In the same vein, the Constitutional Court had reasoned in Van Heerden¹⁵⁹ that the steps taken in the restitutionary project “ought not to impose such undue harm on those excluded from its benefits that our long-term constitutional goal [of a non-racial, non-sexist society in which each person will be recognised and treated as a human being of equal worth and dignity] would be threatened’.¹⁶⁰ Sachs J, in his separate concurring judgment in Van Heerden, made the point that a restitutionary measure would not pass constitutional muster if the advantaged were to “be treated in an abusive or oppressive way that offends their dignity and tells them and the world that they are of lesser worth than the disadvantaged”; ¹⁶¹ also that “if the measure at issue is manifestly overbalanced in ignoring or trampling on the interests of members of the advantaged section of the community, and gratuitously and fragrantly imposes disproportionate burdens on them, the courts have the duty to interfere”.¹⁶²

106. The point is powerfully made in Du Plessis and Others v De Klerk and Another,¹⁶³ by reference to the judgment of Mohamed J in S v Makwanyane and Another:¹⁶⁴

“[the Constitution] retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. The contrast between the past which it repudiates and the future to which it seeks to commit the nation is stark and dramatic. The past institutionalized and legitimized racism. The Constitution expresses in its preamble the need for a ‘new order ... in which there is equality between ... people of all races’. Chapter 3 of the Constitution extends the contrast, in every relevant area of endeavour (subject only to the obvious limitations of section 33).

The past was redolent with statutes which assaulted the human dignity of persons on the grounds of race and colour alone; section 10 constitutionally protects that dignity. The past accepted, permitted, perpetuated and institutionalized pervasive and manifestly unfair discrimination against women and persons of colour; the preamble, section 8 and the postamble seek to articulate an ethos which not only rejects its rationale but unmistakenly recognises the clear justification for the reversal of the accumulated legacy of such discrimination. The past permitted detention without trial; section 11(1) prohibits it. The past permitted degrading treatment of persons; section 11(2) renders it unconstitutional. The past arbitrarily repressed the freedoms of expression, assembly, association and movement; sections 15, 16, 17 and 18 accord to these freedoms the status of ‘fundamental rights’. The past limited the right to vote to a minority; section 21 extends it to every citizen. The past arbitrarily denied to citizens on the grounds of race and colour, the right to hold and acquire property; section 26 expressly secures it.”

107. Of course, it is so that the achievement of the equality goal may “often come at a price for those who were previously advantaged”, and that ^“measures that bring about transformation will inevitably affect some members of society adversely, particularly those coming from the previously advantaged communities”. ¹⁶⁵

108. But the important observation of Moseneke ACJ (as he then was) in Barnard cannot be left out of account. It is that our:

“quest to achieve equality must occur within the discipline of our Constitution. Measures that are directed at remedying past discrimination must be formulated with due care not to invade unduly the dignity of all concerned. We must remain vigilant that remedial measures under the Constitution are not an end in themselves. They are not meant to be punitive nor retaliatory. Their ultimate goal is to urge us on towards a more equal and fair society that hopefully is non-racial, non- sexist and socially inclusive.”¹⁶⁶

109. The judgment of the then Acting Chief Justice was elaborated upon by Cameron J, Froneman J and Majiedt AJ. The learned judges explained: “in planning our future we should bear in mind the risk of concentrating excessively on it. To achieve the magnificent breadth of the Constitution's promise of full equality and freedom from disadvantage, we must foresee a time when we can look beyond race.”¹⁶⁷

110. The context as set out in this, and other judgments, calls upon our society to strike a careful equilibrium in advancing the rights of the victims of colonialism and apartheid, for fear that the entire constitutional project may be placed in jeopardy by not also recognising the rights of all, including the historical oppressors.

111. Part and parcel of that recognition is, for example, the protection of property rights under the Constitution, taken together with the various land redistribution measures in place. Even accepting the woefully inadequate redistribution that is said to be the source of Mr Malema’s discontent, the fact is that there are Constitutional and legislative measures in place. Standing in the way for calls to self-help by violent means, is that this constitutes trampling upon constitutionally enshrined property rights. It is also an offense to the rule of law, which is a founding value under the Constitution.

112. Of course, it is not just historical context that must be taken into account, but also the current content. As the FWDKF pointed out in its founding papers:

“The economical, political and social climate at the time of Mr Malema’s utterances was extremely volatile. During the preceding year (2014 – 2015) there were 2 289 unrest-related events in South Africa and 1 993 events that involved public violence. In that year, 70 farmers were murdered. The question of land reform and land invasions were at the forefront of an increasingly acrimonious national debate. Radicals, including the EFF and Mr Malema, publicly proclaimed the need to circumvent constitutional processes by unilaterally occupying land. The statement was also made against the backdrop of the ‘Fallist’ agitation at several South African universities, when symbols of white history were destroyed and student demonstrators had called for whites to be killed”.¹⁶⁸

113. The importance of bringing into account also the current context lies in the fact that reliance on historical atrocities and benefits ought not to be a complete answer to hateful speech. That is evident from historical precedent such as:

113.1. the justifications for the dispossession of Jews’ businesses and property under Nazi rule and the discrimination and persecution more generally of Jewish people on the basis of the role they allegedly played in the crucifixion of Christ; and

113.2. the justification of Afrikaner racist attitudes and prejudices on the basis of the Afrikaner version of events concerning the killing og Piet Retief and Voortrekker women and children at Weenen.

114. These examples make clear that historical context alone might be offered as justification for hateful acts, when such justification plainly ought not tob e accepted, without more.

115. By relegating white people to “visitors” who must “behave”, and who cannot rightfully own land in South Africa, so that the land will be taken from them “by whatever means necessary”, Mr Malema directly contradicted the constitutional imperative of healing the divisions of the past and the constitutional recognition that “South Africa belongs to all who live in it, united in our diversity”.

116. In the EFF Case, the Constitutional Court observed that “Like all other open and democratic societies based on constitutional values of universal application, we ought to ‘permit reasonable proscription of activities and expressions’, if they ‘pose a real and substantial threat to such values and to the constitutional order itself’,¹⁶⁹ citing the much earlier judgment of Islamic Unity Convention v Independent Broadcasting Authority.¹⁷⁰ The Constitutional Court reasoned that “it is when, for example, national interests, our democracy, the dignity or physical integrity of people or property could be imperilled, that free speech may ordinarily be limited”.¹⁷¹ It highlighted once more the observations of Langa DCJ (as he then was) in lslamic Unity that “The pluralism and broadmindedness that is central to an open and democratic society can … be undermined by speech which seriously threatens democratic pluralism itself”.¹⁷²

117. Differently put, the societal context includes the need to protect our constitutional democracy.

The reach and impact of the speech

118. The FWDKF explained in its founding papers that:

“… although Mr Malema’s immediate audience was only the supporter group in Newcastle, the message was quickly disseminated on television and through social media.”¹⁷³

119. To be sure, the number of complaints received by the SAHRC is indicative of the wide publication.

120. The next question is the harm said to have eventuated.

121. A reality based approach to hate speech must first determine what harms are created by hate speech. ¹⁷⁴ One of the most prominent harms discussed by commentators is that racial speech is inherently injurious to the individuals to whom the racial speech is addressed. Victims of racist expression experience feelings of self-hatred, inferiority, alienation, isolation, self-doubt and helplessness. Toleration and protection of racist expression are inconsistent with the right to equality:¹⁷⁵

“[A] society committed to ideals of social and political equality cannot remain passive: it must issue unequivocal expressions of solidarity with vulnerable minority groups and make positive statements affirming its commitment to those ideals. Laws prohibiting racist speech must be regarded as important components of such expressions and statements.”

122. Prohibiting hate speech that not only incites to imminent violence, but also threatens unlawful harm, addresses the most pressing concern about hate speech: government’s protection of its citizens. The government’s interest in protecting its citizens from violence, the fear of violence, the disruption that fear engenders, and the possibility that the threatened violence will occur, outweigh free speech concerns.

123. The attack on the person is fundamental: “To be hated, despised and alone is the ultimate fear of all human beings. However irrational racist speech may be, it hits right at the emotional place where we feel most pain”.¹⁷⁶ The injury is not the fleeting harm of offensive words. Rather, it inflicts psychological wounds that create “lifelong feelings of inadequacy and inability to experience inner joy at one’s achievements and abilities”.¹⁷⁷

124. Internationally, emphasis is placed on the dignity of persons.¹⁷⁸ In Germany, a country plagued by its Nazi history, human dignity is broadly defined as an attack “on the core area of the victim’s ‘right to life as an equal in the community’, or treatment of a victim as an inferior being excluded from the protection of the constitution’.”¹⁷⁹

125. Human dignity has also played a significant role in the development of defamation law in South Africa. In Holomisa¹⁸⁰ it was argued that a showing of actual malice was necessary, based on the United States case of New York Times v Sullivan.¹⁸¹ The Court reasoned that free speech must be “construed in the context of other values enshrined … [i]n the values of human dignity, freedom and equality”.¹⁸² The Court rejected the argument on actual malice because the “value of human dignity

… values both the personal sense of self-worth as well as the public’s estimation of

the worth or value of an individual”.¹⁸³ Justice O’ Reagan stated:¹⁸⁴

“The value of dignity in our Constitutional framework cannot … be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and interpretation at a range of levels”.

126. In the Freedom Front decision,¹⁸⁵ the SAHRC held that “harm” could not be confined to physical harm, but that it should be taken to include psychological and emotional harm.¹⁸⁶ It relied in part of the decision of the Canadian Supreme Court in R v Keegstra,¹⁸⁷ which describes the types of harm that may result from hate speech. That Court stated that emotional damage caused by words may have grave psychological and social consequences:

“a response of humiliation and degradation from the individual targeted by hate propaganda is to be expected. A person’s sense of human dignity and belonging to a 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 therefor have a severely negative 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 outsiders or adopting attitudes and postures directed toward blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and fostering human dignity through among other things, respect for the many racial, religious and cultural groups in our society.”

127. The South African constitutional order is based on the same premises of human dignity and the promotion of inclusivity and tolerance of diversity.¹⁸⁸ This is, of course, in line with the Holomisa judgment.¹⁸⁹

128. The message in the present case exhibited the clear intention to arouse hatred against white South Africans. It stripped white people of the right to own land and communicated the view of white people as second class citizens.

129. Mr Malema’s displeasure at the slow pace of transformation and land redistribution (expessed through his words that “the white man has been comfortable for too long” and “No white person is a rightful owner of the land here in South Africa and in the whole of the African continent”), his threatening question “Why should you negotiate with the thug, the land thieves, the criminals?” and his promise that “The land will be taken by whatever means necessary”, when taken together with the remaining statements, can reasonably be construed to have the intention of instilling in white people feelings of alienation, isolation and inferiority.

130. And this is important in the evaluation of the message – as the SAHRC recognised in an earlier decision concerning the use of the chant “Kill the Boer” a call for violence “would harm the sense of wellbeing, contribute directly to a feeling of marginalization, and adversely affect the dignity of Afrikaners. The slogan says to them that they are still the enemy of the majority of the people in this country. It contributes to the alienation of the target community and conveys a particularly divisive message to the majority community that the target community is less deserving of respect and dignity. This generalized slogan is directed against an entire community of people. Words convey meaning and do cause hurt and injury. There is a real likelihood that this slogan causes harm”.

131. These same considerations apply to the statements made by Mr Malema in the present case.

THE DECISION

132. In the execution of her duties as a Commissioner of the SAHRC, the third respondent prepared the decision pursuant to the FWF complaint.

133. The SAHRC report, which took more than two years to see the light, exhibits none of the nuanced analysis under the Constitution and the Equality Act that might be expected in a case that so starkly invokes the divisions of the past. The report also fails to pay any attention to the provisions of Article 4 of ICERD and the obligations thereunder to root out ideas of racial superiority and incitement to racial discrimination and recommendation of the CERD that “contempt or discrimination against members of a group on grounds of their race” be outlawed.

134. Indeed, the report and the record reflect no evidence of the SAHRC invoking its investigative powers under the SAHRC Act; rather the decision appears to have been the result of a desktop exercise that placed the most favourable construction on the Mr Malema’s words, without interrogating the objective effect of the utterances on the target audience. The SAHRC relied on legal opinion and the construction placed on the words by the particular individuals that rendered the opinions, without interrogating the the understanding by reference to relevant facts and considerations.

135. The decision commences with a discussion of the relevant provisions of the Equality Act and the interpretation that the courts have afforded the relevant provisions. In paragraph 10, the statement is made that “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 offendoer and target group as belonging to a vulnerable group will have an impact on any determination of hate speech”.

136. After briefly summarising certain of the sentiments expressed by Mr Malema during the course of his address, the decision concludes at paragraph 13 that Mr Malema’s utterances “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”.

137. In paragraph 14 of the decision, it is stated that the “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”.

138. According to paragraph 15 of the decision, “this statement is about how White people behaved historically. It is not about how they are behaving now. Mr Malema also specifically says that he is not calling for the killing or slaughtering of White people now. He is only calling for the occupation of their land”.

139. The conclusion is reached that the historical, social and factual context militates against the conclusion that the statement constitutes hate speech.

140. According to paragraph 17 of the decision, the addition of the words “at least for now” to Mr Malema’s statement that he is not calling for the slaughter of white people means that any incitement to harm is not ‘imminent’ and, in any event, “the statement deals with the subject matter of land dispossession and redistribution, and is not aimed at inciting harm to white people”.

CONSIDERATION OF SPECIFIC REVIEW GROUNDS

Introduction

141. The essence of this case is whether reasonable people would construe various utterances by Mr Malema implying that white people are not welcome in South Africa, or at the very least that they should “know their place” and stay in the corner that he has assigned to them, failing which he will call for their slaughter, is simply the expression of discontent with the slow pace of land reform and thus beyond characterisation at hate speech within the contemplation of the Equality Act. Ultimately, the quedtion is whether it was correct in law, by reference to consideration of the relevant facts, to come to the conclusion that the utterances did ot amount to hate speech, or whether such a decision was unconstitutional and unlawful. Was it reasonable for the SAHRC to have come to the conclusion it did?

142. It was the FWDKF’s case that the words which, in their natural meaning, carry the threat of violence, and which denigrates people on the basis of their race, objectively exhibit the intention to be harmful or to incite harm, inconsistently with constitutional values, and constitute the type of speech that is beyond that which enjoys constitutional protection. It is for this reason that it relies on the review grounds discussed hereinbelow.

The decision was materially influenced by an error of law

143. In submission, there can be no question that the statements made were ones that were based on the prohibited grounds of race and/or ethnic or social origin and/or colour and/or culture and/or birth: the entire speech is infused with the message that white people as a group are to be associated with murder, criminality, genocide and that, for that reason, the group deserved to be punished. The statement that Mr Malema is not calling for the slaughter of white people just yet carries with it the threat of a violent reckoning with the white minority in South Africa, particularly when coupled with the characterisation of white people as unwanted visitors to the country. The message conveyed is inflammatory and dangerous.

144. The description of white South Africans as “visitors” that do not rightfully own land amounts to relegating white people to a position of legal inferiority because of their race.

145. Mr Malema’s speech is replete with threats (veiled and direct) against white South Africans. He insists that the land “will be taken by whatever means necessary”, and his violent intentions are clear from his use of the analogy of the man who admits to stealing a car and then asks the rightful owner to pay him if he wants it back: “I will take out your teeth when I find you in possession of my car”.

146. The principal and most serious threat uttered is the statement that “at least for now” he is not calling for the slaughter or white people. The only possible interpretation of this statement is that at some time in the future, “we” might call for the slaughter of people on the basis of their race. The “visitors” who do not “behave” will meet the consequences – this statement constitutes an implicit threat of genocide, the most egregious form of hate speech that can ben imagined. It is a breach not only of the foundational precepts of our Constitution, but also of article 4 of ICERD.

147. This case is akin to the one considered in Human Rights Commission of SA v SABC¹⁹⁰ where the Broadcasting Complaints Commission held that the song there in question demeaned the Indian section of the population by accusing the Indians in sweeping generalizations of the oppression of Zulus, of dispossession of Zulus and the like. The association of a cultural/ racial group with oppression was sufficient to satisfy the Commission that the language “promoted hate in sweeping, emotive language against Indians as a race” that constituted hate speech. In its judgment, the Broadcasting Complaints Commission referred to an association with apartheid, and held that this association was particularly demeaning and insulting, since apartheid constituted a crime against humanity.

148. It is also in many ways similar to Qwelane¹⁹¹ which concerned a direct assault on members of the LGBTQI+ community,¹⁹² and where the facts demonstrated “the continuing structural subordination and vulnerability relating to sexual orientation and gender identity”.¹⁹³

149. The point is that the utterances specifically concern group identity. For that reason it is distinguishable from cases where no clear link was made between group identity and the utterances.

149.1. This is a case unlike Gordhan v Malema,¹⁹⁴ where the claimant relied on a statement by Mr Malema that “Pravin is a cabal that belongs to the UDF”.¹⁹⁵ There, Sutherland J recorded that “The argument in support of the complaint invokes the race or ethnicity of the applicant, and Indian South African, from among the defined prohibited grounds. It is conceded that the applicant’s Indian identity is not overtly expressed in the utterances, but the argument is advanced that an anti-Indian bias is implied because of the overall context in which the speech was delivered”.¹⁹⁶ Even accepting that another leader had connected the reference to a “cabal” to Indian identity sometime earlier,¹⁹⁷ the Court asserted that it was not “apparent” that “applicant, qua Indian, was being vilified … even within this context”.¹⁹⁸

149.2. It is also a case quite different from Masuku,¹⁹⁹ where it was considered that “a reasonable person would not understand Mr Masuku as singling out Jewish people generally as an ethnic and religious group. The facts and evidence do not support the conclusion that the … statements, seditious as they may have been, were targeted at members of the Jewish faith or ethnicity”.²⁰⁰

150. The SAHRC’s error of law lies in its failure to recognise to interpret the words within the complete relevant context, and by allowing for justification of hateful speech on the basis of historical facts, without appreciating the impact of the Constitution. The SAHRC did notably the full gambit of the constitutional considerations in focusing on a justification, without critical engagement with the question whether that was a justification available to Mr Malema.

151. Its other error of law is the excessive reliance on the subjective intention of the speaker, as constructed by those rendering opinions. The subjective intentions of Mr Malema were irrelevant; the relevant question was concerned with the objective understanding of the utterances in proper context, including the identity of the speaker, the manner in which the message was received by the public at large, the constitutional considerations and the like.

The decision was unconstitutional or unlawful

152. The decision fails to recognise the historical bridge built between the past and the present. It exhibits a tolerance for hateful speech against white people on the basis of colonialism and oppression, without recognition of the rights of white people that include equality, dignity and protection of property.

It is unconstitutional and unlawful in its tolerance of hateful speech, inconsistently with the values of our democratic society. The judgments of the Constitutional Court referred to hereinabove make plain that the history of oppression ought not to be relied on to make white people feel like second-class citizens. The Constitution turns its face against retribution. Instead of sanctioningretribution, it provides the scheme for restitution and re-distribution within a carefully balanced structure that recognises the rights of all South Africans.

153. South Africa cannot, at once, be a country governed under the rule of law and, at the same time, allow for threats of self-help to subjugate citizens on the basis of their race. It is unconstitutional to accept that a threat of violence and death against white people who do not “know their place” falls within the bounds of acceptable speech under the free speech provision, when it threatens the constitutional values.

154. It is further unconstitutional to give imprimatur to a call for violent dispossession of property owned by white people, by not recognising it as an immediate threat and call for harm to white people. The proposition cannot be that it is “just” a call to take property, because with the invasion of property comes the harm to the owners of the property, here identified as “white”.

Irrelevant considerations taken into account, and relevant ones left out of account

155. The considerations brought into account by the SAHRC are largely concerned with the discontent brought about by the slow pace of land reform, against the backdrop of colonialism. Those considerations are relevant, but they are not the only relevant contextual materials that were to be brought into account, as the analysis of the relevant contextual matter hereinbefore shows.

156. In coming to its decision, the SAHRC ostensibly was persuaded that there was available to Mr Malema an interpretation of the words uttered that denuded them of their hateful meaning, since the “day of reckoning” for white people was “postponed” for so long as they “behaved” themselves as the “visitors” that they are to this country.

157. The SAHRC ostensibly did not bring into account the reasoning in the 2016 judgment in Gupta v Malema,²⁰¹ where the Court observed:

“[Mr Malema] states in his answering affidavit that the interpretation given by the applicants to the statement in the press release that no one could guarantee the applicants' safety in Gauteng was baseless, that the statement was not equivalent to calling for violence against the Guptas and that only the police could guarantee the safety not only of the Guptas but of everyone. Adv. NGD Maritz SC, who appeared for the applicants, submitted, in my view correctly, that It was not the job of the EFF to guarantee the safety of the applicants and that there was no reason

for such a statement to be made except if it was intended as a threat of violence.”202

158. Commenting on the submissions that “the statement could not be interpreted to be an incitement to violence and that the respondents”, the Court said that:

“The proposition merely has to be stated to be rejected. It ignores the preceding sentence of the press release that ‘the ZUPTAS must heed the call of the Commander in Chief of the EFF and vacate South Africa, otherwise, the predictability of what could happen to them and any of their properties, becomes a highly volatile matter’. No reasonable and right-thinking person would consider the statement not to be a threat of violence …”.²⁰³

159. Yet further, the Court commented:

“In regard to the statement that the EFF was going to physically drive the Zuptas out of Gauteng by any means possible, the first respondent states in the answering affidavit that the statement does not show any threat of violence and that the EFF will act lawfully, which would include marches, petitions and, if necessary, legal proceedings to force the Gupta family out of Gauteng, all of which is lawful.

One must, however, look at the words which were used and not at what the respondents say what they intended to convey. The interpretation contended for by the respondents ignores the word ‘physically’ and the words ‘by any means possible’. No reasonable and right-thinking member of society would consider the statement to exclude violence as a means of driving the Guptas out of Gauteng.”204

160. Some assistance can also be gained from the judgment in Gordhan v Malema,²⁰⁵ where the Court observed that:

“The imagery of the applicant as a ‘dog of White monopoly Capital’ is the sole allusion to race in the utterances. … The label was not invented by the respondent. The label ‘white monopoly capital’ was coined more recently and is a part of the jargonised sloganeering in contemporary South African political discourse.

Its meaning is not necessarily stable. It usually is taken to refer to the South African big business corporations which dominate economic activity in which White South Africans are disproportionately represented, relative to their proportion of the total population a phenomenon which is inimical to the interest of the masses of the population. What is plain is that it is a disparaging label and to associate a person with this supposedly evil force is to encourage the hearers to repudiate the person so identified with it.”²⁰⁶

161. The decision of the SAHRC gives no recognition to the importance of factors such as Mr Malema’s position of power and influence, the constitutional context, and nor does it explain why the natural meaning of the threats (as opposed to subjective understanding of the threats) ought to take precedence.

162. The record filed reveals exclusive reliance on legal opinion received, without questioning the interpretation of the utterances set out in those opinions by reference to objective facts. There is nothing in the record to suggest that the SAHRC conducted any investigation into invasions of property, violence associated with such invasions or any other contextual matter that might have shed a light on the objective meaning to be assigned to the words. That, coupled with its failure to bring into account the constitutional context in full, evidences that relevant considerations were simply left out of account.

The decision was not rationally connected to the information before the decision-maker

163. The “information” before the decision-maker, as is apparent from the record, is limited to the complaints and legal opinion. There is an inconsistency between the nature and content of the complaints, and the content of the legal opinion. The legal opinion could never form the basis for a decision, without more.

The decision was so unreasonable that no reasonable person could have come to the conclusion

164. In a country beset by a history of violence and oppression, and the subjugation of citizens on the basis of their race, it is not reasonable to justify race-based calls for retribution by reference to selective reference to history alone. Free speech is protected, but as the judgments of the Constitutional Court make plain, there are limits to such speech when it harmful to the very fabric of the society and the constitutional order. It is not reasonable to conclude that a call for violence against white people who do not willingly hand over their property is justified because of the history of colonialism, apartheid and oppression alone, leaving out of account the constitutional order in place.

CONCLUSION

165. For all of these reasons, the FWDKF submits that a proper case for review has been made out. Given the time that has passed (and indeed the length of time that passed between the complaint and the rendering of the decision), it is further submitted that it would be appropriate for this Court to substitute the decision of the SAHRC. This Court enjoys the power to make an order that hate speech has been committed, and ought to appropriately exercise that power in the present case.

MJ ENGELBRECHT SC

Counsel for the applicants

Chambers, Sandton 3 February 2023

Footnotes:

1 FA para 5 CaseLines (CL) 2-8.

2 FA para 17 CL 2-15.

3 FA paras 10.1 – 10.3 CL 2-11 to 2-12.

4 FA para 10.3 CL 2-12.

5 AfriForum and Another v Malema 2011 (6) SA 240 (EqC).

6FA para 16 CL2-14, read with annexure DS2 CL2-26 to 2-28. See also AfriForum FA para 8 CL 1-8 to 1-10, read with annexure ER1 CL 1-27 to 1-30.

7 AA para 33 CL 2-53.

8 AfriForum para 10 FA CL 1-8; AfriForum FA para 12 CL p 1 – 11, read with annexure ER3 CL 1-38 to 1-40.

9 AfriForum FA para 13 CL 1-11 – 1-12.

10 AA para 33 CL 2-53.

11 Record CL 4-1 to 4-143.

12 Record CL4 -13, read with CL4-25 to 4-49.

13 See, for example, Record CL 4-27, CL 4-67.

14 AA para 34 CL 2-53.

15 AfriForum FA para 16 CL 1- 12, read with annexure ER4 CL 1-41 to 1-46.

16 AfriForum FA paras 17 – 22 CL 1-13 to 1- 15.

17 FA para 32 CL2-23 to 2-24, read with AA paras 23 – 24 CL 2-50. See also AA para 45 CL 2-55 – 2-56.

18 AA paras 36 – 39 CL 2-53 to 2-54, read with annexure HRC2 CL 2-81 to 2-111.

19 AA para 40 CL CL 2-54 to 2-55, read with annexure HRC3 CL 2-112 to 2-128.

20 AA para 41 CL 2-55.

21 AA para 42 CL 2-55.

22 AA paras 52 – 53 CL 2-57 to 2-58.

23 AA para 54 CL 2-58.

24 FA para 22 CL2-18, read with AA para 110 CL 2-64.

25 FA para 29 CL 2-22.

26 AA para 117 CL 2-74.

27 AA paras 117 – 121 CL 2-75.

28 AA para 6.1 CL 2-44 to 2-45.

29 AA para 9 CL 2-46.

30 Equality Act s 20(2).

31 Equality Act s 21(1).

32 Equality Act s 21(2)(b).

33 Equality Act s 23(5)(a).

34 Equality Act s 23(1).

35 Equality Act section 23(2).

36 Competition Commission of South Afica v Group Five Construction Ltd 2023 (1) BCLR 1 (CC).

37 AA para 11 CL 2-46.

38 C Hoexter & G Penfold Administrative Law in South Africa 3ed Juta 2021 (Hoexter & Penfold) at p 85.

39 Hoexter & Penfold at p 85 footnote 63.

40 Hoexter & Penfold at p 139.

41 National Credit Regulator v Lewis Stores (Pty) Ltd and Another 2020 (2) SA 390 (SCA).

42 At para 54.

43 Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration 2007 (10 SA 576 (SCA).

44 At para 31. These remarks went unchallenged on further appeal to the Constitutional Court in Sidumo v Rustenburg Platinum Mines Ltd 2008 (2) SA (CC) (Sidumo).

45 Hoexter & Penfold at p 140.

46 AA para 6.2 CL 2-45.

47 AA para 8- CL 2- 67.

48 Minister of Home Affairs and Another v Public Protector of the Republic of South Africa [2018] 2 All SA 311 (SCA).

49 Public Protector and Others v President of the Republic of South Africa and Others (Feedom Under Law as amicus curiae)2021 (6) SA 37 (CC).

50 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC).

51 At para 50.

52 At para 118.

53 At para 119, citing inter alia Sidumo.

54 PAJA s 1(i)(a): definition of ‘administrative action’. Emphasis supplied.

55 PAJA s 1(i)(aa): definition of ‘administrative action’.

56 PAJA s 1(v): definition of ‘decision’. Emphasis supplied.

57 PAJA s 1(v)(b): definition of ‘decision’.

58 PAJA s 1(v)(d): definition of ‘decision’.

59 PAJA s 1(v)(e): definition of ‘decision’.

60 PAJA s 1(vi): definition of ‘empowering provision’.

61 Emphasis supplied.

62 PAJA s 6(2).

63 Constitution s 184(1)(c).

64 Constitution s 184(2)(a).

65 Constitution s 184(2)(b).

66 The SAHRC was previously established under the Human Rights Commission Act No 54 of 1994, as provided for under Interim Constitution.

67 SAHRC Act s 13(3)(a).

68 SAHRC Act s 15(1)(a).

69 SAHRC Act 15(5) and (6).

70 South African Human Rights Commission v Agro Data CC and Another 2022 JDR 2039 (MN) at para 49.

71 2006 (2) SA 311 (CC).

72 At 364G-H para 95.

73 At 364H para 96.

74 Minister of Defence v Xulu 2018 (6) SA 460 (SCA).

75 Id. Emphasis supplied.

76 AA para 6.3 CL 2-45.

77 Annexure HRC5 CL 2-118 to 2-125.

78 Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC) (Qwelane).

79 This being the relief sought in NOM prayer 1.

80 This being the relief sought in NoM prayer 2.

81 See above.

82 Constitution s 16(1).

83 S v Mhlungu 1995 3 SA 867 (CC) para 59.

84 Qwelane at paras 48 - 49.

85 Qwelane para 49. Emphasis supplied.

86 Qwelane at para 67. Emphasis supplied.

87 Masuku and Another v SA Human Rights Commission obo South African Jewish Board of Deputies 2019 (2) SA 194 (SCA) (Masuku SCA) at para 16.

88 South African National Defence Union v Minister of Defence 1999 (4) SA 469 (CC) (SANDU).

89 SANDU at para 7.

90 Above.

91 Democratic Alliance at para 122.

92 Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another 2021 (2) SA 1 (CC) (Economic Freedom Fighters) at para 155.

93 Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) (Laugh it Off).

94 Laugh it Off at para 47.

95 Economic Freedom Fighters at para 2.

96 South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another

97 Hotz and Others v University of Cape Town 2017 (2) SA 485 (SCA) (Hotz).

98 Hotz at para 68, cited with apparent approval in Qwelane at footnote 96.

99 Qwelane at para 13.

100 Qwelane at para 80.

101 Saskatchewan (Human Rights Commission) v Whatcott [2013] 1 SCR 467 (Whatcott)

102 Whatcott at para 109. Emphasis supplied.

103 Whatcott at para 41. Emphasis supplied.

104 Equality Act s 10, read with Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others 2019

105 Masuku at para 125 reinforces the requirement of a conjunctive reading.

106 Qwelane at para 1. Emphasis supplied.

107 Qwelane at para 118.

108 Id.

109 Qwelane at para 130.

110 Qwelane at para 121.

111 Qwelane at para 122.

112 Above.

113 Qwelane at para 129.

114 Whatcott at para 71. Emphasis supplied.

115 Qwelane at para 139.

116 Qwelane at ara 144.

117 Qwelane at para 96. Emphasis supplied.

118 Masuku at para 122.

119 Qwelane at para 99, citing Delange v Costa 1989 (2) SA 857 (A) at 862A – B and Dendy v University of the Witwatersrand and Others [2007] 3 All SA 1 (SCA) para 6.

120 Masuku at para 146.

121 Qwelane at para 176.

122 Le Roux and Others v Dey (Freedom of Expression Institute and Restorative Justice Centre as Amici Curiae)

2011 (3) SA 274 (CC) (Le Roux).

123 Le Roux at paras 87 and 90.

124 Rustenburg Platinum Mine v SAEWA (obo Bester) and Others 2018 (5) SA 78 (CC) (Bester).

125 Bester at para 38.

126 Masuku at para 144.

127 Above.

128 Le Roux at para 89.

129 Above.

130 Bester at para 38, cited in Qwelane at para 98.

131 Section 3(3) of PEPUDA obliges the Court to take into account the context of the dispute.

132 Masuku at para 144.

133 Gordhan at para 16.

134 Gordhan at para 1.

135 Gordhan at para 15.

136 Gordhan at para 16.

137 South African Human Rights Commission v Qwelane 2018 (2) SA 149 (GJ) (Qwelane HC) at para 53.

138 Qwelane at para 86. Emphasis supplied.

139 FA para 25 CL 2-19.

140 [2010] JOL 25181 (EqC).

141 At para 27.

142 2010 (5) SA 235 (GNP).

143 2016 JRD 0224 & 2016 JRD 0225 (GP).

144 2020 (1) SA 587 (GJ).

145 At para 8.

146 Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another 2021 (2) SA 1 (CC).

147 EFF case at paras 1 – 3. Emphasis supplied.

148 FA para 16.

149 Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another 2021 (2) SA 1 (CC) (EFF case).

150 EFF case at para 7.

151 EFF case at para 8.

152 EFF case at para 9.

153 ‘National Unity and Reconciliation’ – Postamble to the Interim Constitution.

154 ‘National Unity and Reconciliation’ – Postamble to the Interim Constitution.

155 ‘National Unity and Reconciliation’ – Postamble to the Interim Constitution.

156 Constitution s 9(3) and s 9(4).

157 Minister of Finance & Another v Van Heerden [2004] 12 BLLR 1181 (CC) (Van Heerden) at para 27, by reference to Bato Star Fishing (Pty) Ltd v The Minister of Environmental Affairs & Tourism & others 2004 (7) BCLR 687 (CC) (Bato Star) at para 74.

158 Solidarity obo Barnard v South African Police Service 2014 (2) SA 1 (SCA) para 80. The Constitutional Court overturned the judgment, but the sentiment expressed in this paragraph remains valid.

159 Supra.

160 Van Heerden at para 44.

161 Van Heerden at para 151.

162 Van Heerden at para 152.

163Du Plessis and Others v De Klerk and Another 1996 (5) BCLR 658 (CC) at para 158.

164 S v Makwanyane and Another 1995 (3) SA 391 (CC).

165 Bato Star supra.

166 At para 30.

167 Emphasis supplied.

168 FA para 24.

169 EFF case at para 33. Footnotes omitted.

170 Islamic Unity Convention v Independent Broadcasting Authority 2002 (4) SA 294 (CC).

171 EFF case at para 46.

172 EFF case para 47, read with Islamic Unity at para 29.

173 FA para 27.

174 JC Knechtle ‘When to Regulate Hate Speech’ 110 Penn St L Rev 540 (2005 – 2006) at 544 to 545.

175 D Kretzner ‘Freedom of Speech and Racism’ (1987) 8 Cardozo L Rev 445 at 456.

176 MM Matsuda ‘Public Response to Racist Speech: Considering the Victim’s Story’ 87 Mich L Rev 2320 at 2338.

177 R Delgado ‘Words that Wound: a Tort Action for Racial Insults, Epithets, and Name-Calling 17 Harv CR-C LL Rev 133 at 146.

178 JC Knechtle ‘When to Regulate Hate Speech’ 110 Penn St L Rev 540 (2005 – 2006) at 542.

179 S Douglas-Scott ‘The Hatefulness of Protected Speech: A Comparison of the American and European Approaches’ (1999) 7 Wm & Mary Bill Rts J 305

180 2002 (5) SA 401 (CC).

181 376 US 254 (1964).

182 At para 25.

183 At paras 26 – 27.

184 At para [26] 418E – F. She quotes from the authorities cited.

185 Freedom Front v South African Human Rights Commission and Another 2003 (11) BCLR 1283 (SAHRC).

186 At 1283.

187 [1990] 3 SCR 697.

188 At 1828.

189 Supra.

190 Human Rights Commission of SA v SABC 2003 (1) BCLR 92 (BCCSA).

191 Above.

192 Qwelane at para 14.

193 Qwelane at para 86.

194 Above.

195 Gordhan at para 1.

196 Gordhan at para 10.

197 Gordhan at para 11.

198 Gordhan at para 12.

199 Above.

200 Masuku at para 165.

201 2016 JRD 0224 & 2016 JRD 0225 (GP).

202 At para 11.

203 At para 12.

204 At para 13.

205 Supra.

206 At para 13. Emphasis supplied.