SAHRC corrects certain misapprehensions about steps it has taken in respect of complaints received against Mr Julius Malema and the EFF

14 November 2022

The purpose of this statement is to correct certain misapprehensions held and widely expressed by the EFF and Mr Malema, as well as in some media reports/articles, about the steps that the South African Human Rights Commission (the Commission) has taken to date in respect of this matter and to provide a very brief explanation of the Commission’s discretionary powers in receiving complaints of human rights infringements more generally.

The allegations, by the EFF and Mr Malema, that the Commission has made adverse findings against them, are incorrect. The Commission has not conducted an investigation as contemplated by the SAHRC Act and, by extension, has not made any findings regarding this matter.

The Commission is empowered to respond to alleged complaints of hate speech in one of two ways, namely (a) to conduct an investigation or (b) to bring court proceedings. Due to the nature of some of the statements concerned, it was deemed necessary by the Commission to file urgent legal proceedings for urgent interdictory relief.

In such proceedings, an applicant must show, inter alia, a prima facie case and in that context, the Commission had to form a prima facie view as to whether the requirements for interim interdictory relief are met in this case. The Commission then addressed a letter to the EFF and Mr Malema, providing them with an opportunity to retract the statements, apologise and give certain undertakings as to their future conduct, in the hope that a positive response would obviate the need for urgent interim interdictory relief from the Court.

However, in light of the EFF and Mr Malema’s refusal to cooperate, the Commission will now bring urgent court proceedings for urgent interim relief. Had the Commission invoked its investigative powers, it would have accorded Mr Malema the benefit of replying to an allegations letter that is sent to respondents as a matter of course when a decision is taken to investigate an alleged human rights violation.

This decision to litigate rather than investigate is made out of the Commission’s concern for what appear, prima facie, to be very serious threats of violence in the statements. The fact that this decision has been made does not detract from the Commission’s appreciation and respect for the need for robust political debate in this country so burdened by violence and the grave and inhumane injustices of the past.

It is needless to say that the EFF and Mr Malema will be accorded the full spectrum of rights under the Constitution, including the laws of natural justice, during the intended court process and any other further steps that may be embarked upon to obtain a final resolution of the issue.

Issued by the South African Human Rights Commission, 14 November 2022