The “Reasonable Man” and the Future of Non-racialism and Equality Before the Court 

On 8 December 2018, Andile Mngxitama, the leader of Black First Land First (BLF), told supporters at a BLF rally in Tlokwe, Potchefstroom, that they should be “prepared to kill for our land, as much as we are prepared to die for our land. We mean it!”

Mngxitama also referred to remarks that Johann Rupert had made four days earlier in a Power FM interview, during which he responded to threats that had recently been made against him by the EFF. He jokingly said that he had longtime friends in the taxi industry, implying that they would come to his defence if he were attacked. Mngxitama responded to Rupert’s comments with the following peroration:

“Comrades I just want to make it very clear that Johann Rupert has declared war on us black people... Johann Rupert says he has control over the taxi industry bosses. We know what that means. Taxi industry bosses are people who are involved in killing other people. Johann Rupert says that if we touch him he is going to unleash on us the taxi industry people. Now here’s a message to Johann Rupert…

Pay the taxi industry bosses. It is okay. But here is the deal. For each one person that is killed by the taxi industry we will kill five white people. For every one black person we will kill five white people. You kill one of us, we will kill five of you! You kill one of us, we will kill five of you! Kill one of us, kill five of you! You kill one of us, we’ll kill five white people. We will kill the children! We will kill the women! We will kill anything that we find on our way!”

AfriForum laid a complaint against Mngxitama in the Johannesburg Magistrate's Court – sitting as an Equality Court – charging that his remarks constituted hate speech. On 2 May, Magistrate Nishani Beharie dismissed the complaint, finding that “viewed through the lens of the context within which the complaints were uttered”, she was satisfied that "the first and second respondents have rebutted any evidence of wrongdoing.” In effect, she accepted Mngxitama’s claim that the complaints against him were not to be taken literally but figuratively (despite the fact that he had clearly said that “we mean it!”).

“His words were meant to expose what his experiences as a Black person in South Africa are, which is a disregard for the killing of Black lives. Hence he references the killing of five White lives for every Black life killed. It is also meant to be a call for the defence of killing Black lives (sic). He views his speech as rhetorical. He never had the intention to actually kill any persons of White descent.”

Magistrate Beharie was eloquent in her defence of freedom of speech: “In a democratic, open and broad-minded society like ours, disturbing or even shocking views are tolerated as long as they do not infringe the rights of persons or groups of persons.” She endorsed the view in Masuku that phrases should not be regarded as presumptively neutral – but should be viewed “within the context of the legacy of apartheid and racial segregation that has left us with a racially charged present”.  According to Masuku:

"It cannot be correct to ignore the reality of our past of institutionally entrenched racism and begin an inquiry into whether or not a statement is racist and derogatory from a presumption that the context is neutral – our societal and historical context dictates the contrary.”

She dismissed the testimony of Ernst Roets - an expert witness on behalf of Solidarity - who tried to establish a link between statements that incited attacks on white South Africans and egregious crimes against white farmers, including gratuitous murders and torture. She dismissed his status as an expert witness (even though he had written a book on farm murders) and said that he could not be described as “a reasonable man”.

In her judgement, Magistrate Beharie pondered the difficulty of defining hate speech and gave a great deal of weight to how impugned statements would be regarded by “the reasonable man”.  

She might have benefited by consulting the General Recommendation on Hate Speech of the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), which asks member states to consider:

The content and form of speech: in this case the speech called specifically for the killing of people – including women and children;

The economic, social and political climate: the speech was delivered against the backdrop of deteriorating race relations, farm murders and recent racial incidents in Coligny;

The position and status of the speaker: the speaker was the outspoken leader of a radical political party with a high national profile. The ICERD General Recommendation drew special attention to the “role of politicians and other public formers in contributing to the creation of a negative climate towards groups protected by the Convention...”

The reach of the speech: the speech was widely covered by national print and electronic media;

The objectives of the speech: the speech was clearly intended to stir up hatred against citizens on the basis of their race. Mngxitama rounded off his speech by inviting a response from this audience:

“Let them come kill us, no problem. Every time they come kill us we are not going to kill a taxi industry boss, we are going to kill how many of them?”
Crowd shouts:
“Five!”
“They kill one of us, they kill how many?”
“Five!”
“They kill one of us, they kill how many?”
“Five!”
“They kill one of us, we kill how many whites?”
“Five!”
“We kill their children, we kill their women, we kill their dogs, we kill their cats, we kill anything that comes before us!”

Mngxitama was apparently successful in sweeping up hatred for white people. Magistrate Beharie notes in her judgement that the following words emanated from the crowd: “dubul ibhunu” (kill the Boer), as well as “the Boers smell”, “the Boers rape”, and “shoot shoot”.

Now, what should a reasonable man have made of that?

The implications of Magistrate Beharie’s judgement go far beyond Mngxitama’s incendiary statements: they raise fundamental questions regarding South Africa’s commitment to non-racialism, the right of all South Africans to human dignity and the right of all South Africans, irrespective of their race, to equality before the law.

Issued by the FW de Klerk Foundation, 26 May 2023