The Supreme Court of Appeal (SCA) has found that Julius Malema’s repeated calls – formalistically expressed in singing – for white farmers to be killed does not amount to hate speech. This case was originally brought by the civil rights group AfriForum, and the Free Market Foundation’s Rule of Law Project intervened as an amicus curia (friend of the court).

We at the Rule of Law Project are disappointed at the judgment, but it does not come as any surprise to me.

Whether or not the identified instances of Malema singing ‘Kill the Boer’ were hate speech or not was not particularly relevant to our submission to the SCA.

Unequal treatment

Our submission, rather, was this: whatever the rule, it must be applied consistently. In this respect, we noted the grave inappropriateness of making special allowances for politically powerful figures, like Malema, whilst throwing the book at harmless – albeit repugnant – civilians, like Penny Sparrow or John Qwelane.

Rather than recognising the unequal manner in which South African hate speech law has been utilised, the SCA doubled down. It explained that it is precisely because of Malema’s status as a politician who is utilising emotive rhetoric to garner votes, that the ‘reasonable person’ in society would understand he is speaking figuratively when he calls for racial slaughter.

Any rational hate speech legal dispensation would have it the other way around: politicians – the people who are seeking to gain access to the coercive instruments of state power – are not exempt, but rather more closely scrutinised.

The bizarre unjustness of this judgment aside, it was perfectly foreseeable that the court would rule this way.

The politicisation of the judiciary through institutions like the Judicial Service Commission has ensured that judges would be very reluctant to issue judgments that would see their appointers made liable for punishment or imprisonment. While the courts have displayed a fierce independence in matters that do not directly involve jeopardy for the political class, many, especially Professor Koos Malan – a member of the Rule of Law Project – have long seen the writing on the wall.

In this respect, Malan’s There is No Supreme Constitution is highly recommended reading.

The records the SCA ignored

It might be that hate speech law is not the appropriate vehicle to go after the likes of Malema. Perhaps, technically, he is not engaged in hate speech.

He is, however, clearly engaged in something that would be actionable in any civilised legal system.

The question, then, becomes: which area of South African law must be utilised to deal with the following?

During a June 2018 interview with TRTWorld, Malema said, ‘I don’t know what’s going to happen in the future. I’m saying to you: we have not called for the killing of white people, at least for now – I cannot guarantee the future!’

At the Economic Freedom Fighters (EFF)’s 2019 electoral rally, ‘Our Land and Jobs Now’, Malema chanted the coded ‘kiss the Boer’ song, although he did not try to sanitise the preceding line of ‘shoot to kill.’ This comes after Malema solemnly agreed in 2012 to never chant these words again.

In 2022, at the EFF’s third Provincial People’s Assembly in Brackenfell, Malema said in response to an altercation between a white individual and EFF members in the area, ‘If I were to ask you what have you done in terms of follow-up after being beaten by that white guy? Why have you not as a revolutionary organisation followed-up on that guy? Him alone! To take that guy in an isolated space and attend to the guy properly.’

Then, the key event. In August 2022, Malema sat in the Equality Court, in front of the judge, the press media, and the legal fraternity, and said (among many other things) the following in response to questions by Adv Mark Oppenheimer:

·  Asked to confirm that he once said that ‘we need a system to get rid of white people’, Malema responded ‘yes’. He elaborated: ‘So if we go into a conference, or into Parliament and make a constitutional amendment, that all whites must be driven into the sea, and any white who remains here is going to be killed, then we engage in that type of a programme to drive all whites into the sea. It’s an institutionalised decision.’

·  Asked to clarify whether Malema meant what he said when he said, ‘we are not calling for the slaughter of white people, at least for now’, Malema explained that ‘it may not be me [who does the calling]’, but that ‘it could be me’. Asked to pledge that he will never call for the slaughter of white people, he says ‘I won’t do it.’

·  Adv Oppenheimer asked Malema whether he could see the problem inherent in his nonchalant rhetoric and incoherent philosophy around violence, to which Malema responded, ‘I never said I am someone moderate. I am very radical and very militant. And I make no apology about that. And I stand by everything I said.’

·  Asked whether he would be happy to endorse violence to achieve his revolutionary aims, Malema responded, ‘My Lord, when the time comes and the conditions on the ground necessitate that arms must be taken, we will do so without hesitation.’

·  Asked whether he is ‘scared of killing’, Malema responded, ‘I am not scared of killing. A revolutionary is a walking, killing machine! I am not scared of death! If that need arises, I will kill, and I will do so with no hesitation!’

All of this was in the records before the SCA, and the bench paid not even the slightest regard to it. It was all swept under the rug of the court’s dubious ‘reasonable person’ analysis, which concluded that any reasonable, well-informed person would regard Malema’s singing and chanting of ‘Kill the Boer’ to be figurative.

Is there any area of law that might be used to address this unequivocally coercive and genocidal posture? (Before I am misconstrued: there is, and will likely never be, a ‘white genocide’ in South Africa. Its non-occurrence is irrelevant to the fact that the law must viciously guard against incitements to genocide.)

It seems to me that the courts are closing off all legal avenues to peacefully addressing the phenomenon of politicians inciting their followers to commit grave injustices.

This is dangerous.

The law must always clearly be the most effective vehicle through which people deal with what they perceive to be coercive threats to their vital interests. Once the law stops evidently being that, people have no choice but to increasingly resort to self-help. The instances of vigilante justice all across South Africa are already concerning evidence of this.

Violence is SA’s most pressing problem

Violent criminality is South Africa’s most pressing problem, and has ruinous downstream consequences for economic growth, human dignity, and individual liberty. The South African government has resolutely failed in its basic function to ensure peace and order.

The SCA’s dismissive characterisation of Malema as a ‘populist leader who expresses controversial views […] using an historic struggle song, with the performance gestures that go with it, as a provocative means of advancing his party’s political agenda’ does not help this state of affairs get any better. The temperature of South African society has to be reduced, not exacerbated by politicians inciting violence against peaceful and productive agriculturalists.

The Rule of Law Project will now consider whether to take further legal steps, such as joining in any appeal against the judgment by AfriForum.

The FMF, however, has also since the September 2023 court hearing launched its Section 12 Initiative for a #SaferSouthAfrica, which is dedicated to advancing a sensible, liberal solution to this country’s violent crime crisis.

It is becoming increasingly clear that solving violence will only be achieved from the bottom up, and that top-down solutions, whether by Parliament or the courts, will not yield the necessary results.

Martin van Staden LL.M. (UP) is Head of Policy at the Free Market Foundation.