On Monday, 4 September, the Free Market Foundation's Rule of Law Project (RoLP) appeared before the Supreme Court of Appeal (SCA) in Bloemfontein as an amicus curia in the hate speech case between AfriForum and Julius Malema. The RoLP argued that hate speech law is not being equally applied in South Africa and that the SCA has an important opportunity to set a precedent that will make consistent application by our courts mandatory.

Advocate Mark Oppenheimer appeared on behalf of AfriForum in the Equality Court and gave Malema plenty of rope to hang himself with. Malema did so, but to the shock of all sober-minded South Africans, the Equality Court found in August 2022 that Malema and his Economic Freedom Fighters (EFF) were not guilty of hate speech.

It is this ruling that AfriForum is appealing. Advocate Oppenheimer now represented the RoLP, acting as a friend of the court.

The RoLP believes that there is a significant flaw in South Africa's legal system when it comes to the application of hate speech law and related doctrines used to combat hate speech, such as crimen iniuria.

We are shocked by the Equality Court's ruling, not because Malema is actually guilty (he is), but because the same court has deemed other abhorrent statements by individuals like Jon Qwelane, Penny Sparrow, Vicki Momberg, and Kenny Kunene as hate speech on considerably less serious grounds. We must also not forget that the lifeless old South African flag was also declared hate speech by the Equality Court.

But apparently, Malema's rhetoric does not qualify!

Qwelane wrote an article in 2008 in which he expressed his opposition to same-sex marriage and compared homosexuality to bestiality. He was found guilty of hate speech in 2011. Sparrow was found guilty of hate speech in 2016 after referring to black people as ‘monkeys’ on Facebook. Momberg was found guilty in 2017 on four charges of crimen iniuria after a telephonic and in-person racist outburst against police officers. Kunene was found guilty of hate speech earlier this year after calling Julius Malema a ‘cockroach’ and ‘little frog’ in November 2021.

The courts ordered Qwelane to apologise and pay a fine of R100,000. Sparrow had to pay a fine of R150,000. Momberg was sentenced to effectively two years in prison. Kunene was ordered to apologise.

Sparrow was later also found guilty of crimen iniuria, which came with a fine of R5,000 or one year in prison.

Most readers will be aware of Malema's violent racial rhetoric over the years, especially the statement he made to an international television crew in June 2018: ‘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!’

During the 2022 Equality Court proceedings, Malema also casually testified before the judge that:

• When the time is ripe, the EFF will bomb the Union Buildings;
• If an EFF government follows a constitutional process that provides for the elimination of white people (a system Malema acknowledges he would like), then that ‘institutionalised decision’ will be enforced;
• He will not, under any circumstances, pledge not to advocate for the killing of white people in the future;
• He acknowledges that violence is necessary for revolution and that he will not hesitate to commit violence; and
• In particular, he is ‘not scared of killing.’ ‘A revolutionary is a walking, killing machine! I am not afraid of death! If necessary, I will kill, and I will do so without hesitation!’

But the case is bigger than just Julius Malema and the EFF. The principle applies to other politicians who also incite violence.

In 2018, Andile Mngxitama was similarly acquitted of hate speech in the Equality Court. After Johann Rupert made a joke that he had friends in the taxi industry who would protect him from ‘revolutionary’ violence, Mngxitama said at a Black First, Land First gathering that for every black person killed, they would kill five (randomly selected) white people, including women and children.

These comments, the magistrate said, should not be taken ‘literally.’ But apparently, Penny Sparrow's offensive reference to black people as 'monkeys' should be taken literally. Sparrow's remarks were reprehensible, but there is clearly a double standard at play here.

The Free Market Foundation is a classical liberal institution, which means we place a very high premium on freedom of expression. In our view, any person should be free to insult any other person or persons. All sensible people stand against racism and sexism, but we believe that in a free society people should be allowed to be offensive.

But another core requirement of a free society is the equal application of the law.

Under no circumstances should it be acceptable for the legal system to allow powerful politicians like Malema to incite violence against peaceful citizens on the basis of race while powerless individuals like Qwelane, Sparrow, or Momberg (among other examples) must pay crippling fines or even go to jail for their offensiveness. Powerful politicians should either be held to a higher standard – especially if taxpayers have to pay their salaries – or one rule should apply to all.

The FMF's Rule of Law Project, therefore, advocates for the application of legal equality and the cessation of double standards in hate speech cases.

There are three relevant articles in the Constitution, each representing a fundamental legal principle. Two of the sections – 1(b) and (c) – are embodied in the founding provisions of the Constitution. Section 1(b) binds the South African constitutional order to the principle of non-racialism, and section 1(c) elevates the principles of the rule of law to supreme legal status. The third provision, section 9(1), enshrines equality before the law.

The courts must apply the law equally. They must also adhere to the principle of non-racialism and not modify legal rules based on the skin-colour of the parties before them. In highly emotionally charged matters such as hate speech litigation, this is the only way that the rule of law can become a practical reality for ordinary South Africans.

Martin van Staden is Head of Policy at the Free Market Foundation and author of ‘The Constitution and the Rule of Law: An Introduction’ (2019).