Statement by the FW de Klerk Foundation regarding SAHRC's latest hate speech ruling
29 March 2019
The FW de Klerk Foundation is once again deeply concerned about the hate speech findings made by the South African Human Rights Commission (SAHRC) regarding certain statements made by Mr Malema and other members of the Economic Freedom Fighters (EFF). These include the Foundation’s initial complaint against Mr Malema in November 2016, in which he stated that “…We are not calling for the slaughtering of white people, at least for now ”. This was, inexplicably, found by the SAHRC not to be hate speech in terms of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act). The SAHRC found that none of the other complaints were hate speech in terms of the Equality Act.
The Foundation disagrees. In its view Malema’s statement constitutes a clear breach of section 16(2)(c) of the Constitution, which prohibits “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm”. It also breaches section 10 of the Equality Act that prohibits language that could reasonably be construed to be ”hurtful; harmful; incite harm; promote hatred; or propagate hatred”.
In addition, the Foundation is deeply concerned that the SAHRC judgment did not give proper consideration to the hate speech criteria that have been laid down by the Committee on the Elimination of Racial Discrimination (CERD) which oversees the implementation of the International Convention on the Elimination of all Forms of Racial Discrimination. These include:
the context and form of speech;