Background

On the 7th November 2016 EFF leader Julius Malema delivered a speech in Newcastle where he repeated his earlier calls for “White People” to be racially dispossessed of their land and property and ownership transferred into the “hands of the people” from whom it had been “stolen”.

“Victory will only be victory if the land is restored in the hands of rightful owners. And rightful owners unashamedly is black people. No white person is a rightful owner of the land here in South Africa and in the whole of the African continent. This is our continent, it belongs to us.”

He proceeded to accuse white people of being collectively guilty of genocide against black people. As he put it:

“We, the rightful owners, our peace was disturbed by white man’s arrival here. They committed a black genocide. They killed our people during land dispossession. Today, we are told don’t disturb them, even when they disturbed our peace. They found peaceful Africans here. They killed them! They slaughtered them, like animals! We are not calling for the slaughtering of white people, at least for now.”

Various complaints were laid with the South African Human Rights Commission over these (and other) remarks. The underlying issue that the SAHRC’s human rights lawyers had to adjudicate was whether calls for the total racial dispossession of members of a relatively prosperous racial minority, along with the suggestion that they could and should be physically annihilated at some indeterminate point in the future – on the basis of all the misfortunes this minority had allegedly visited upon the majority in the past - should be considered proscribed speech.

In the end, on the basis of an internal and external legal opinion from top human rights lawyers, the SAHRC decided that Malema’s rhetoric should not be regarded as hate speech. This decision has been taken on legal review by AfriForum and the FW de Klerk Foundation and argument on the matter was heard in the Gauteng High Court this week.

The following Heads of Argument by Advocate Kathleen Hardy et al explains why the SAHRC is standing by its original decision.

- Politicsweb

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IN THE HIGH COURT OF

SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG

Case No. 14370/19

In the matter between:

AFRIFORUM - Applicant

and

THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION First Respondent

THE CHAIRPERSON:

BONGANI CHRISTOPHER MAJOLA N.O. - Second Respondent

COMMISSIONER PRISCILLA JANA N.O. - Third Respondent

JULIUS MALEMA - Fourth Respondent

ECONOMIC FREEDOM FIGHTERS - Fifth Respondent

AND

In the matter between:

Case No. 31328/19

FREDERIK WILLEM DE KLERK N.O. - First Applicant DAVID WHITEFOORDT STEWARD N.O - Second Applicant HERMAN BAILEY N.O. - Third Applicant

BEN COETZEE BESTER N.O. - Fourth Applicant

WARREN ALEXANDER MORTEN CLEWLOW N.O. - Fifth Applicant

ELIZABETH DE KLERK N.O. - Sixth Applicant

THEUNIS ELOFF N.O. - Seventh Applicant

DEENADA YALEN KONAR N.O. - Eighth Applicant

FORTUNATE MASHEBU MATHEBULA N.O. - Ninth Applicant

and

THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION First Respondent

THE CHAIRPERSON:

BONGANI CHRISTOPHER MAJOLA N.O. - Second Respondent

COMMISSIONER PRISCILLA JANA N.O. - Third Respondent

JULIUS MALEMA - Fourth Respondent

ECONOMIC FREEDOM FIGHTERS - Fifth Respondent

INTRODUCTION AND BACKGROUND

1. The applicants seek to review and set aside a decision of the first respondent (the Commission) that found certain utterances in a speech made by the fourth respondent, Mr Malema, on 7 November 2016 did not constitute hate speech.

2. If the decision of the Commission is set aside, the applicants seek that the court substitute the decision and find that the utterances constitute hate speech and discrimination.¹

Hate speech regulation in the South African context

3. The emphasis a society places on freedom of expression and its approach to hate speech regulation is largely a product of that society’s culture, history, values and norms.²

4. Section 10 of the Equality Act³ is located at the confluence of three fundamental rights: equality, dignity and freedom of expression.⁴ In its interpretation of section 10, the Constitutional Court in Qwelane had regard to these fundamental rights as follows:

4.1. The equality that underpins our constitutional framework is not mere formal equality, but in order to give meaning to the right to dignity, also substantive equality. "Substantive equality is often more deeply rooted in social and economic cleavages between groups in society, and so it aims to tackle systemic patterns where the structures, context and impact underpinning the discrimination matters."⁵

4.2. Intersality is relevant in South Africa's grossly unequal society where people occupy vastly different positions in terms of wealth and resources.⁶ The Constitutional Court has recognised that:

"Past unfair discrimination frequently has ongoing negative consequences, the continuation of which is not halted immediately when the initial causes thereof are eliminated, and unless remedied, may continue for a substantial time and even indefinitely. Like justice, equality delayed is equality denied".⁷

4.3. Equality is inextricably linked to dignity.⁸ The right to dignity occupies a special place in our Constitution because of the history and context of the right. Apartheid was a denial of common humanity. Black people were refused respect and dignity and thereby the dignity of all South Africans was diminished. ⁹ The right aims "to repair indignity, to renounce humiliation and degradation, and to vest full moral citizenship in those who were denied it in the past".¹⁰

4.4. Freedom of expression is "the bench mark for a vibrant and animated constitutional democracy like ours" because it is "an indispensable facilitator of a vigorous and necessary exchange of ideas and accountability".¹¹

4.5. The values that support the right to freedom of expression include the pursuit of truth; its value in facilitating proper functioning of democracy; the promotion of individual autonomy and self-fulfillment; and the encouragement of tolerance.¹² These values can be described as:

4.5.1. first, “the notion that government is improved when criticism is free and unfettered, ‘a collective bet that free speech will do us more good than harm over the long run’”; and

4.5.2. second, “the idea that freedom of expression ‘is an essential and constitutive feature of a just, political society the government of which treats all its adult members … as responsible moral agents’”.¹³

4.6. "Open debate enhances truth-finding and enables us to scrutinise political argument and deliberate social values. What is more, being able to speak freely recognises and protects the moral agency of individuals in our society. We are entitled to speak out not just to be good citizens, but to fulfil our capacity to be individually human."¹⁴

4.7. A natural consequence of freedom of expression is tolerance by society of different views. "Tolerance, of course, does not require approbation of a particular view. In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views."¹⁵

4.8. Freedom of expression is "applicable, not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'".¹⁶

5. The Equality Act “aspires to heal the wounds of the past and guide us to a better future”.¹⁷ As recognised by the Constitutional Court:

“The purpose of hate speech regulation in South Africa is inextricably linked to our constitutional object of healing the injustices of the past and establishing a more egalitarian society. This is done by curtailing speech which is part and parcel of the system of subordination of vulnerable and marginalised groups in South Africa.”¹⁸

6. When the Constitutional Court declared section 18(2)(b) of the Riotous Assemblies Act 1956 inconsistent with the right to freedom of expression, the majority judgment said:

“It is no exaggeration to characterise the right to freedom of expression as the lifeblood of a genuine constitutional democracy that keeps it fairly vibrant, stable and peaceful. When citizens are very angry or frustrated, it serves as the virtual exhaust pipe through which even the most venomous of toxicities within may be let out to help them calm down, heal, focus and move on. More importantly, free expression is an indispensable facilitator of a vigorous and necessary exchange of ideas and accountability.

Expression of thought or belief and own worldview ideology was for many years extensively and severely circumscribed in this country. It was visited, institutionally and otherwise, with the worst conceivable punishment or dehumanising consequences. The tragic and untimely death of Steve Biko as a result of his bold decision to talk frankly and write as he liked, about the unjust system and its laws, underscores the point. This right thus has to be treasured, celebrated, promoted and even restrained with a deeper sense of purpose and appreciation of what it represents in a genuine constitutional democracy, considering our highly intolerant and suppressive past."¹⁹

7. Moseneke J, writing for the majority in Van Heerden, recognised that our society was deeply divided, vastly unequal and uncaring of human worth when our Constitution took root, and that many of these stark social and economic disparities will persist for a long time to come.²⁰

8. One of the stark social and economic disparities that continues to plague our politico-legal landscape is the painful, emotive subject of colonial and apartheid- era land dispossession.²¹ The Constitutional Court described the continued pain and emotion regarding land dispossession in South Africa as follows:

“To those who personally experienced the forced removals and those who – instead of inheriting the illegitimately wrestled land – inherited the pain of loss of homes or property, the dispossessions are not merely colonial and apartheid-era memories. They continue to be post-apartheid realities. And it is understandable why that should be so. At the risk of being presumptuous, here was the upshot: the ejection from homes; the forcible loss of properties; severing from kin, friends and neighbours; the wrenching of those affected from their beloved connection to place and community; immeasurable emotional and psychological trauma; and the searing bitterness of it all. Concomitant to this was an untold assault upon the dignity of those at the receiving end of this distressing treatment. The continuing post-apartheid realities of land dispossession are more so in the case of those who are yet to enjoy the fruits of restitution or equitable redress …”.²²

9. The Constitutional Court recognised the link between land and dignity and the realisation of other constitutional rights. The Court said:

“The land reform process, if administered appropriately and expeditiously – and with the guiding light of our Constitution – can still have the potential to be a catalyst for structural change in our society.”²³

10. It is true that South Africa still needs to get to a place proclaimed by the Constitution, where we are not divided but ‘united in our diversity’.²⁴ It is also true that land restitution:

“[E]ntails the practical disruption of racialised privilege in respect of land ownership. But is also incorporates a symbolic function of recognising histories and legacies of injustice that influence the lives of individuals, families and communities.”²⁵

11. Freedom of expression in this context to enhance truth-finding, scrutinise political argument, and deliberate social values is of fundamental importance. As Majiedt J expressed in the dissenting judgment in Economic Freedom Fighters v Minister of Justice:

“Land is the basis of freedom, justice and equality. Robust political debate heated political discourse and even fiery rhetoric about the land question must be afforded its deserved space in our vibrant, nascent democracy. Society must be exposed to and be tolerant of different views, and unpopular or controversial views must never be silenced.”²⁶

12. Robust speech must be protected for those who remain structurally marginalised to be able to express their moral agency through expression the conveys anger or frustration at persistent societal injustice.²⁷

13. The first step in a hate speech inquiry is to ascertain the meaning of the words and determine whether they fall within section 10(1) of the Equality Act.²⁸ In Masuku, the majority judgment acknowledged that “words are naturally coloured by the context in which they appear and are used”.²⁹ Context, to the objective person, is important and instructive of meaning.³⁰

14. It is to the context of the speech and the utterances that form the basis of the applicants’ complaint that we now turn.

The speech

15. The applicants complain about certain utterances made by Mr Malema on 7 November 2016 in a speech to a crowd outside the Newcastle Magistrates’ Court.

16. Mr Malema gave the speech shortly after he had appeared on charges of contravening the Riotous Assemblies Act 1956.³¹ The thrust of the charges were that Mr Malema incited members of the Economic Freedom Fighters (EFF) and other persons to commit an offence of occupying land registered in the name of others without lawful permission or lawful reason (i.e. inciting others to commit the offence of trespass).³²

17. The crowd outside of the Newcastle Magistrates’ Court comprised inter alia EFF and African National Congress (ANC) supporters, members of the public and journalists.³³

18. The speech was political, exaggerated and emotionally charged. ³⁴ It was a response to the criminal charges against Mr Malema for calling on people to occupy land.

18.1. The speech was critical of the ANC for its failure in the land redistribution project.

“[The ANC] do not know how to take the title deed from the Queen in London and give it back to the people of South Africa, including its own members.”

“When a state has failed to give you the land for the past 22 years it will be irresponsible of me to say continue waiting. That’s why I said occupy the land.”

18.2. The speech also criticised the ANC for its failure to take action following the judgment of the Constitutional Court that held President Zuma and the National Assembly had acted in breach of their constitutional obligations.³⁵

“South Africa, our country is gone. … The people who lie to themselves that South Africa is a constitutional democracy, today you must know that [it] is gone. It left that day when the court said Zuma acted inconsistent with the Constitution. That Parliament did the same thing. They said [to] all of you, two arms of the state: the legislature and the executive did not act in line with the Constitution. And even when the Constitutional Court said that, [un]til today nothing has happened.”

18.3. The speech spoke strongly in defence of the Constitution.

"… when I say let Parliament go to an early election, it means [that] I can be unemployed tomorrow because there is no guarantee that I will come back. But for the sake of the Constitution I am prepared to lose that job so that we can protect the Constitution of the Republic of South Africa. ...

But the reality is that if we don't have a Constitution, it is going to come back to bite you ... Without this Constitution you are going to be locked up for demanding water, you are going to be locked up for demanding RDP houses, you are going to be locked up [for] demanding jobs, you are going to be told that you are committing crime, you are disturbing the peace of Europeans because you are looking for jobs. ...

So we are calling upon all of you to rise in defence of the Constitution. ... Without this piece of legislation, we are nothing. ... Right is right, it must be done in line with the Constitution of the Republic of South Africa.

If we all act in line with the Constitution everything else will be in order."

18.4. The speech was critical of the ANC’s treatment of black people.

"The ANC laid a complaint against the EFF because the ANC said through the state you are disturbing the peace of white people.

And the ANC shall punish you for disturbing the peace of white people. ... Even under the ANC, even under the so-called democracy you are subjects, you are servants of white people."

18.5. The speech created an impression of Mr Malema and the EFF as heroic, fearless and as a means to return land to the people.

“No white man will be served by me. I do not serve white masters, I will never serve white masters. I am here to disturb the white man’s peace. They are right. The white man has been comfortable for too long. We are here unashamedly to disturb the white man’s peace. Because we have never known peace. We don’t know what peace looks like. They’ve been living peacefully, they’ve been swimming in a pool of privilege, they’ve been enjoying themselves because they’ve always owned our land. We, the rightful owners, our peace was disturbed by white man’s arrival here. They committed a black genocide. They killed our people during land dispossession. Today we are told don’t disturb them even when they disturbed our peace. They found peaceful Africans here. They killed them, they slaughtered them like animals. We are not calling for the slaughtering of white people, at least for now. What we are calling for is the peaceful occupation of the land. And we don’t owe anyone [an] apology about that.

I am not scared of prison because of the land question. … But I want to go to prison for the land.

We are not going to tell the court that we are disturbing the peace. That’s what revolution is about.

Now I want to thank you for coming and the ANC comrades for saying they want their land. … It’s just that they are trapped in the wrong organisation. One day they will know the truth and they will come to the real alternative.

Our strategic objective is the defeat of White Monopoly Capital. And that defeat of White Monopoly Capital means the ownership of property must change and be transferred into the hands of the people. The mines must be nationalised. The banks must be nationalised. The land must be expropriated, without compensation.

We will not chase white people into the sea. We will give them [a] portion. … You are a visitor. Visitors must behave. They must know the land belongs to the people of South Africa, the indigenous people of South Africa.

We will never keep quiet. The struggle was formed for the land. The ANC was formed for the land. It has always been about the land. The PAC was formed for the land.

When the EFF takes over this land, with its minerals, [the land] will be restored in your hands. You will be proud to be black. Today, we are ashamed of being black because we think that being black means being poor. But the day the land is restored in the hands of the rightful owners you shall walk with confidence.

Today we are here to put the struggle of black people before the Honourable Magistrate and say to the Magistrate we are not committing crime, we are asking for what belongs to us. Because this belongs to us.

And, they all agree by the way that land belongs to us. But they say we must buy it. How can you buy something that belongs to you. … Why should you negotiate with a thug, the land thieves, the criminals? The real criminals are not in the court. The people who are saying ‘bring back what belongs to us’, they are the ones who are in court.

The people who belong in court [are] FW de Klerk and all those whites who stole our land. But white minorities be warned, we will take our land. It doesn’t matter how. It is [..] unavoidable, it is [..] inevitable. The land will be taken by whatever means necessary. This land will be returned to black people. Continue to be proud, continue to demand your land. That’s who you are. By demanding your land you are demanding your dignity back. Don’t be ashamed, everywhere else you go tell them you want your land. It’s the right thing to do.”

The utterances that form the basis for the applicants’ complaint

19. On 9 November 2016, the FW de Klerk Foundation Trust complained to the Commission regarding the following utterances:

· We, the rightful owners, our peace was disturbed by white man’s arrival here … They killed our people during land dispossession … They found peaceful Africans here. They killed them! They slaughtered them like animals! We are not calling for the slaughter of white people, at least for now.”³⁶

20. On 10 November 2016, Afriforum requested the Commission to investigate the following utterances:

· So, black people, you are subjects of white people.

· I am here to disturb the white man’s peace.

· We are unashamedly here to disturb the white man’s peace.

· We are not calling for the slaughtering of white people, at least for now.

· You are a visitor. Visitors must behave. They must know the land belongs to the people of South Africa, the indigenous people of South Africa.

· No white person is a rightful owner of the land here in South Africa and in the whole of the African continent. This is our continent, it belongs to us.

· When EFF takes over this land with its minerals it will be restored in your hands.

· But white minorities be warned, we will take our land. It does not matter how. It is coming unavoidable; it is coming inevitable. The land will be taken by whatever means necessary.³⁷

21. The Commission registered and consolidated the various complaints received regarding Mr Malema’s speech and the utterances made.³⁸

INTERPRETING HATE SPEECH IN THE EQUALITY ACT

22. Section 10(1) of the Equality Act states:

“Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words that are based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.”³⁹

23. In Qwelane the Constitutional Court interpreted section 10(1) of the Equality Act in a constitutionally compliant manner as follows:

23.1. The court held that the section contained an objective test that considers the facts and circumstances surrounding the expression (i.e. the general circumstances and context), and not mere inferences or assumptions that are made by the targeted group.⁴⁰

23.2. The court endorsed the approach in Khumalo that:

"The objective test in s 10(1) implies in the terminology used to articulate it, that an intention shall be deemed if a reasonable reader would so construe the words. Because the objective test of the reasonable reader is to be applied, it is the effect of the text, not the intention of the author, that is assessed".⁴¹

23.3. The court cautioned that when applying an abstract reasonable person test in order to construe the meaning of alleged hate speech, a court "ought to be mindful of our diverse and dynamic society and not inadvertently reify prejudices".⁴²

23.4. The court held that the phrase 'to incite harm' does not require an established causal link between the expression and actual harm committed.⁴³

23.5. The court endorsed the approach in Nelson Mandela Foundation Trust

that:

23.5.1. 'speech' must be interpreted broadly to encompass the ideas behind the words themselves and both verbal and non-verbal expressions;⁴⁴

23.5.2. section 10(1) targets the meaning behind the words, and not simply the words; and

23.5.3. an interpretation of ‘words’ to include speech, ideas, ideologies, belief, meaning, and instructions is a sensible and reasonable interpretation that is constitutionally compliant.⁴⁵

23.6. The court said that hate speech prohibitions are concerned with the impact and effect of the hate speech and protecting the public good.⁴⁶

24. Below, we demonstrate that the Commission’s decision that the utterances did not amount to hate speech accords with the Constitutional Court’s interpretation and is lawful, reasonable, rational and procedurally fair.

THE COMMISSION’S DECISION

25. The questions that the Commission had to decide were whether the utterances go any further than an emotionally charged, exaggerated political speech – whether the utterances constitute hate speech and are discriminatory within the meaning and purpose of the Equality Act?

26. The Commission analysed the utterances complained of against the legal framework and had regard to the factual, social, and historical context in which the utterances were made and found that the utterances do not amount to hate speech.⁴⁷

27. At the outset, the Commission recognised that hate speech is located at the confluence of the rights to equality, dignity and freedom of expression.⁴⁸ The Commission analysed the constitutional provisions relating to hate speech, recognising the importance of the right to freedom of expression in South Africa but also that it is not a paramount right that trumps other constitutional rights.⁴⁹

28. The Commission considered the meaning of section 16 of the Constitution and confirmed that the harmful expression listed in section 16(2) does not enjoy constitutional protection.⁵⁰ The Commission discussed the meaning given by the courts to ‘hatred’ and to ‘advocacy’, and that ‘harm’ includes emotional, psychological and physical harm.⁵¹

29. Thereafter, the Commission analysed and interpreted section 10 and section 12 of the Equality Act. The Commission:

29.1. Interpreted section 12 of the Equality Act as prohibiting discriminatory speech and said that it contains a proviso to which the prohibition of hate speech is subject.

29.2. Compared section 10 of the Equality Act to section 16(2) of the Constitution and considered, in detail, both the disjunctive and the conjunctive approach in interpreting section 10.

29.3. Concluded that section 10 of the Equality Act contains an objective test and that no regard is had to the subjective intentions of the person who utters the impugned words.⁵²

30. Due to the conflicting approaches in the interpretation of section 10 of the Equality Act, the Commission applied a disjunctive and conjunctive reading of the section to the utterances.⁵³

31. The Commission recognised that context is crucial to an assessment whether the utterances amount to hate speech and that regard must be had to the factual, social and historical context in which the utterances were made. ⁵⁴ The Commission had regard to the utterances within the context of Mr Malema’s speech as a whole.⁵⁵

32. Viewed in context, the Commission found that the utterances do not amount to hate speech.

32.1. The historical context in which the utterances were made is that of unjust land dispossession by white colonialists and the apartheid government. The Commission considered that the word 'slaughter' is first used when Mr Malema expressed an opinion about what colonialists did to Africans.⁵⁶ He said "they killed our people during land dispossession They found peaceful Africans here. They killed them,

they slaughtered them like animals".⁵⁷

32.2. The social context in which the speech and utterances were made is one of continued landlessness, poverty and inequality, giving rise to anger and frustration by the black majority. ⁵⁸ The Commission specifically said that the speech and utterances must be considered bearing in mind what the Supreme Court of Appeal said in Hotz:

"Freedom of speech must be robust and the ability to express hurt, pain and anger is vital, if the voices of those who see themselves as oppressed or disempowered are to be heard."⁵⁹

32.3. The factual context shows that on an objective assessment, the utterances do not perpetrate harm against white people, but are concerned with the highly emotive and contested issue of land reform in South Africa. The Commission relied on the fact that Mr Malema specifically states that he is not calling for the slaughter of white people but is calling for the peaceful occupation of land.⁶⁰ The utterances cannot be said to harm or to evoke a reasonable apprehension of harm to white people.

33. The Commission was of the view that the utterances constitute robust political speech, which enjoys protection as expression that lies at the heart of freedom of expression. Such statements enjoy constitutional protection in dealing with matters such as land reform and inter-racial relations.⁶¹

34. The Commission found that the utterances, viewed in context, are not hurtful as white people had not suffered severe psychological impact as a result. Further, the Commission found that the utterances are not harmful, or do not incite harm and do not promote or propagate hatred. The Commission also found that insofar as the utterances refer to historical events and actions, the proviso in section 12 of the Equality Act is relevant and those utterances are protected expression as understood in section 16(1) of the Constitution.⁶²

35. We submit that the Commission’s approach was consistent with the Constitutional Court’s interpretation of section 10 in Qwelane.

36. We further submit that this court can consider the Commission’s decision against section 10 of the Equality Act as formulated by the Constitutional Court.

36.1. In Qwelane, the Constitutional Court held that there is no impingement of the rule of law and the principle of legality because the recrafted section 10 does not take away or deprive Mr Qwelane of any existing rights that he had. The Court explained that before the amendment of section 10, the elements of hate speech that were clear and constitutional were those in section 10(1)(b) and (c). Thus, a party could not claim prejudice by not knowing the law beforehand and that the hate speech prohibition did not exist at the time that the utterances were made.⁶³

36.2. In Masuku, the Constitutional Court similarly held that no issues of retrospectivity arise because the severance applied to section 10(1) has unequivocally not had the effect of depriving Mr Masuku of any pre-existing rights.⁶⁴

37. The Commission assessed the utterances on a disjunctive reading of section 10(1) and found that the utterances did not amount to hate speech. The definitional elements of hate speech in section 10(1)(b) and (c) as applied by the Commission can be interpreted in accordance with the recrafted section 10(1). Insofar as the applicants seek a review of the Commission’s decision on the basis that it did not find Mr Malema’s speech to be hurtful, that aspect of the applicants’ cause of action is no longer available to them.⁶⁵

THE REVIEWS

38. The applicants seek to review and set aside the Commission’s decision on various grounds in terms of the PAJA.⁶⁶ As such, the review is concerned with whether the Commission’s decision was one which it was legally permitted to take in the way that it did.⁶⁷

39. The applicants assert that the Commission came to the wrong conclusion on the facts and the law.⁶⁸ Although this court is not required to blind itself to the substantive merits of the decision when considering the review, the applicants care not entitled to review the Commission’s decision merely because they disagree with the outcome.⁶⁹

40. The essence of the applicants’ complaint seems to be that the Commission placed undue emphasis on certain factors and did not place enough emphasis on other factors when it considered the utterances complained of in context. When properly considered, it is apparent that the applicants’ grounds of review are not good in law and should be dismissed.

The Commission’s constitutional mandate

41. The Commission was established in terms of section 181 of the Constitution with the mandate to strengthen constitutional democracy.⁷⁰ Section 181 states:

“(2) These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.

(3) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.

(4) No person or organ of state may interfere with the functioning of these institutions.

(5) These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.”

42. Section 184 of the Constitution provides the functions of the Commission.

“(1) The South African Human Rights Commission must –

(a) promote respect for human rights and a culture of human rights;

(b) promote the protection, development and attainment of human rights; and

(c) monitor and assess the observance of human rights in the Republic.

(2) The South African Human Rights Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power –

(a) to investigate and report on the observance of human rights;

(b) to take steps to secure appropriate redress where human rights have been violated;

(c) to carry out research; and

(d) to educate.

(3) Each year, the South African Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.

(4) The South African Human Rights Commission has the additional powers and functions prescribed by national legislation.”

43. The South African Human Rights Commission Act 40 of 2013 provides for the composition, powers, functions and functioning of the Commission. The Act provides a wide discretion to the Commission to decide whether to investigate a complaint or not, and the process undertaken in any investigation.⁷¹

44. The Equality Act contains provisions that establish the Commission as an important institution to assist in promoting equality and in the eradication of unfair discrimination, hate speech and harassment. The Commission has the statutory powers and or functions under the Equality Act to:

44.1. institute proceedings in terms of the Act;⁷²

44.2. request the State or any person to supply information on measures relating to the achievement of equality and to deal with equality plans in the prescribed manner;⁷³

44.3. assess the extent to which unfair discrimination on the grounds of race, gender and disability persist in the Republic, the effects, and recommendations on how best to address the problems;⁷⁴

44.4. participate as a member of the Equality Review Committee established to inter alia advise and report to the Minister of Justice on the operation of the Act, address whether the objectives of the Act and the Constitution have been achieved, and make recommendations on necessary amendments to the Act to improve its operation.⁷⁵

45. The Commission has a broad constitutional and statutory mandate and has particular knowledge, expertise and experience in equality and race relations in South Africa, and its decisions should be given proper deference and respect.

Jurisdiction of the Equality Court

46. The applicants seek an order that the Commission’s decision be set aside and replaced with a decision that Mr Malema’s comments constitute hate speech and discrimination in terms of the Equality Act.⁷⁶ The applicants elected to bring their application in the High Court and not in the Equality Court. The applicants do not seek an order to consolidate their claims.

47. The High Courts are courts referred to in section 166(c) of the Constitution and the Equality Court is a court as envisaged in section 166(e), a court established or recognised in terms of an Act of Parliament, including any court of a status similar to either the High Courts or the Magistrates’ Courts.⁷⁷ The Equality Court is a statutorily created court with its powers found in, and confined to those conferred by, the statute creating it.⁷⁸

48. Section 169(1) of the Constitution provides that a High Court may decide (i) any

constitutional matter except a matter that is assigned by an Act of Parliament to another court of a status similar to the High Court, and (ii) any other matter not

assigned to another court by an Act of Parliament.

49. The Supreme Court of Appeal in Manong (No 2) provided a detailed analysis of the purpose and scheme of the Equality Act.⁷⁹ The Court said the Equality Court:

49.1. is 'a special-purpose vehicle';

49.2. that was designed and structured to ensure speedy access to judicial redress;

49.3. utilised the infrastructure of magistrates' and high courts;

49.4. in which selected and 'specially trained' magistrates and judges are appointed to preside at the seats of their existing respective courts;⁸⁰ and

49.5. only has those powers and functions set out in the Equality Act and does not have inherent power to protect and regulate its own process.⁸¹

50. The Supreme Court of Appeal disagreed with the reasoning of the court below

that equality is an integral feature of any adjudication in the High Court on any given day for the court a quo's finding that when judges adjudicate disputes under the Equality Act, it is the High Court itself with all its attendant powers that is exercising equality jurisdiction. The Supreme Court of Appeal said:

"This view loses sight of the fact that when they are fulfilling their obligations and exercising the powers of their office as judges in their everyday adjudication, they do so within the powers that they have set out in the Constitution, the common law and the statutes that specifically apply to them. They also do so in terms of the requirements of the substantive law which they apply under the umbrella of the Constitution. It is clear that any person who is the victim of racial or other discrimination is not precluded from asserting his or her right to equality as provided for in s 9 of the Constitution by the institution of proceedings in the ordinary course in a High Court. The matter will then be dealt with by the High Court, following the terms of its empowering statute and its processes and rules."⁸²

51. The Supreme Court of Appeal explained that:

"Outside of the provisions of the Equality Act, High Courts and magistrates' courts continue, on a daily basis, to uphold the fundamental values of our Constitution within the parameters of their powers. The Equality Court is an added tool to promote the transformation of our society in realisation of our best aspirations. It is a separate and distinct court with powers specified in its empowering statute."⁸³

52. The Court said, in light of the conclusions reached, that it needs to be stated that:

"[O]nly complaints or 'causes of action' provided for by the Equality Act are susceptible to adjudication by the Equality Court. That court was set up for a particular purpose. Other causes of action are accommodated in other appropriate fora. The Equality Court was especially set up to deal with unfair discrimination and the other issues provided for by ss 10 - 12 of the Equality Act".⁸⁴

53. In De Lange the Constitutional Court referred to the Supreme Court of Appeal authority that took the posture that the Equality Court is a special-purpose vehicle and creature of statute deriving its powers from the Equality Act that existed separately and distinct from the High Court.⁸⁵ In De Lange:

53.1. The respondent raised the principle of constitutional subsidiarity and submitted that Ms De Lange's claim may not be directly based on section 9(4) of the Constitution. Instead, the respondent submitted that Ms De Lange should have channeled her complaint through the Equality Act.

53.2. Ms De Lange submitted that she could not take her claim to the Equality Court because her claim was not only about unfair discrimination but also about the arbitration agreement between the parties. According to Ms De Lange, a High Court could not sit as an Equality Court and also have the powers of a High Court.

54. The Constitutional Court held that the subsidiarity ground alone is fatal to the application for leave to appeal, and said:

"It seems to me that on this Supreme Court of Appeal authority the consolidation of disparate claims was quite permissible at the time Ms De Lange instituted her claim in the High Court. It was open to Ms De Lange to seek consolidation to avoid the charge of violating the doctrine of constitutional subsidiarity. When her attention was drawn to the lack of jurisdiction of the High Court over an equality claim, she chose to avoid the difficulty by disavowing her unfair-discrimination claim rather than following the path of seeking a court order to consolidate her disparate claims."⁸⁶

55. In Qwelane, the Commission had referred a hate speech complaint to the Equality Court and Mr Qwelane responded by instituting a High Court application challenging the constitutionality of section 10 of the Equality Act. The proceedings were consolidated for hearing before a single judge, sitting as both the Equality Court and the High Court.⁸⁷ Similarly, in Nelson Mandela Foundation Trust once the Commission raised the constitutionality of section 10 of the Equality Act, the case required the court to sit both as an Equality Court and as a High Court.⁸⁸

56. We submit that the following principles are apparent from the Constitution and the authority referred to above:

· The Equality Court is a creature of statute and only has those powers and functions set out in the Equality Act.

· Only complaints or 'causes of action' provided for by the Equality Act are susceptible to adjudication by the Equality Court. It was especially set up to adjudicate complaints of hate speech and unfair discrimination.

· Outside of the provisions of the Equality Act, the High Court has the power to uphold fundamental rights within the powers that it has as set out in the Constitution, the common law and the statutes that specifically apply to it (excluding the Equality Act).

57. We respectfully submit that these principles find application in this matter. The applicants had the choice either to seek a consolidated hearing before the High Court and the Equality Court or to bring the relief sought within the extensive procedural and remedial powers of the Equality Court.⁸⁹

58. We further submit that the fact that the applicants’ reviews emanate from a complaint to the Commission is irrelevant.

58.1. First, the review of a decision of the Commission is not equivalent to an appeal against an order made by an Equality Court.

58.2. Second, where an applicant seeks an order that certain utterances constitute hate speech and discrimination in terms of the Equality Act it is required to do so in terms of the provisions of the Act relied upon.

59. In the premises, we respectfully submit that this Court does not have the jurisdiction to find that the utterances constitute hate speech and discrimination in terms of the Equality Act.

PAJA v legality review

60. When the Commission delivered its answering affidavits in December 2019, the Supreme Court of Appeal in Minister of Home Affairs held that the PAJA does not apply to the review of exercises of public power by the Public Protector and that the principle of legality instead finds application.⁹⁰ The Supreme Court of Appeal listed a number of factors that, in its view, distinguish the decisions of the Public Protector from decisions of an administrative nature.⁹¹ Those factors are equally relevant to a decision of the Commission, as a state institution supporting constitutional democracy.⁹²

61. Subsequent to the delivery of the Commission’s answering affidavit, the Constitutional Court has expressed doubt about the correctness of the Supreme Court of Appeal’s finding that decisions of the Public Protector are not administrative in nature. ⁹³ Although the Constitutional Court did not make a definitive finding on whether the Public Protector’s remedial action is administrative action, Jafta J, writing for the majority, said that the he was not convinced that the factors upon which the Supreme Court of Appeal had relied support the view that those decisions do not amount to administrative action. Jafta J explained:

61.1. The fact that a power is derived directly from the Constitution does not mean that its exercise cannot be administrative. The Supreme Court of Appeal characterised that power as being of a public nature and it will be recalled that administrative action comes into existence from the exercise of public power.⁹⁴

61.2. The Supreme Court of Appeal, contrary to the jurisprudence of the Constitutional Court, placed more emphasis on the identity of the functionary that exercised the power than the nature and impact of the power on those against whom it was exercised.⁹⁵

61.3. The decision of the Supreme Court of Appeal also appears to be at variance with the Constitutional Court decision in South African Reserve Bank, which implicitly endorsed the application of the PAJA in the decision making process followed by the Public Protector when s/he takes remedial action.⁹⁶

62. The Supreme Court of Appeal found that the Public Protector is an institution that exercises both constitutional powers and public powers in terms of legislation; its remedial action will usually adversely affect rights and have a direct, external legal effect; its investigative, reporting and remedial powers are public powers that derive from the Constitution and legislation; and that none of the express exclusions from the definition of administrative action apply. ⁹⁷ The Court concluded that decisions of the Public Protector are not of an administrative nature, despite its observation that “public administration in a modern state encompasses an extremely wide range of activities, including investigative functions and the exercise of powers of compunction”.⁹⁸

63. Hoexter and Penfold also express doubt regarding the Supreme Court of Appeal’s reasoning and conclude that, in their view, "there are no compelling reasons not to subject the Public Protector’s conduct to the rigours of administrative law. On the contrary, excluding this powerful decision-maker from administrative-law scrutiny creates the risk of undermining the principles of accountability and participation”.⁹⁹

64. It is apparent that when the Commission investigates and reports on the observance of human rights and takes steps to secure appropriate redress where human rights have been violated it exercises a public power and function in terms of the Constitution and the SAHRC Act. Any action taken in this regard will usually adversely affect rights and have a direct, external legal effect. A decision whether to investigate, and the conduct of an investigation, has been said to be of an administrative nature, particularly where the outcome of the investigative action is binding.¹⁰⁰

65. In the premises, we submit that the Commission’s decision constitutes administrative action and is reviewable under the PAJA. We now turn to the applicants’ grounds of review.

Grounds of review

66. We submit that the applicants have failed to demonstrate that the Commission’s decision is unlawful, unreasonable or procedurally unfair. We address each ground of review below.

Error of law

67. Afriforum alleges that the Commission’s decision was materially influenced by an error of law because neither section 10 of the Equality Act nor section 16(2)(c) of the Constitution have an imminence requirement in relation to incitement to cause harm.¹⁰¹ Afriforum further alleges that if the Commission was referring to section 16(2)(b) of the Constitution, it would be a material error of law because section 10 does not require incitement of imminent violence.¹⁰²

68. The Commission did not apply an ‘imminence requirement' in its decision that the utterances do not amount to hate speech. The Commission found on a proper consideration of section 10 of the Equality Act that the utterances, objectively considered, were about land dispossession and redistribution, were not harmful and do not incite harm against white people.¹⁰³ The Commission found that Mr Malema’s utterances did not call for the slaughtering of white people. The utterances called for the peaceful occupation of land.

69. The Commission concluded that Mr Malema’s utterances did not call for harm or incitement of harm to white people now or at any indeterminate time in the future. That does not constitute a material error of law.

70. The FW de Klerk Foundation Trust submits that the Commissions’ alleged reliance on Mr Malema’s subjective intention is a material error of law.¹⁰⁴ The FW de Klerk Foundation Trust does not provide any factual basis for its submission and also does not make reference to the decision.

71. It is clear from the decision that the Commission applied an objective test in its assessment of whether the utterances constitute hate speech. In doing so, the Commission explicitly confirmed that the actual subjective intention of the speaker (i.e. Mr Malema) is irrelevant.¹⁰⁵

72. We submit that the test applied by the Commission – whether the words, heard in their proper context by a reasonable person, would lead that person to conclude that they were based on a prohibited ground and intended to incite harm or propagate hatred – was the correct test and the Commission did not commit a material error of law.

Relevant and irrelevant considerations

73. Afriforum alleges that the Commission’s reference in the decision to a statement made by Mr Malema on or about 12 June 2018 that "not under my leadership will I call for the slaughter of white people, even though I cannot guarantee what will happen after me”, impermissibly expanded the factual context of the relevant earlier statement.¹⁰⁶

74. The Commission found on the factual context of the speech and utterances made by Mr Malema in November 2016 that it was clear to a reasonable person that Mr Malema was not calling for the slaughter of white people now, but was calling for the peaceful occupation of land. The fact that the factual context in November 2016 as interpreted by the Commission was later expanded by Mr Malema’s June 2018 statement (which was also consistent with his previous statements) did not influence or change the outcome of the decision of the Commission.¹⁰⁷ The Commission did not have regard to statements made after the fact in its interpretation or contextualisation of the utterances.

75. The applicants are incorrect that the Commission ignored the true status and position of Mr Malema.¹⁰⁸ It is apparent from the decision that the Commission was aware of and had properly considered Mr Malema’s identity and status. Specifically, the Commission found that:

75.1. the utterances made by Mr Malema constituted robust political speech, which enjoys constitutional protection as expression that lies at the heart of the right to freedom of expression; and

75.2. although the utterances do not pass the legal threshold for hate speech, public figures should refrain from making statements that erode social cohesion.¹⁰⁹

76. The applicants are also incorrect to assert that the Commission incorrectly interpreted the speech and utterances of Mr Malema by focusing only on the historical aspect, and not on the fact that the majority of the speech was focused on what ought to be done presently or in the future.¹¹⁰

77. The Commission did not only focus on the historical aspect and had due regard to the present and future. For example, the Commission found that:

77.1. The speech and utterances objectively interpreted means that white colonial settlers killed peaceful black Africans as if they were animals (this comes from the use of the word 'slaughtered'). Despite this, Mr Malema does not call for the slaughter of white people now. He calls for the peaceful occupation of land.¹¹¹

77.2. This statement is critical of white people historically and as a result calls for the occupation of white people's land currently. This may be offensive and upsetting for many white people. Some white people may experience this as hurtful and may suggest it is racially biased. However, it is clear that white colonial settlers did occupy black land, by both violent and non-violent means. It is also clear that currently white people, albeit a political minority, have significant economic power.¹¹²

77.3. Importantly, the statement is about how white people behaved historically. It is not about how they are behaving now. Mr Malema also specifically says he is not calling for the slaughtering of white people now. He is only calling for the occupation of their land.¹¹³

78. The FW de Klerk Foundation Trust submits that because the record does not show evidence of the Commission conducting "any investigation into invasions of property, violence associated with such invasions or any other contextual matter that might have shed a light on the objective meaning to be assigned to the words", it evidences that relevant considerations were left out of account.¹¹⁴ We respectfully submit that the applicant’s complaint in this regard must fail because:

78.1. The Commission is afforded broad powers in the discharge of its constitutional mandate and has wide discretion to decide whether to investigate a complaint and the process undertaken in any investigation.

78.2. The applicant does not identify any provision in the Constitution, the SAHRC Act or the Complaints Handling Procedures that compels the Commission to undertake such an investigation.

78.3. The proposed investigation was not necessary to shed light on the objective meaning to be assigned to the words. To the contrary, the determination of the meaning of the words is an objective test that does not require evidence. We submit that the Commission was entitled to make a determination as to the meaning of the words without regard to evidence, in the same manner that a court would.¹¹⁵

Rational connection to the information before the Commission

79. We submit for the same reasons detailed above, the FW de Klerk Foundation Trust’s complaint that the decision was not rationally connected to the information before the Commission must fail.¹¹⁶

Reasonableness

80. Afriforum alleges that Mr Malema’s utterances are hate speech when read conjunctively, and, as a result, the Commission’s decision that even if section 10 is read disjunctively, the utterances are not hate speech is so unreasonable that no reasonable decision maker could have made such a decision.¹¹⁷

81. The FW de Klerk Foundation Trust submits that it is not reasonable to conclude that a call for violence against white people who do not willingly hand over their property is justified because of the history of colonialism, apartheid and oppression alone, leaving out of account the constitutional order in place.¹¹⁸

82. We submit that the applicants have failed to demonstrate that the decision of the Commission is not rationally justifiable and instead prefer their own views as to the correct decision.

83. Further, it is clear that the interpretation and conclusions that the applicants attempt to impose on the utterances are not supported as heard in their proper context by a reasonable person. For example, the speech and utterances do not support the contention that Mr Malema made a call for violence against white people who do not willingly hand over their property. For these reasons, this ground of review too fails.

Unconstitutional and unlawful

84. The FW de Klerk Foundation Trust submits that the Commission’s decision was unconstitutional and unlawful because inter alia the decision fails to recognise the historical bridge built between the past and the present.¹¹⁹

85. Despite the applicant’s broad generalisation that the decision:

· "is unconstitutional and unlawful in its tolerance of hateful speech, inconsistently with the values of our democratic society”; and

· "is unconstitutional to accept that a threat of violence and death against white people … falls within the bounds of acceptable speech under the free speech provision, when it threatens the constitutional values”,

the applicant has failed to identify the constitutional values or fundamental rights that it alleges are implicated or have been infringed, and that would render the decision unlawful and unconstitutional. The applicant also does not seek a declaration of rights or a declaratory order.

86. We submit that the applicant’s contentions are factually incorrect when considered against the proper context of the speech and utterances as found by the Commission. The applicant’s contention also confirms the FW de Klerk Foundation Trust’s disguised review and attempt to substitute the Commission’s decision with its preferred opinion.

87. In the premises, we submit that the FW de Klerk Foundation Trust has failed to demonstrate that the decision is unlawful and unconstitutional.

A failure to decide

88. Afriforum alleges that the Commission at no stage considered whether the statement could amount to discrimination or the dissemination of information that could reasonably be construed or understood to demonstrate a clear intention to unfairly discriminate, as provided for in section 12 of the Equality Act.¹²⁰

89. This is not correct.

90. The Commission analysed and considered section 12, which is apparent from the decision of the Commission as well as the legal opinions.¹²¹

91. Section 12 of the Equality Act proscribes the dissemination of information which unfairly discriminates. The section is not concerned with conduct which amounts to unfair discrimination, but with the uttering of words which might unfairly discriminate.

92. Section 7(1)(a) of the Equality Act provides that unfair discrimination includes “the dissemination of any propaganda or idea, which propounds the racial superiority or inferiority of any person, including incitement to, or participation in, any form of racial violence”. Section 12 must be interpreted in light of section 7(1)(a) to prohibit words which propound or promote racial superiority or inferiority and propound, promote or incite racial violence. The Commission considered the utterances in light of this analysis and found that there was no breach of section 12 of the Equality Act.

93. The fact that the Commission did not provide Afriforum with a specific statement as to whether or not the utterances are discriminatory on the basis of race and did not provide a recommendation on how Afriforum should proceed if the utterances were indeed found to be discriminatory¹²² does not mean that the Commission failed to take a decision.

94. The Commission has wide discretion to decide whether to investigate a complaint and the process undertaken in any investigation. We submit that the Commission should be afforded the appropriate deference and respect in the discharge of its constitutional mandate.

Grounds of review based on the 27 March 2019 media briefing

95. Afriforum alleges that comments made by a member of staff of the Commission on 27 March 2019, sixteen days after the decision had been communicated to the applicants, give rise to three additional grounds of review. According to Afriforum, the member of staff “gave the main findings and also provided what appeared to be additional commentary on why the decision was reached.”¹²³

96. Afriforum alleges that the general import of the comments at the media briefing, according to its interpretation, is that racial language that is hurtful is hate speech if uttered by a white person against a black person but given the historical context of our country, the converse is not true or at least is a far harder conclusion to reach. Afriforum also alleges that the test for hate speech, as proposed by the member of staff, on behalf of the Commission, is different depending on whether the words are uttered against black people as opposed to white people.¹²⁴

97. We respectfully submit that Afriforum’s complaint falls to be dismissed because:

97.1. The decision and findings of the Commission is contained in the letter dated 8 March 2019 sent to Afriforum on 11 March 2019¹²⁵ and the report containing the findings of the Commission regarding certain statements made by Mr Malema and another members of the EFF.¹²⁶

97.2. Any comments made by a member of staff that are inconsistent with that decision and those findings do not form part of the Commission's decision. Once the decision had been made by the Commission and communicated to the applicants, the Commission was functus officio and had no power to withdraw, alter or revisit that decision.

97.3. In any event, Afriforum has selected excerpts from the presentation made by the member of staff, which have been taken out of context with a view to creating a skewed perception of bias to prefer Afriforum's own views with regards to the correctness of the decision.¹²⁷

97.4. The member of staff was providing additional understanding of the manner in which courts have approached issues of racism in the South African context, in an effort to explain legal findings relating to different complaints to a wide audience that included members of the media and ordinary members of the public. In this regard, the member of staff:¹²⁸

97.4.1. Reiterated that an objective test requires consideration of reasonableness, which in turn requires a consideration of context, as is similarly required by section 3(3) of the Equality Act.

97.4.2. Quoted the Constitutional Court, which acknowledged that given South Africa’s racist and violent past, its context is not neutral (with reference to the decision in Rustenburg

Platinum Mine¹²⁹).

97.4.3. Further pointed out that a consideration of context must necessarily take into account the characteristics of the alleged perpetrator and target audience.

97.4.4. Quoted the Constitutional Court when it emphasised the relevance of the race of the alleged perpetrator and target audience, when the court stated that "[i]t can never be over- emphasised that being called a kaffir is the worst insult that can ever be visited upon an African person in South Africa, particularly by a white person”. ¹³⁰ The context of the impugned utterance demonstrates the relevance of various parties’ race, given the emotive topic of land reform in a context where it is accepted as a historical fact that white colonialists and the apartheid government brutally and unjustly dispossessed the black majority of land on the basis of their race.

97.4.5. Said that in determining who the ‘reasonable listener having the common knowledge and skill attributed to an ordinary member of society’ is, it bears to reason that an ordinary South African (i) is not necessarily white, and (ii) is acutely aware of South Africa’s history of institutionalised racism and unjust land dispossession. Moreover, a reasonable South African listener should be aware of the fact that – given South Africa’s unique and painful past – the constitutional vision does not require treating everyone the same, but instead aims to achieve substantive equality by recognising persistent patterns of structural discrimination.

97.5. The member of staff did not propose that the test for whether words are hate speech is different depending on whether the words are uttered against black people as opposed to against white people. It is clear from the decision that the Commission applied an objective test in its assessment of whether the utterances constitute hate speech.

97.6. On a proper consideration of the judgments referred to by the member of staff it is apparent that there was no "race based double standard" put forward, as suggested by Afriforum. In Rustenburg Platinum Mines the Constitutional Court said that it is not correct to ignore the reality of South Africa's past of institutionally entrenched racism and begin an enquiry into whether or not a statement is racist and derogatory from a presumption that the context is neutral. The Court applied an objective test in Rustenburg Platinum Mines to determine whether the use of the words was racist. This is detailed and fully explained in the Commission's decision and does not support Afriforum's allegation of a race based double standard.¹³¹ The Commission's decision is not unconstitutional and unlawful.

97.7. The test for bias is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the decision maker (i.e. the Commission) has not or will not bring an impartial mind to bear on the adjudication of the matter, that is a mind open to persuasion by the evidence and any submissions made. ¹³² Afriforum’s suspicion of bias is not reasonable. No reasonable, objective and informed person would perceive the discussion of Constitutional Court judgments by the member of staff to have been biased. On the correct facts (i.e. on a consideration of the comments made by the member of staff in the full context), there is no reasonable apprehension of bias.

97.8. In any event, any apprehension of bias (which is denied) is clearly shown to be unreasonable when the Commission’s decision is properly considered.

98. Finally, Afriforum’s contention that the Commission’s decision amounts to unlawful dictation is wrong. The process of deciding the complaint was extensive and involved consideration of research conducted and the opinions expressed by employees of the Commission and independent external counsel. The internal opinion on the complaint was prepared by two senior employees of the Commission, as instructed by the Commission. Thereafter, the Commission secured an external opinion from senior and junior counsel as the Commission did not want to exclude the possibility that there may be another way of looking at the facts and interpreting the law applicable. Both opinions concluded that Mr Malema’s utterances did not constitute hate speech. The Commission considered and accepted the advice contained in the legal opinions.¹³³

99. The Commission has wide discretionary powers in the performance of its constitutional mandate. It considered and accepted the advice contained in the opinions. That is not irrational, unreasonable or irregular. The final decision was taken by the Commission. Afriforum does not allege bad faith, or a contravention of law that prohibits the Commission from taking advice. To the contrary, taking advice from others is often considered beneficial and is encouraged in the SAHRC Act.¹³⁴

100. In the premises, we submit that there is no merit to the grounds of review based on the 27 March 2019 media briefing.

Conclusion on the grounds of review

101. We submit that the applicants have failed to demonstrate that the Commission performed its constitutional and statutory function in a manner that was unlawful, unreasonable, irrational or procedurally unfair, and the applications should be dismissed with costs.

REMEDY

102. Should the applicants succeed with their review, we submit that a substitution order would be inappropriate.

103. First, this court is not an equality court and is not sitting as a court of appeal in terms of the Equality Act. We respectfully submit that this court does not have the jurisdiction to find that the utterances constitute hate speech and discrimination in terms of the Equality Act.

104. Second, remittal is almost always the prudent and proper course and substitution is only granted in exceptional circumstances.¹³⁵ They include:¹³⁶

104.1. the court must be in as good a position as the administrator to make the decision;

104.2. the decision of the administrator should be a foregone conclusion;

104.3. delay, bias or the incompetence of an administrator are relevant considerations; and

104.4. it must be just and equitable and fair to all parties, for an order of substitution to be granted.

105. We submit that the applicants have failed to make out a case that exceptional circumstances exist and that it will be just and equitable to justify such an order.

CONCLUSION

106. We submit that the review should be dismissed with costs, including the costs of two counsel.

107. In the event that the applicants are successful, we submit that each party should bear its own costs.¹³⁷

K HARDY
T TSAGAE

Counsel for the first and second respondents

6 March 2023

Footnotes:

¹ Both applications seek an order of substitution that the utterances constitute hate speech. Afriforum also seeks an order declaring that the utterances constitute discrimination. See Afriforum notice of motion p1-2; FW de Klerk Foundation Trust notice of motion p 2-2.

² Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 92

³ The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

⁴ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 49

⁵ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 58

⁶ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 60

⁷ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 61, relying on National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC), para 60

⁸ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 62

⁹ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 64, relying on S v Makwanyane and Another 1995 (3) SA 391 (CC), para 328-329

¹⁰ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 63, relying on Freedom of Religion South Africa v Minister of Justice and Others 2020 (1) SA 1 (CC), para 45

¹¹ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 67-68

¹² Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 69

¹³ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 70

¹⁴ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 72

¹⁵ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 73

¹⁶ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 73, relying on Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC), para 26

¹⁷ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 49

¹⁸ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 86

¹⁹ Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another 2021 (2) SA 1 (CC), para 1-2

²⁰ Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC), para 23

²¹ Land Access Movement of South Africa and Others v Chairperson, National Council of Provinces and Others 2016 (5) SA 635 (CC), para 1

²² Land Access Movement of South Africa and Others v Chairperson, National Council of Provinces and Others 2016 (5) SA 635 (CC), para 1

²³ Speaker, National Assembly and Another v Land Access Movement of South Africa and Others 2019 (6) SA 568 (CC), para 65

²⁴ Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others 2019 (6) SA 327 (GJ), para 53

²⁵ Speaker, National Assembly and Another v Land Access Movement of South Africa and Others 2019 (6) SA 568 (CC), para 1

²⁶ Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another 2021 (2) SA 1 (CC), para 155

²⁷ Commission’s answering affidavit in the Afriforum application (AA1) annexure HRC5 p 1-163 para 5.8; Commission’s answering affidavit in the FW de Klerk Foundation Trust application (AA2) annexure HRC5 p 2-144 para 5.8

²⁸ South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC), para 143

²⁹ South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC), para 143

³⁰ South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC), para 144

³¹ AA1 p 1-71 para 65; AA2 p 2-62 para 71. See also Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another 2021 (2) SA 1 (CC), para 9.

³² Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another 2021 (2) SA 1 (CC), para 10

³³ AA1 p 1-71 para 65; AA2 p 2-62 para 71

³⁴ FW de Klerk Foundation Trust founding affidavit (FA2) p 2-12 para 10.3; AA1 p 1-73 para 66, annexure HRC5 p 1-179; AA2 p 2-62 para 72, annexure HRC5 p 2-160

³⁵ Referring to Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC)

³⁶ FA2 annexure DS3 p 2-29

³⁷ Afriforum’s founding affidavit (FA1) annexure ER4 p 1-38

³⁸ AA1 p 1-61 para 28; AA2 p 2-53 para 34

³⁹ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 1(d) of the order

⁴⁰ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 96, 100

⁴¹ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 97, relying on South African Human Rights Commission v Khumalo 2019 (1) SA 289 (GJ), para 89

⁴² Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 100

⁴³ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 107

⁴⁴ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 113, , relying on Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others 2019 (6) SA 327 (GJ)

⁴⁵ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 115

⁴⁶ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 119

⁴⁷ AA1 p 1-66 para 48; AA2 p 2-58 para 54

⁴⁸ AA1 p 1-65 para 44; AA2 p 2-57 para 50; annexure HRC4 p 2-132 para 1.5-1.6

⁴⁹ AA1 p1-67 para 50-51; AA2 p 2-58 to 2-59 para 56-57; annexure HRC4 p 2-133 to 2-134

⁵⁰ AA1 p 1-67 para 52; AA2 p 2-59 para 57; annexure HRC4 p 2-134

⁵¹ AA1 p 1-67 para 52; AA2 p 2-59 para 57; annexure HRC4 p 2-135

⁵² AA1 p 1-69 para 58; AA2 p 2-60 para 64; annexure HRC4 p 2-142

⁵³ AA1 p 1-71 para 63; AA2 p 2-62 para 69; annexure HRC4 p 2-142

⁵⁴ AA1 p 1-73 para 67-68; AA2 p 2-65 para 73-74; annexure HRC4 p 2-143 to 2-144

⁵⁵ AA1 p 1-71 to 1-73 para 64-66; AA2, p 2-62 to 2-64 para 70-72; FA1, annexure ER4 p 1-44

⁵⁶ AA1 p 1-74 para 69.1; AA2 p 2-65 para 75.1; annexure HRC4 p 2-146

⁵⁷ AA2; annexure HRC5 p 2-161

⁵⁸ AA1 p 1-74 para 69.2; AA2 p 2-65 para 75.2; annexure HRC4 p 2-146

⁵⁹ Hotz and Others v University of Cape Town 2017 (2) SA 485 (SCA), para 67

⁶⁰ AA1 p 1-74 para 69.3; AA2 p 2-65 para 75.3; annexure HRC4 p 2-146

⁶¹ AA1 p 1-75 para 70; AA2 p 2-66 para 76; annexure HRC4 p 2-144

⁶² AA1 p 1-75 para 71; AA2 p 2-66 para 77; annexure HRC4 p 2-147

⁶³ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 184

⁶⁴ South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC), para 142

⁶⁵ Commission’s supplementary answering affidavit (SAA) p 10274 para 10-11

⁶⁶ The Promotion of Administrative Justice Act 3 of 2000. See FA1 p 1-15 para 24; AA2 p 2-23

para 32.

⁶⁷ Esau and Others v Minister of Co-operative Governance and Traditional Affairs and Others 2021 (3) SA 593 (SCA), para 7; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC), para 45; Mbina-Mthembu v Public Protector 2019 (6) SA 534 (ECB), para 10-11

⁶⁸ FA1 p 1-16 to 1-25 para 26-52; AA2 p 2-18 to 2023 para 21-31

⁶⁹ Carephone (Pty) Ltd v Marais NO and Others 1998 (10) BCLR 1326 (LAC), para 36

⁷⁰ s 181(1)(b) of the Constitution

⁷¹ s 13(3) and s 15(1) of the SAHRC Act read with the Complaints Handling Procedures of the South African Human Rights Commission of 29 December 2017 (CHP). See, for example, regs 1(2), 1(3), 3(2), 10(1), 10(2), 17 of the CHP.

⁷² s 20(1)(f) of the Equality Act

⁷³ s 25(2) and (5) of the Equality Acy (the date of commencement has not yet been proclaimed)

⁷⁴ s 28(2) of the Equality Act. Although the date of commencement has not yet been proclaimed, the Commission undertakes an assessment of and reports on the state of equality on an annual basis.

⁷⁵ s 32 and 33 of the Equality Act

⁷⁶ Afriforum notice of motion p1-2; FW de Klerk Foundation Trust notice of motion p 2-2

⁷⁷ Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape and Another (No 1) 2009 (6) SA 574 (SCA), para 31

⁷⁸ Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape and Another (No 1) 2009 (6) SA 574 (SCA), para 31

⁷⁹ Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, and Others (No 2) 2009 (6) SA 589 (SCA), para 27-53

⁸⁰ Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, and Others (No 2) 2009 (6) SA 589 (SCA), para 57

⁸¹ Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, and Others (No 2) 2009 (6) SA 589 (SCA), para 65

⁸² Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, and Others (No 2) 2009 (6) SA 589 (SCA), para 56

⁸³ Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, and Others (No 2) 2009 (6) SA 589 (SCA), para 62

⁸⁴ Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, and Others (No 2) 2009 (6) SA 589 (SCA), para 72

⁸⁵ De Lange v Methodist Church and Another 2016 (2) SA 1 (CC), para 56, referring to Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape, and Others (No 2) 2009 (6) SA 589 (SCA); Manong & Associates (Pty) Ltd v Department of Roads and
Transport, Eastern Cape and Another (No 1) 2009 (6) SA 574 (SCA); and Minister of Environmental Affairs and Tourism v George and Others 2007 (3) SA 62 (SCA)

⁸⁶ De Lange v Methodist Church and Another 2016 (2) SA 1 (CC), para 59

⁸⁷ Qwelane v South African Human Rights Commission and Another 2021 (6) SA 579 (CC), para 7-13

⁸⁸ Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others 2019 (6) SA 327 (GJ), para 11. See also Law Society, Northern Provinces v Minister of Labour and Others 2013

(1) SA 468 (GNP).

In African National Congress v Harmse and Another in re Harmse v Vawda (Afriforum and Another intervening) 2011 (5) SA 460 (GSJ), Halgryn AJ held that there was no provision in the Equality Act that precludes the jurisdiction of the High Court to adjudicate a claim for a declarator that the chanting of certain words is unconstitutional and unlawful. The contention that the High Court did not have jurisdiction to adjudicate the matter because the jurisdictional domain to adjudicate alleged violations of ss 9 and 16 of the Constitution is exclusively that of the Equality Court was dismissed.

⁸⁹ See, for example, Manong & Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape and Another (No 1) 2009 (6) SA 574 (SCA)

⁹⁰ Minister of Home Affairs and Another v Public Protector 2018 (3) SA 380 (SCA), para 37

⁹¹ Minister of Home Affairs and Another v Public Protector 2018 (3) SA 380 (SCA), para 37

⁹² AA1 p 1-57 para 15; AA2 p 2-47 para 16

⁹³ Public Protector and Others v President of the Republic of South Africa and Others 2021 (6) SA 37 (CC), para 50, 117-119

⁹⁴ Public Protector and Others v President of the Republic of South Africa and Others 2021 (6) SA 37 (CC), para 118

⁹⁵ Public Protector and Others v President of the Republic of South Africa and Others 2021 (6) SA 37 (CC), para 119

⁹⁶ Public Protector and Others v President of the Republic of South Africa and Others 2021 (6) SA 37 (CC), para 50 referring to Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC).

See also the following judgments that held remedial action of the Public Protector to constitute administrative action: Minister of Home Affairs v Public Protector 2017 (2) SA 597 (GP); South African Reserve Bank v Public Protector 2017 (6) SA 198 (GP); and Absa Bank Ltd v Public Protector [2018] 1 All SA 1 (GP).

⁹⁷ Minister of Home Affairs and Another v Public Protector 2018 (3) SA 380 (SCA), para 34-35

⁹⁸ Minister of Home Affairs and Another v Public Protector 2018 (3) SA 380 (SCA), para 36

⁹⁹ Hoexter & Penfold “Administrative Law in South Africa” (2021) 3^rd ed p 271

¹⁰⁰ National Commissioner of Police v Southern African Human Rights Litigation Centre 2015 (1) SA 315 (CC); Oosthuizen’s Transport (Pty) Ltd v MEC, Road Traffic Matters, Mpumalanga 2008 (2) SA 570 (T); Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd 2011 (1) SA 327 (CC)

¹⁰¹ FA1 p 1-19 para 36

¹⁰² FA1 p 1-20 para 37

¹⁰³ AA1 p 1-82 para 69; annexure HRC4 p 2-146

¹⁰⁴ FWDKF heads of argument p 5-101 para 151

¹⁰⁵ FA2 annexure DS6 p 2-37; AA2 annexure HRC4 p 2-142

¹⁰⁶ FA1 p 1-21 para 43

¹⁰⁷ AA1 p 1-81 para 92

¹⁰⁸ Afriforum SFA p 1-250 para 26; Afriforum heads of argument p 5-25 para 66-67; FWDKF heads of argument p 5-106 para 161

¹⁰⁹ Commission’s SAA p 1-280 para 34

¹¹⁰ Afriforum SFA p 1-250 para 24; FWDKF heads of argument p 5-103 para 155

¹¹¹ AA1 annexure ER4 p 1-44 para 13

¹¹² AA1 annexure ER4 p 1-44 para 14

¹¹³ AA1 annexure ER4 p 1-44 para 15

¹¹⁴ FWDKF heads of argument p 5-106 para 162

¹¹⁵ South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another 2022 (4) SA 1 (CC), para 143

¹¹⁶ FWDKF heads of argument p 5-106 para 163

¹¹⁷ FA1 p 1-18 para 31

¹¹⁸ FWDKF heads of argument p 5-107 para 164

¹¹⁹ FWDKF heads of argument p 5-102 para 152

¹²⁰ FA1 p 1-20 para 39

¹²¹ AA1 annexure HRC2 p 2-88; annexure HRC3 p 2-115, 2-127; annexure HRC4 p 2-147

¹²² FA1 p 1-40 annexure ER4 (incorrectly labelled)

¹²³ FA1 p 1-22 para 44

¹²⁴ FA1 p 1-23 para 46-47

¹²⁵ FA1 annexure ER4 p 1-41

¹²⁶ AA1 annexure HRC4 p 2-129

¹²⁷ AA1 p 1-87 para 113

¹²⁸ AA1 p 1-87 to 1-89 para 114

¹²⁹ Rustenburg Platinum Mine v SAEWA obo Bester and Others [2018] ZACC 13, para 48

¹³⁰ SARS v CCMA 2017 (1) SA 549 (CC)

¹³¹ AA1 annexure HRC4 p 2-142, 2-143 para 4.4, 5.4

¹³² President of the Republic of South Africa and Others v South African Rugby Football Union and Others 1999 (4) SA 147 (CC), para 48; ABSA Bank Ltd and related matters v Public Protector and Others [2018] All SA 1 (GP), para 97

¹³³ AA1 p 1-63 para 34, 36; SAA p 1-283 para 51-52

¹³⁴ Lissoos v National Supplies Control Board 1943 TPD 109. This is consistent with the SAHRC Act, see in particular s 11 and 19(6).

¹³⁵ See, for example, National Energy Regulator of South Africa v PG Group (Pty) Ltd 2020 (1) SA 450 (CC), para 89; Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited 2015 (5) SA 245 (CC), para 47; Gauteng Gambling Board v Silver Star Development Limited 2005 (4) SA 67 (SCA), para 29

¹³⁶ Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited 2015 (5) SA 245 (CC), para 47

¹³⁷ Reg 12(2) of the Equality Act provides that each party bears his or her own costs unless the presiding officer directs otherwise.