Why the high court nixed Malema hate speech ruling

The SA Human Rights Commission (SAHRC) found a speech given by EFF leader Julius Malema in 2016 did not amount to hate speech after he said, “We are not calling for the slaughtering of white people, at least for now.” However, the Johannesburg high court recently set aside the HRC’s finding, ruling it was “not empowered” to “make definitive decisions” about whether such contraventions have occurred.

Civil rights group AfriForum, who challenged the HRC finding, hailed this as a “victory”. The high court judgment, however, does not deal with whether Malema’s utterances amount to hate speech.

The judgment, written by Johannesburg deputy judge president Roland Sutherland, sought to clarify the role of the HRC in defending and upholding human rights.

Here are some key points about the HRC and Sutherland’s judgment.

What is the HRC?

The Human Rights Commission is an independent, national institution created by the constitution and relevant legislation. It is committed, says the department of justice “to promote respect for, observance of and protection of human rights for everyone without fear or favour”. It monitors, educates and addresses human rights violations.

It does this by monitoring and sending reports about human rights, running educational programmes and investigating complaints about rights violations.

What happens when you lodge a complaint?

Anyone can lodge a complaint at the HRC about possible rights violations. In this instance, AfriForum and the FW De Klerk Foundation (FWDF) complained Malema’s rhetoric was a violation of the Equality Act, because it was hate speech.

The HRC will not hear a case if the alleged violation is criminal, however, since that is the mandate of the NPA and police. It will also probably not investigate a complaint for a violation that is more than three years old or occurred before April 1994.

If there is merit to the complaint, the HRC can then begin a full investigation. Otherwise it will indicate alternative steps to the complainant and assist in finding redress. The HRC can also engage in mediation or conciliation to resolve or rectify an issue, and call on anyone to give evidence and answer questions under oath.

What happened with the complaints against Malema?

After numerous organisations, including AfriForum and FWDF, lodged their complaints about his 2016 speech, the HRC conducted its investigation.

It concluded in its 2019 report: “Mr Malema … specifically says he is not calling for the killing or slaughtering of white people now. He is only calling for the occupation of their land. Viewed in its context, the statement does not appear to amount to hate speech.”

Also in 2019, the HRC informed AfriForum and FWDF directly that it “will now … close its file on the matter” and they could lodge a review in the high court if they were dissatisfied.

What is the high court judgment about?

While AfriForum did take the HRC’s findings on review, Sutherland did not deal with whether Malema’s utterances amounted to hate speech.

“Whether Mr Malema transgressed [the Equality Act] was of course the gravamen of these review applications,” Sutherland wrote. “[However] the complainants can get no answer from this court.”

Sutherland’s concern was whether the HRC had, in reaching a “decision” about Malema’s conduct acted outside its legal mandate.

“This case,” Sutherland wrote, “manifests a bizarre example of confusion and, regrettably, on the part of the SAHRC, ostensibly, a dollop of hubris. This judgment is burdened with explaining how this unhappy affair came about.”

What did the HRC did wrong?

Sutherland outlines the HRC can only take two forms of action when it is receives a complaint of an alleged rights violation. First, it can investigate to form an opinion. Second, once it forms an opinion, it can then either assist the complainant to bring it to court or act on behalf of the complainant in court. It is “not empowered or authorised to decide whether or not a violation of human rights has indeed occurred.”

“The SAHRC’s opinion,” said Sutherland, “is relevant only to whether there is substance to an allegation, which justifiably could be the subject matter of court proceedings.”

It cannot however, make a final determination that a violation has definitively occurred — only a court can do so. More importantly, the HRC cannot “exonerate a person from an allegation”, said Sutherland.

The HRC, says Sutherland, did exactly this in its Malema “findings”.

What are the implications?

As Sutherland did not rule on whether Malema had violated the Equality Act, the complainants must lodge a complaint in the Equality Court. The HRC was ordered to pay the complainants costs due to it being “wrong” when it “purported to decide a question it had no power to decide”.

AfriForum and FWDF have not indicated whether they will be lodging such complaints in the equality court.   

The HRC tells Business Day: “The Commission is still grappling on the issue on whether to appeal the judgment or not, and the meaning of the judgment in its everyday work.”

moosat@businesslive.co.za