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EFF leader Julius Malema sits in the witness stand at the Equality Court at the South Gauteng High court in Johannesburg, during a hate speech case brought by Afriforum relating to the singing of the struggle song “Shoot the Boer”, in this February 16 2022 file photo. Picture: SUNDAY TIMES/ALAISTER RUSSELL
EFF leader Julius Malema sits in the witness stand at the Equality Court at the South Gauteng High court in Johannesburg, during a hate speech case brought by Afriforum relating to the singing of the struggle song “Shoot the Boer”, in this February 16 2022 file photo. Picture: SUNDAY TIMES/ALAISTER RUSSELL

This past fortnight’s hate-speech court battle between AfriForum and Julius Malema was pulsating. The trial adjourned on Friday upon conclusion of evidence, and the parties will— at some stage — make closing arguments.  At first glance it may be tough to say who came out on top — there was far more at stake than a legal declarator on hate speech. Judge Edwin Molahlehi’s eventual hate-speech judgment will be relevant only to lawyers — a far more important verdict will come from voters at the 2024 national election polls.

The hate speech question was a sideshow. The true subject matter of the trial, as far as voters are concerned, was the EFF’s maturity and suitability for national power. Two battles played out: a technical legal hate-speech question and the more enthralling question of whether the EFF is suited to national governance.

Malema was predictably bombastic and antagonistic, making for the sort of enthralling televised viewing one seldom sees in the rather dry reaches of court rooms. In terms of the hate speech battle, the EFF can politically spin a victory irrespective of the verdict. If Malema loses he is a victim and target of a white monopoly capital-controlled judiciary. If he prevails he is vindicated in the face of AfriForum’s white oppression.

However, in terms of the battle for voters in 2024, the EFF did itself no favours. It achieved a remarkable 10.7% of the national vote in the 2019 national elections. Improving on this figure requires proving to voters that the EFF is not Zanu-PF’s twisted cousin. Malema’s witness box antics did precisely the opposite, confirming that the EFF is just as poisonous a prospect.

AfriForum’s advocate, Mark Oppenheimer, ran circles around Malema during cross-examination, overwhelmingly proving hate speech and inadvertently confirming that the EFF is totally unsuited to the responsibility of national power. The saying goes: “Give a cross-examined witness enough rope to hang themself”, which Malema and the EFF managed to do in most entertaining fashion.

His examination in chief included a great deal of EFF propaganda regarding its planned governance strategy once it takes presidential power. This evidence had nothing to do with the hate speech, an obvious attempt to use the televised trial as a political propaganda exercise. Evidence at cross-examination is strictly limited to the testing of evidence canvassed during examination in chief or to the testing of materially contradictory opposing evidence. The EFF’s examination in chief propaganda opened the door for Oppenheimer to cross-examine Malema on his plans and attitudes were he elected president.

Though these aspects were not initially relevant to hate speech, Oppenheimer skilfully made them relevant by putting the EFF on trial. He masterfully extracted from Malema fatal implied concessions regarding racial genocide, which laid a foundation for what will be a killer blow during closing argument regarding the context of “Kill the Boer”. Malema failed in the witness box to appreciate that the context of an utterance being relevant to hate speech is a double-edged sword. He stated in chief that context matters because he was “chanting” a culturally important struggle song.

On the other hand, during cross-examination he refused to condemn the slaughter of white people. He also failed under cross examination to retract his infamous June 2018 “we are not calling for the slaughter of white people, at least for now” televised statement. Most damning was Malema’s rejection of an opportunity to undertake not to commit racial genocide.

Section 10 of the Equality Act defines hate speech as speech that, inter alia, “could reasonably be construed” to be “be harmful or incite harm”. The intent of the statement maker is irrelevant if it could reasonably be construed as harmful or inciting harm. Malema cannot have his cake and eat it in terms of context. If the public knows that he refuses to condemn the notion of white genocide and refuses to undertake not to commit it, then this clearly increases the likelihood that “Kill the Boer” could reasonably be construed to be harmful or incite harm.

At the time of singing the song in public it was well known that in 2018, he had admitted by implication that the EFF may at some stage call for the slaughter of whites. One cannot thus divorce the context of his 2018 genocidal viewpoint from the context of the chant being purely cultural. Even if it really is a harmless struggle song, it would not reasonably be perceived as such.

The EFF’s express refusal to condemn the slaughter of white people is now openly in the public eye after the televised trial, a strategic own goal. There is now a greater risk that “Kill the Boer” will be interpreted with even more devastating genocidal consequence. The moderate voter base is aware of this and will not vote EFF as an illustration of disgust.

Evidence led by one of AfriForum’s experts at this trial found via surveys that most South Africans have no problem with people of other races. The majority of South African voters are not extremists, they seek a moderate steady hand: the antithesis of Zanu-PF. The EFF’s spin doctors got this one wrong, or more likely, the nation witnessed the limits of Malema’s political nous and intelligence. He was totally flustered and bamboozled by Oppenheimer’s intellectual slow poison.

Malema’s plight in the witness box was exemplified by his calling Oppenheimer “a weak lawyer”. This is not a good look for a wannabe future state president, an unbefitting aggressive reversion to type. He will live to regret his lack of composure and failure to expressly condemn the slaughter of white people. It was either too tempting to appease EFF hardliners or he botched the propaganda script under the pressure of cross-examination.

It is also possible that Malema was on script, overestimating the appetite for a radical offering. He is too intelligent not to try to fix the mess via a retraction leading up to 2024. The problem is that he made those utterances with utter conviction and under sworn oath in open court. Millions of moderate voters will not be easy to convince; they have proven to be extremely discerning at the polling station in abandoning the flailing ANC and refusing to vote EFF.

The one good thing achieved by the ANC is the creation of a robust constitutional democracy where human and voting rights are sacred. Human rights matter. This is not Zimbabwe in the late 1970s, or Rwanda in the early 1990s. A call to racial genocide has no place in a robust constitutional democracy. It is a tired chestnut employed by politically desperate hardliners. SA has moved on, and so should the EFF.

• Hayward is an advocate at the Johannesburg Bar.

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