The hate speech case against EFF leader Julius Malema for his remarks on a clash outside Brackenfell High School concluded its evidence in the Equality Court at the Western Cape High Court on Monday.
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While neither Malema nor Dante van Wyk – the applicant for the hate speech order – were present, University of Johannesburg political scientist Professor Steven Friedman continued his cross-examination.
As per News24, Friedman insisted that Malema’s statements regarding a white man accused of assaulting EFF supporters outside the school in November 2020 did not meet the criteria for hate speech.
Van Wyk was identified in a video of the incident and petitioned the court to declare Malema’s remarks as hate speech and incitement of harm against him for instructing EFF supporters to ‘deal with that white guy’ involved in the altercation.
The incident occurred during the EFF’s protests at Brackenfell High School in 2020. At the time, tensions were high in response to allegations that an unofficial ‘whites-only’ matric dance party had been organised. This was later disproven.
During their altercation, parents reportedly charged at the group of protestors, according to News24. Van Wyk was charged with assault but later acquitted.
His petition for a hate speech order stands on the premise that Malema’s speech in October 2022 regarding the incident exacerbated the threats he received via email and social media.
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However, Malema denied that his remarks constituted hate speech and described them as ‘nuanced political speech’.
Karien van der Berg, a North West University forensic linguist, believes Malema’s speech was not ‘nuanced political speech’ but deemed it hate speech from a linguistic analysis perspective.
Conversely, Friedman believes that the speech was not hate speech from a democratic theory point of view.
While his remarks were ‘reprehensible’, he stated that it was free speech with regards to a political and democratic point of view. While he labelled the speech ‘aggressive and assertive’, he did not find that it was hate speech.
He further stated that the term ‘white’ was employed to describe individuals endorsing the racial superiority of white people. According to him, Malema was quoted as exempting 90% of white people from criticism, contending that they lacked control over the means of production and were therefore welcome in the EFF.
In the context of this speech, Malema condemned the man for the alleged act of assaulting EFF supporters.
Additionally, Malema excluded ‘white hobos’ and white women who are victims of abuse by white men. Friedman added that, from a political scientist’s perspective, hate speech was directed at a group of people for who they were and not for what they had done.
He further stated that, according to the democratic theory perspective, hate speech becomes harmful when remarks target a specific group or individual within a defined group for something they did not do.
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Friedman drew a parallel by comparing it to blaming all Muslims for the actions of a small number of extremists in the World Trade Centre attack.
In the case of Malema’s comments, Friedman argued that Malema singled out ‘that white guy’ based on his actions, not his identity, making it not qualify as hate speech.
Van Wyk’s counsel, Anwar Albertus, argued that Friendman’s view might not be clear to non-political scientists.
Friedman mentioned that in South African speech, race is often referenced due to the country’s history, but simply describing someone by their race doesn’t automatically qualify as racism.
However, Advocate Karrisha Pillay SC, representing the South African Human Rights Commission (SAHRC), argued that Friedman wasn’t correctly applying the hate speech test.
She contended that his definition of hate speech only encompassed advocacy of hatred based on four elements: race, ethnicity, gender, or religion, constituting incitement to cause harm, as a component of hate speech.
Furthermore, she pointed out that the Equality Act includes a list of 17 elements, namely race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.
‘So, what the [Equality Act] contemplates is a lot more than the four circumscribed grounds that you’ve actually relied on,’ she added.
She argued that when determining if Malema propagated hate speech, the court should consider the provisions of the Equality Act, not solely democratic theory. In response, Friedman contended that the Equality Act definition exposed citizens to ‘incredible possibilities for harm’ and contradicted the constitutional values of free speech.
‘Particularly when you start saying that people [must] not be singled out because of their conscience and their belief. [It] would be a pretty good recipe for closing down just about any freedom of speech,’ he said.
‘The primary concern is freedom of speech, and if you are going to start adding category upon category upon category, you’re not going to have freedom of speech. If you are going to start telling people that they can’t vilify people because of their political beliefs, democracy would collapse quite frankly.’
Pillay highlighted the statement that the South African Human Rights Commission (SAHRC) has with Malema’s speech:
‘Tell that white man to try me, I’ll come many times here in Western Cape, appear in a court case, because no white man is going to beat me up and call myself a revolutionary the following day!’
‘You must never be scared to kill [in] a revolution, demand that at some point there must be killing because the killing is part of a revolutionary act!’
Although the institution requested that Malema apologise for sections of his speech, he refused.
Both parties concluded by presenting their cases and will reconvene at a yet-to-be-determined date for final arguments.
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Also read:
SHRC concludes investigation into an alleged racist incident at Brackenfell High School
Picture: @EFFSouthAfrica / X