Court sets aside SAHRC decision that exonerated Malema of hate speech

The Johannesburg high court has set aside the SA Human Rights Commission’s decision that EFF leader Julius Malema’s utterances at a 2016 gathering were not hate speech.

The court’s ruling follows a review application by civil rights organisation AfriForum, which challenged the SAHRC's 2019 decision. The commission had ruled that Malema’s 2016 statement at a gathering in Newcastle, KwaZulu-Natal — “We are not calling for the slaughtering of white people, at least for now” — was not hate speech.

But judge Roland Sutherland set this ruling aside in the high court, saying that the commission did not have the powers to make definitive decisions or findings.

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

He explained the powers and functions of the SAHRC as outlined in the SAHRC Act, which includes conducting investigations and what happens after a finding and opinion are formed.

“It is plain that the SAHRC is not empowered or authorised to decide whether a violation of human rights has indeed occurred. It follows that it is not within the power or authority of the SAHRC to pronounce that an alleged violation is indeed a violation and, moreover, it is not within the power or authority of the SAHRC to exonerate a person from an allegation of having violated human rights.”

Sutherland said this would have to be answered by the equality court.

“The SAHRC may opine there is no contravention of section 10 of [the Equality Act] but for the reason already traversed that opinion has no status whatsoever. The opinion of the SAHRC on such a question ranks with the opinion of any other person eligible to bring a case before the equality court.”

AfriForum said this was a double victory for them as the SAHRC does not have binding powers.

“There is a further success in this great victory, and that is it also sets the precedent that findings made by the SAHRC may be challenged in court,” said Ernst van Zyl, AfriForum’s campaign officer for strategy and content.

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