“It is not because they are white that those statements are made about them, it is because of their conduct and their speech, it then so happens that they are white.”
This was the statement put forward by the legal representative of EFF leader Julius Malema and the party as to why he uttered the words during a hate speech case which heard closing arguments at the Equality Court in Cape Town on Wednesday.
Dante van Wyk, who brought the case against Malema, was involved in an altercation outside Brackenfell High School in November 2020. He is joined in the litigation by the South African Human Rights Commission (SAHRC), which previously found words uttered by Malema, related to the incident, did amount to hate speech and incitement to violence.
EFF members protested outside the school over claims that a planned matric farewell, during the Covid-19 pandemic in 2020 excluded black pupils. The school was subsequently cleared of racism allegations by the SAHRC.
Van Wyk heard about the protest, according to his affidavit, and joined residents in a bid to shield the school and pupils. They confronted EFF members and there was an altercation. A video circulated online identifying Van Wyk in the fracas.
Malema spoke at a party rally in the Western Cape in October 2022 and told supporters: “You were beaten by white people and there is a white man who is visible on camera ... why have you not as a revolutionary organisation followed up on that guy, him alone, to take that guy in an isolated space and attend to the guy properly?”
“Tell that white man to try me ... no white man is going to beat me up and call myself a revolutionary the following day,” he added.
“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.”
Adv Mfesane Ka-Siboto, representing Malema and the EFF, asked the court to question why the attack was directed specifically at Van Wyk.
He said in a brief submission that Van Wyk could have done something to trigger the event.
“Equally you must ask yourself the question why the white supremacy of the Western Cape expressed by Helen Zille, the client suggests, who said ‘black workers from the Eastern Cape are immigrants in the Western Cape’ ... why is the allusion made to Zille and Van Wyk specifically, it is because of the triggers — the statement by Zille and the conduct by Van Wyk,” said Ka-Siboto.
“It is not because they are white that those statements are made about them, it is because of their conduct and their speech, it then so happens that they are white.”
Adv Anwar Albertus, representing Van Wyk, said in closing arguments the EFF should be held equally liable for parts of the speech as Malema was addressing members as the president of the party and commander-in-chief, despite speaking in his personal capacity though was not denied by Malema’s representatives.
The court previously heard testimony by Dr Karien van den Berg, senior lecturer at North West University specialising in linguistics and applied linguistics, to understand what Malema’s words meant.
Her report found statements, such as “You must never be afraid to kill”, qualified as hate speech as those he addressed were to respond violently to put an end to racism.
“The speech falls under the field of political activism, aiming to challenge the audience and inspire action ... also focuses on the organisation’s response to racism and violence,” said Van den Berg
In her analysis, one of the values she took from the speech was “violence”, especially when Malema said, “You must never be afraid to kill” and “to meet one’s maker”, a metaphor meaning “to die”.
“The speaker criticises the organisation for not addressing instances of violence by white males, emphasising the need for a strong response and commitment to confronting racism.”
Albertus argued that her evidence was intellectual, factual and assisted the court whereas the testimony heard by Ka-Siboto's witness, University of Johannesburg political science Prof Steven Friedman, did not assist the court.
In his analysis report, Friedman stated: “Hate speech must be directed at a group, not at people who behave in a particular way. These comments are clearly aimed not at whites as a group but at particular whites who behave in a particular way.
“The threat of violence is not directed at white people as a group. It is not directed at ‘racists’ as a group. It is directed at specific ‘racists’ who either threaten a leader or member of the EFF with violence or use violence against them,” said Friedman.
Albertus questioned if his view on hate speech applied when Malema stated: “Among white people you have these Afrikaner men who over the weekends are inclined to drink and then they beat their women and on a Monday they have these women withdraw the charges.”
Friedman said in that case it is a specific group of white men who were criticised, not all white Afrikaner men but particular men who behaved a certain way towards women.
Adv Karrisha Pillay, representing the SAHRC, argued Malema had made an impugned statement and refused to apologise and retract it within their 10-day deadline in November 2022.
She said the statements were inciteful and disseminated: “The audience should not be scared of killing which is what a revolution demands ... Violence can only be ended with violence ... Anything that stands in the way of a revolution must be eliminated ... In spite of having been beaten by a racist, nothing was done. The new leadership will follow up.”
She said they violated section 10 of the Equality Act stating no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could be reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.
The case was postponed until Thursday.
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