The South African Human Rights Commission (SAHRC) told the Equality Court in Cape Town that the EFF is equally liable alongside its leader Julius Malema in the hate speech case against him.
On Thursday, the court continued to hear closing arguments in Malema's hate speech trial. The case was brought to court by Dante van Wyk, who was involved in an altercation outside Brackenfell High School with EFF members in November 2020. He is joined in the litigation by the 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.
Advocate Mfesane Ka-Siboto, representing Malema and the EFF, argued that the party cannot be liable for the hate speech-impugned statement at a party rally in the Western Cape in October 2022 where he told protesters: “Tell that white man to try me ... no white man is going to beat me up and call myself a revolutionary the after 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.”
Advocate Anwar Albertus, representing Dante van Wyk, told the court on Wednesday that the party needed to be held liable along with its leader as he was addressing members as the president of the party and commander-in-chief, despite speaking in his personal capacity, though this was not denied by Malema’s representatives.
Advocate Karrisha Pillay for the SAHRC said the EFF had hosted and sanctioned the event, where Malema’s face was seen displayed on the posters and banners at the event.
Pillay referred to court documents in which Malema stated that it was a political event led by members of the EFF where he addressed them.
“The case was made out against the EFF; it was made out by the virtue of very specific allegations that aligned Mr Malema’s conduct with that of the EFF itself — none of those issues were placed in dispute, and more pointedly Mr Malema’s evidence served to support the commission’s evidence that this was an EFF event,” said Pillay. “In those circumstances we submit that a case has been made out against the EFF ... there is no basis on which to exclude the EFF from liability in these proceedings.”
Ka-Siboto previously told the court that Malema’s impugned statement was not made because of their race, but rather for their conduct towards EFF members.
“Mr Malema’s words cannot reasonably be construed to demonstrate a clear intention to incite harm and propagate hatred. The speech was not about white people, or hatred and harm against them,” said Ka-Siboto.
“The reasonable person would understand that the message behind Mr Malema’s speech was about racism and the effectiveness of the EFF’s response to it, to attract support in the Western Cape. It was not a message about white people or any action that should be taken against them.”
The court heard that Malema’s target was racists, not whites, it so happened that Van Wyk is white.
Ka-Siboto stated in similar fashion if the racist in question was of Chinese descent it could well be that Malema would’ve said the same thing, “that Chinese man that attacked you, isolate him and beat him up”. He argued that the matter in question is notVan Wyk being white, but rather racism.
The broader context of Mr Malema’s speech was not about white people or hatred and harm towards them. It was a general exposition of the impact of racism on the socioeconomic conditions of the working class people in the Western Cape
— Advocate Mfesane Ka-Siboto, representing Julius Malema and the EFF
He referred to evidence given by Dr Karien van den Berg, a senior lecturer at North West University specialising in linguistics and applied linguistics, stating she accepted that the speech was about racism, not an attack on or hate speech against white people.
“The broader context of Mr Malema’s speech was not about white people or hatred and harm towards them. It was a general exposition of the impact of racism on the socioeconomic conditions of the working class people in the Western Cape,” said Ka-Siboto.
“Mr Malema’s speech, and the impugned words in particular, were not directed at ‘white people’. The impugned words were directed at racists that physically attack members of the EFF (‘violent racists’). This description may include white people in some cases, but it is not an exclusive or general reference to white people.
“Mr Malema did not direct the words that are impugned by the complainants to white people. He did not call for EFF members to attack or hate white people because of the Brackenfell incident. He confined his comments about the EFF’s inadequate response to the ‘white man’ who appeared on video footage beating EFF members.
He stated the courts have heard that a similar speech by Malema dismissing a hate speech complaint by the late former finance minister Pravin Gordon where he stated: “Our attack on Pravin Gordhan is an attack on White Monopoly Capital because Pravin is a dog of White Monopoly Capital.
“We must hit the dog until the owner comes out, and once the owner comes out, we must deal decisively with the owner.”
Ka-Siboto stated Malema was not found guilty of hate speech in this matter as a well-informed and objective person knows and understand the flamboyance of Malema and that his speech did not incite harm against any party, despite this argument being advanced against Malema on every occasion that they sue him and the EFF for hate speech.
He closed his arguments by stating that Van Wyk's case must be dismissed on the grounds that Malema’s impugned words do not constitute prohibited speech.
Judgment has been reserved.
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