Julius Malema – a victim of hate speech. Seriously?
Kenny Kunene is a co-founder of the Patriotic Alliance (PA) and was recently installed as MMC for Transport in Johannesburg. Kunene has also served a six-year jail sentence for running a Ponzi scheme. Kunene became and will forever be known as the “Sushi King”. He achieved this moniker after becoming notorious for eating sushi off of the naked torsos of beautiful models at his nightclubs.
Now he’s also been declared to have committed hate speech by the High Court in Johannesburg. His victim? None other than Julius Malema, ‘Commander-in-Chief’ of the Economic Freedom Fighters (EFF).
One may be forgiven for thinking that Malema wouldn’t be particularly fazed by hate speech, whether by Kunene or anyone else.
Malema himself has made not infrequent comments about whites in 2010, 2011, and 2022. He has also been accused of hate speech on occasion, most notoriously outside a court where he was appearing, when he said to the gathered crowd:
‘…They found peaceful Africans here. They killed them. They slaughtered them like animals. We are not calling for the slaughtering of White people, at least for now. What we are calling for is the peaceful occupation of the land and we don’t owe anyone an apology for that…’
Advocate Priscilla Jana, deputy chair of the South African Human Rights Commission found that given the historical, social, and factual context of the statement, Malema was not guilty of hate speech.
Anger and frustration
Jana argued that the 'anger and frustration' experienced by the black majority underlies the use of strong language like 'slaughtering'. 'Vulnerable groups' must be allowed 'to express anger and pain through robust speech.' Jana concludes that Malema hedged his statement enough by clarifying that a white genocide will not take place under his leadership, even though it might happen thereafter.
So, this is not Malema’s first rodeo; he clearly relishes giving insult, drawing outrage, and committing hate speech as defined by legislation.
On 18 November 2021, Kunene appeared on The Midday View on eNCA in an interview about coalition politics. The host, Thulasizwe Simelane, quoted Malema as having said about Kunene: ‘He can’t make sense of it. He can’t wrap his head around it, working for a party of amabhantiti, former prisoners’.
Kunene, visibly annoyed, replied that ‘Malema has called us [the leaders of the PA] these names for a very long time. In course due I’m going to deal with this little frog. Julius is just an irritating cockroach. [I] will deal with this Julius who is a criminal’. Kunene proceeded to use the word ’cockroach’ three more times.
Judge Makume, in the consequent court hearing, noted that Simelane was ‘taken aback’ by use of the word ’cockroach’.
Malema took the matter to the High Court and Equality Court to determine whether Kunene and the PA had breached the Equality Act, particularly section 10 which provides:
… no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to
(b) be harmful or to incite harm;
(c) promote or propagate hatred.
Kunene contended that ’cockroach’ and ’frog’ amounted to metaphors and he didn’t intend them to mean that Malema deserved to be treated like vermin. The words were aimed at Malema only and not any group of people. Objectively it was trivial and should be dismissed.
Judge Makume made reference to an article published in Kangura in February 1993 which referred to the role the Hutus calling the Tutsi ’cockroaches’ played in the lead up to the genocide in Rwanda (Kangura was a Rwandan magazine which had played a key role in stoking ethnic tensions in the run up to the genocide in that country). He also referred to other examples including the use by Malema himself of the insult to Helen Zille, now the Federal Chairperson of the Democratic Alliance. The judge said that the usage of cockroach does not ‘mean good things about an individual’ because Malema apologised to Helen Zille.
Judge Makume found that the Equality Act ‘expressly regulates hate speech’. As one of its objects set out in section 2 of the Act, the legislation was enacted:
b) to give effect to the letter and the spirit of the Constitution in particular, and
(v) the prohibition of advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm as contemplated in Section 16(2) of the Constitution and Section 12 of the Act.
The test for hate speech, the judge said, was whether it could reasonably be construed that the words demonstrate a clear intention to incite harm: It is an objective test.
The judge acknowledged that the parties are political rivals – Kunene was once a member of the EFF and he left under acrimonious circumstances. However, we must point out that the gap between the two parties is considerable: the EFF is the third largest party in Parliament, whereas the PA does not have any seats in Parliament or in any of the nine provincial legislatures.
The judge said the word ‘cockroach’ when used against human beings comes with heavy political baggage as was demonstrated in Rwanda. The term is used as a dog whistle for the extermination of the Tutsi people. Thulas Simelane was surprised as was a tweet by a member of the public.
Malema argued that Kunene used the word 'to undermine my human dignity and adversely affect my equal enjoyment of my right and freedom’.
The judge quoted Sutherland J in the Khumalo case at paragraph 88: ‘The test for hate speech is whether Khumalo’s utterances…could reasonably be construed to demonstrate a clear intention to “incite harm”… It postulates a reasonable reader. It asks what a reasonable reader could think about the speech. The test is plainly objective, despite the tortuous phraseology. The subjective intention of the author is irrelevant.
'The standard of the reasonable person, applied to section 10(1), means, therefore, whether a reasonable person could conclude (not inevitably should conclude) that the words mean the author had a clear intention to bring about the prohibited consequences.’
Judge Makume concluded that Kunene’s reference to Malema as a ’cockroach’, ’a little frog,’ and ’criminal’ are hate speech as defined in section 10 of the Equality Act.
He ordered Kunene to apologise to Malema and retract his comments. Kunene has refused and is appealing the judgment.
Reasonable person test
I suggest that the judge is wrong and didn’t apply the reasonable person test.
Those who know about the Rwandan genocide know about the use of ’cockroach’ to denigrate Tutsis over and over again – from Hutu leadership, the media, and in society more broadly. The term had been used by the Nazi government to instil a sense of verminous, nothingness about Jews in the collective mind of the German population.
There is no doubt that use of the word, of all insults, brings to mind indoctrination to the point of genocide. However, a reasonable person is still likely to look at the specific circumstances of the word: who has used it, who it has been used against, and the circumstances of its use.
I do not believe that any reasonable person would foresee Kunene’s use of the word in these particular circumstances as resulting in any of the PA’s supporters (let alone the wider citizenry) using violence against Malema. Most would assume that someone whose combativeness marks his political persona would just shrug it off.
In all honesty, there is a difference, even knowing this, between the use of the word by a whole swathe of society, and its use by someone with Kunene’s colourful reputation.
Genocide
People will argue that it starts there but it eventually leads to genocide. In reality, it takes a whole range of actions and words to lead to a genocide.
Kunene, annoyed by Malema’s slur, hurls insults back including ’little frog’ and ’criminal’ – not the most wounding of insults, particularly not for Malema. So Kunene adds ’cockroach’ presumably knowing that it will have a more desired result.
However, looked at in the wider context, I doubt if a reasonable person would conclude that Kunene was demonstrating ‘a clear intention to incite harm’.
Looked at in totality, it doesn’t meet the reasonable person test. Anyone who believes that Malema’s human dignity was undermined by the term or that it has adversely affected his equal enjoyment of his rights and freedoms, must be living on Mars.
And this brings up the final point. The IRR’s Free Speech Union supports the narrowest limitation of speech. We believe that section 16(2) of the Constitution sets out these appropriate limits.
Section 10 of the Equality Act is too wide and allows too much latitude for insulting speech to be recast as hate speech. This case illustrates that. Free speech, however offensive it is, is best dealt with through open argument and debate.
Malema’s use of ’cockroach’ against Helen Zille wasn’t intended to lead to a genocide but Malema is crafty; he knows how much that insult may hurt. So, he retracted and apologised. Anyone who thinks that he was remorseful is probably a tad naïve.
Malema, however, has often engaged in real hate speech, using his rhetorical genius in front of crowds of people. Advocate Jana bent over backwards not to find him guilty of hate speech in a case where hate speech had more clearly been committed than in the Kunene matter. In any event, Malema’s status as a demagogue means a penalty for hate speech would not be a career-limiting move.
The conclusion? If you call everything hate speech, then nothing is hate speech. When it really happens, you won’t see it coming.
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