Malema found guilty of hate speech by Equality Court

The case followed complaints from the South African Human Rights Commission and Dante van Wyk, who said he felt threatened by Malema’s remarks.

The ruling comes two years after clashes between the EFF and residents outside Brackenfell High School in 2020, which erupted over allegations of racial exclusion at a school event, sparking protests and confrontations in the community.

Judge Mark Sher said in his ruling that Malema’s statements “constituted an exhortation to kill white males who had participated in the incident of 9 November 2020 at the Brackenfell High School and to kill, or respond violently, to any other persons who engaged in racist behaviour in the future”.

The judge added that the statements “were based on grounds prohibited by the Act and constituted hate speech, contrary to the provisions of section 10, as they demonstrated a clear intention to incite harm and to promote or propagate hatred".

Sher also held that the EFF, as an organisation, “endorsed and supported these statements in the media advisory which it issued and in these proceedings” and should be held jointly liable for them.

The court ordered that the respondents are jointly and severally liable for the complainants’ legal costs, including the fees of expert witnesses and the employment of two counsel.

Judge Sher noted that while the primary complaint of hate speech was upheld, it was not necessary to make findings on alternative complaints of harassment or unfair discrimination.

He emphasised that the Equality Act is primarily designed to prevent unfair discrimination, not to penalize someone for calling out racist behaviour, except when combined with incitement to harm or hatred.

The ruling marks a significant legal moment in South Africa, reinforcing the boundaries of political speech and the country’s commitment to protecting individuals from threats and intimidation.