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SAHRC finds Malema comments referred to commission not hate speech

27 March 2019

The South African Human Rights Commission (SAHRC) has ruled on five complaints against EFF leaders Julius Malema and Godrich Gardee, finding that none of the utterances referred to the body legally constitute hate speech.
The statements referred to the commission were made during unrelated and separate occasions between 2016 and 2018.
The complaints against Malema included the singing of the song "Kiss the boer" and his June 2017 comments on Indians ill-treating black people in KwaZulu-Natal.
The SAHRC found that "objective assessment shows that Mr Malema was calling for the proper treatment of black people by Indians".

EFF spokesperson Dr Mbuyiseni Ndlozi welcomed the ruling saying those who laid complaints against the EFF leaders wanted to suppress legitimate criticism and debate.
"We reiterate that it does not help the country when people try to shut down debates by abusing the resources and time of courts and chapter 9 institutions. We should be focused on confronting these injustices and correcting them instead of crying none existent hate speech," Ndlozi said. 
Recently, Malema again focused in on the relationship between Indian and black people.

SAHRC chairperson Advocate Bongani Majola said the organisation considered each complaint separately as the statements were made at different times and in different contexts.
However, the commission dealt with them all at the same time.
Majola said while the comments may be deemed "offensive", they do not meet the legal threshold to be classified hate speech.
He said it took time to consider the complaints partly because the law was not crystal clear on hate speech. He said that hate speech was still a developing area of the law.
Majola added that the commission's decision did not exonerate Malema for other future acts that may appear before them.
"His utterance are still quite problematic to us in a democratic society that is committed to healing the divisions of the past and establish a society based on democratic values and fundamental freedom," Majola said.
Four complaints against Malema were investigated by the commission and one complaint against EFF secretary general Godrich Gardee.

A legal expert Dr Shanelle Van Der Berg who was recruited by the commission on the case against the EFF said the statement consolidated the five complaints and analysed them to get their findings.
In the first complaint, Malema during a party rally said, "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."
Van Der Berg said Malema's statement on the hot topic of land may be construed as hurtful by the white community, however context must be seen.  She said the statement did not perpetrate harm of white people but rather a highly emotive and contested subject of land reform.
In the second complaint Malema made comments against the Indian community. In 2017 Malema said, "Here in Durban, here in KwaZulu-Natal, everything is strategically given to Indian families, every big tender is given to Indian families. They are the ones who own everything strategic here in KZN. We don't have a problem, we are saying share with our people.
"We also want to call upon our fellow Indians and here in Natal to respect Africans, they are ill treating them. We don't want them to continue that here in Natal. They are treating them worse that Afrikaners will do. This is not an anti-Indian statement, its the truth. If we tell whites the truth, if we tell blacks the truth, we can as well tell Indians the truth. They must treat our people properly here in Natal."
She said the call for Indians to share economic prosperity and his reference to 'fellow Indians', "shows that objectively interpreted, this statement did not demonstrate intent to be hurtful, harmful and promote hatred against Indian people."
She said Malema did not begrudge Indian economic prosperity but rather asked that they share the wealth.
On Human Rights Day in 2018, Malema sang the struggle song titled Kill the Boer which he changed to "Kiss the Boer".
Van Der Berg found that an objective test must be afforded to the reasonable listener and cannot be confined to a small group in society when dealing with the struggle song.
While in the North West in June 2018 Malema said, "Indians have all sorts of resources Africans did not have coloured as well. The majority of Indians hate Africans. The majority of Indians are racist. Im not saying all but the majority."
One complaint was laid against Gardee relating to his tweeter rant against DA leader Mmusi Maimane. In the tweet Gardee called Maimane a garden boy for his party.
Van Der Berg explained that while the statement was insulting it uttered by a black MP to another black MP showing power symmetry between the offender and the intended audience. 
Majola said none of the findings were under review.

Source: News 24

The South African Human Rights Commission.

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The Human Rights Commission is the national institution established to support constitutional democracy. It is committed to promote respect for, observance of and protection of human rights for everyone without fear or favour.

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