The controversial president of the ANC Youth League Julius Malema has been found guilty of hate speech by a South African judge because of comments he made about a woman who accused President Jacob Zuma for rape. The comments Malema made were: “Those who had a nice time will wait until the sun comes out, request breakfast and ask for taxi money. In the morning, that lady requested breakfast and taxi money.”

Malema is known for constantly making controversial statements. Last week our author Muhammad Karim wrote a post about Malema singing an old anti-Apartheid song Kill the Boer.

South African bloggers and legal experts have reacted quickly to the judgement. Opinions about the judgement and the future of freedom of speech in South Africa are deeply divided.

Leading constitutional law expert and Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town Professor Pierre de Vos has questioned the guilt verdict. He argues that the judgement is wrong:

The judgment of magistrate CJ Collis in which she found Julius Malema guilty of hate speech and harassment will probably be cheered on by many South Africans who are sick and tired of the hateful and idiotic utterances of the leader of the ANC Youth League. “Finally old Julius got his come-uppance,” many of us might say. “Finally our legal system has shown Julius a big fat middle finger!”

The problem is, from a legal perspective it is difficult not to conclude that the judgment is wrong. In my opinion it may very well be overturned on appeal.

Robert Brand agrees:

You make a persuasive argument that the magistrate erred and that an appeal may succeed. However, I would go further and argue that an appeal against the hate speech provisions in the Equality Act on Constitutional grounds would also succeed. The act goes much further in defining hate speech than the constitution, and in effect creates a faultless crime: intention to incite harm is not required, just that the words may be construed to have such an intention. It also widens the scope of hate speech to comments that “hurt” or propagate hatred, whereas the constituton refers to “harm” only.

Pierre observes that many South Africans fail to understand hate speech as defined by the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA):

Hate speech is defined in the Act as words based on one or more of the prohibited grounds, (in other words, words based on race, sex, gender or sexual orientation, say) against any person that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; or promote or propagate hatred. Showing the middle finger to the President could never be construed as words based on any of the prohibited grounds such as race, sex, gender and sexual orientation, so it could never be construed as hate speech.

Many people fail to understand that hate speech as defined in PEPUDA requires more than making hurtful or harmful statements about someone. If I say the President is a sex obsessed idiot, or that Helen Zille is a racist madam, it might be rude and it might even be defamatory but it would not constitute hate speech as I would not be saying anything based on Zuma or Zille’s race, sex or sexual orientation.

One of his readers, Dumisani Mkhize, disagrees with him because “Malema’s words and message at that rally are clearly meant to paint this woman as a bad person who deserves what she got and more”:

Prof,

Without taking anything away from your legal argument, I wish to present a view from a non legal perspective.

I believe Malema’s words to constitute hate speech. Here’s why:

This woman, called Khwezi, was vilified by Zuma supporters during the rape trial. Some women even called for her blood. This woman is now living in exile for fear of her life.

Malema’s words and message at that rally are clearly meant to paint this woman as a bad person who deserves what she got and more. These words add to the suffering and danger that Khwezi is subjected to on a daily basis and they make it even more dangerous for her to come back to the land she considers her home.

Can you imagine what would have happened to her, had Khwezi shown her face at that particular rally at that time?

I don’t have to remind you about what happened to that American exchange student who showed her face at the wrong place and the wrong time. Amy Biehl was killed by a group of people who were not inherently evil or bad, but they happened to be singing and chanting inciting “one settler, one bullet” slogans at that very moment.

Malema is an influential leader to his impressionable followers and a strong message needs to be sent to curb further and unnecessary acts of violence that could result from his careless rant.

If overturned on appeal, it would be unfortunate and would further put vulnerable women in general and Khwezi in particular in further jeopardy.

Robert Brand writes a post in defence of Julius Malema's right to free speech. He makes it clear that he is not defending Malema but only hist right to freedom of expression:

I believe in freedom of expression. Our Constitution protects the right to freedom of expression. That is why I cannot welcome the Equality Court’s ruling that Malema was guilty of hate speech when he commented on the young woman who had accused President Jacob Zuma of rape.

Please understand that I am not defending Malema. I am defending his right to freedom of expression, which is also mine and yours and which means nothing if it does not include the right to say things that offend other people.

Robert asks, “But do his words constitute hate speech?”:

Hate speech is defined in the Constitution as “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm” (my italics). Malema’s words were undoubteldy hurtful to many people. They may, at a stretch, be construed as “advocacy of hatred” based on gender. But did they constitute incitement to cause harm? I think not. And so, offensive though the words were to our sensibilities, they should be protected by the the Bill of Rights.

The Promotion of Equality and Prevention of Unfair Discrimination Act, under which Malema was charged and convicted, has, however, complicated issues by adopting a far wider definition of hate speech than the Constitution. The Equality Act (for short) defines hate speech as words ”that could reasonably be construed to demonstrate a clear intention to be hurtful, cause harm or promote hatred on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth”.

A reader at Robert's blog, Evan argues that hate speech should be narrowly defined:

You’re absolutely correct. Hate speech should be extremely narrowly defined and the law should be applied with absolute vigilance and circumspection.

Malema is a useless tool who should have his nuts kicked five times day, but this hate speech thing is going to do far more harm in general than any good it might do in this particular case.

Anothe reader asks the following questions:

“The ANC defended youth leader Julius Malema on Thursday for singing, “shoot the boers, they are rapists”, saying the lyrics of the song had been quoted out of context.”

Does this slogan not constitute hate speech?
Is this permissible within a “freedom of speech” remit?
Who’s responsibility is it to prosecute someone who breaks the law in a case like this?
Will the Government do it, or does a private citizen have to lay a charge?

Robert responds:

That may be hate speech in terms of the Equality Act. A private citizen can lay a charge. The government – more specifically the National Prosecuting Authority – would then prosecute.

After the verdit, Sino Majangaza from DispatchOnline went out with a video camera asking South Africans what you thought of Julius Malema. Here is a video of what they had to say.

Classic Malema blog has an interview Julius Malema had with Times LIVE after the judgement. And Zapiro Malema goodness! Jonathan Shapiro is the leading South African cartoonist, popularly known as Zapiro.