Molefe judgment emboldens EFF’s stance on hate speech
The EFF’s Julius Malema and other leaders of his party have repeatedly found themselves facing criminal charges and legal action over their public statements, which critics contend are defamatory at best and, at worst, dangerous.
They seem unmoved by the cases brought against them, including accusations of hate speech from public enterprises minister Pravin Gordhan, who Malema called a dog of white monopoly capital. But last week Malema and his party scored a potentially significant legal victory in the same Equality Court that will decide on Gordhan’s hate speech complaint.
The court dismissed an application by the SA National Editors’ Forum (Sanef) and five journalists to interdict Malema and his supporters from intimidating reporters on public and social media platforms. The court rejected Sanef’s argument that Malema’s statements amounted to hate speech.
Hate speech is one of the few categories of speech not protected by the constitutional right to freedom of expression and the definition remains the subject of fierce legal contestation.
The Constitutional Court is yet to rule on whether Cosatu official Bongani Masuku’s 2009 comments about liberating Palestinians “from the racists, fascists and Zionists who belong to the era of their friend Hitler” amounts to hate speech. Masuku stated: “We must target them, expose them, and do all that is needed to subject them to perpetual suffering until they withdraw from the land of others and stop their savage attacks on human dignity.”
Drawing heavily from the Supreme Court of Appeal’s decision in favour of Masuku, judge Daisy Molefe on Thursday found that unpopular, offensive or controversial views do not necessarily constitute hate speech.
Molefe did not engage in detail with the tweets and utterances that Sanef contended could incite imminent harm to the journalists they targeted, including Malema’s response to a death threat directed at News24 editor-in-chief Adriaan Basson by an apparent EFF supporter, who stated “we must come up with action to kill white people like you @AdriaanBasson”. Basson tweeted that he had opened a case in response to that tweet, adding: “No condemnation yet from EFF”. Malema responded: “We won’t do it”.
The EFF successfully argued that it could not be held responsible for the actions taken against journalists by its alleged supporters.
Significantly, the EFF’s legal counsel, advocate Tembeka Ngcukaitobi, abandoned the party’s initial demand that Sanef and the journalists who sought the interdict against it be forced to pay a punitive legal costs order.
He stated that the dismissal of the case was because it was “legally misconceived” and stressed that neither Malema nor the EFF endorsed the abuse of journalists on social media.
Within hours of the ruling, however, the EFF released a statement reiterating its attacks on the journalists who had sought the interdict against it as “taking sides”. It said: “Above all, nothing is more worrying than that these journalists who litigated against the EFF continued in many newsrooms to write stories, decide editorial contents and columns on the EFF despite the obvious conflict of interest.”
Molefe earlier dismissed arguments by Media Monitoring Africa that the online targeting of the journalists was aimed at cowing them into silence as “unsubstantiated” and “startling”.
The EFF, it appears, is now using that same decision to argue that those journalists who had sought to use the law to protect themselves from online harassment, allegedly linked to their reporting on the EFF, should now be blocked from reporting on the EFF.
For a party that routinely uses freedom of speech to justify its often very personal attacks on journalists, that stance is largely hypocritical.