The Gauteng High Court ruled that the South African Human Rights Commission was not empowered to produce findings exonerating Julius Malema for his comments about not “advocating the slaughter of whites, at least for the time being”.
- In 2019, the South African Human Rights Commission found that comments made by Julius Malema, about not “advocating the slaughter of white people, at least for now”, were not hate speech.
- The committee’s findings were referred to the court for review.
- The Supreme Court found that the Commission is not empowered to make findings on hate speech, only the Equality Tribunal.
The South African Human Rights Commission (SAHRC) was not authorized or empowered to present findings repudiating Julius Malema of comments he made about not “advocating the slaughter of whites, at least for the time being”.
Rather, this was the jurisdiction of the Equality Tribunal.
On Friday, Gauteng High Court Deputy Judge Roland Sutherland ruled on a review application filed by AfriForum against the panel’s purported findings on comments made by Malema in 2016 in New Castle, KwaZulu-Natal.
In 2019, after receiving numerous complaints of hate speech against the leader of the EFF, the South African Human Rights Commission investigated the complaints and released its findings in a document titled: “Findings of the South African Human Rights Commission in relation to certain statements made by Mr Julius Malema and another member In Economic Freedom Fighters”.
The committee effectively found that Malema’s comments were not hate speech and constituted strong political speech protected under the right to freedom of expression.
“It was found that, while offensive and even disturbing, the statements – viewed in their full context – do not rise to the level of hate speech,” the document read.
In addition to the document, the commission also sent letters to the complainants, stating their rationale for Malema’s acquittal.
While requests for review have been lodged with the High Court, which the commission said the complainants were entitled to do if they were not satisfied with its findings, Sutherland effectively found this type of decision by the SAHC not subject to review.
This is because the committee is not empowered to reach conclusions about whether or not something constitutes hate speech.
“This case shows a bizarre example of confusion and, unfortunately, on the part of the South African Human Rights Commission, appears to be a dollop of arrogance,” said Sutherland.
With legislation giving powers to the commission, including the Constitution and the South African Human Rights Commission Act, Sutherland said there are two working powers the commission can take:
- It can conduct investigations to form an opinion on whether there is substance to an alleged human rights violation.
- As a result of the investigation, if there is substance to the claim, the committee can assist the complainants in bringing the case to a competent court.
Sutherland said:
It is clear that the South African Human Rights Commission is not authorized or empowered to decide whether or not a violation of human rights has actually taken place.
“It follows that it is not in the power or power of the South African Human Rights Commission to declare that an alleged violation is in fact a violation, and furthermore that it is not in the power of the South African Human Rights Commission to acquit a person of an allegation of a violation of human rights.”
In a different interpretation, Sutherland said, the commission was neither required nor allowed to conclude that the allegation of the facts had been proven. This is a court decision.
Therefore, when the Commission cleared Malema of hate speech in its findings, the Commission on Human Rights in South Sudan acted outside the scope of its mandate.
“No such decision could have been lawfully taken by the South African Human Rights Commission. What the South African Human Rights Commission did was claim to exercise power it did not have.”
On this basis, Sutherland reviewed the Commission’s decision and set aside it, declaring it unlawful.
The Court further declared that the South African Human Rights Commission was not empowered to make final decisions on whether or not hate speech occurred.
Sutherland criticized the commission for the costs.
Were Malema’s comments hate speech?
While the severity of the proceedings concerned whether or not Malema’s comments constituted hate speech, Sutherland said the complainants would not receive any response from his court.
Sutherland said the court had no jurisdiction to decide the matter and the answer was reserved for the Equality Court.
“Whether the concept of these observations is unlawful, as is the opinion of the South African Human Rights Commission, stands scrutiny in the light of the courts’ equality jurisprudence must await adjudication.”