Afriforum in bid to have SAHRC’s decision on Malema hate speech overturned

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Lobby group Afriforum wants a decision by the SA Human Rights Commission that EFF leader Julius Malema’s statements were not hate speech, overturned. 

The organisation has filed papers in the Gauteng High Court arguing that there was an “error of law” and that the decision be set aside or taken back to the commission for reconsideration.  

Five complaints were logged with the commission, including one of a tweet by EFF secretary general Godrich Gardee.

This occurred after concerns were raised about Malema’s utterances that the EFF was “not calling for the slaughtering of white people – at least for now”.

Other complaints included the infamous “kill the boer” song and comments made about Indian people.   

Afriforum chief executive Kallie Kriel said in court papers seen by News24 that the SAHRC should “show cause” why its decision that Malema’s utterances (on November 7, 2016) did not constitute hate speech or discrimination should not be reviewed, corrected or set aside.

In the papers the organisation orders that the SAHRC’s decision be set aside and replaced with a ruling that the comments constituted hate speech in line with the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Pepuda). The legislation prohibits unfair discrimination, hate speech and harassment from government, organisations and individuals. 

In addition, Afriforum wants the SAHRC to be liable for the costs of the application. 

READ: EFF won’t be discouraged ‘from fighting against whiteness and white privilege’ – Malema

In March, the commission ruled that it had received several complaints regarding Malema’s statements, but focused on five in particular. 

SAHRC chairperson Bongani Majola said that although the comments were offensive, they did not qualify as hate speech.

Legal expert Shanelle van der Berg said the commission was guided by the courts and the Constitution in its findings.

She explained that there needed to be a sufficiently high threshold for speech to amount to hate speech.

Referencing the case SAHRC vs Qwelane, she said the Equality Court determined that hateful speech had promoted severe psychological impact.

“This did not prompt any harm,” she said.

However, in his affidavit, Kriel maintained that the commission did not deal with the issue of discrimination or section 12 of Pepuda. 

Kriel said the commission’s decision was materially influenced by error of law, unconstitutional and unlawful. He also accuses the commission of being “biased or reasonably suspected of bias”.

“This is an error of law in that neither section 10(1)(b) of PEPUDA nor section 16(2)(c) of the Constitution have an imminence requirement in relation to an incitement to cause harm,” Kriel says in the papers.

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