South African Human Rights Commission and Another v Malema and Another (EC16/2022 ; 17/2022) [2025] ZAEQC 6 (27 August 2025)

Case Note

The South African Human Rights Commission and Dante Van Wyk v Julius Sello Malema and the Economic Freedom Fighters
(EC 16/2022 & 17/2022)
Judgment delivered on 27 August 2025

Reportability

This case is reportable due to its engagement with profound issues surrounding hate speech and violence in the South African context. The decision addresses complex considerations of political speech, freedom of expression, and the rights to dignity and equality as enshrined in the South African Constitution. The judgment elucidates the balance to be struck between permissible political rhetoric and the prohibition of statements inciting violence and hatred based on race.

The significance of this case lies in its exploration of the applicability of the Equality Act and the interpretation of hate speech within the framework of contemporary political discourse in South Africa. Given the historical and ongoing dynamics of racial tension in the country, the court’s ruling sets precedents for future conflicts surrounding speech that may incite violence or instigate animosity among different racial groups.

Cases Cited

• Qwelane v SA Human Rights Commission 2021 (8) SA 579 (CC)
• Afriforum v Nelson Mandela Foundation 2023 (4) SA 1 (SCA)
• Afriforum v The Economic Freedom Fighters 2024 (3) All SA 319 (SCA)
• Rustenburg Platinum Mines v SAEWA (obo Bester) & Ors 2018 (5) SA 78 (CC)

Legislation Cited

• The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
• The Constitution of the Republic of South Africa Act 108 of 1996

Rules of Court Cited

• No specific rules of court cited in the judgment.

HEADNOTE

Summary

This judgment consolidated two applications from the South African Human Rights Commission and complainant Dante Van Wyk against Julius Sello Malema and the Economic Freedom Fighters. The primary issue was whether statements made by Malema during a political assembly constituted hate speech under the Equality Act. The court found Malema’s statements to incite racial animosity and a clear intention to propagate hatred, amounting to hate speech. This decision affirms the obligation of public figures to refrain from speech that promotes violence and discrimination, particularly against racial groups in a post-apartheid society.

Key Issues

• Whether Malema's statements amounted to hate speech as defined in the Equality Act.
• The impact of political context on the interpretation of speech.
• The balance between freedom of expression and the prohibition of hate speech.
• The role of the Equality Court in adjudicating cases that implicate political speech.

Held

The court held that statements made by Malema on 16 October 2022 at a political assembly constituted hate speech as defined in the Equality Act. The statements reflected a clear intention to incite harm and promote hatred based on the race of the individuals mentioned. As such, both the first respondent and the second respondent were found jointly liable for the complainants' costs of suit.

THE FACTS

The case arose from a speech made by Julius Malema at the Economic Freedom Fighters’ provincial assembly. During his address, he made incendiary remarks about a historical incident involving EFF members who were assaulted by a group of predominantly white individuals. These comments prompted widespread public outrage and were perceived by the complainants as incitements to violence against white individuals.

The complainants, the South African Human Rights Commission and Dante Van Wyk, argued that Malema's statements constituted hate speech under the Equality Act due to their inflammatory nature. In response, the respondents contended that the speech was political commentary and should be protected by the right to freedom of expression.

The case highlighted the polarized social dynamics in South Africa, as the speech triggered a flood of complaints and calls for action from various stakeholders, indicating a deep societal division based on race.

THE ISSUES

The court was tasked with deciding the following legal questions:

1. Did the statements made by Malema amount to hate speech as defined under section 10 of the Equality Act?
2. How does the political context of the speech affect its interpretation and the applicability of the legal standards for hate speech?
3. What role does the principle of freedom of expression play in the context of political speech, particularly that which may incite violence?

ANALYSIS

In considering the definitions and implications of hate speech, the court analyzed the specific words used by Malema, the context in which they were made, and their potential impact on social cohesion and public safety. The court noted that the distinction between political speech and hate speech is often nuanced and requires careful assessment of the intent behind the statements and their probable effect on the audience.

The court referenced linguistic analyses provided by expert witnesses, establishing how the speech targeted specific individuals on the basis of their race and engendered a call for violence. Malema’s statements were viewed not as mere political rhetoric, but as direct incitements to violence—a boundary that the law seeks to protect against in order to foster an environment of equality and non-discrimination.

The court recognized the historical implications of such rhetoric within the South African socio-political landscape, highlighting the need for vigilance against speech that shows potential for inciting racial violence, irrespective of the speaker’s political affiliations.

REMEDY

The court ordered that the statements made by Malema constituted hate speech and directed that both he and the Economic Freedom Fighters be held jointly and severally liable for the costs incurred by the complainants in pursuing this action. The court’s ruling mandated that impactful remedies must be provided to counteract the harm caused by such incendiary speech.

LEGAL PRINCIPLES

The judgment established several significant legal principles:

1. Hate speech is defined as speech that incites harm and propagates hatred based on grounds such as race, ethnicity, or belief.
2. The political context of speech does not grant immunity when such speech violates legal prohibitions against hate speech.
3. The intent behind public speech, especially by political leaders, is critically assessed in light of its potential to incite violence or hatred.
4. Litigants must provide evidence that traces the impact of speech on societal cohesion and individual safety, especially in racially charged contexts.

The ruling underlines the judiciary's commitment to maintaining social stability by actively combating hate speech, particularly in a society still reconciling with its past and striving towards a cohesive future.