2

of the outcome of a local election commits an act of hate speech within the
meaning of section 10 of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (“the Equality Act”). We conclude that he does.
This is because that conduct falls squarely within the textual definition of “hate
speech” outlined in section 10 of the Equality Act, and because that text, read
purposively in its statutory setting, was in our view designed, at least in part,
to prevent political speech in South Africa from degenerating into an act of
mutual dehumanisation. The consequences of such dehumanisation are writ
large across the pages of history. They reveal themselves in the pogroms and
genocides that the use of the word “cockroach” evokes. While South Africa is
presently some way from deteriorating into widespread factional violence, the
Constitution, 1996, and the Equality Act require us to enforce the modest limits
on political discourse that are necessary to prevent it from doing so.
The speech
2 The first appellant, Mr. Kunene, is the Deputy President of the second
appellant, the Patriotic Alliance. The Patriotic Alliance is a political party
represented in the National Assembly. It is one of several parties which form
the parliamentary coalition that presently controls the national executive. On
17 November 2021, Mr. Kunene appeared on television as part of a news
programme to discuss the outcome of the 2021 local government elections,
which had taken place on 1 November of that year. Much of the interview was
concerned with a deal the Patriotic Alliance had struck with the African
National Congress, which involved each party supporting the other’s

3

candidates for senior offices in municipal councils in which neither party could
command a governing majority.
3 Towards the end of Mr. Kunene’s appearance, his interviewer, a Mr. Simelane,
asked Mr. Kunene to comment on remarks the respondent, Mr. Malema, had
made on social media the day before. Mr. Malema is the leader of the
Economic Freedom Fighters, which is presently an opposition party in the
National Assembly. Though occasionally prepared to enter into alliances with
the African National Congress, the Economic Freedom Fighters was in 2021
and remains today one of the African National Congress’ sharpest critics. The
Economic Freedom Fighters competes for votes with both the African National
Congress and the Patriotic Alliance.
4 Mr. Malema’s remarks concerned the deal that had been struck between the
Patriotic Alliance and the African National Congress. He had criticised the
African National Congress for entering into an arrangement with a “pati yama
bantiti” (“a party of criminals”). The word “bantiti” was meant to refer to the
well-known fact that both Mr. Kunene and Gayton McKenzie, who is the
President of the Patriotic Alliance, have in the past been convicted of criminal
offences. The remark was quite clearly not just a political critique of the African
National Congress, but also an attempt to needle Mr. Kunene and Mr.
McKenzie.
5 Mr. Malema achieved his purpose. When his remark was put to Mr. Kunene
in the television interview of 17 November 2021, Mr. Kunene became angry.
He accused Mr. Malema of “bitterness and jealousy”. Mr. Kunene said that Mr.
Malema had been “calling us these names for a very long time”, but that the

4

Patriotic Alliance had “tried to be mature and not respond” to Mr. Malema. Mr.
Kunene said that it was important to him to focus on “putting together our
governments with [the] African National Congress”, which, he said, “is a very
big agenda for the country”.
6 Mr. Kunene went on to say that once he is “done” with the coalition
negotiations to which he had referred, he would “deal with this little frog”. Mr.
Kunene said that “Julius is just an irritating cockroach that now I must deal
with publicly, and I will call you. I will call all the press, and I will begin to deal
with this and show you that Julius, whatever he criticises he is. Julius is a
criminal, and I am going to show South Africans the crimes that he is involved
in, he has been involved in, and I am going to tell South Africans why I truly,
the real truth why I left the EFF, because of this cockroach”. Mr. Kunene went
on: “so I am going to deal with this cockroach . . . we have stood back, but
now it is over”. He said that he would “set up our governments”, and then “deal
with this cockroach”.
7 The repeated use of the word “cockroach” to describe Mr. Malema was not
lost on Mr. Simelane, who rounded the interview off by saying “I do imagine
that there will be a fair degree of controversy around your choice of words,
particularly the word cockroach. I do imagine that given its potent and loaded
history, you know it has previously raised a lot of conversation. But
nevertheless thank you for coming through and having the conversation with
me here on ENCA”.
8 Mr. Kunene’s choice of words did excite controversy. Mr. Malema objected to
them, and complained to the Equality Court that they amounted to hate

5

speech. The Equality Court agreed. On 31 January 2023, Makume J declared
that Mr. Kunene’s use of the words “cockroach”, “little frog” and “criminal” to
refer to Mr. Malema amounted to hate speech within the meaning of section
10 of the Equality Act. He directed Mr. Kunene to apologise for using these
words to describe Mr. Malema, interdicted Mr. Kunene from doing so in future,
and referred Mr. Kunene’s utterances to the Director of Public Prosecutions
for further investigation.
The appeal
9 Mr. Kunene and the Patriotic Alliance now appeal, with Makume J’s leave,
against Makume J’s decision. Their arguments before us are more or less
what they were before the Equality Court: that Mr. Kunene’s utterances do not
fall within the ambit of section 10 of the Equality Act because they were
personal attacks on Mr. Malema, rather than on any group of which Mr.
Malema is a member; that to the extent that Mr. Kunene’s attacks on Mr.
Malema might reasonably be construed to be based on his membership of an
opposing political party, political attacks of that nature cannot amount to hate
speech, since political affiliation is not a ground on which the Equality Act
recognises that hate speech can be addressed; and that a particularly wide
margin of appreciation must be afforded to political actors who attack each
other in pungent or unpleasant terms. It was also suggested that, since Mr.
Kunene did not actually threaten Mr. Malema with violence, or explicitly incite
violence against him, his words could not reasonably be construed as harmful.
10 To this was added the proposition that Makume J had set far too low a
standard in evaluating whether Mr. Kunene’s utterances amounted to hate

6

speech. Makume J’s judgment repeatedly describes Mr. Kunene’s utterances
as “inappropriate”, and it was the serial use of this word that Ms. Engelbrecht,
who appeared together with Mr. Mathopo for Mr. Kunene, emphasised in her
critique of Makume J’s decision.
11 However, I do not think that it would be fair, on reading Makume J’s judgment
as a whole, to impute to him the view that Mr. Kunene’s speech had to be
enjoined merely because it was “inappropriate”. Makume J was clearly alive
to the need to evaluate Mr. Kunene’s utterances in context against section 10
of the Equality Act. The question is really whether he was right to conclude
that Mr. Kunene’s use of the words “little frog”, “cockroach” and “criminal”
during the 17 November 2021 interview amounted to hate speech under
section 10, properly interpreted in light of the Constitution.
12 It is to an evaluation of that nature that I now turn.
The nature of hate speech
13 The Constitution entrenches the right to free expression, but recognises two
sorts of limits on it. The first is that the right to free expression does not extend
to propaganda for war, incitement of imminent violence, or “advocacy of
hatred that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm” (section 16 (2) (c) of the Constitution). In other
words, 16 (2) expression is constitutionally unprotected: expression of the kind
defined there can be extinguished at will, without raising any constitutional
issues at all.

7

14 The second is the sort of limitation that section 36 of the Constitution permits
on all constitutional rights: a limitation authorised by “a law of general
application to the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom”
(section 36 (1) of the Constitution). Section 10 of the Equality Act is such a
limitation. While it certainly outlaws much if not all of the expression defined in
section 16 (2) of the Constitution, section 10 casts its net much wider. It applies
to “words based on one or more of the prohibited grounds, against any person,
that could reasonably be construed to demonstrate a clear intention to be
harmful or to incite harm and to promote or propagate hatred”.
15 The “prohibited grounds” are “race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language, birth and HIV/AIDS status” (section 1 of
the Equality Act), or any other ground where discrimination based on that other
ground causes or perpetuates systemic disadvantage; undermines human
dignity; or adversely affects the equal enjoyment of a person's rights and
freedoms in a serious manner that is comparable to discrimination on a ground
section 1 specifically enumerates.
16 The hate speech prohibition strikes at words which a reasonable person would
understand as clearly intended to harm or incite harm against, and to
encourage hatred of, a person or any group of persons merely because they
bear a characteristic covered by a prohibited ground (see Qwelane v South
African Human Rights Commission 2021 (6) SA 579 (CC) (“Qwelane ”),
paragraphs 121 and 122). In prohibiting hate speech of this type, the Equality

8

Act sets modest outer limits for social and political interaction. It recognises
that words, left unregulated, can skew the terms of social and political
participation against vulnerable groups, or against individuals, whether
vulnerable or not, who are nonetheless targeted for opprobrium merely
because of personal characteristics that they are perfectly entitled to have and
which are constitutive of their dignity.
17 Words can do this not just by inciting physical harm against individuals or
members of a specific group, but also by promoting the hatred of those
individuals and groups in a manner that causes “deep emotional and
psychological harm that severely undermines the dignity” of the targeted
groups or individuals, or which harms “social cohesion in South African
society” thereby “undermining our nation-building project” (see Qwelane,
paragraph 154),
18 Outlawing words which harm “our nation-building project” may seem at first
blush to have an Orwellian ring. But it bears emphasis that critique of that
project will never itself constitute unlawful expression. When the Constitutional
Court speaks in Qwelane of harm to a nation-building project, it does not
address itself to vigorously expressed opposition to the constitutional
dispensation we presently enjoy, even if that opposition is accompanied with
hostile or even violent imagery. It seems to me that wh at Qwelane strikes at
is harm to the fundamental terms of social interaction: harm which denies
others the right to speak or be heard simply because of their social status or
characteristics, or which encourages others to regard individuals with specific

9

social characteristics as less than human; as unworthy of having their voices
heard.
19 The problem with this sort of expression is that it degrades the social arena in
which it takes place. It makes us all less human, less tolerant of each other,
and more tolerant of hate. It encourages us to accept dehumanisation as a
normal part of political or social life, and it is a necessary precondition for the
infliction of widespread violence against the groups it targets. In Qwelane, the
Constitutional Court made clear that the Equality Act aims not merely to
remedy the harm in hate speech after it occurs, but also “to ensure that it does
not occur” (Qwelane, paragraph 110). The outlawing of the kinds of “societal
harm” of which the court in Qwelane spoke (see paragraphs 109 and 121), is
a critical part of the Equality Act’s preventative purpose.
20 Understood in this way , the limits section 10 places on free expression are
quite modest. Section 10 strikes only at words that are reasonably
apprehended as clearly intended to cause harm to and encourage hatred
against the individuals or groups defined by reference to the prohibited
grounds in section 1. The words used must be objectively capable of causing
appreciable harm to those individuals or groups. Mere subjective hurt is not
enough (Qwelane, paragraph 144). The harm, though, may be direct, in the
sense that it causes or is capable of causing physical or psychological injury
to the targeted groups or individuals, or indirect, in the sense that it adjusts or
is capable of adjusting the terms of social interaction against those groups or
individuals.

10

The words Mr. Kunene used against Mr. Malema
21 Mr. Kunene referred to Mr. Malema as a “cockroach” four times in a televised
interview about the outcome of an election. Mr. Kunene and Mr. Malema were,
and still are, leaders of competing political parties. The trigger for Mr. Kunene’s
attack on Mr. Malema was Mr. Malema’s critique of the African Nation al
Congress’ decision to form municipal council coalitions with Mr. Kunene’s
party.
22 Although Mr. Malema originally suggested that Mr. Kunene’s attack on him
was motivated by his ethnicity, I do not think that proposition can be sustained.
There is nothing in the context of Mr. Kunene’s remarks that could reasonably
be taken as an attack on Mr. Malema’s ethnicity. Ms. Engelbrecht in fact
argued that the attack could only reasonably be understood as entirely
personal. She emphasised that Mr. Kunene said that Mr. Malema was the
reason he left the Economic Freedom Fighters, underscoring, she submitted,
the personal animosity between the two men.
23 I do not think that proposition can be sustained either. It is clear that Mr.
Malema and Mr. Kunene do not like each other. But that would not have been
the dominant impression left on the reasonable observer of the 17 November
2021 interview. Mr. Kunene referred to Mr. Malema as a “cockroach” in the
context of party-political debate. The reasonable observer would accordingly
have understood the epithet to have been directed at Mr. Malema because he
was a political competitor.
24 Ms. Engelbrecht could not really gainsay this, but pointed to the decision of
Equality Court in Gordhan v Malema 2020 (1) SA 587 (GJ), at paragraph 18,

11

in which it was observed that: “[a] notable omission from the prohibited
grounds is, not unsurprisingly, political ideology: neither capitalists nor
socialists can complain about their vilification as a class by invoking this
statute”. The submission, as I understood it, was that, because political
ideology is not a ground listed in section 1 of the Equality Act, hate speech
cannot be committed in the context of debate between different political
factions, so long as the words that flow between political competitors are
directed at the antagonists’ ideologies, rather than the immutable
characteristics such as race, ethnicity or gender.
25 I accept that political ideology is not a listed ground, but I do not think it follows
that hate speech cannot extend to conflicts between people of contrasting
political ideologies. In the first place both “conscience” and “belief” are grounds
listed in section 1 of the Equality Act. Politics being what they are, not all
political affiliations will be matters of conscience or of belief, but some clearly
are. One need look no further than the anti-communist pogroms of the mid-
twentieth century United States for an example of the persecution of
individuals because their consciences and beliefs coincided with their political
affiliation to the Communist Party USA. Moreover, political affiliation, at least
for some people, clearly qualifies as a ground on which discrimination against
them would undermine their human dignity, or adversely affect the equal
enjoyment of that person's rights and freedoms in a serious manner that is
comparable to discrimination on a listed ground.
26 Accordingly, I reject the proposition that political ideology or affiliation may not
provide a basis for hate speech. Indeed, it seems to me that dangerous

12

currents of violence and dehumanisation will often flow along the lines of
political ideology or affiliation. The question is whether a reasonable observer
would have understood Mr. Kunene’s remarks to be clearly intended to cause
or incite harm and propagate hatred against Mr. Malema because of Mr.
Malema’s conscience, belief or political ideology or affiliation.
27 I think this is exactly how the reasonable observer would have understood Mr.
Kunene’s utterances. Mr. Malema had criticised the African National Congress
for entering into coalitions with the Patriotic Alliance. He had done so by
seizing on Mr. Kunene’s and Mr. McKenzie’s past to label the Patriotic Alliance
as a “party of criminals”. There is no suggestion that Mr. Malema did not
honestly believe what he said. Nor is it suggested that the critique was not
advanced in good faith against a political competitor taking a step Mr. Malema
genuinely believed was inappropriate or damaging to the public interest. It is
likely that the critique was, for Mr. Malema, a matter of conscience, or at least
of genuine belief, and it was advanced in the context of airing a political opinion
that Mr. Malema was entitled to have.
28 Mr. Kunene’s response was to call Mr. Malema a cockroach. There can be no
doubt what the use of that word would have evoked for the reasonable
observer. Whatever Mr. Kunene intended, the use of the word cockroach is
internationally recognised as hateful of those to whom it is directed. It is also,
if not itself an incitement to do them harm, clearly indicative of an attempt to
place them beyond the protection of ordinary human decency. The political
use of the term cockroach is always and everywhere a call to treat those to
whom the term is directed as objects of hate. This is because, as Makume J

13

found, the Rwandan genocide is the dominant context in which the reasonable
observer would have understood Mr. Kunene’s use of the term. That genocide
was characterised by the use of the word “cockroach” to dehumanise and
mark-out for slaughter the hundreds of thousands of men, women and children
who were hacked to death in its commission.
29 Ms. Engelbrecht was alive to this, and urged us to find that the word
“cockroach” lacks the connotations in South Africa that it would have in
Rwanda. I do not think this is realistic. Part of what makes hateful words
hateful is that they break free of their context and become vehicles for hate
well beyond the circumstances in which they were developed. “Cockroach” is
such a word.
30 In any event, the question is not the precise etymology of a particular word or
phrase, but how a reasonable observer would have understood its
deployment. It seems to me that the use of the word “cockroach” would
reasonably have been understood as evincing a clear intent to harm and
promoted hatred of Mr. Malema because he was one of Mr. Kunene’s political
foes, and because his belief and political conscience were not those of Mr.
Kunene. The use of the word conveys that Mr. Malema is not human, but
deserves to be treated like a cockroach – to be eliminated from public life,
perhaps together with his followers. It does not matter whether this is what Mr.
Kunene intended. It is plainly the meaning a reasonable observer would have
attributed to Mr. Kunene’s utterances. Mr. Simelane himself alluded to this in
drawing Mr. Kunene’s interview to a swift conclusion.

14

31 Ms. Engelbrecht further argued that the context of Mr. Kunene’s utterances –
fierce political debate to which a margin of appreciation must be afforded –
saved them from being considered hate speech. In my view, that context
simply compounded the harm Mr. Kunene’s words were likely to cause to Mr.
Malema, and to society at large. It seems to me that one fundamental purpose
of section 10 is to place limits on the terms of social and political debate, with
the aim of ensuring that it cannot degenerate into mutual dehumanisation and
violence. In other words, South African law does not tolerate political attacks
reasonably understood to incite harm and promote hatred against one’s
political opponents. The tendency of such attacks is to poison the atmosphere
of political contestation, and move us closer to the resolution of political
disputes by violence rather than deliberation and election.
32 I accept, of course, that courts should be slow to police speech merely
because it is “angry in tone or conveys hostility” (Hotz v University of Cape
Town 2017 (2) SA 485 (SCA), paragraph 68). For this reason, I do not think
that describing Mr. Malema as a “criminal” or as a “little frog” (a quaint term,
the provenance of which was not argued before us) could count as hate
speech. This is because a reasonable observer would have understood them
as no more than heated rhetoric. It is the specifically genocidal connotations
of the word “cockroach” which take it into a different category.
33 For all these reasons, we must, in my view, confirm the core finding of the
Equality Court: that the repeated use of the word “cockroach” to describe Mr.
Malema amounted to hate speech, within the meaning of section 10 of the
Equality Act. This is because a reasonable observer would have understood

15

the use of that term in the context it was deployed as being clearly intended
to promote hatred of and incite harm against Mr. Malema for no reason other
than that his political conscience and beliefs were not those of Mr. Kunene.
Relief
34 These conclusions mean that the appeal must be dismissed. However, the
order of the Equality Court cannot stand in its current form. In the first place,
the order must be purged of the declaration that the use of the words “criminal”
and “little frog” were hateful. Nor can the referral of Mr. Kunene’s utterances
to the National Prosecuting Authority be sustained. Criminal sanction of
unlawful expression is a measure of last resort, which should be applied only
in the most serious of cases (see Qwelane, paragraph 90). In the context of
hate speech, the primary aim should be to repair the social breach the hate
speaker caused.
35 In this case, it seems to me that Mr. Kunene should be given the opportunity
to bring himself back within the limits of lawful expression, and unequivocally
to accept that there are some things that he is simply not permitted to utter
because they undermine the political system in which he is himself an
important participant. The interdictory relief and the order that Mr. Kunene
apologise the Equality Court granted are both sufficient and well-tailored to
that end.
36 The parties were agreed that, unless Mr. Kunene’s appeal is substantially
successful, costs should follow the result. The importance and complexity of
this matter justify the taxation of counsel’s costs on the “C” scale. Since the
Patriotic Alliance made common cause with Mr. Kunene in defending the

16

Equality Court complaint, and in pursuing this appeal, it will be jointly and
severally liable with Mr. Kunene for those costs.
The rule 49 (6) (a) and condonation applications
37 Mr. Premhid, who appeared together with Ms. Zikalala for Mr. Malema, took
the preliminary point that the appeal had lapsed. He asked us to make a
declaratory order to that effect. The submission was that the appellants had
not complied with rule 49 (6) (a), and that the appeal had lapsed as a result.
38 Rule 49 (6) (a) requires an appellant to apply “to the registrar of the division
where the appeal is to be heard for a date for the hearing of such appeal”
within sixty days of issuing their notice of appeal. If the appellant fails to do so,
and the respondent does not themselves set the appeal down, rule 49 (6) (a)
states that the appeal and any cross-appeal “shall be deemed to have lapsed”.
39 There is no dispute that the appellants in this case did apply for a date within
the sixty-day period prescribed in rule 49 (6) (a). However, the practice
directives of this court required such an application to be accompanied by the
appellants’ heads of argument. The appellants’ heads of argument were not
submitted with the date application. They were filed at the direction of this
court just under a month before the hearing.
40 Mr. Premhid submitted that, because the application for a hearing date was
not accompanied by the appellants’ heads, it was not an “application” within
the meaning of the rule 49 (6) (a). For that reason, Mr. Premhid submitted, the
appeal lapsed.

17

41 The point is a specious one, which should never have been taken. In the first
place, rule 49 itself envisages a different regime for the filing of heads than the
practice directives of this court. Rule 49 (15) permits the filing of an appellant’s
heads of argument “[n]ot later than fifteen days before the appeal is heard”.
Rule 49 cannot therefore sensibly be read to provide for the lapsing of an
appeal merely because an appellant’s heads do not accompany a date
application. In addition, as the relevant practice directive makes clear, the
failure to file heads with a date application means no more than that the appeal
will not be allocated a date until the heads are filed.
42 In this case, the appellants obtained a date without filing their heads. This did
not mean that their appeal lapsed. It meant merely that the registrar had made
a mistake. The oversight was cured by this court’s direction that heads be
filed. The rule 49 (6) (a) application must fail. Costs will follow the result.
Though the application was easily dealt with, there is no wisdom in awarding
counsel’s costs on a lower scale than in the main application. The rule 49 (6)
(a) application simply added a layer of complexity to an already complex and
important matter.
Order
43 Accordingly –
43.1 The application to declare that the appeal has lapsed is dismissed
with costs, including the costs of two counsel. Counsels’ costs may
be taxed on the “C” scale.

18

43.2 Save to the extent that the Equality Court’s order is varied below, the
appeal is dismissed with costs, including the costs of two counsel, to
be paid by the first and second appellants jointly and severally, the
one paying the other to be absolved. Counsel’s costs may be taxed
on the “C” scale.
43.3 The Equality Court’s order is varied and replaced with the following
order –
“1. It is declared that the first respondent’s use of the word
“cockroach” to describe the complainant in the ENCA
television interview of 17 November 2021 amounted to
hate speech in contravention of section 10 of the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000.
2. The first respondent is interdicted and restrained from
describing the complainant as a “cockroach” in future.
3. The first respondent is ordered to issue an unconditional
written and oral public apology for referring to the
complainant as a “cockroach”. The apology must
unequivocally retract the use of the word “cockroach” to
describe the complainant.
4. The first respondent’s written and oral apology must be
published within one month of the date of this order.