IN THE EQUALITY COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISON, CAPE TOWN) [REPORTABLE]
Case no: EC 16/2022 & 17/2022

In the matter between:

THE SOUTH AFRICAN HUMAN RIGHTS
COMMISSION First complainant
DANTE VAN WYK Second complainant

and

JULIUS SELLO MALEMA First respondent
THE ECONOMIC FREEDOM FIGHTERS Second respondent


JUDGMENT DELIVERED (VIA EMAIL) ON 27 AUGUST 2025
___________________________________________________________________

SHER J:
1. I have before me two applications which were consolidated and heard as one,
in which the complainants seek orders declaring that certain statements which
were made by the first respondent constitute hate speech and unfair
discrimination on the grounds of race and/or belief; alternatively harassment, in
terms of the Equality Act.1 By agreement between the parties the matter
proceeded in respect of issues pertaining to the merits of the complaints only,

1 The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
~

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with t hose pertaining to the relief which is sought standing over for later
determination.
2. The first complainant is the SA Human Rights Commission (‘the SAHRC’) an
independent body established in terms of Chapter 9 of the Constitution and the
SAHRC Act, 2 which is tasked with the constitutional mandate3 of protecting and
promoting respect for human rights. The second complainant is Mr Dante Van
Wyk, an adult male whose further particulars have not been disclosed, who
contends that he is the subject of threats contained in the statements which
were made by the first respondent.
3. The first respondent is Mr Julius Sello Malema, a politician who is the founder,
President and Commander -in-Chief of the second respondent, the Economic
Freedom Fighters (‘EFF’), a political party . The statements which are the
subject of the complaints by the applicants were made during a speech which
the 1st respondent delivered almost 3 years ago on 16 October 2022, at the
occasion of the 3 rd provincial People’s Assembly of the 2 nd respondent in the
Western Cape.
4. The parties agreed that in presenting their cases they would not be confined to
their affidavits but would also offer oral evidence. To this end the 2 nd
complainant tendered the evidence of Dr Kar ien Van Der Berg , a forensic
linguist and senior lecturer at the University of the North-West, who conducted
a linguistic analysis of the offending part of the speech, and the respondents
called Prof Steven Friedman, a political scientist in the humanities faculty of the
University of Johannesburg, who gave his interpretation and understanding of
it. In addition, the 2nd complainant called his attorney Ms M Westley, and the
respondents called Mr Luvuko Ntakana, a member of the EFF, to give evidence
pertaining to certain events which transpired on 9 November 2020, parts of
which were depicted on a video 4 which was shown in evidence. The parties
referred the witnesses to certain documents which were contained in a joint trial

referred the witnesses to certain documents which were contained in a joint trial
bundle (exhibit C), which include d a series of photographs which were
seemingly taken as stills from the video.5 At the conclusion of argument it was

2 Act 40 of 2013.
3 In terms of s 184(a)-(c) of the Constitution.
4 The original of which can be found at https://www.newsflare.com/video/434096/white-cape-town-
community-attacks-black-members-of-south-africas-leftwing-eff-party.
5 At pp 9-13 of the bundle, which were separately received into evidence as exhibits 3-7.

3

stipulated, by agreement, that the Court would be entitled to have regard to all
of the documents in the trial bundle, including those not specifically referred to
in evidence.
The background
5. The narrative which follows is drawn from the evidence which was tendered,
the video, pleadings, and documents in the trial bundle. During September 2020
scholars at the Brackenfell High School were advised that its annual matric
farewell function would not be held at the school due to the COVID-19
pandemic, which had led to a nationwide ‘lockdown’ and declaration of a state
of disaster earlier in the year. The parents of one of the children then arranged
for the function to be held at a wine farm on 17 October 2020. Invitations to the
function were sent to all matriculants and teachers. Despite this, on 1 November
2020 the father of a child at the Brackenfell Primary School shared a YouTube
video and posts about the event on Facebook , in which it was alleged that it
had been held for white scholars only.
6. As a result of these and other social media posts m embers of the 2 nd
respondent resolved to hold a protest at the school, as they considered this to
be an instance of racist behaviour. According to a report by the 2nd respondent’s
provincial deputy chairperson,6 on their arrival at the school on 6 November
2020 they were met by a group of ‘heavily armed white people’ , who tried to
block them from proceeding and provoked and threatened them, but they forced
their way to the school gates. A police contingent arrived and asked the m to
disperse as their gathering was illegal, but the deputy chairperson contended
that they had the right to picket without a permit. The police facilitated a meeting
between the EFF group and a representative from the school’s governing body,
at which time certain demands were made , including that the teachers who
attended the function and the principal should be sacked. The group then
dispersed.

attended the function and the principal should be sacked. The group then
dispersed.
7. Three days later, on 9 November 2020, a larger group of EFF members arrived
at the school for a second round of protests and a follow-up on their demands.
At the time the matriculants were w riting exams. They were met outside the
school by a group of parents , local residents, and security guards (‘the

6 Pages 24-25 of the trial bundle, exhibit C.

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residents’ group’), which the 2nd respondent’s deputy chairperson described as
a ‘mob of whites’ who were ‘heavily armed’. From the video which was shown
in evidence it is evident that there were not only whites in the group and, as in
the case of the EFF group , there were not only men present but also women ,
and apart from the security guards only a few of the group were armed, mainly
with sticks or baton -like instruments. The c onfrontation which took place
between the two groups was captured on the video which was shown in
evidence, albeit not in a continuous i.e. single, unbroken and complete stream
of footage.
8. The video opens with the 2 nd complainant, clad in a mottled grey and black T -
shirt and black trousers , leading approximately 7 white males , a white female
and a black male, as the vanguard of the residents’ group, down a road outside
the school towards the EFF members, who were advancing from the opposite
direction. As the groups c ame face -to-face persons in the residents’ group
(including the 2nd complainant), can be heard shouting ‘go home, you are in the
wrong place’, ‘what do you want to do ’ and ‘what are you here for ’. The 2 nd
complainant then engaged Mr Ntakana, one of the leaders of the EFF group,
who was wearing a red beret. Although this cannot be heard on the video
footage, according to Mr Ntakana the 2 nd complainant referred to members of
the EFF group in derogatory terms, using the ‘k’ word, and told them they were
not welcome in Brackenfell and should go back to the townships. Another white
male allegedly also used the ‘k’ word. This evidence was contested during Mr
Ntakana’s cross-examination, but the 2nd complaint did not tender any evidence
to refute it.
9. As the 2 nd complainant confronted Mr Ntakana a hand reached over from
behind him and grabbed Mr Ntakana’s beret from his head and made off with
it. From a frame-by frame analysis it appears that the hand belonged to a large

it. From a frame-by frame analysis it appears that the hand belonged to a large
white male dressed in black i.e. wearing a black cap, sunglasses, T-shirt,
trousers, and a bandana or mask which covered the lower part of his face.7
10. As Mr Ntakana went after his beret someone shouted ‘moer hom’ (‘hit him’) and
a melee ensued, during which he was manhandled and several blows were
directed at him by persons in the residents’ group , including the 2nd

7 The beret grab is captured on the photograph at p 43 of the trial bundle, exhibit C.

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complainant, who can be seen holding Mr Ntakana by his T-shirt with his left
hand, while striking out at him with his right fist, as he was struggling to break
loose.8 After Mr Ntakana freed himself the 2nd complainant turned his attention
to another EFF member, chasing and pulling at him from behind.
11. There is then a break in the footage which resumes with a scene where 3 males,
including the 2 nd complainant and the compatriot black male visible at the
commencement of the video, are involved in a scuffle with an EFF member who
is being held, whilst down on his knees, at the right -hand front side of a white
LDV.9
12. The camera then moves to cover several white males advancing towards
retreating EFF members. The large white male in black who snatched Mr
Ntakana’s beret is part of this group and can be seen pushing a retreating
female EFF member and hitting her on her back and buttocks with a baton or
baseball bat, and then viciously striking at someone who is lying on the ground.
Stones are thrown at the EFF group by a white male wearing a yellow T -shirt
and other white males, including the 2nd complainant.
13. There is a nother break in the footage and when it resumes members of the
SAPS are on the scene and jostle with several persons, including a white male
and the black male seen earlier (in the company of the 2 nd complainant), who
is pointing his finger angrily and shouting and swearing , and a coloured male.
It then sounds as if 2 shots are fired. The 2 nd complainant can then be seen
amongst the residents’ group, which consists of about 20 -25 males and
females. A white male wearing a blue long-sleeve T-shirt advances, swears,
and shouts ‘who do you think you are, you don’t rule this country ’ and people
can be heard shouting ‘you are in the wrong area ’. The 2nd complainant then
comes forward and hurls an expletive, and his black male compatriot shouts to
the EFF members to ‘come here’. A coloured male, with a stick in each hand ,

the EFF members to ‘come here’. A coloured male, with a stick in each hand ,
advances and gesticulates threateningly, and a white male wearing a long -
sleeved black top and grey bandana shouts ‘go and pull your racial s ..t
somewhere else’. As the police try to intervene the large white male in black
makes rude signs and gesticulates.

8 Id, photographs 43 and 44.
9 Photograph 40.

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14. After a further break , the footage resumes with a confrontation between
members of the residents’ group and members of the police, who appear to
have taken a position between the two groups. The coloured male with a stick
in each hand again waves them threateningly at members of the EFF, and
shouts at them. Once again there is a break in the footage. When it resumes,
the 2nd complainant and the black male who was part of the vanguard group
can be seen next to one another.
15. An unarmed police officer advances on the large white male in black, who is
carrying a stick, and there is talk of arrest. P eople shout ‘why do you want to
arrest him ’ and rush forward to prevent the police from doing so . The 2nd
complainant shouts to a black woman to ‘come here’. There is a white woman
standing on his left side. The police intervene and try to keep the groups apart.
One of the EFF males who shouts and gesticulates at the residents’ group is
wearing a white T-shirt on the back of which appears the slogan ‘In Revolution
You Must Be prepared to kill or to be killed ’. After another break in the footage
the video ends with a group of police with shields and helmets advancing on
the residents’ group, which begins to disperse, in a cloud of what appears to be
tear gas smoke.
16. Pursuant to this incident the 2 nd complainant was arraigned in the Kuilsriver
magistrate’s court on a charge of assault of Mr Ntakana , and another white
male was also charged with the assault and with discharging a firearm in a
public place, to which he pleaded guilty and was given a fine. After standing
trial the 2nd complainant was found not guilty on 10 November 2020.
The speech
17. On 16 October 2022 , s ome 2 years after these events took place, the 1st
respondent addressed the 3 rd provincial People’s Assembly of the 2 nd
respondent, in the Western Cape ; at which time the statements which are the
subject of the complaints were made . According to a YouTube video10 of the

subject of the complaints were made . According to a YouTube video10 of the
day’s proceedings his speech was a lengthy one, as it was delivered over a
period of about 1½ hours.11 It will accordingly not be appropriate to set it out

10 At https://www.youtube.com/watch/v=BhViykMXKM. A copy of a video recording of the speech on a
memory stick was attached to the 2nd complainant’s founding affidavit as annexure ‘B’ .
11 The full video of the day’s proceedings is 2hrs 44mins long. The speech commences at 1hr 19mins i.e.
about halfway into it.

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verbatim, in its entirety. The SAHRC attached a transcript of the first hour
thereof, to its papers. 12 For the purposes of the judgment it is not feasible
reciting even this piece, and I will simply set out the offending portion, in which
the impugned statements appear, which took about 5 minutes to deliver .13
Reference will be made to the speech as a whole, by way of a summary thereof,
in due course, when the offending portion is evaluated contextually.
18. The transcribed portion in which the offending statements appear reads as
follows:
‘You went to a school here to protest the other time, and you were beaten by white people, and
there is a white man who is visible on camera. If I were to ask you, what have you done in terms
of follow -up, after being beaten by that white guy, why have you not as a revolutionary
organisation followed up on that guy, him alone, to check that guy in an isolated space and
attend to the guy properly? What type of revolutionaries get beaten and they don’t have a follow-
up? And then they pride themselves of being beaten and they repeat videos of themselves
being beaten and we must vote for them because they were beaten by a white man that they’ve
never followed up, or the same white man that has beaten them up. Tell that white man to try
me. I’ll come many times here in Western Cape, appearing (in) a court case, because no white
man is going to beat me up and (I) call myself a revolutionary the following day.
You must never be scared to kill. A revolution demands that at some point there must be killing
because the killing is part of a revolutionary act. Why did Mandela take up a gun? He was the
first soldier of Umkhonto we Sizwe. Why did he take up a gun, was he taking a gun to distribute
roses? He took up a gun because the revolution had reached the point where there is no longer
an alternative but to kill. Why are you scared? That anything that stands in the way of the

an alternative but to kill. Why are you scared? That anything that stands in the way of the
revolution, it must be eliminated in th e best interest of the revolution, and we must never be
scared to do that. The founding manifest of the EFF says we will take power by all means
necessary and therefore revolutionaries, when confronted by that situation , should never think
twice. Cowards are not for the revolution. The EFF must be known that it is not a playground
for racists, that any racist that plays next to the EFF and threatens and beats up the membership
and the leadership of the EFF, that is an application to meet your maker with immediate effect.
You were beaten by a racist and you never did anything, let’s hope this new leadership will
make a follow-up on that racist, because there must be a follow-up on that racist.
I’m not asking you to do what I’ve not done, when a racist confronted me at Winnie Mandela’s
funeral I did what I was expected to do, because I was not scared of a white man. You get
beaten by white people here and you call yourself an organisation of Fanon. Racism is violence
and violence can only be ended by violence, not any other necessary means, it must be

12 Annexure FA1, pp 29-47 of the record.
13 It runs on the video (n 10) from 1:44:13 to 1:49:58 and can be found at pages 8-9 of the transcript, pages
36-37 of the record.

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confronted by how it is. You are a racist, therefore you are a violent person, and you shall be
treated as such. Do not create an impression that we are the most understanding organisation,
when it comes to racists we have no understanding for violence, yo u come with violence, we
shall respond with violence. This is a war between white supremacy and black consciousness,
you must know the two will never meet. We are in a permanent war with white supremacists.
As a black conscious person when a white supremac ist raises his or her ugly head you ought
to stand up immediately and say this is what we do not tolerate as black consciousness people.
We don’t accept dominance of the white race over a black race. So Fighters, the Western Cape
should be at the centre of the confrontation of white supremacy, because racism is rife here in
this province.’
The issuing of papers
19. Following the speech the SAHRC received hundreds of complaints from
members of the public. It was also contacted by attorneys acting for the 2 nd
complainant, who informed them that he was the person referred to in the
offending portion of the speech, and he and his life partner had been inundated
with thousands of messages on social media emanating from EFF supporters,
many of which were of an aggressive and threatening nature, as a result of
which he had gone into hiding in the Northern Cape . In his founding affidavit
the 2nd complainant confirmed these averments.
20. After considering the speech the SAHRC was of the view that there were
statements therein which constituted hate speech and on 9 November 2022 it
accordingly addressed a letter to the respondents in which it called upon them
to provide a written public retraction and an apology in respect thereof, together
with an undertaking that they would desist from making any future statements
which exhorted or encouraged EFF members or supporters to kill or physically
inflict violence , or harm , on any person or group , and which promoted or

inflict violence , or harm , on any person or group , and which promoted or
propagated an incitemen t to hatred , unfair discrimination or harassment. The
SAHRC also issued a media statement advising of the step it had taken.
21. The 2nd respondent responded with a media statement in which it said the
SAHRC had ‘incorrectly and ignorantly’ labelled the comments which 1 st
respondent had made as incitements to violence and hate speech, thereby
failing to appreciate political commentary in its ‘metaphorical, literary and
historical’ sense, and falling into a ‘trap’ at the ‘altar of the egos and fragility of
whiteness’. Had the SAHRC taken the opportunity of engaging literature which
was widely publicised and part of the curricula of institutions of higher learning,

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it would have been able to place the 1 st applicant’s comments in their ‘literary
and academic context’. In this regard the respondents said that in his seminal
text The Wretched of the Earth Frantz Fanon had ‘correctly’ reflected on the
necessity of violence , to destroy the violent systems of white supremacy and
colonialism. Thus, when the 1st respondent had said that violence could only be
ended by violence , and by any means necessary , he had ‘operated correctly
within the logic that the system of white supremacy i.e. the anti -blackness
witnessed in Brackenfell where white people had assaulted peaceful protesters,
and the monopoly of wealth by a white minority at the expense of the black
majority’, was violence. The experience of post-1994 had shown that to confront
violence with peace and reconciliation did not resolve injustice , and that was
the context within which the 1st respondent’s utterances had been made, and
they could accordingly never constitute incitement.
22. The media statement was followed on 11 November 2022 by a letter from the
respondents’ attorneys, in which they a verred that the SAHRC had acted
outside of its statutory powers and had failed to afford the respondents an
opportunity to respond to the complaints it had received, before issuing its
media advisory and letter of demand , and they queried whether, in the light of
the findings of the courts in the Afriforum/EFF and Gordhan matters, where 1st
respondent’s comments were held to be acceptable political rhetoric in the
exercise of his right to freedom of expression, a reasonable listener would
objectively conclude that he had a clear intention to cause harm. Consequently,
they contended that the SAHRC had impermissibly sought to limit the ir
constitutional rights and had misdirected itself in relation to the application of
the law to the facts, and demanded that it retract its letter of demand by no later
than 15 November 2022, failing which the y reserved the right to launch an

than 15 November 2022, failing which the y reserved the right to launch an
application for the review of the SAHRC’s decision and/or an interdict.
23. On 15 November 2022 the SAHRC’s attorneys responded that it considered
that it had at all times acted in the due and proper discharge of its statutory
powers, and a week later it instituted the instant application, in which urgent
interdictory relief was sought (in part A) together with final relief in due course
(in part B). On 3 December 2022 the 2 nd applicant lodged his application in
which he sought final relief, on similar grounds and terms to that which was
sought by the SAHRC.

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24. In their answering affidavit s the respondent s chose not to engage with the
merits of the complaints which were raised by the applicants in their founding
affidavits viz. that in numerous respects the statements complained of
constituted hate speech and an incitement to harm and violence , on the
prohibited grounds of race and /or political belief. Instead, the y raised several
technical and procedural objections only , in relation to the interim relief which
was sought.
25. On 27 February 2023 the two applications were consolidated and , given that
the respondents no longer sought urgent, interim relief and the respondents
had complained that the applicant s had failed to consider mediation , it was
directed that the parties should engage one another with a view to attempting
to resolve the dispute in a mediation process. After the process failed, further
directions were made to refer the matter to trial, including that the parties were
entitled to file supplementary affidavits, followed by replying affidavits.
26. In their supplementary answering affidavit the respondent s said the
complainants had ‘cherry -picked’ isolated statements in the 1 st respondent’s
speech, which were taken out of context. It was ‘ignorant’ of the SAHRC to take
the speech literally and its interpretation was that of an unreasonable,
uninformed person who disregarded the context and history of SA. The speech
was a nuanced, political one made at a political event, in the exercise of the 1st
respondent’s right to freedom of expression , which was fundamental to a
democratic society, and was not hate speech which constituted the incitement
of violence or hatred against white people. In this regard the respondents had
engaged Prof Friedman, a leading expert on hate speech , who was of the
opinion that the speech did not constitute hate speech.
27. The respondents said they subscribed to the Marxist -Leninist and Fanonian

27. The respondents said they subscribed to the Marxist -Leninist and Fanonian
schools of thought in their analysis of the state, imperialism, and class and race
contradictions in society. Marxist-Leninist ideology was premised on socialism
and the belief that the means of production should not be controlled by private
individuals or through communism, but by the state. The fundamental principles
of Fanonian theory espoused anti -racism, black consciousness and black
liberation, and decolonisation; and denounced racism and white supremacy ,
and the speech should be interpreted in this context. The 1st respondent’s
speech sought to highlight raci al inequalities which remained pervasive in the

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Western Cape and dealt with various issues concerning the EFF and its
members, including land dispossession, poverty, racial discrimination and
increasing EFF membership.
28. In addition, the respondents again alleged that there were procedural flaws and
irregularities in the 1st complainant’s case in that it had failed to afford them the
right to audi alteram partem , had failed to do a proper investigation, and had
misconstrued and acted outside of its powers.
The law
(i) The relevant provisions of the Equality Act
29. In its heading the Equality Act proclaims that it aims to give effect to the
constitutional right to equality , so as to prevent and prohibit unfair
discrimination, harassment, and hate speech. To this end its stated objects are,
amongst others, to give effect to the equal enjoyment of all rights and freedoms
by every person 14 and the values of non -racialism and non -sexism,15 the
prevention of unfair discrimination and the protection of human dignity, 16 (as
contemplated in ss 9 and 10 of the Constitution ); and the prohibition of the
advocacy of hatred based on race, ethnicity, gender or religion, which
constitutes an incitement to cause harm 17 (as contemplated in s 16(2) of the
Constitution).
30. When interpreting its provisions , a court is enjoined18 to give effect to the
constitutional provisions pertaining to the promotion of equality and the Act’s
stated aims (as set out in its preamble) and its listed objects and guiding
principles.19 In doing so it must be ‘mindful’ of international law 20 and must
facilitate compliance with SA’s international obligations in terms of treaties and
conventions to which it is bound, including the Convention on the Elimination of
All Forms of Racial Discrimination (ICERD),21 which was ratified by SA in 1998.
ICERD requires 22 member States who are bound to it to proscribe incitements

14 Section 2(b)(i).
15 Section 2(b)(iii).
16 Section 2(b)(iv).
17 Section 2(b)(v).
18 Section 3(1)(a).
19 Section 3(1)(b).

16 Section 2(b)(iv).
17 Section 2(b)(v).
18 Section 3(1)(a).
19 Section 3(1)(b).
20 Section 3(2)(b).
21 Id, read together with s 2(h)
22 Article 4(a).

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to racial discrimination or violence and the dissemination of ideas based on
racial superiority or hatred.
31. In its exposition in Qwelane 23 the Constitutional Court referred to other
instruments of international law24 and legislation in various foreign states, which
aim to prohibit and regulate hate speech, including that which applies in
Canada,25 Germany,26 Denmark27 and France, which outlaw it in their criminal
codes, as well as its more limited forms in Belgium and Chile.
32. Although it has been proposed that hate speech should also be criminalised in
SA (a draft Bill to this effect was prepared in 2016 but has not been passed) 28
it currently exists in our law as one of a trilogy of so -called ‘statutory delicts’29
provided for by the Act, the others being unfair discrimination (on the specific
grounds of race,30 gender,31 disability32 or generally33) and harassment,34 which
must be established objectively, on a balance of probabilities.35
33. Section 10 of the Act contains the prohibition of, and requirements for hate
speech. Subsequent to its declaration of constitutional invalidity in part, in
Qwelane,36 the section reads37 that no person may publish, propagate,
advocate or communicate words which are based on one or more of the
grounds prohibited by the Act (which are listed in s 1) 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.
(ii) The constitutional context

23 Qwelane v SA Human Rights Commission 2021 (8) SA 579 (CC) paras 87-90 and fn 125.
24 Such as the Universal Declaration of Human Rights (articles 19 and 20) which make it mandatory for
member states to prohibit hate speech and the International Covenant on Civil and Political Rights
(ICCPR) which provides (in article 20) that any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
25 Section 319(1) of the Canadian Criminal Code.
26 Section 130(1)(b) of the German Criminal Code.
27 Section 266b of the Danish Criminal Code.
28 The Prevention and Combatting of Hate Crimes and Hate Speech Bill.
29 Qwelane n 23 para 95; Afriforum v Nelson Mandela Foundation (‘Afriforum 1’) 2023 (4) SA 1 (SCA) para
60.
30 Section 7 of the Act.
31 Section 8.
32 Section 9.
33 Section 12.
34 Section 11.
35 Afriforum n 29 para 60.
36 Note 23 para 198.
37 Sections 10(1)b) and (c), section 10(1)(a) having been struck down as unconstitutional.

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34. The starting point for an analysis of the meaning and effect of s 10 is the Bill of
Rights.38 As the provision is located at the ‘confluence’ of the three primary,
fundamental rights of equality, dignity and freedom of expression,39 it involves
a delicate balance between them ,40 and one is required to interpret it in a
manner which is congruent with them.41
35. As to the importance of these rights and their interplay, against the position they
occupy in our constitutional dispensation , it has been said that the right to
equality lies at the heart of our constitutional order and is a core foundational
value, 42 as is the right to dignity.43 In Qwelane it was noted 44 that in order to
give meaning to the right to dignity, the notion of equality which underpins our
constitutional order is not merely formal but substantive in nature, and so aims
to deal with systemic patterns of unfair discrimination.45 Thus, the constitutional
prohibition against unfair discrimination provides a ‘bulwark’ against invasions
of the right to dignity. 46 At its heart, it aims to establish a society in which all
persons in this country will be accorded equal dignity and respect. 47 In this
regard, some 32 years ago in Makwanyane 48 the CC warned that, given our
discriminatory past where people of colour were denied respect and dignity ,
respect for these foundational values is particularly important.
36. To give effect to the right to equality, s 9 of the Constitution set s out a list of
grounds,49 which in turn are repeated as prohibited grounds in the Equality
Act,50 on which no person may unfairly discriminate, directly or indirectly,
against anyone. These include race, gender, sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language and birth.

38 Afriforum v The Economic Freedom Fighters (‘Afriforum 2’) [2024] 3 All SA 319 (SCA) para 52.
39 Qwelane n 23 para 49.
40 Afriforum 2 n 38 para 52.

39 Qwelane n 23 para 49.
40 Afriforum 2 n 38 para 52.
41 Qwelane n 23 para 54.
42 Qwelane n 23 para 56 (following The Minister of Finance & Ano v Van Heerden 2004 (6) SA 121 (CC) para
22.
43 S v Makwanyane & Ano 1995 (3) SA 391 (CC) para 328, cited in Qwelane n 23 para 64.
44 Note 23 para 58.
45 Id.
46 Id, para 62.
47 President of the Republic of SA & Ano v Hugo 1997 (4) SA 1 (CC) para 41; Qwelane n 23 para 62.
48 Note 43.
49 In ss 9(3) and (4).
50 With the addition of HIV status.

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37. As far as freedom of expression is concerned, which is guaranteed in terms of
s 16 of the Constitution, the CC has held that it is of the utmost importance in
the kind of open and democratic society to which we aspire , because it is an
‘indispensable facilitator’ of a vigorous and necessary exchange of ideas.51 As
was noted in Democratic Alliance52 our Constitution recognises that citizens
must be able to hear , form and express opinions freely, for freedom of
expression assists in the protection of our democracy by informing the public,
encouraging debate , and enabling ‘folly and misgovernance’ to be exposed,
thereby fostering accountability. In this regard, in Afriforum 2 53 the SCA held
that, given the right which every citizen has (in terms of s 19 of the Constitution)
to make political choices, to participate in the activities of a political party , and
to campaign for a political cause, it is through the free expression of political
ideas that our system of government ultimately operates. In Islamic Unity 54 the
CC held that encouraging a free and open exchange of information, ideas and
political views in a democratic society based on pluralism, tolerance and broad-
mindedness, must accordingly allow for the expression not only of inoffensive
material, but also that which may offend, shock or disturb. Given the ‘historical
stains’ of our colonial and apartheid past , our constitutional democracy
therefore requires a degree of tolerance towards the expression of speech or
political ideas which shock or offend, 55 and freedom of expression ought to be
‘treasured’ and promoted, given our highly intolerant and suppressive history.56
As was explained in Hotz, 57 freedom of speech in our country must be robust,
and the ability to express hurt, pain and anger is vital, if the voices of those who
see themselves as oppressed or disempowered are to be heard.
38. That said, although it is fundamental to our democracy, the right to freedom of

38. That said, although it is fundamental to our democracy, the right to freedom of
expression is not a ‘paramount value’ nor does it enjoy ‘superior status’ in our
law. 58 Thus, whilst s 16 of the Constitution provides that everyone has the right

51 Qwelane n 23 para 68; EFF & Ano v Minister of Justice & Correctional Services & Ano 2021 (2) SA 1 (CC)
para 1.
52 Democratic Alliance v ANC & Ano 2015 (2) SA 232 (CC) paras 122-123, cited in Qwelane n 23 para 72.
53 Note 38 para 53.
54 Islamic Unity Convention v Independent Broadcasting Authority & Ors 2002 (4) SA 294 (CC) para 26;
Qwelane n 23 paras 73-74.
55 Qwelane n 23 para 75, referring to EFF n 51 para 2.
56 EFF id.
57 Hotz & Ors v University of Cape Town 2017 (2) SA 485 (SCA) para 67.
58 Qwelane n 23 para 74; Khumalo & Ors v Holomisa 2002 (5) SA 401 (CC) para 25.

15

to it, which includes the freedom to receive or impart information or ideas , it
also provides that it does not extend to the propagation of propaganda for war,
the incitement of imminent violence, or the advocacy of hatred based on race,
ethnicity, gender or religion, which constitutes an incitement to cause harm. 59
Consequently, hate speech is the antithesis of the constitutional values that
have been outlined: whereas freedom of speech and expression serve to
advance democracy, hate speech is destructive of it. 60 As was noted by the
Canadian Supreme Court in Whatcott, 61 whilst political speech or expression
contributes to democracy by encouraging the exchange of opposing views, hate
speech shuts down dialogue by making it difficult or even impossible for
members of a targeted group to respond, thereby stifling discourse, and history
has shown that som e of the most damaging hate rhetoric was sought to be
justified on the basis that it constituted ‘moral, political or public policy’
discourse. Consequently, the fact that a speech or expression is political in
nature does not immunize it.
(iii) Hate speech: a conceptual definition and principles of interpretation
39. What then, constitutes hate speech and how is it to be determined? Given the
wide latitude afforded to freedom of expression our highest courts62 have
endorsed the approach which has been followed in Canadian jurisprudence, as
set out in Taylor,63 Andrews64 and Keegstra,65 a trilogy of cases which were
decided by its Supreme Court in 1990, and endorsed in its later decision in 2013
in Whatcott,66 that it comprises speech which is not simply offensive, but which
expresses ‘extreme detestation and vilification’ and thereby risks provoking
violence or discriminatory activities against its target.67 As was elucidated in
Andrews, to promote hatred via hate speech is to instil ‘detestation, enmity, ill-
will and malevolence’ in others, and (as per Keegstra) it is ‘predicated on

will and malevolence’ in others, and (as per Keegstra) it is ‘predicated on

59 Sections 16(2)(a)-(c) of the Constitution.
60 Qwelane n 23 para 78.
61 Saskatchewan (Human Rights Commission) v Whatcott [2013] 1 SCR 467 paras 116-117.
62 Qwelane id paras 80-82 and 103; Afriforum 1 n 29 para 52.
63 Canada (Human Rights Commission) v Taylor [1990] 3 SCR at 892 at 928.
64 R v Andrews [1990] 3 SCR 870.
65 R v Keegstra (1990) 3 CRR (2d) 193 (SCC); [1990] 3 SCR 697.
66 Note 61 p 471, where it was held that hate speech excludes expression which although ‘repugnant and
offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing
discrimination or other harmful effects’ .
67 Qwelane n 23 para 81.

16

destruction’ and ‘thrives on insensitivity and bigotry’.68 As such, it is speech that
goes beyond merely ‘discrediting, humiliating or offending’ its victims.69
40. As is apparent, there are two requirements that need to be met, in terms of
s 10 of the Act, for speech to be classified as hate speech by our courts: it must
be ‘based’ on one or more of the prohibited grounds of discrimination, as set
out in s 1 of the Act, and it must contain an expression which ‘could reasonably
be construed to demonstrate a clea r intention to be harmful’ or to incite harm,
and to promote or propagate hatred. The CC confirmed, in Qwelane,70 that the
second requirement postulates an objective, reasonable person test, not a
subjective one which is based on an interpretation of the expression as
advanced by either the speaker/author, or the target. If the test were to be the
subjective perception of the latter it would be too wide and would unduly
encroach on the right to freedom of expression , and encourage claims based
on trivial actions by hypersensitive persons . Conversely, if it w ere to be the
subjective perception of the former, the threshold for civil liability would be set
too high.71 And given the requirement in relation to demonstration of the likely
incitement of harm and the propagation of hatred , it is the effect of the
expression and not the intention of the speaker/author that is to be
determined.72 To this end, as the test is an objective one the court is required
to consider the facts and circumstances surrounding the expression, which give
context to it, and not merely the expression on its own and inferences and
assumptions made by the target.73
41. The question the court must answer is whether a reasonable person hearing or
reading the words used could, not would, conclude that they demonstrate i.e.
show that the speaker/author had a clear intention to bring about the prohibited
consequences of likely harm and the propagation of hatred. 74 In order to

consequences of likely harm and the propagation of hatred. 74 In order to
succeed there is no need for the applicant to show that actual harm ensued
pursuant to the utterance, for likely harm (or as it was put in Whatcott 75 – a

68 Keegstra n 64, cited in Afriforum 1 n 29 para 52.
69 Whatcott n 61 para 41.
70 Note 23 para 96.
71 Id para 99.
72 Id para 97, referring to SAHRC v Khumalo 2019 (1) SA 287 (GJ) para 89.
73 Id para 96.
74 Id.
75 Note 61 paras 132-135

17

reasonable apprehension of harm ensuing) will suffice, and there is no need to
prove a causal link between the expression/utterance and any harm that befell
the target.76 Furthermore, the harm does not have to be physical and includes
its emotional and psychological manifestations, and can extend beyond the
target thereof to harm which may be done to the ‘society at large’. 77 This
includes harm to ‘social cohesion’ which can ‘undermine our nation -building
project’ 78 and incitements to discrimination and the fostering of hatred against
persons or groups.79
42. Ultimately, the criterion is what meaning the person’ of ‘ordinary’(Qwelane80) or
‘reasonable’ (Afriforum 2 81) intelligence, would attribute to the words used in
their context. Such a person would have regard not only for what is expressly
stated in the expression or statement but also for what is implied thereby. This
would include the meaning and ideas i.e. the message behind the words used,
which is imparted by them.82 Having regard for the need to consider the words
used in their proper context, this has result ed in them not always being given
their plain, literal or ordinary grammatical meaning, in hate speech cases.83 As
for context, it includes the identity and status of the speaker and the audience
and the circumstances in which the speech or expression was uttered. 84
43. Determining the meaning of the words used is a function which falls within the
exclusive aegis of a court , as it resorts within its expertise, competency and
responsibility.85 However, insofar as the meaning to be afforded the words used

76 Qwelane n 23 para 109; Afriforum 2 n 38 para 62.
77 Qwelane para 154, following the Canadian jurisprudence (vide Whatcott n 61 paras 132-135, which
referred to ‘societal’ harm) and SAHRC v Khumalo 2019 (1) SA 289 (GJ) paras 95-97.
78 Qwelane, Id.

78 Qwelane, Id.
79 Id para 107; Afriforum 2 n 38 para 62.
80 Id para 97, with reference to Le Roux & Ors v Dey (Freedom of Expression Institute) 2011 (3) SA 274 (CC)
para 89.
81 Note 38 para 61.
82 Qwelane paras 113-115; Afriforum 1 n 29 paras 37-38.
83 SAHRC obo SA Jewish Board of Deputies v Masuku & Ano 2022 (4) SA 1 (CC) para 154; Afriforum 2 n 38
para 92. Vide the meaning which was given to the ‘Dubula ibhunu’ (‘Kill the Boer’) protest song and
associated gestures in Afriforum 2 (paras 92 and 98-99), where it was held not to be a literal call for white
farmers of Afrikaner descent to be shot; Gordhan v Malema 2020 (1) SA 587 (GJ) paras 15-16 where the
reference to the former Minister of Finance as a ‘dog of white monopoly capital’ who was to be beaten,
was considered to be metaphorical, and not advocating actual violence to be done to him, and Hotz n 57
para 69 where it was held that ‘whatever’ the phrase ‘F ..k White People’ (which was written on a T-shirt),
was intended to mean, it was nothing more than a crudely worded slogan which indicated that the writer
‘disliked ‘or ‘rejected’ white people (sic).
84 Qwelane para 176.
85 Masuku n 83 paras 143-144.

18

depends on the context in which they were uttered, evidence that ‘shines a light’
thereon, including expert evidence, may be admitted if it assists the court with
such an exercise.86
An evaluation
(i) The expert evidence
44. In her evidence Dr Van Der Berg confirmed the contents of her expert report.
What follows is an attempt to set out a summary of the salient features thereof
and her viva voce testimony.
45. She testified that, from a linguistic perspective , words used in expressions of
speech can have 3 different meanings : 1) Locution, which is the ir literal
meaning 2) Illocution, which refers to their intended i.e. ‘speaker/author’
meaning and 3) Perlocution, which is their understood i.e. recipient meaning.
46. Given her understanding of the treatment of hate speech in SA law, as she
understood it her linguistic analysis required a consideration of the words
uttered in their context, the linguistic and ‘social’ intention of the utterance, and
the impact or likely effect of it on the target/members of society. Linguistic intent,
as in the case of the legal notion of intent, is a technical con cept which refers
to the purpos ive communication of a n expression and the result it aims to
achieve.
47. To conduct her analysis she had regard for the whole of the 1 st respondent’s
speech, which she transcribed from the full video text to word format, and from
there to plain text format, so that it was compatible with the software packages
she used.
48. She considered both the semantics and pragmatics of the language used in the
speech. Semantics are concerned with the language and grammatical
structures used and reflect the speaker’s tone and message . Pragmatics
consider how the words and structures are used from a functional perspective.
49. She made use of different, accepted linguistic principles and tests or techniques
including Systemic Functional Linguistics (SFL), Speech Act Theory (SAT) and

including Systemic Functional Linguistics (SFL), Speech Act Theory (SAT) and
Co-operative Maximums. SFL analyses the language used and the functions it
serves, in the context of field, mode an d tenor, which provides an insight into
the purpose of the communication, the audience and the social dynamics .

86 Id paras 144-145; Afriforum 2 n 38 para 97.

19

‘Field’ relates to the terrain in which the speech resorts, ‘mode’ to its form i.e.
whether it is written or spoken and ‘tenor’ to its tone in relation to the audience.
50. SAT examines how the speaker used language to perform various ‘speech acts’
such as making assertions, giving commands, asking questions, making
promises etc. It explores the relationship between the speaker’s intention, the
form of the utterance, and the intended effect on the listener. ‘Co-operative
maxims’ pertain to the expression’s quality (truthfulness) quantity (sufficiency),
‘relation’ (relevancy) and manner (clarity).
51. From the application of these principles and tests/techniques she arrived at the
following findings and conclusions. The speech fell within the field of political
activism and aimed to challenge the audience and to inspire action on its part.
In this regard the 1 st respondent criticised EFF members and leaders for their
failure to attract unemployed individuals and to gain power in the Western Cape
and questioned the organisation’s ability to create jobs and address land
ownership patterns. The speech also focused on the organisation’s response
to racism and violence. The 1 st respondent criticised the organisation for not
addressing instances of violence by white males and emphasised the need for
a strong response and commitment to confronting racism. He emphasised the
importance of standing up to white supremacy and suggested that violence was
necessary to end racism. As far as its tenor was concerned the speech was
confrontational and provocative. It aimed to incite the audience to act and to
bring about change, in response to its content.
52. In delivering his speech the 1st respondent adopted a formal register and spoke
authoritatively, in language that was clear and easily understandable, which
increased the likelihood that his address would be clearly understood and would
elicit the required response.

elicit the required response.
53. The speech was not metaphorical in nature, nor was it nuanced, but phrased in
direct, clear and strong terms. Hence the 1st respondent’s use of the modal verb
‘must ’in his statement that members of the EFF ‘must never be afraid to kill
because killing is part of a revolutionary act’. Read in its context, this served as
an instruction which members were to carry out i.e. to kill, in furtherance of the
‘revolution’. The 1st respondent was asserting that a revolution require d killing
and revolutionary change could only be brought about if killing took place.
Although the object of this killing was not expressly identified, read in the light

20

of the earlier co -text, it was (at least) intended to refer to the ‘white man’ who
was visible ‘on camera’ i.e. in the video. In this regard, a few sentences earlier
in the text, 1st respondent gave his followers an instruction to ‘follow up’ on the
‘white man’ who was identifiable on the video and to take him to an ‘isolated
space’ and ‘attend’ to him ‘properly’. The action intended i.e . the ‘follow up’
clearly did not envisage a legal action being taken but one of violence.
54. In numerous instances the text of the speech incited the infliction of violence
and death. The persons on whom this was to be inflicted were white men, who
were referred to as ‘racists’. From the number of repeated references to the
men/man being white, it was apparent that the 1st respondent was emphasising
their race, and that he associated this with them being racist.
55. In addition to conducting a macro analysis Dr Van Der Berg also conducted a
micro-linguistic analysis of the 1 st respondent’s speech, which supported her
findings. From this she was able to identify the 40 most used words in the
speech. Included amongst these were ‘us’, ‘them’, ‘racism’ and the adjective
‘white’, in relation to people i.e. men and women. A consideration of the location
and use of these words, and associated terms and emotive language
surrounding them in the speech, ind icated or suggested strong stances and
extreme positions in relation to the topics discussed.
56. In concluding, Dr Van Der Berg expressed the view that the average reasonable
listener would interpret the statements which had been made by the 1 st
respondent in the offending portion of his speech as a deliberate incitement to
violence towards white males, who were racists.
57. Inasmuch as Dr Van Der Berg’s analysis was concerned with a linguistic
interpretation of the language of the offending statements in the context of 1st
respondent’s speech, and was one undertaken on the basis of interpretative

respondent’s speech, and was one undertaken on the basis of interpretative
principles which are analogous in certain respects to those which a court is
enjoined to follow, I found her evidence to be illuminating and of some
assistance. The same , unfortunately, cannot be said for the evidence of Prof
Friedman, who I found to be a n unsatisfactory witness, an assessment with
which the respondent’s counsel agreed, during argument. In this regard it may
be useful to set out some general remarks in substantiation, before proceeding
to illustrate these by way of examples drawn from his testimony.

21

58. As a political scientist Prof Friedman’s principal area of expertise is the study of
the political theory of democracy, a topic on which he has published several
academic articles and book. However, despite being a political scientist, save
for a reference in a single paragraph of his report to ‘black consciousness’ (a
philosophy espoused in this country by Steve Biko, which he said seeks to instil
a sense of pride in black people and to motivate them to free themselves from
domination), an explanation of t he term ‘whiteness’ (a condition pertain ing to
the belief and behaviour that whites are superior to others) and a trite note that
SA has a history of racial oppression, division and inequality which did not end
with the adoption of the Constitution in 1994, in his report and in his evidence
in chief he made no effort to provide an exposition of the political and ideological
context in which the 1 st respondent’s speech was made and was to be
adjudged. In this regard there was not even a reference to the central tenets of
the EFF’s political ideology and philosophy, based as it is on the Marxist-
Leninist and Fanonian schools of thought. Prof Friedman only referred to t he
political and social context which needed to be considered when this was raised
with him during cross-examination. It transpired, during cross-examination, that
he was not even aware of what the purpose of the ‘meeting’ (sic) was, at which
1st respondent delivered his speech and it seems that the opinion he provided
was based simply on a consideration of the text thereof. In his view the purpose
of the ‘meeting’ i.e. the occasion at which 1st respondent made his speech was
not relevant to the analysis he conducted of it. Thus, the political context in
which the speech was made was not considered.
59. Ironically, although he made no attempt in his report , or his evidence in chief,
to assist the court by providing it with the context he was qualified to provide ,

to assist the court by providing it with the context he was qualified to provide ,
he was wholly dismissive of the views and opinions of Dr Van Der Berg, which
he considered ‘entirely invalid’. When pressed to explain he said that it was akin
to someone claiming they had invented a mathematical formula which could tell
whether someone was racially prejudiced or not, which they elegantly set out
over several pages, but which could not be comprehended. When it was
pointed out that inasmuch as linguistics concerns the study of language and its
structures (including the use of grammar, syntax and phonetics ), an exercise
relevant to that which the court was to engage in to arrive at the proper meaning
to be afforded to the words that were used, he was still not willing to concede

22

the relevance thereof. In his view, the question of whether the text co nstituted
hate speech was a political and legal question and he failed to see how
linguistics could shed any light thereon. On being pressed further he said that
whilst it may have some value it could not provide the historical, political and
social context in which the speech was to be interpreted, which he was able to
do. In his view it was very important that those who were called to give expert
evidence restricted themselves to doing so on issues and aspects on which
they were qualified.
60. Notwithstanding this injunction , and although he often remarked that he was
not a lawyer or scholar of the law and was not qualified to do so, he repeatedly
made authoritative and definitive pronouncements as to what constituted hate
speech and that portions of the 1st respondent’s speech did not , a function
which the court was required to perform and not him. And he did so when, by
his own admission, he had no real knowledge of what the legal requirements of
hate speech in SA law are, or the test that needs to be met . In this regard he
seemingly did not even k now what the formal requirements of hate speech in
terms of s 10 of the Act are . Unlike Dr Van Der Berg he had not attempted to
consider the case law on the subject and did not even know what the objective
test, as it was applied in Masuku,87 a matter in which he gave evidence as an
expert on behalf of the Jewish Board of Deputies, entailed.
61. As will be apparent from what follows , some of his pronouncements were
predicated on incorrect understandings or assumptions that are not part of our
law pertaining to hate speech , and at times his evidence came across as
contrived, even disingenuous , and cynical. In this regard , his evidence was
premised on his understanding that speech or expression is only hate speech
if it is directed at a whole group and not when it is directed at an individual (who

if it is directed at a whole group and not when it is directed at an individual (who
is, or may be, a member of a group), and only when it is targeted at a person’s
‘identity’ or as he put it, ‘ who they are ’ (which he seemed to base on some
attributes such as race and gender but not others, such as one’s beliefs ), and
not when it is directed at ‘what they do’ i.e. their actions . He also was of the
view that unless the speech in question is based ‘purely’ (sic) on a person’s
race (being the ground in issue in this matter) , it could not qualify as hate

87 Note 83.

23

speech. When his understanding and application of these assumptions was
explored in evidence , by reference to certain hypothetical situations or
circumstances, his testimony became convoluted and inconsistent. Examples
of this will be set out in the paragraphs that follow.
62. On several occasions during his cross -examination he became evasive and
failed to answer questions that were put to him, or deflected them, and had to
be warned of the adverse consequences that could follow. After being apprised
of this he said that whatever the cost and whatever the consequences, he was
not prepared to be drawn into a situation in which he was asked to respond to
questions about issues which he had not been asked to testify about. That then
by way of general remarks.
63. Prof Friedman commenced his evidence by pointing out that the principle of
equality viz that all human beings are entitled to equal treatment and should not
be discriminated against on the basis of their race, gender or belief, was central
to democracy. Equally, the principle of free speech was cardinal to it. Because
it was impermissible to discriminate against people based on ‘who they are’ (as
pointed out he seemed to consider this to mean certain personal attributes or
characteristics such as a person’s race and gender), it was legitimate for
democratic societies to outlaw speech which targeted people and threatened
harm to them ‘purely’(sic) because of their ‘identity’, and therefore hate speech
legislation was ‘valid’ in democrac ies. However democratic principles also
required that this control over free speech should be limited as far as possible,
as there was a danger that it could be used to restrict or outlaw legitimate
political speech and expression, including speech which sought to oppose
discrimination and racial injustice, and it could be used to inhibit efforts to
achieve racial equality.
64. In his view, most of the 1st respondent’s speech was no more than an assertive

64. In his view, most of the 1st respondent’s speech was no more than an assertive
and vigorous way of opposing what 1 st respondent saw as racial domination
and white privilege, and did not express hatred, nor did it clearly incite harm, to
white people. None of the speech could be classified as hate speech.
65. In his speech 1st respondent had referred to ‘whiteness’ and ‘white supremacy’.
‘Whiteness’ is a term that is frequently used in scholarly discussions of racism
and refers not to the condition of being white but to beliefs and behaviours which
reflect the assumption that whites are superior to persons of colour. The 1 st

24

respondent identified with and referenced ‘black consciousness’ , a philosophy
espoused by Steve Biko and others in SA , which sought to instil a sense of
pride in black people and to motivate them to free themselves from domination.
The 1st respondent’s comments in relation to ‘whiteness’ and white supremacy
were not attacks on white people as a whole, or as a group . In this regard 1 st
respondent had said that every white person who did not own the means of
production ‘belonged’ to the EFF. Thus , he had said 90% of white people
belonged to the EFF, as only 10% of whites owned the means of production.
He also expressed support for white women and white ‘hobos’ who did not own
land. This was a clear indication that he considered the vast majority of whites
to be allies, not enemies. On this ground alone none of what the 1st respondent
had said could constitute hate speech, as it did not include all whites.
66. The only exception to this pattern in the speech was a reference to white people
who violently attacked blacks. He had taken his audience to task for not doing
anything about this and was explicit in his view that violence should be met with
violence. He was accordingly urging his listeners to respond violently if they
were the victims of violence. Although many people mig ht find this to be
unacceptable this did not constitute hate speech.
67. Likewise, i t was not hate speech to say that one racial group (whites) was
dominating another (blacks). Criticising racial domination required, of necessity,
the use of racial language to identify the groups involved. It only became hate
speech if the remedy suggested for the domination was ‘collective punishment’
of the group. In the same vein, it was not hate speech to say whites w ere still
privileged. It would only become hate speech if 1st respondent had, for example,
said that whites should ‘all’ be imprisoned because they were privileged , for
then he would be saying that the entire group should be punished.

then he would be saying that the entire group should be punished.
68. According to him, a ‘key feature’ of the law’s definition of hate speech was that
it targeted a person’s ‘identity’ and not their actions. Hostility to groups of people
prompted by what they do rather than what they say or ‘what they are’ was thus
not hate speech. So, if one were to say that white people who own factories are
‘exploiters’ this would not be hate speech as one is referring to a very specific
group, and if they want to be on the wrong side of the law they can remedy this
by ceasing to exploit people. If one were to say we must discriminate against
all whites because some own factories and exploit people , that would be hate

25

speech, because one is implicating all whites , simply because they happen to
be of a particular racial group, not only those who own factories. If one were to
say that one hates Jews as they are Zionists who have killed many people in
Gaza that would be hate speech. However, if one were to say that a particular
Zionist Jew should be taken round the corner and be ‘attended to’ , because
one hates Zionists for what they have done in Gaza , that would not be hate
speech. The rationale for distinguishing this from the previous example was that
one ‘chooses’ to be a Zionist (i.e. to believe in Zionism) and is not ‘born’ as one,
unlike a Jew, Muslim , or black or white person, and the Zionist in the second
example was being singled out for what he had done and not for ‘who he was’.
In like vein, If one were to say that one hates Christians, but not all Christians,
only Pentecostals, and a Pentecostal should be taken round the corner and
‘attended to’ that would be hate speech , but if one were to say if you find any
Pentecostal that stole my money they should be killed, that would not be, as
one was ‘concentrating’ on what the Pentecostals had done rathe r than their
religious identity. If one were to say that a white should be taken to an isolated
place and ‘attended to‘ because they stol e my money that would not be hate
speech, but if one were to say take their sister or ‘some other white’, that would
be. But it would be hate speech if you said someone was a bad person because
they were a Muslim and Muslims had destroyed the World Trade Centre.
69. Similarly, it is not hate speech to denounce the actions of some members of a
racial group, even if racial language is used to do this, if the purpose is to
oppose the behaviour and not the group. Thus, to say that white people who
behave in a particular manner or way should face certain consequences is not
hate speech as long as one did not implicate everybody, or anybody , simply

hate speech as long as one did not implicate everybody, or anybody , simply
because they were a member of that group. To express the view that whites
who mistreat blacks should be punished is not hate speech as it does not target
an entire group but only those who engage in certain types of behaviour, and
they could ensure that no harm was done to them by simply refraining from
continuing with their actions.
70. Thus, 1st respondent’s urging of his followers to respond violently to whites who
violently attack them did not constitute hate speech , as it was not directed at
white people as a group. It was directed at ‘very few’ white people and in any
event those who were doing so could just ‘stop beating up black people’ and

26

the ‘problem would go away’(sic). The 1st respondent’s comments were clearly
directed at people’s actions rather than their membership of a racial group. By
targeting whites who beat up EFF members he was therefore not guilty of hate
speech as he was targeting specific white people and not whites as a group.
71. Likewise, where comments are directed at a subset of a group as opposed to
the whole/ entire group they also cannot constitute hate speech. So, 1 st
respondent’s comments that they were in a war with white supremacists rather
than with white people as a group, could not possibly constitute hate speech. If
1st respondent was wanting to target white people as a group, he would not
have spoken about white supremacists but would have spoken about whites as
a whole, or generically.
72. As he understood the concept of hate speech it consist s of attempts to blame
all members of a group for the behaviour of some, and to urge that they all be
punished, as a group. In this case 1 st respondent had targeted a very specific
group of people and it was therefore ‘quite insulting’ to whites to claim that this
was hate speech directed at whites . It could only be hate speech if one was
implying that there were a large number of white people who were racists and
who beat up members of the EFF, which was clearly false , as 99.9% of white
people did not do such a thing.
73. Labelling 1st respondent’s statements as hate speech would suppress lawful
political expression and violate core democratic principles of the Constitution.
74. When pressed, during cross -examination, on his stance that one cannot be
guilty of hate speech when you target an individual, he contradicted his earlier
evidence by conceding that an individual could be the victim of hate speech,
but only if they were singled out as a member of a group.
75. He conceded that 1 st respondent’s statement that the white man who was
visible on the video should be taken to an isolated spot and ‘attended to

visible on the video should be taken to an isolated spot and ‘attended to
properly’, in the context of the surrounding remarks , was an unequivocal and
clear instruction that violence should be meted out to him . He agreed with Dr
Van Der Berg that there was nothing nuanced in the language 1 st respondent
used, which was clear and direct. He nonetheless maintained that whilst this
might be unacceptable and could constitute an incitement to commit a criminal
act, it was not hate speech , as it was directed at the white male because of
what he had done, and not because of ‘who he was’ i.e. a white, and was not

27

directed at all whites, but only him. The reference to the male’s race was crucial
because he beat up members of the EFF as he was a racist i.e. he believed he
was superior to blacks.
(ii) The ideological, political and contextual context
76. The meaning to be afforded to the offending portion of the 1 st respondent’s
speech must be derived at by considering the text in its political, ideological and
textual context.
77. As to the ideological and political context the following. According to its
constitution the 2nd respondent is a political party which styles itself as a radical,
left, anti -capitalist and anti -imperialist movement with an internationalist
outlook, which subscribes to the ‘Marxist-Leninist and Fanonian schools of
thought’ in its analysis of the SA state and class and race contradictions in its
society. In its manifesto it says it provides a cogent alternative to the post -
colonial economic system, which perpetuates colonial domination and
suppression.
78. As far as Marxist-Leninist ideology is concerned, it is trite that it is based on the
theories propounded by Karl Marx (a German philosopher best known for his
works The Communist Manifesto and Das Kapital in which he analysed and
critiqued the political economy of capitalism) and Vladimir Lenin (the leader of
the Bolsheviks in the Russian revolution which overthrew the Tsarist
government in 1917, and first head of Soviet Russia), which postulates a
revolution whereby the working class (‘the proletariat’) overthrows the capitalist
state and substitutes it with a one party ‘communist’ state, which controls the
means of production and the economy.
79. As far as Fanonism is concerned, it refers to the philosophy and works of Frantz
Fanon, a West Indian /Algerian psychiatrist who wrote several works on
colonialism and its connection with racism, which analysed the dehumanising
effects caused by the physical and psychological violence meted out on

effects caused by the physical and psychological violence meted out on
colonised populations by their colonisers. In his writings Fanon advocated a
revolutionary approach to decolonisation, to achieve political and psychological
liberation. As pointed out by the respondent s, in The Wretched of the Earth
(which was published in 1961 shortly before his death ), Fanon defended the
right of a colonised p eople to use violence to achieve freedom and
independence, arguing that persons who are not treated as, and considered to

28

be, human beings by their colonisers, are not bound by principles that ordinarily
apply. Thus, in the opening chapter of the work (titled ‘Concerning Violence’) he
contended that, as violence is a fundamental element of colonisation which is
visited upon the colonised as part of colonial oppression, it is necessary and
legitimate to use it, in return, to overthrow the colonial state.
80. In section 3 of the 2nd respondent’s constitution (as amended in 2024), which is
headed ‘ The Character of the EFF’ , it says that its basic program is ‘the
complete overthrow of the neo -liberal, anti-black state as well as the
bourgeoisie and all other exploiting classes, the establishment of the
dictatorship of the people in place of the dictatorship of the bourgeoisie, and the
triumph of socialism over capitalism’ , as a vanguard mass organization which
is to lead the ‘revolutionary masses against the capit alist class enemy’, and in
section 4 it declares that its aims and objectives are to capture political and
state power ‘through whatever revolutionary means necessary’.
81. As its President and Commander -in-Chief, 1st respondent is the political head
of the party and leader of all its activities, which he may ‘orientate and direct’,
and is empowered to make pronouncements for and on its behalf.
82. The 2nd respondent’s constitution provides for various organizational structures
and assemblies, including a provincial People’s Assembly, which is to be held
once every 4 years in every province in which it has members. The purpose of
the Assembly is to receive a political report from its chairperson, an
organizational report from its secretary, and a financial report from its treasurer,
and to adopt a programme of action for the next 4 years, and the necessary
resolutions to give effect thereto.
(iii) The textual context
83. At the commencement of his speech 1 st respondent noted that those in
attendance had come to the assembly to seek alternative solutions to the

attendance had come to the assembly to seek alternative solutions to the
economic crises that were facing the people of the Western Cape and South
Africa, which was struggling with land dispossession which had started in 1652.
They h ad come to discuss what peaceful constitutional processes could be
used to reclaim the land which had been stolen from the Khoi, San and African
people. They also sought solutions to the poverty in which they w ere living, in
a province where the richest of the rich were living next to the poorest of the
poor, and the lack of employment, schooling and proper housing.

29

84. He noted that when one travelled from the airport one found people living ‘like
sardines’ in shacks, in ‘dumping areas’ and squatter camps, whilst the racists
lived on the other side of the road, and one need not have recourse to literature
to experience racism, one could simply come to the Cape Metro. This was the
consequence of colonial and apartheid spatial planning which had directed that
blacks should not live in cities and towns, which were reserved for the whites.
Whilst people were living like ‘animals’ in the Western Cape, they were told that
it was the best run province under the DA. This was true for the whites, but not
for the majority who lived in the province.
85. He spoke of the high crime rate in a province where hundreds of mass shooting
cases were reported to the police, of which 90% involve d black people. He
contended that only the EFF could offer a solution to the crime that affected
people on the Cape Flats, Nyanga, Phillippi and elsewhere.
86. He enquired what needed to be done to w in the coloured vote and s aid they
wanted people to live amongst them who appreciated th eir challenges and
worked to find solutions for them, not persons who would be co -opted by
gangsters and drug dealers. That was why the DA was unable to deal with the
problem of gangsters and criminality, because its councillors were financed by
drug dealers and gangsters. Black people living in the Western Cape were
referred to as immigrants, by Helen Zille and others who had no regard for black
lives and wanted the Western Cape to become an independent country, so that
it could be an exclusive area for white people.
87. He noted that despite the conditions in which people lived the EFF was unable
to attract the vote of the landless and queried whether this was because the
leadership of the EFF in the Western Cape was lazy. He queried why, with such
high unemployment and a government that did not have a plan to create jobs

high unemployment and a government that did not have a plan to create jobs
or to change the pattern s of land ownership, the organisation was not able to
attract people to join it, when it had a clear program for creating jobs.
88. He said that the land occupation programme which was being followed was one
that mimicked the spatial planning of the colonial and apartheid state in that it
sought land that was outside of the metros. He queried whether there had been
any attempt to occupy land in prime areas, or whether it was only land that was
‘rotten’ and which washed away when it rained , and on which there w ere no
basic services, which was occupied, which did not bother the white minority. He

30

called for the occupation of land in white suburbs or areas next to them,
because if people moved in there, basic services and proper housing would be
provided as ‘whiteness’ would be threatened.
89. He asked why an ‘organisation of Fran tz Fanon’, which prided itself on black
consciousness and which existed amongst racists and white supremacy, was
not able to attract victims of racism, and whether it had sought to help them and
to confront racism in the Western Cape. Then followed the offending portion of
the speech, which is set out verbatim above, to which I will revert.
90. Thereafter his speech continued with him asking how the organisation could
move from winning only 3% of the provincial vote to 51% thereof, without going
into coalitions with the ANC or DA white racists. He said that anyone who did
not own the means of production, monopoly industries, banks, and insurance
and finance companies, and white women who were excluded by their white
Afrikaner husbands (who had no regard for them and beat them every Friday
and then made them ‘cancel’ their criminal cases on the Mon day), and white
‘hobos’ who did not own land, which included 90% of whites, ‘ belonged’ to the
organisation and should be recruited to join it.
(iv) The offending portion and its meaning
91. I now turn to deal with the offending portion of the speech , which must be
construed in the political, ideological and textual context referred to. It is
noticeably incongruous with the rest of the speech.
92. It was not concerned with an analysis of the state of the 2nd respondent as an
organisation in the Western Cape and its political aims and objectives, or how
it could be grown to attract a larger share of the vote , or the abject living
conditions of people in the province.
93. It was concerned with avenging a past wrong which had been done to members
of the party 2 years earlier, which 1st respondent described as an act of racist

of the party 2 years earlier, which 1st respondent described as an act of racist
violence and which therefore (in terms of the Fanonian/Marxist-Leninist
ideology to which the respondents subscribed), required that it be met with the
infliction of violence in return.
94. It commenced with a reminder that the incident was one where members of the
organisation were beaten by ‘white people’ and nothing had been done to exact
retribution for this. It pointed out that there was a ‘white man’ visible on a video
of the event, who had not been ‘followed up on’ by being taken to an ‘isolated

31

space’ to be ‘attended to properly’. Those listening were de rided for calling
themselves revolutionaries, as they had allowed themselves to be beaten by ‘a
white man’ who they had never ‘followed up (on) - ‘or the same white man that
had beaten them up’ (sic). The 1st respondent was thus indicating that the white
men who had beaten EFF members in the assault should be the object of the
retribution.
95. The listeners were then told that they should never be scared to kill as they
were engaged in a revolution, and a revolution demanded that at some point
there should be killing, because killing was part of the act of revolution. The
reference to killing was clearly a reference to those who had beaten them up.
Thus, those listening to the speech were told who the targets of the retribution
which was to be exacted were, how they were to be identified, and what form
the retribution should take i.e. that they should be killed.
96. They were reassured by being reminded that at some point Nelson Mandela (a
revered national leader ), had taken up a gun ‘because the revolution had
reached the point where there was no longer an alternative but to kill ’. They
were told not to be scared to kill and that anything which stood in the way of the
revolution was to be ‘eliminated’. Thus, they were being told that now was the
time for killing. They were reassured that they were not being asked to do
anything which the speaker, their leader, had not done, when he had reacted to
a racist act at the funeral of Winnie Madikizela -Mandela, the former wife of Mr
Mandela.
97. They were reminded that the organisation’s founding manifesto proclaimed that
it will take power ‘by all means necessary ’ and therefore, when confronted by
‘such a situation’ members should never think twice, ‘as cowards are not for the
revolution’. It should ‘be known’ that the organisation was not a ‘playground’ for
racists and that if any racist ‘plays’ next to it and ‘threatens and beats up its

racists and that if any racist ‘plays’ next to it and ‘threatens and beats up its
membership and leadership’, this would constitute ‘an application to meet your
maker with immediate effect ’. The message that was being conveyed in this
passage, in the context of what preceded it, was that when members of the
organization were confronted by an act of racist violence in the future, they were
to respond to it with the ultimate response: the killing of those responsible.
98. They were adjured, again, to ‘follow up’ on ‘the racist’ who had beaten them, as
racism was violence and violence could only be ended by violence, not any
-

32

other ‘necessary means’: a racist was a violent person and should therefore be
treated as such. Once again, they were clearly being told that violent retribution
should be exacted for what had been done to them. This was no figure of
speech but a clear instruction.
99. The offending portion end ed with a declaration that the organisation was in a
(metaphorical) ‘war’ between white supremacy and black consciousness and
when a white supremacist raised their ‘ugly head’ members ought to stand up
and say that this would not be tolerated, as they would not accept dominance
by the white race over the black race, and the Western Cape should be at the
centre of the confrontation of white supremacy , as racism was rife in the
province.
100. To argue, as Prof Friedman does, that as the offending portion of the speech
targeted persons for what they had allegedly done in the past or might do in the
future, as opposed to ‘who they were’, it therefore could not be hate speech, is
facile. To enlist the support of a mob and incite it to commit acts of violence ,
victims of hate speech are routinely accused of all manner of repugnant
behaviour by those who vilify them. One only needs to recall what Jews,
Muslims and Tutsis were accused of doing, so that hatred and genocide could
be fomented against them.
101. In addition, accusations that victims of hate speech have engaged in behaviour
which is repulsive or repugnant, are often used as a smokescreen to mask that
what they are actually being targeted for , is some attribute , which, as Prof
Friedman puts it , goes to ‘who they are’ , such as their race, gender, religion,
beliefs, or sexual orientation . This was the case in Whatcott 88 where the
respondent had expressed virulent disapproval of homosexual conduct, in
flyers which he distributed, in which he advocated that it should be kept out of
public schools and universities, as homosexuals were sodomites, paedophiles

public schools and universities, as homosexuals were sodomites, paedophiles
and ‘filthy, dirty, sex addicts ’. In answer to a complaint that his statements
constituted hate speech he claimed that he was not targeting sexual orientation
(which is also a prohibited ground of discrimination in Canada) , but sexual
conduct. The Supreme Court of Canada rejected this argument. It noted that
his speech was directed only at homosexuals who engaged in certain sexual

88 Whatcott n 61.

33

acts, and not at heterosexuals who engaged in them.89 Thus, the claim by the
Saskatchewan Human Rights Commission that the object of the speech was
the sexual orientation of the target group , was upheld, and Mr Whatcott was
found guilty of hate speech. In my view, the same attempt to mask the target of
the speech holds true in this matter.
102. In his opening remarks in the offending portion of his speech 1 st respondent
pointed out that members of the 2nd respondent were beaten by ‘white people’
and asked them what they done to ‘follow up’ on the ‘white man/white guy’ who
was visible on the video. He remonstrated with his audience for not having
attended to the ‘white man’ and asked why they had not taken him to an isolated
space and attended to him. The 1st respondent’s first, and continued reference
to those who were responsible for this act, which was to be avenged, was to
white persons.
103. As is evident from the account which was set out of what can be seen on the
video, the assault on members of the EFF was not one perpetrated only by
whites, and people of colour also participated therein. And not only males were
present. Yet, those who were identified as being responsible for it and who were
singled out were not people of colour, but only those who were white and male,
and the targets of the violence that was to be meted out, as a ‘follow-up’, were
males who were selected on the basis of their race. In terms of the accusation
which was levelled in the speech it could not be otherwise, for the target was
referred to as a racist because of the assault which had been perpetrated. One
would not expect a black man who had part icipated in the assault of a fellow
black, to be labelled a racist who was guilty of an act of racist violence . The
designation of the ‘white man’ as a racist followed on the nature of the attack
and how it manifested and was perceived, as is apparent from the evidence
which was elicited from Mr Ntakana in relation to how the 2 nd complainant

which was elicited from Mr Ntakana in relation to how the 2 nd complainant
behaved and what he said, by referring to members of the EFF group in racially
derogatory terms and querying what they were doing in the area , and telling
them that they should go back to the townships.
104. As for Prof Friedman’s contention that what was said was not hate speech as
it was not based ‘purely’ on the race of the persons who were targeted , the

89 Id paras 122-123, 176.

34

following. The ordinary, dictionary meaning of the requirement that the words
must be ‘based on’ a prohibited ground means that they must be ‘founded’ ,
‘grounded’ or ‘focused’ on it i.e. that it constitutes the basis or foundation for
what was said, as is the case in this matter. The primary basis for singling out
targets for retribution were that they were white and male. Both race and gender
are prohibited grounds in terms of the Act.
105. As to the contention that because 1st respondent referred to ‘a white man’ in the
singular and not to white people as a whole or group , and his comments
therefore did not meet the requirement s of hate speech, it is evident that Prof
Friedman has misunderstood not only what the formal requirements of hate
speech are in our law, but also what its essential nature and ambit entail.
106. Section 10(1) of the Act stipulates that no person may publish, propagate,
advocate or communicate words based on one or more of the prohibited
grounds, against ‘any person’ , and does not require that it be against ‘ any
‘group’. In his opening remarks in Qwelane 90 Majiedt J noted, as was said in
Whatcott, that hate speech subverts the dignity and self-worth of human beings
because it marginalises and delegitimizes individuals, based on their
membership of a group, thereby diminishing their social standing in the broader
society, which can ‘ignite’ exclusion, hostility, discrimination and violence. Thus,
hate speech may clearly have as its target, individuals, as opposed to the group
to which they belong or with whom they identify. Hate speech is commonly
directed at specifi ed persons because of their membership of a group, rather
than directly at the group, but to say that if it is directed at them and not at the
group to which they belong, as a whole , the speech vilifying them cannot be
hate speech, is plainly wrong. As is evident even from a cursory examination of
the prohibited grounds on which hate speech may not be based, as set out in s

the prohibited grounds on which hate speech may not be based, as set out in s
1 of the Act, many of them refer to attributes, characteristics, or conditions which
are personal to an individual (e.g. pregnancy, age and disability) as opposed to
those which may attach to a group (e.g. race, ethnic origin, gender and sexual
orientation).

90 Note 23 para 1.

35

107. As was pointed out in Qwelane 91 there is often a complex relationship between
these grounds , which relate to ‘immutable biological attributes or
characteristics’, the ‘associational life’ of human beings, or the ‘intellectual,
expressive and religious dimensions of humanity’, and some cases may feature
a combination of one or more of these features. Thus, whilst it is so that, as was
noted in Qwelane, 92 hate speech prohibitions are aimed at the negative impact
which is caused by it on groups and the greater societal harm , as opposed to
the specific impact it may have on a single individual , it may be directed at
individuals but have an impact which extends beyond them , to the group to
which they belong, or to the broader society.
108. There is in any event the further aspect that, from a careful reading of what was
said (to which I previously alluded ), in the context of the pleadings and the
evidence the attack which the 1st respondent launched in the offending portion
of his speech was not in fact directed at a single, specific white man, which was
assumed to be the 2nd complainant, and therefore at only a single individual.
109. It is so that, in his speech, 1st respondent referred to ‘a white man/guy’ who was
‘visible’ on the ‘camera’ i.e. video, who had beaten EFF members , on whom
retribution was to be visited. But a little further on he spoke of revolutionaries
who were beaten by ‘ a white man’ that they had never followed up on ‘ or the
same white man’ (sic) who had beaten them up. This was clearly a reference
to the white men (plural) who had beaten up members. It seems to me wholly
implausible and improbable, if not ludicrous, that revenge was only to be
exacted on a single white man who had assaulted members of the EFF in a
racist attack, and not the others. In this regard, a s is apparent from the video
footage of the incident several white men participated in the assault.
110. In his founding affidavit 2 nd complainant alleged that he was the person who

110. In his founding affidavit 2 nd complainant alleged that he was the person who
was being referred to by 1st respondent in his speech as ‘the white man/guy’,
an averment seemingly based on the fact that, in response to the speech, he
was singled out by EFF members and supporters and threatened on social
media. However, it is notable that in their answering affidavits the respondents
did not deal with this averment and did not pertinently admit or deny it. In

91 Id para 132.
92 Paras 121-122.

36

paragraph 6 of his answering affidavit 1st respondent stated that anything which
he did not specifically traverse should not be taken as admitted, and his position
in relation thereto should be ‘deciphered’ from the response he gave to the
averments in the founding affidavit. In this regard, his only reference to the 2nd
complainant was in paragraph 46 of his answering affidavit, where he said that
together with a ‘grouping’ that was seemingly affiliated to him, he had advanced
on and assaulted EFF members and was on trial for this. For purposes of
‘identification’ (for the video no doubt) he was wearing a grey and black T-shirt
and black pants, the clothing which 2 nd complainant can be seen wearing on
the video. In keeping with this non-admission that the 2nd complainant was the
person referred to by 1st respondent in his speech, this was expressly contested
by the respondents’ counsel when the 2nd complainant’s attorney, Ms Westley,
gave evidence in this regard. To put it simply, 1st respondent denied that the 2nd
complainant was t he person who he referred to as the ‘white man/guy’ in his
speech. Who then, was he referring to? It was never put to Ms Westley that the
‘white man/guy’ was a reference to any other white man who was visible on the
video.
111. As a result, it seems to me that, when referring to ‘a white man/guy’ who was
visible on the video who should be ‘followed up on’ or ‘the same white man’ that
had beaten members, 1st respondent was not referring to a specific white man
but to any , or all, of the white men who participated in the assault, and who
could be identified on the video. If this is correct, it means that the reference to
‘a white man’ was a reference to the group of white men who participated in the
assault.
112. Either way, it seems to me that even if the reference to ‘a white man’ was a
reference to a single person, he was selected because of his membership of a
group i.e. white people and he was targeted on the ground of his race, a ground

group i.e. white people and he was targeted on the ground of his race, a ground
prohibited by the Act. Furthermore, his identification as a ‘white’ man was not
racially neutral but, as was the case in Rustenburg Platinum Mines 93 (where
the speaker had referred to ‘the black man’ who occupied a parking space next
to his), was racially loaded, so that he could be identified as a racist who had
used violence, thereby justifying the use of violence in return on him.

93 Rustenburg Platinum Mines v SAEWA (obo Bester) & Ors 2018 (5) SA 78 (CC).

37

113. To call someone a racist in South Africa is, given our racially oppressive past ,
inevitably to invoke detestation, enmity, ill-will and malevolence against such a
person. Whilst calling out someone who behaves as a racist may be
acceptable, calling for them to be killed is not. And calling for someone to be
killed because they are a racist who has acted violently, is an act of vigilantism
and an incitement of the most extreme form of harm possible. It is not
acceptable in our society, which, in terms of the noble aims set out in the
Equality Act, is trying to heal from a racially oppressive and violent past and to
encourage and foster reconciliation, social cohesion and goodwill amongst all
races. When such a call emanates from the leader of the then 3 rd (now 4th)
largest political party in the country it has the potential to foment racial violence
on a large scale. There are several lawful options and remedies available in our
law, to deal with racists, including the remedies and procedures provided for in
the Equality Act and, if warranted, the criminal law.
114. As was pointed out in the Canadian cases, even if there is truth in an assertion
that a person has acted in a reprehensible (in casu racist) manner, (which
seemingly was the point of the evidence which was elicited from Mr Ntakana in
relation to the 2nd complainant), this cannot per se serve as a defence to a
complaint of hate speech. In Keegstra 94 Dixon CJ said he found it difficult to
accept that circumstances could exist where factually accurate statements
could be used for no other purpose than to stir up hatred against a racial or
religious group , and in endorsing this statement in Whatcott95 the Canadian
Supreme Court confirmed that to the extent that truthful statements are used in
a manner or context which exposes a vulnerable group to hatred, their use risks
invoking the same potential harmful effects that false statements can provoke ,

invoking the same potential harmful effects that false statements can provoke ,
and in not providing for a defence of truth the legislature has envisaged that
even truthful statements can be expressed in language which exposes a group
to hatred. Likewise, even a sincerely held belief as to the truth of what was said
does not constitute a defence.
Conclusion

94 Note 65 at 781.
95 Note 61 paras 137-138, 140-143.

38

115. In summary therefore the offending statements referred to in the 1st
respondent’s speech, as set out in the preceding discussion, constituted an
exhortation to kill white males who had participated in the incident of 9
November 2020 at the Brackenfell High School and to kill, or respond violently,
to any other persons who engaged in racist behaviour towards members of the
2nd respondent in the future. They were based on grounds prohibited by the Act
and constituted hate speech, contrary to the provisions of s 10, as they
demonstrated a clear intention to incite harm and to promote or propagate
hatred. A declaratory order to this effect must accordingly issue.
116. Insofar as the statements were made by the 1 st respondent as the President,
Commander-in-Chief and leader of the 2nd respondent, at an assembly that was
held by it, in his capacity as its political head and leader of all its activities and
in the exercise of his constitutional power to make pronouncements for and on
its behalf, and the 2nd respondent endorsed and supported these statements in
the media advisory which it issued and in these proceedings, it should be held
jointly liable for them.
117. Given that I have found in favour of the complainants in respect of the first and
main complaint of hate speech, it is not necessary, nor is it tenable, to make
any finding in respect of the alternative complaint of harassment. As regards
the submission that I should also find in their favour on the second complaint of
unfair discrimination, such a finding seems to me to be at odds, conceptually,
with the scheme and tenor of the Act and what is envisaged by it. In this regard
its foremost and principal aim , as is evident even from its titular heading, is to
prevent and prohibit unfair discrimination. I t seems to me that the Act could
hardly have intended that someone should be found to have unfairly
discriminated against another by calling them a racist, if their behaviour was

discriminated against another by calling them a racist, if their behaviour was
indeed racist or had racist features to it, which may have justified the statement.
However, in my view, given that what was said was combined with an incitement
to commit harm and violence and to propagate hatred, and my finding to this
effect on the first complaint, it is neither necessary nor would it be appropriate
for me to express any view on this, or to make a finding in respect of the second
complaint.
118. Finally, although counsel for the complainants acted pro bono they requested
that, if the applications were to be upheld, costs should be awarded. In my view,

39
given their efforts and the nature and complexity of the matter and its
importance, it is fair and appropriate that the comp lainants' counsel and
attorneys should be compensa ted for their services, and that the order should
include costs consequent upon the employment of two counsel for each of the
comp lainants.
119. In the result I make the follow ing order:
1. It is declared that statements in the speech w hich w as made by the 1 st
respondent at the occasion of the holding of the 3rd provincial People's
Assembly of the 2nd respondent in the Western Cape on 16 October 2022,
constituted hate speech, contrary to the provisions of s 10 of the Eq uality
Act 4 of 2000, in that they were based on grounds w hich are prohibited in
the Act and demo nstrated a clear intention to incite harm and to promote or
propagate hatred.
2. The respondents shall be liable, jointly and severally (the one paying the
other to be absolved), for the comp lainants' costs of suit, w hich costs shall
include the qualifying fees, travelling costs and costs of attendance of the
expert w itness Dr K Van Der Berg, and the costs of two counsel (w ith one
counsel on scale C and one on scale 8).
MSHER
Judge of the High Court
Appearances:
First com plainant's counsel: K Pillay SC , S Khoza and T Masv ikwa
First com plainant's attorneys: Norton Rose Fulbright (Cape Town )
Seco nd com plainant's counsel: A A lbertus SC and L Van Zyl
Seco nd com plainant's attorneys: Thom pson Wilks Inc (Cape Tow n)
Respondents' counsel: M Ka-Siboto, F Sa ngon i
Respondents' attorneys: Ian Levitt Attorneys (San dton)