The Foundation disagrees.  In its view Malema’s statement constitutes a clear breach of section 16(2)(c) of the Constitution, which prohibits “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm”.  It also breaches section 10 of the Equality Act that prohibits language that could reasonably be construed to be ”hurtful; harmful; incite harm; promote hatred; or propagate hatred”.

In addition, the Foundation is deeply concerned that the SAHRC judgment did not give proper consideration to the hate speech criteria that have been laid down by the Committee on the Elimination of Racial Discrimination (CERD) which oversees the implementation of the International Convention on the Elimination of all Forms of Racial Discrimination. These include:

The Foundation is concerned that little consideration appears to have been given to these criteria:

The SAHRC, as the steward of human rights (among these equality) in South Africa, is setting a dangerous and worrying example that could escalate in the run-up to the general election May 2019. We detect a disturbing trend in the SAHRC’s findings, in the emergence of a relativity in determining what is hate speech for whom. It seems that a person’s supposed racial association with past privilege or oppression is a determinant of present rights, including the right to make statements that could be considered hate speech for some, but not for others. This is done by stretching the so called “context” far beyond its internationally acceptable scope. The SAHRC also calls itself the steward of social cohesion in the country. By making such findings, it is actually destroying social cohesion and is undermining confidence in its willingness to protect the human rights of all South Africans equally. Finally, the Foundation believes that the SAHRC should resign as the South African agent of the Committee on the Elimination of Racial Discrimination, as it is clearly not applying CERD’s hate speech criteria.

In a young democracy such as South Africa, freedom of expression should be strenuously defended, but hate speech as understood in terms of the Constitution – and by CERD – has the devasting potential to shred all attempts at reconciliation and social cohesion.  Hate speech should be counteracted swiftly, firmly and impartially – whether it emanates from black or white South Africans – by the SAHRC, the institution that the Constitution has established to protect the human rights of all South Africans.

Issued by the FW de Klerk Foundation
29 March 2019