By Lehlohonolo Lehana.
The South African Human Rights Commission (SAHRC) found that comments made by Economic Freedom Fighters leader Julius Malema, about not “calling for the slaughtering of white people, at least for now,” was not hate speech.
Lobby group AfriForum lodged a review application against the commission’s findings on comments made by Malema in 2016 in New Castle, KwaZulu-Natal.
Afriforum’s Ernst van Zyl said Johannesburg High Court Judge Roland Sutherland ruled in favour of their application to review and set aside the findings of the commission on Friday.
“This case manifests a bizarre example of confusion and, regrettably on the part of the SAHRC, ostensibly, a dollop of hubris,” Judge Sutherland said.
Working through the legislation that gives powers to the commission, including the Constitution and the South African Human Rights Commission Act, Judge Sutherland said there were two powers of action that the commission could take:
- It can conduct investigations to form an opinion of whether there is substance of an alleged violation of human rights.
- As the result of an investigation, if there is substance to the allegation, the commission can assist complainants to bring proceedings before a competent court.
Judge Sutherland said, it is plain that the SAHRC is not empowered or authorised to decide whether or not a violation of human rights has indeed occurred.
Van Zyl hailed the judgment as a double victory for AfriForum.
AfriForum filed court papers in 2019 to review the SAHRC’s decision that these utterances are not hate speech.
“This is a double victory for AfriForum over the SAHRC, as our position is that Malema committed clear hate speech in 2016 and that the SAHRC does not have binding powers. Both have now been confirmed by the court,” said Van Zyl.
“There is a further success in this great victory, and that is that it also sets the precedent that findings made by the SAHRC may be challenged in court.”
Judge Sutherland said the court had no jurisdiction to decide the matter and that the answer was reserved for the Equality Court.