Malema hearing: Far from the madding crowd

The disciplinary hearings of ANC Youth League president Julius Malema, four other office bearers and spokesperson Floyd Shivambu was under way in Kibler Park, south of Johannesburg, on Tuesday, ANC spokesperson Keith Khoza said.

It was hoped that final argument would be wrapped up for Malema, secretary-general Sindiso Magaqa, deputy-president Ronald Lamola, treasurer-general Pule Mabe, and deputy secretary-general Kenetswe Mosenogi—who have to defend themselves against an accusation that they “barged” into a meeting of the ANC leadership.

Shivambu and Magaqa would have separate hearings on separate matters, if time permitted. Malema would then have a separate hearing on Thursday, Friday and Saturday, Khoza said.

The youth league leaders face charges in terms of rule 25.5 (q) and rule 25.5(o) of the constitution of the ANC which deals with the ruling party’s expectation of discipline by members.

Khoza said the hearings had proceeded with no disruptions outside the Klipriviersberg Recreation Centre.

“It looks like it’s going well,” he said.

A South African Press Association photographer said mounted and metro police officers were on the scene and a small group of journalists had been allowed to wait in a nearby park.

On the opening day of the hearings at ANC headquarters in Sauer Street, Johannesburg, last week, Malema supporters threw stones, bricks and bottles in the streets of the CBD.

Rule 25.5 of the ANC constitution states: “Deliberately disrupting meetings and interfering with the orderly functioning of the organisation; and 25.5(o) is: “Prejudicing the integrity or repute of the organisation, its personnel or its operational capacity ...
by: impeding the activities of the organisation; creating division within its ranks or membership; doing any other act, which undermines its effectiveness as an organisation; or acting on behalf of or in collaboration with: counter-revolutionary forces; a political organisation or party other than an organisation or party in alliance with the ANC in a manner contrary to the aims, policies and objectives of the ANC; intelligence or the security services of other countries; or any person or group who seriously interferes with the work of the organisation or prevents it from fulfilling its mission and objectives.”

Hate speech ruling
On Monday, Malema was not present when the South Gauteng High Court in Johannesburg declared the words “dubul’ ibhunu” (shoot the boer) and “dubula amabhuna baya rapyha” (shoot the boers, they rape), which he sang at rallies, as hate speech after a complaint by minority rights lobby group AfriForum Youth.

The ANC said it would appeal the decision by Judge Colin Lamont to effectively ban the singing of the song.

The judge also ruled that all members of society should “refrain from singing and using the words”.

People who sing the song would be in contempt of court.

But the ANC, legal experts and proponents of freedom of speech have slammed the ruling that singing of song constitutes hate speech and say the appeal would go all the way to the Constitutional Court.

Unfazed, the chief executive of AfriForum, Kallie Kriel, told the Mail & Guardian: “We will oppose any appeal”.

“We have been successful against Malema—with costs—twice now, and think we will be successful a third time.”

Lamont ruled that singing of the song was “discriminatory and harmful” to the Afrikaner community and said on Monday “there was no justification for singing the words”.

Constitutional law expert Pierre de Vos told the M&G that while “Lamont made a reasonable ruling under the Equality Act”, the Equality Act itself was not constitutional when referring to hate speech.

“I have said for ages that the Act is unconstitutional,” said De Vos. “The Equality Act’s definition of hate speech is far broader than that in the Constitution.”

The Act’s definition of hate speech “includes saying something that could be construed by a reasonable person as hurtful against a particular group”, he added.

“If a religious group were to say that ‘homosexuals are going to hell’, then according to the Equality Act, the group would be committing hate speech because the comment would be construed by a reasonable person as hurtful to homosexual people”.

The Equality Act defines hate speech in this manner: “No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; or (c) promote or propagate hatred.”

Lamont ruled that the song was hateful, harmful and propagated harm against both Afrikaans people and farmers.

There is a “strong argument to be made that the Equality Act, when referring to hate speech, is unconstitutional”, agreed Rhodes Journalism Professor Jane Duncan, previously of the Freedom of Expression Institute.

Duncan said that hate speech, according to the Constitution, “had to advocate hatred based on race, ethnicity, gender and religion” and had to “incite listeners to cause harm”.

She added there was still a big debate in legal circles about what constitutes harm.

“Those who value freedom of speech want a narrow definition of harm as possible” she said. - Sapa and staff reporter

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