The equality court has cleared Economic Freedom Fighters leader Julius Malema of hate speech against Public Enterprises Minister Pravin Gordhan, saying Malema’s speech outside the Zondo commission in November 2018 targeted Gordhan as an individual — not on one of the grounds in the Equality Act.
The minister took the EFF’s commander-in-chief to court after Malema told a crowd that the EFF’s attack on Gordhan was an attack on white monopoly capital, adding that “we must hit the dog until the owner comes out”. He accused Gordhan of being part of a “cabal” that had destroyed liberation heroes Winnie Madikizela-Mandela and Peter Mokaba, adding that Gordhan had “removed all black excellence” from state owned enterprises as he “hates Africans”.
“Once you take a decision to go after Pravin, you must be ready …. There will be casualties. There can even be loss of life. If you are not ready for that, stand aside. I’m not scared. I’m ready. I’m prepared to confront them one by one,” Malema said to supporters outside the state capture commission.
Judge Roland Sutherland said Malema’s utterances were “clearly intended” to be hurtful and to promote hatred against Gordhan. But the attack was “personal in nature” and did not address Gordhan “as a member of a class or group of persons as categorised in the defined prohibited grounds” in the Equality Act.
He said by referring to “the cabal”, Malema was referring to allegations — well known to those supportive of the liberation struggle during the 1980s — of an Indian-dominated grouping in the liberation movement that stifled free and open debate and targeted African members. But this did “not allege that Indians are, by reason of their ethnic identity, racist nor is there a call to vilify Indians,” Sutherland said.
Similarly, Malema’s allegation of Gordhan’s links to “white monopoly capital” was also personal. “As obnoxious as such remarks about the applicant, if untrue, may be, they do not fall within the compass of the prohibited grounds.”
The references to “loss of life” and “casualties” were not a threat to Gordhan, the judge said.
“It is plain that the allusion to a loss of life is a mere example of an extravagant juvenile rant stretching hyperbole to the extreme in the course of a demonstrably demagogic speech. Its function was to proclaim the speaker as brave and steadfast in the face of any foe however mighty and that the space to stand at his right hand is reserved only for the sturdiest of fellows.”
Sutherland also gave reasons for his earlier order to allow a classified document into evidence. The 2014 report of the Inspector-General of Intelligence (IGI) — still classified “secret” — found that there was an unlawfully formed “rogue unit” at the South African Revenue Service during Gordhan’s tenure as finance minister. The report was annexed to the court papers, and Gordhan had sought to have it excluded.
The rogue unit allegations have been strenuously contested in a number of fora and are the subject of ongoing litigation between Gordhan and Public Protector Busisiwe Mkhwebane, who made a similar finding of her own on the unit. The IGI report was also relied upon by Mkhwebane — leading to State Security Minister Ayanda Dlodlo entering the fray wanting to strike out the IGI report in that case.
In his application before Sutherland, Gordhan’s team quoted Dlodlo’s court papers extensively. But Sutherland found that the Minister’s rationale for excluding the IGI report from the public domain was “wholly unfounded”.
Sutherland quoted extensively from a 2008 Constitutional Court judgment, which found that a court is not bound by the minister’s say-so or a document’s classification. Instead the court has to come to its own view, based on a number of factors, including that there are competing constitutional values at play: the principle of open justice versus the obligation on the state to pursue national security.
The IGI report did not name secret agents as claimed by the minister, the judge said. “The persons described are not secret operatives in the least.”
“Moreover, at the time the document was attached to [EFF deputy president Floyd] Shivambu’s affidavit, the document was already in the public domain and had been the subject of media reports. Any confidentiality claimed for the report is futile,” he said.
In ordering costs against Gordhan, Sutherland said that though the public enterprises minister’s grievances were understandable, he had not shown hate speech.
“The litigation is plainly a dimension of a political contestation. When politicians choose to utilize the courts to conduct their campaigns and draw on the resources of the courts, it should not be supposed that such resources can be utilised without consequences.”
Responding to the judgment, Gordhan’s lawyers said he judgment provided important guidance for future cases. “We will continue to advise our client to explore all available options provided in law to seek recourse against the persistent and infantile political campaign of the EFF that spreads lies about our client, and promotes the politics of hate, division, intolerance and intimidation.”
In a statement on Thursday, the EFF welcomed the judgment as a victory for freedom of expression. “Without the right to publicly criticise those in power, like Gordhan, we are unable to exercise accountability over the executive and its decisions.”