EFF leader Julius Malema. Photo by Delwyn Verasamy/M&G
The Economic Freedom Fighters (EFF) says it will take the Equality Court’s ruling against its leader Julius Malema to the Supreme Court of Appeal after he was found guilty of hate speech for remarks made at a rally in Cape Town in October 2022.
“The EFF has already instructed our lawyers to begin the process of challenging this ruling at the Supreme Court of Appeal. We do so not only in defence of our commander-in-chief but in defence of political freedom, historical truth, and the right of oppressed people to speak boldly against their oppression,” the party said.
In a judgment delivered on Wednesday, the Equality Court in Cape Town upheld a complaint brought by the South African Human Rights Commission (SAHRC) and activist Dante van Wyk, ruling that Malema’s words amounted to incitement to violence on racial grounds.
While addressing an EFF gathering in 2022 about clashes between party members and residents outside Brackenfell High School, Malema criticised his members for failing to retaliate. Referring to a white man shown in a video about the confrontation, Malema said the man should be taken to an “isolated space” and “attended to properly”.
Malema said “revolutionaries must not be scared to kill” and that racist acts were “an application to meet your maker with immediate effect”.
The SAHRC received public complaints following the remarks and, after an assessment, instituted litigation in November 2022. The commission said the comments violated the rights to dignity, equality and security of the person and constituted hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act.
In its ruling, the Equality Court found that the speech included “clear exhortations to violence” directed at white men. Judge Andre le Grange said the words could not be dismissed as metaphor or political theatre, but amounted to “direct, unambiguous incitement to violence on the basis of race and political belief”.
“The speech in question included clear exhortations to violence against a specific racial group white men based on race and political belief. The statements were made with a clear intention to incite harm and to promote or propagate hatred.”
He added that “public figures and political leaders bear a heightened responsibility when addressing supporters. When such figures call for violence, it undermines human dignity and erodes social cohesion.”
The judgment also noted that freedom of expression, while fundamental, is not absolute.
“Freedom of expression does not extend to the advocacy of hatred that constitutes incitement to cause harm, particularly where such statements are made by persons in positions of influence.”
But the Red Berets argued that the judgment stripped the speech of its political, historical and ideological meaning, reducing a revolutionary critique to an act of criminality. It claimed the ruling assumed that listeners could not understand metaphor, revolutionary rhetoric, or the history of liberation struggles.
The party said the court ignored that the event was a political gathering where revolutionary theory, strategy and history were debated, and instead treated the speech as though it had been a direct command to commit murder.
The SAHRC welcomed the outcome, saying the ruling reaffirmed that freedom of expression does not extend to the advocacy of hatred that constitutes incitement to cause harm. It said the court had recognised the dangers when political figures use rhetoric that undermines human dignity and social cohesion.
“The commission notes with appreciation the Equality Court’s careful consideration of the context, ideological framing, and effect of the impugned statements,” commission spokesperson Wisani Baloyi said.
This is not the first time Malema has been found guilty of hate speech. In 2011, the Equality Court ruled against him over his singing of the struggle song Dubul’ ibhunu (Shoot the Boer).
In 2019, the high court in Johannesburg dismissed another SAHRC case over Malema’s comments on land invasions, finding that they did not constitute hate speech but could be prosecuted under other laws.