The South African Human Rights Commission (SAHRC) was not empowered or authorised to make findings that exonerated Julius Malema for comments he made about not “calling for the slaughtering of white people, at least for now”. Rather, this was the remit of the Equality Court.
On Friday, Gauteng High Court Deputy Judge President Roland Sutherland handed down judgment on a review application brought by AfriForum against the commission’s so-called findings on comments made by Malema in 2016 in New Castle, KwaZulu-Natal.
In 2019, after receiving several complaints of hate speech against the EFF leader, the SAHRC investigated the complaints and released their findings in a document titled: “Findings of the South African Human Rights Commission regarding certain statements made by Mr Julius Malema and another member of the Economic Freedom Fighters.”
It is found that although offensive and even disturbing, the statements – viewed in their full context – do not amount to hate speech,” the document read. In addition to the document, the commission also sent communications to the complainants, setting out their rationale for exonerating Malema.
While review applications were instituted with the High Court, which the commission said the complainants were entitled to do if unhappy with its findings, Sutherland effectively found that this type of decision by the SAHRC was not reviewable. This is because the commission is not empowered to make findings on whether something constitutes hate speech or not.
“This case manifests a bizarre example of confusion and, regrettably on the part of the SAHRC, ostensibly, a dollop of hubris,” Sutherland said. Working through the legislation that gives powers to the commission, including the Constitution and the South African Human Rights Commission Act, 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.
It follows that it is not within the power or authority of the SAHRC to pronounce that an alleged violation is indeed a violation and moreover, it is not within the power of authority of the SAHRC to exonerate a person from an allegation of having violated human rights.”
Explained differently, Sutherland said the commission was not required nor permitted to conclude that an allegation of fact had been proven. This is a decision to be made by a court. Therefore, when the commission exonerated Malema of hate speech in its findings, the SAHRC acted beyond its powers.
“No such decision was lawfully capable of being made by the SAHRC. What the SAHRC did was to purport to exercise a power it did not have.” On that ground, Sutherland reviewed and set aside the decision by the commission, declaring it unlawful.
The court further declared that the SAHRC was not empowered to make definitive decisions on whether or not hate speech had occurred.
Sutherland slammed the commission with costs.
Was Malema’s comments hate speech?
While the gravamen of the proceedings was whether or not Malema’s comments constituted hate speech, Sutherland said the complainants would get no answer from his court. Sutherland said the court had no jurisdiction to decide the matter and that the answer was reserved for the Equality Court.
“Whether the notion of these remarks are not unlawful, as is the opinion of the SAHRC, stands up to scrutiny in the light of the equality jurisprudence of the courts must await adjudication.”
