This is the view of political analysts when reacting to the SAHRC’s ruling against several hate speech complaints made against Malema and other party leaders.
The SAHRC ruled on Wednesday that Malema’s various remarks did not amount to hate speech although they were offensive.
The five complaints, four against Malema, were lodged between 2016 and last year against the party’s leaders over their racially charged utterances.
These included his 2016 remarks that the EFF was “not calling for the slaughtering of white people yet”, which sparked controversy, with him being accused of inciting violence against the white community.
Political analyst Daniel Silke said he would not be surprised if complainants appealed against the ruling.
“From a broader South African point of view, those minorities who have felt aggrieved by Malema’s statements would largely ignore the commission’s findings and will make up their own minds about Malema.
SAHRC chairperson Bongani Majola cautioned that freedom of speech would be endangered if the body was quick to deem robust and offensive speech as hate speech.
He said finding Malema guilty purely on the hurt of those who complained would be a threat to constitutional provisions of free speech.
“It will lead to chaos. We have to go according to principle as to under what circumstances does a speech amount to hate speech because we have an equal obligation to protect freedom of speech.
“Freedom of speech is one of those highly protected human rights, so we cannot willy nilly, on the feelings of the injured person, say it is hate speech,” he said.
EFF national spokesperson Mbuyiseni Ndlozi said the complaints were aimed at suppressing legitimate debate.
“Those who want to shut down the land debate, want to silence voices that are critical of white privilege. They also seek to shut down debate about the abusive treatment that African people receive at the hands of Indian bosses,” Ndlozi added.
SAHRC senior researcher Shanelle van der Berg said although Malema’s utterances about “not wanting to slaughter white people for now” could be construed as hurtful by a white audience, the reasonable listener of the speech would have recognised that the topic of the speech was land reform, not the intention to harm white people.
“The historical context in which the speech is made is one of unjust land dispossessions by both colonialists and the apartheid government. Reference to slaughtering is made within this context. The statement calls for the peaceful invasion of land. Malema explicitly stated that he is not calling for a slaughter of white people,” she added.
Van der Berg said Malema’s remarks about the need for Indians to stop ill-treating Africans and that they were more advantaged were not hate speech.
“The calling of Indians to share the economic prosperity and the reference to ‘fellow Indians’ shows that, objectively interpreted, this statement does not demonstrate an intention to be hurtful, harmful or promote hatred against Indian people,” she said.
Legal expert Professor Shadrack Gutto said the SAHRC was justified in its ruling.
He said the ruling might have been based on Section 16 of the Constitution’s Bill of Rights “which deals with the question of the right to freedom of expression”.
“I don’t think what Malema had said could amount to a war propaganda. In the context in which he said it, I don’t think he was inciting people to immediate violence against others.”