In defence of Julius Malema’s right to free speech

I believe in freedom of expression. Our Constitution protects the right to freedom of expression. That is why I cannot welcome the Equality Court’s ruling that Malema was guilty of hate speech when he commented on the young woman who had accused President Jacob Zuma of rape.

Please understand that I am not defending Malema. I am defending his right to freedom of expression, which is also mine and yours and which means nothing if it does not include the right to say things that offend other people.

This is what Malema said: “Those who had a nice time will wait until the sun comes out, request breakfast and ask for taxi money. In the morning, that lady requested breakfast and taxi money.”

He made his comment after Zuma had been acquitted of rape – so in the eyes of the law, the woman is not a rape survivor –  but the words are nonetheless grossly offensive in the context of a society in which rape occurs frequently and survivors who get their day in court are often called upon to justify their sexual behaviour. 

But do his words constitute hate speech?

Hate speech is defined in the Constitution as “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm” (my italics). Malema’s words were undoubteldy undoubtedly hurtful to many people. They may, at a stretch, be construed as “advocacy of hatred” based on gender. But did they constitute incitement to cause harm? I think not. And so, offensive though the words were to our sensibilities, they should be protected by the the Bill of Rights.

The Promotion of Equality and Prevention of Unfair Discrimination Act, under which Malema was charged and convicted, has, however, complicated issues by adopting a far wider definition of hate speech than the Constitution. The Equality Act (for short) defines hate speech as words “that could reasonably be construed to demonstrate a clear intention to be hurtful, cause harm or promote hatred on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth’.

Many legal commentators have argued that this definition is unconstitutional because it is too wide in its application. The constitutional definition applies to only four grounds: race, ethnicity, gender and religion. The Equality Act criminalises hate speech on seventeen grounds. Furthermore, the Constitution requires an intention to cause harm. The presence or not of intention That is an objective fact: in the absence of such an intention, words cannot constitute hate speech.

The Equality Act, however, requires only that words could be construed as having the intention of being hurtful, harmful or hateful to constitute hate speech, regardless of the actual intention of the person who utters them. This conjures up, as one legal commentator noted, an image of highly sensitive individuals using the Equality Act to insulate themselves inside their own intolerant world. In Malema’s case, many people would undoubtedly construe his words as having the intention to be hurtful, and that explains his conviction of hate speech in terms of the Act. But what are the implications for us as a free society?

Am I to be denied the right, for argument’s sake, of criticising to criticise Jacob Zuma’s prediliction for polygamous marriages because that may be hurtful to people who subscribe to a particular culture? Is it verboten to publish a picture of the Prophet Mohamed because that would be hurtful to Muslims, or to teach evolutionary theory because that offends some Christians?

The hate speech provisions o f the Equality Act have not yet been tested in the Constitutional Court. Perhaps this would be an opportunity. It would be a good test of how seriously we, as South Africans, take our right to freedom of expression.

PS. Times editor Ray Hartley expresses a similar sentiment on his blog.

PPS. So does Tim Cohen in Business Day.

PPPS. So does constitutional expert Pierre de Vos on his blog Constitutionally Speaking.

PPPPS. David Watson has a different view.

PPPPPS. Eusebius McKaiser in Business Day makes my point exactly.

PPPPPPS. Mmm. The above are all men…

19 Responses to In defence of Julius Malema’s right to free speech

  1. Evan says:

    You’re absolutely correct. Hate speech should be extremely narrowly defined and the law should be applied with absolute vigilance and circumspection.

    Malema is a useless tool who should have his nuts kicked five times day, but this hate speech thing is going to do far more harm in general than any good it might do in this particular case.

  2. Johan Swarts says:

    Spot on – I couldn’t agree more with you on this.

  3. alpha beta says:

    “The ANC defended youth leader Julius Malema on Thursday for singing, “shoot the boers, they are rapists”, saying the lyrics of the song had been quoted out of context.”

    Does this slogan not constitute hate speech?
    Is this permissible within a “freedom of speech” remit?
    Who’s responsibility is it to prosecute someone who breaks the law in a case like this?
    Will the Government do it, or does a private citizen have to lay a charge?

    • Robert Brand says:

      That may be hate speech in terms of the Equality Act. A private citizen can lay a charge. The government – more specifically the National Prosecuting Authority – would then prosecute.

  4. alpha beta says:

    The Receiver of Revenue persues and then prosecutes law breakers regarding tax collection/payments?
    Similarly the police follow up on murder cases and charge suspects
    Which Govt department is responsible for free/hate speech?
    Why should it be up to a private citizen to initiate an action?

  5. […] Brand writes a post in defence of Julius Malema's right to free speech. He makes it clear that he is not defending Malema but only hist right to freedom of expression: I […]

  6. […] Brand writes a post in defence of Julius Malema’s right to free speech. He makes it clear that he is not defending Malema but only hist right to freedom of expression: I […]

  7. alpha beta says:

    I doubt if anyone objects to that right.
    However it is a right (and privilege) that must be exercised responsibly

    Does anyone recall Minister Jimmy Krugers response to a question put to him about the death of Steve Biko whilst in police custody?

    A: “It leaves me cold”

    The furore that erupted in the SA (predominantly English) and International media was virtually the equivalent of the 9/11 World Trade Centre attack in New York.

    Malema repeatedly chants his “Kill the farmer. Kill the Boer” slogan and nothing happens – either locally or internationally.
    Why is that?

    Is it because it is directed at white South Africans and it is now pay-back time? Incidentally it is 20 years since Apartheid ended formally and about 40 years since it ended informally.

    • Robert Brand says:

      Alpha Beta

      Malema is facing another hate speech charge ni the Equality Court based on his Kill the Boer song. Let’s wait for the outcome of that one. By the way, the human Rights Commission some years ago had a hearing on the Kill the boer chant and ruled that it constituted hate speech. So it is not correct to say that “nothing happens”.
      Do I think it constitutes hate speech? It depends on the intention of the speaker. If his intention was to incite harm, it probably is.

  8. […] while Robert Brand, a lecturer in economics journalism and media ethics at Rhodes University, wondered if Juju’s words constituted any ‘hate speech’. Tim Cohen wondered how such words could have “explicitly [been] intended to do something as […]

  9. alpha beta says:

    Shall we now connect the dots?

    Malema’s chant ruled as hate speech by the court
    Malema publically states he will continue to use the chant as and when it suits him in defiance of the court order
    The ANC gives notice to appeal the court’s ruling on the chant
    Eugene Terreblanche’ murdered by comrades obeying the encitement of the ANCL leader?
    Eugene Terreblanche’ murdered to the day on the anniversary of Chris Hani’s assassination.

    Come now gentlemen.
    Lofty ideals of freedom of speech, justice etc created by one sector of the SA community but totally ignored by the other as they play the game according to their own rule book.
    Just like a British motorist driving through the Transkei and wondering what on earth is going on around him.

    It is going to take many many years before we are all playing on the same level playing field.

  10. Wayne says:

    Robert Brand you are saying “freedom of speech” is a more important human right than the irresponsible utterings of a blatantly un educated buffoon like Malema. You are obviously of similar intelligence and moral standing as Julius. I can only fear what rubbish you are teaching your own kids and hopefully one day their eyes will open to the idiocy you promote as intellect, and not soiling our country with more of you and your kind!

    • Robert Brand says:

      Wayne – Your logic defies me. What are you saying? The “irresponsible utterings of a blatantly un educated (sic) buffoon” is a human right?

  11. Gawie says:

    Lets play with words. GIVE MALEMA LEAD. interpret as you may. is it hate or praise? I know what I want it to mean but if conveyed wrong to someone with a slight inclination or trigger happy he may see it different.

  12. alpha beta says:

    Here is another example of freedom of speech.

    Why South Africa Cannot/Will Never Succeed

    I expect, like me, you are aware that there has never been a prosperous black led country, but perhaps just blamed their “bad luck”, or whatever, for that uncontradictable fact.

    Take Haiti as an example. Before the black slaves revolted and killed all the whites and half castes Haiti had a GNP greater than most of what is now the USA. It supplied 60% of all the sugar used in Europe.

    Today it is a wasteland. Apparently if you Google Earth the place it is a sere, brown colour compared to the neighbouring Dominican Republic which is green and verdant.

    Twice the USA has occupied Haiti, building roads, ports, hospitals and schools while putting in a functional society,

The moment the Americans left they reverted to dictatorship, voodoo, witchcraft, corruption and barbarism.

    They did not stagnate. They regressed to the primitive savagery of their forefathers


Since the 1960s, when the Congo expelled the Belgians this has been a mirror of African regression , moving steadily southwards until the example of Zimbabwe. Once a prosperous, well educated exporter of food the population now eat rats to survive.


Will SA go the same way?

    There are those optimists who say “No, we have such a strong economy, such sophisticated infrastructure, such a talent pool, that we can never sink”.

    My belief is that they have not considered the root cause of Africa’s failure. A cause that is not spoken about as it is fearfully politically incorrect, and probably illegal to speak about.

    To speak about it causes recollections of Hitler’s eugenics beliefs and the horrors that followed.

    That cause is the deficiencies of the black ”mentality”, for want of a better word.


Are there differences between races, or is race just a meaningless social construct? Until recently I believed all races were the same under the skin variations, and that perceived differences were only the result of cultural differences. I believed in a common and equal humanity.


But things did not always ring true, observable anomalies were inexplicable if all men are the same.

    Why, under apartheid, did the South African Indians prosper, become doctors, scientists, educators, merchants and professionals while the equally oppressed black Africans remained hewers of wood?

    Why are Jews more than 12 times more likely to be Nobel Prize recipients than goyim? Why do they command the heights in academia, the arts, business and science?


Why can black Africans run, jump and throw better than whites, but why, out of a billion of them, have they never invented a single thing of any worth? Why have they, collectively, contributed absolutely nothing to the advancement of humanity. 

    Well the physical thing, the running, throwing bit is easily and uncontroversially answered. Simple, they (especially the Jamaicans) are genetically better equipped in this regard. Their muscle fibres are different and the typically have 15% more free testosterone than other peoples. That does not explain the Jewish or East Asiatic superiority in academics, science or any other meaningful sphere. Surely it cannot be genetic? That is racism.

    Unfortunately, racist or not, that is proven and a fact. Google it and you will find that for over 70 years, in test after test, done by dozens of university professors and Nobel laureates plus USA government studies, Jews are the most intelligent of humans followed by East Asians. Then come westerners then, trailing by a wide margin, people of African descent.


I refer to I.Q. tests and the results of these . Jews come in at about 114 points, East Asians about 108, white Europeans 100, African Americans (with their mixed ancestry) 85 and sub Saharan Africans a lowly 70 odd.


Of course I.Q. tests have been attacked, especially by those who perform badly at them, as one might expect them to do. Detractors claim cultural bias, dysfunctional families, past oppression, poor schooling and a host of other reasons for poor black performance, but the professors defend their contention that I.Q. is largely an inherited trait, that differences are inherent, built into a person’s inherited DNA.

    For every argument attacking the validity of these tests they have a host of results confirming their accuracy and typicality. Fascinating stuff if you are interested in reading up on it.

    The effect of high/low I.Q. has also been studied in depth, with fairly predictable results. Low I.Q. individuals performed badly in social class, family stability, income, educational levels, illegitimate pregnancy, single parent families rate of prison incarceration, rape, violent crime etc. etc. etc.

    I.Q. measurement measures different facets of intelligence and mental competence. Sadly it is in the absolutely vital sphere of cognitive ability that blacks score worst. This means they score abysmally in things like forward planning and anticipating the consequences of their actions, or inaction.


It is this I.Q. (and testosterone) disparity that is blamed for the fact that African Americans are 5 times more likely to be imprisoned than white (including Hispanic) Americans, 9 times more likely than Americans of Asiatic descent and 14 times more likely to be jailed than Jewish Americans. All in line with I.Q. distributions.


Once imprisonment for violent crimes are computed the numbers become stratospheric. These are American government collated statistics, so pretty accurate.

Our government in SA do not, for obvious reasons, publish similar stats, but a pound to a pinch of salt they are even more astounding.

    So why the lecture on I.Q.?

    Well for a start you must understand that our ruling party are voted into power by a largely moronic plebiscite. I choose the word moronic intentionally. If the cut off point for moronic is an I.Q. of 70, half the voting population would be classified as such.


Only one in 40 black SAns achieves the average I.Q. of his white fellow citizens. One in a hundred have the I.Q. to achieve university entrance requirements. That is why only one in ten blacks pass our dumbed down matric (with a pass percentage of 30% in many cases). Only one in 6000 black grade one learners will pass matric with both Maths and Science.

    Simply put, they are bloody stupid, and they rule us. Furthermore Zuma says they will rule us until the second coming. I believe him.


This explains why the ANC have such idiots in their positions of power and influence, the likes of Zuma, Malema, Khomphela and Cele. They are, unfortunately, the best they have! Well they are the best blacks they have. All the critical positions are held by Indians, Coloureds or Whites, something I am grateful for but which annoys Malema considerably.

    Will this last? I doubt it. The black/white polarisation is growing and the rhetoric is becoming more extreme. Listen to the pub or workplace chatter, read the blogs and comments sections of the newspapers and it becomes obvious. Whites are fed up at the waste, corruption and stupidity of the black elite. Blacks are demanding, as their right, the wealth of the whites by means of redistribution of assets. No matter that they have not worked for those assets, they claim them as the spoils of war.


Recently the Mayor of Pretoria, Malema, a minister and Winnie Mandela have gone on record as blaming whites for sabotaging redistribution and exploiting blacks. Malema calls out “Kill the boers for they are rapists” to thunderous applause by university students. Four influential ANC opinion makers who are echoing the groundswell of mutterings in the ghettoes. The natives are getting restless.


*CONFLICT IS COMING! Mark my words.


Things are not going to improve. They cannot, there is no reason to believe our slow slide into a failed state can be reversed with our current regime, and there is no prospect whatsoever of there being a change to governance based on meritocracy. Anyone who believes otherwise, or that the ANC can mend their ways, is living in La-La land. They do not have the intellect.

    Like the proverbial frog in the slowly heating pot we have become inured to the slow collapse of our hospitals, schools, courts,water supplies, roads, civil service and service levels. They will become totally dysfunctional shortly. Inevitably so. Those in charge do not have the mental capacity or foresight to organise things.

    Our economy and Rand is reliant on short term “hot” funds from overseas that can flee at the touch of a computer button, and probably will if our Rand weakens. Conversely we need a weaker Rand to encourage exports.

    6 million taxpayers support 12 million recipients of social grants, and that figure is set to rise this year. The National Health Insurance scheme will happen, no matter how unaffordable. That will push our social grant costs up to four hundred billion Rand. Four hundred billion Rand which produces absolutely no product. Inflation is set to stay and worsen. The consequence of being the biggest socialist state on earth. I do not believe the ANC has the intellect to conceptualise how big a billion is, let alone 400 billion, or what effect this will have on the economy.

    You do not believe Malema’s call to nationalise the mines? This man articulates what the hoi polloi are thinking, but the ANC leadership will not say yet. The tactic is to set the bar high, then lower it and the victims will sigh with relief and say it could have been worse. So perhaps it will not be total nationalisation but rather 51%, a’ la Zimbabwe. Just look north for revelation, Zuma does.


Who would have believed that this country of Jan Smuts would ever be headed by an unschooled, rape accused, adulterous, corrupt, sex obsessed bigot like Zuma. Anything is possible with the ANC.



You have few years left to enjoy what is left of the glorious SA lifestyle, especially in the Cape, but understand it is not permanent. The end could be sudden as the tipping point is reached, just as it was sudden for those Zimbabwean, Zambian, Mocambican or Angolan whites. It could, conceivably, be as bloody as the Hutu/Tutsi uprising when primitive tribal bloodlust overcomes a thin veneer of inculcated civilisation.

    Enjoy it while you can, and enjoy it in the Cape where the population mix is more favourable, but be aware that change is inevitable. Your children must get a world class education, because they will not be adults in South Africa.

    Get assets stashed offshore, you and your children will need them there.

    Graham Allardice
Project Manager MPED
Toyota SA Manufacturing


  13. alpha beta says:

    Based on the comments in the Dan Roodt thread would Mr Allerdice’s article also be construed as racist, even though he demonstrates clearly that it is based on solid facts and evidence?

  14. African not Black Rhodent! says:

    Wow, Mr Allardice, I applaud you for your very thorough piece of freedom of speech, you – no different from Julius (who you are, ironically, criticising), have made some interesting claims. I don’t know where you get 80% of the extensive knowledge that you write about but I don’t think that really matters. What is disturbing though is that you seem to be convinced by them…

    I would like to know if you, in your seemingly vast wealth of world knowledge on ‘black’ people, have any records of what ‘black’ people were like before any form of colonization or, as it’s sometimes called, ‘occupation’? Did they not live purposeful lives and lead powerful nations? Or is your definition of success (which, I think you would agree , is the Western definition of success) the correct one? Granted, we live in world dominated by Western ideology and culture but does dominance and ‘popularity’ make it correct? Let me make a crude example (Ironically its a Western example, using Western culture and concepts): Smoking ciggarettes is scientifically proven to be fatal, do you agree or do you have your own ‘googled’ facts to disprove this theory? Moving on, it is by far the most popular addictive drug-related habit on this planet (you can also ‘google’ that too, if you wish), does its dominance and poopularity make it correct? Ponder on that before you make an emotional response that’s founded on your so-called “facts” and outrageous sweeping statements.

    Mr Allardice, Sir, with all due respect, I think you should take your own advice and “Get assets stashed offshore, you and your children will need them there” because there is no place for scum like you in country, let alone this continent.

    Have a good day and may God forgive you and Bless you.


    Lonwabo Fayo
    Rhodes University 3rd year Journalism and Media Studies Television student

  15. alpha beta says:

    “Or is your definition of success (which, I think you would agree , is the Western definition of success) the correct one? Granted, we live in world dominated by Western ideology and culture but does dominance and ‘popularity’ make it correct?”

    Mr Fayo

    It is very easy to select a negative example from cultures as you do.
    Smoking – as practiced by North American Indians and introduced to the west by Englishman Sir Walter Raleigh – and the enthusiastically taken up by Africans when introduced to Africa by Europeans
    How does that stack up against muti medicine (killings – now happening in the UK) and cannibalism as practiced in Africa?

    Are you not a beneficiary of the very things you criticise?
    For example:
    You can now speak, read and write English
    I presume you wear western apparel – including shoes
    You probably have a wristwatch
    You may own a cell phone, TV, DVD & DVD players and a hi-fi radio system
    You may own a motor car
    You are being educated at an institution created, staffed and funded through “occupation”
    You are preparing for a career created by the very same “occupiers”

    You see, what Mr Allerdice, who makes it possible for a large part of the population to drive a certain brand of motor vehicle, can see from his position in society (remember he was once a student like you but has now lived a little longer and is engaged in the real world right at the coal face of industrial training and production) is that there is a lack of intellectual capability to maintain or grow that society that is delivering the current benefits.

    I am sure he is a rational man and has thought long and hard before putting his thoughts and real life observations into this article.
    And you have the temerity to call him scum.

    What would you call Robert Mugabe when you review his accomplishments?
    To summarise:
    Assassinated 20,000 of his political opponents
    Created the worlds highest level of inflation
    Destroyed so many jobs in the process that an estimated 3 million of his citizens have had to flee to South Africa to feed themselves and hopefully find work in a shrinking economy.
    Incidentally, 90% of South Africa’s economy is controlled and managed by scum like Mr Allerdice who create the jobs which the Zimbabweans now seek.
    They also generate the taxes which to a large part subsidise your education.

    For your sake you should hope that there will actually be a job for you when you go out into the world after the effort you have invested in yourself.

    Remember, when Mr Allerdice leaves, as you are encouraging him to do, an estimated 6 to 8 support type jobs will disappear with his departure.
    So far with your attitude, endorsed by the government, unemployment has risen from 5% to 50% as about 800,000 scum have decided to move to a better environment overseas.

    Have a good day and may God forgive you, Bless you and ensure that you will not be in the 50% unemployed when you enter the working world.

    Who knows – you may be forced to go overseas or to Zimbabwe to find a job.

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