It was a poignant end to a judgment that tossed out every defence Julius Malema had put up.
Be wary, in the words of Oliver Wendell Holmes, of turning into “a man who often speaks but seldom talks,” the court advised ANC Youth League leader Julius Malema.
The Equality Court found that when Malema had told a group of students that the woman who accused Jacob Zuma of rape must have enjoyed herself because she stayed for breakfast and asked for taxi money, he engaged in hate speech. Because he had not expressed an opinion or comment, but professed to be stating facts (which he got wrong), that hate speech does not enjoy protection in terms of the constitutional provision for freedom of expression – which leaves him liable.
Which is why he now has two weeks to issue a public apology for what he said, and one month to donate R50,000 to People Opposed to Women Abuse (Powa). During hearings last year, Malema told the court he would comply with both those instructions if found guilty, so he is expected to do so shortly.
But the ruling has much more wide-reaching consequences, both for Malema and any person who would like to express an odious opinion on rape.
Malema, the court found, was speaking to the broader South African society – on which he has significant influence, especially when it comes to young people – rather than just to the students at the rally in Cape Town who were physically present. That means that, regardless of how those student interpreted his statements, they need to be judged on how any person on the street would react to them.
That means when Malema sings “kill the boer” he may be more easily held liable for those utterances than a person in the crowd singing along, or even some provincial ANC official who gets little media coverage.
Photo: Mbuyiselo Botha, the media and government relations manager for the Sonke Gender Justice Network, celebrating the ruling in favour of his organisation outside the Johannesburg Magistrate’s court on Monday.
The court also agreed wholeheartedly with Lisa Vetten, an expert researcher and councillor on violence against women, called by the Sonke Gender Justice Network. Vetten told the court that Malema had engaged in myth-making by trying to set out the parameters of what does (and does not) constitute rape. Doing so, she said, reinforces the idea that women lie about rape and creates the notion that men have no obligation to obtain explicit consent from women before sex. Instead consent can be inferred based on the behaviour of the woman after the fact – which raises a whole host of dangers.
And Malema’s argument, that both he, and the ANC in general, work towards the empowerment of women, was rejected.
That effectively tosses intention straight out of the window. Whatever Malema meant to convey, and however the audience responded, he was judged on the potential impact of his words. That is a significant broadening of the reach of hate speech under the Equality Act. But not one that is likely to have a chilling effect on reasonable freedom of speech, unless you are in the habit of making speeches denigrating women (even women of opposition parties) based on their sex, or advocating hatred towards a cultural group.
By Phillip de Wet
Read Equality Court judgement in full.
Photos: The Daily Maverick
WATCH: The Sonke Gender Justice Network celebration
"We live in capitalism. Its power seems inescapable. So did the divine right of kings." ~ Ursula Le Guin