The science of hate speech – looking at the forensic linguistic evidence that proved Malema guilty

Forensic linguistics was used to prove that EFF leader Julius Malema was guilty of hate speech when he incited violence against a white man who was involved in a violent fight with EFF protesters in Brackenfell in 2020.

The South African Human Rights Commission and complainant Dante van Wyk, the target of one of Malema’s speeches, won an order in the Equality Court that Malema’s utterances constituted hate speech.

Van Wyk asked the court to order payment of R1-million in compensation from Malema and the EFF.

Further litigation to decide on a sanction will follow but the EFF has already said it had instructed its lawyers to appeal, “also in defence of [Malema]”.

At the hearing, Van Wyk’s legal team was led by Anwar Al­­ber­­tus SC, one of the most senior members of the Cape Bar, and attorney Millie Westly. A forensic linguistic report was used to demonstrate how Malema crafted his speech and instructions to EFF followers that he delivered in 2022 – and why it went beyond conventional political speech.

The EFF’s defence was that Malema used political speech, not hate speech.

Dr Karien van den Bergh, a forensic linguistic specialist and an expert on the language of threats and hate speech, drew up the report, in which she painstakingly pointed out the difference between political speech and what Malema had said.

From a linguistic perspective, she said, the analysis required consideration of the words uttered in context; the linguistic and social intention of the utterance; and the likely effect of the utterance on members of society. To find something to be hate speech, it must be evaluated on both the intention of the speaker and on the consequences, her report went on.

“Hate speech is characterised by the intention to demean, dehumanise, insult or threaten individuals or communities, and it often looks to perpetuate stereotypes, foster prejudice, undermine social cohesion or incite violence,” the report said. 

“Hate speech is related to other forms of prohibited verbal actions such as intimidation and illegal threats. Like illegal intimidation and illegal threat, hate speech is a verbal crime and often a forerunner to physical violence.”  

She described Malema’s speech as “a specific call to violence against a specific person, who was named as Dante van Wyk”. 

“[Malema’s] direct intention was to encourage action,” the report continued, adding that his speech contained an “instruction to respond violently to this [specific] person and to racists [in general]”. 

She added that his words “propagated a direct belief that revolutionary acts must involve killing” and a direct instruction not to “hesitate to kill”.

Read more: High court finding against Malema shines spotlight on inexplicable omission by ConCourt

The elements in the speech that qualified it as hate speech, according to Van den Bergh, are:

• It named a specific person.
• It described that person as a white racist.
• It was designed to call the audience to action.
• It contained an instruction for “violent follow-up”.
• It demonstrated a commitment to the belief that killing will be part of revolutionary acts.
• It incited violence against racists.
• It ordered EFF members not to be scared of killing those in the way of the revolution.

“The instructions were clear: kill racists,” the report continued.

“This order is likely to be interpreted more broadly by at least some followers of the EFF, as is evident in the extracts from the Twitter feed. However, the action to be taken against white racists [is] clear: kill them.

“The speaker is not saying that racism at large must be addressed in this way. It is white people who own means of production, who are believed to hold particular beliefs, and those white people who act according to their beliefs who must be killed.

“The utterances are a clear command to violent action. In this sense, it is my professional opinion that the utterances constitute hate speech towards this white individual,” Van den Bergh said.

She said the impact of Malema’s remarks could be seen in the way his followers responded on the social media site Twitter (now known as X).

She said his speech further encouraged the EFF to incite violence against “anyone like [Van Wyk].”

Van Wyk said in his affidavit that after Malema’s speech, he had received more than 4,000 messages on social media threatening his life and that of his partner and family. 

Van den Bergh said Malema used a combination of a question, an assertion and a directive to convey his perspective on how challenges are dealt with in the context of the “Revolution”. 

She added that with regard to intention, hate speech is not merely offensive but the expression of beliefs in in-group situations. 

“The speaker criticises [the EFF] for not addressing instances of violence by white males… [Malema] emphasises the importance of standing up against white supremacy and suggests that violence can be necessary to end racism,” she continued.

The report further explained how Malema addressed the members of the EFF, saying that they were his family. 

“Comrades and fellow fighters are emphasised, highlighting the responsibility they have toward one another and the organisation,” the report continued.

Van den Bergh went on to say that the speech clearly identified an “us” and a “them”. The speech emphasised the need to confront and stop “them”.

The “them” group was identified by Malema as those who “manipulate land ownership”, white Afrikaner males who have no regard for women, “DA white racists” and racist white Afrikaner males who “think that lives revolve around them”.

Read more: Malema has no problem being taken to court for not retracting 'killing is a revolutionary act'

She added that Malema described Afrikaner males as “wealthy, self-­centred racists who are inclined towards violence, abuse their wives, and hold the means of production” and that they are the “primary adversary”.

Others that are part of the “them” group included those who are “manipulating land ownership in Stellenbosch”, 10% of white people, those who have a “means of production”, “the enemy”, the “beneficiaries of the system” and those who left the EFF.

Turning to the way the speech was delivered, Van den Bergh  said: “The mode of the speech is confrontational and provocative. Given [Malema]’s influential position within the EFF, his words carry weight. 

“The aim is to incite the audience to act and bring about change in response to the confrontational content.”

The report went on to say that as the leader of the EFF, Malema speaks authoritatively, understands his audience and employs various tactics, incorporating interrelated themes of solidarity, leadership, change, loyalty, war and action. 

Early on in the speech, Malema gave an instruction to the “revolutionaries” to take the specific individual to an isolated place for punishment.

Malema began formulating his instruction indirectly in the form of a question, the report said. “The question challenges the listener to consider the behaviour of revolutionaries who do not act after experiencing violence. Then, the speaker makes assertions: they pride themselves on being beaten, and they repeat videos of themselves being beaten, expressing his negative view of the organisation members’ behaviour. 

“The indirect instruction is: Retaliate! Act! Literally, fight back! The statement ends with an indirect directive not to vote for those revolutionaries who act in this way,” Van den Bergh added.

Further on in Malema’s speech, she said, he issued a directive “to tell that white man to try me”. 

“The speaker shows readiness to defend himself and the organisation’s members against any potential aggression from that individual or others like him,” the report continued. Van den Bergh added that further parts of Malema’s speech signalled his commitment to the proposed violent course of action. 

“He commits to appear in court on account of acting against this white man. [Malema] is saying that he does not care if his actions will be considered illegal or not, but he would not tolerate such an attack and claim to be recognised as a revolutionary. 

“The implication is that a revolutionary will not consider whether his or her actions are illegal or not, as long as that white man is punished.” 

She added that Malema gave clear directives “not to hesitate to kill”. 

“The object of the killing is omitted in this specific instance, but the co-text names this white man, along with white supremacists, white people, white racists,” she added.

According to Van den Bergh’s report, Malema asserts that he is not asking others to do what he has not done himself. 

“[Malema] declares racism to be violence and asserts his belief and expectation that racist acts should be punished with violence. He is directing the necessary course of action and he declares that there is no other way to respond but with violence.”

The reactions on Twitter at the time showed that Malema’s message had been clearly understood and had hit home, Van den Bergh said. Opposing groups had understood his message in the same way. 

Addressing Malema and the EFF’s contention that his utterances were “political speech” and should be protected, Van den Bergh said: “In contrast, politically nuanced speech refers to the use of language that incorporates subtle distinctions, shades of meaning, or intricate details in communication. Nuanced speech goes beyond simple generalisations or black-and-white statements…

“I have explored the nuances of the speech in question. The empirical evidence reveals distinct polarisation and themes that communicate an ideology of power and the purposive incitement to revolutionary action,” she concluded. 

How a brawl in Brackenfell led to a landmark finding of hate speech against Julius Malema

What began as a political address in 2022 escalated into a call for revenge that constituted hate speech, the Equality Court found in a ruling against EFF leader Julius Malema last week. 

The call was two years in the making, the judge explained, but Malema made it clear that the EFF had not forgotten about the day a group of Brackenfell residents, security guards and parents had beaten up their party’s protesters.

In September 2020, Brackenfell High School decided to cancel its annual matric farewell because of the Covid-19 pandemic. 

Parents then organised a private function at a wine farm. Invitations were sent to all matriculants and teachers, but, two months later, footage and social media posts alleged the event had been for white learners only.

As a result of those posts, the EFF organised a protest at the school. But when the protesters arrived, they were, according to a report from EFF members, met by a group of “heavily armed white people”. They managed to get to the school gates, where they were met by police who told them to disperse.

Three days later, on 9 November 2020, a larger group of EFF members arrived at the school for a second round of protests. At the time, the matriculants were writing exams. 

Protesters were met outside the school by parents, local residents and security guards. A vicious fight broke out, and some of it was captured on video. One of the men there, Dante van Wyk, was charged with assault but later acquitted.

What Malema said

Two years later, in October 2022, Malema addressed EFF members at the People’s Assembly in the Western Cape. 

In one part of his speech, Malema said: “You went to a school here to protest the other time, and you were beaten by white people, and there is a white man who is visible on camera. If I were to ask you, what have you done in terms of follow-up, after being ­beaten by that white guy, why have you not as a revolutionary organisation followed up on that guy, him alone, to check that guy in an isolated space and attend to the guy properly? 

“You must never be scared to kill. A revolution demands that at some point there must be killing because the killing is part of a revolutionary act. 

“Why did Mandela take up a gun? He was the first soldier of Umkhonto weSizwe. Why did he take up a gun, was he taking a gun to distribute roses? He took up a gun because the revolution had reached the point where there is no longer an alternative but to kill. 

“Why are you scared? … Anything that stands in the way of the revolution, it must be eliminated in the best interest of the revolution, and we must never be scared to do that. 

“The founding manifesto of the EFF says we will take power by all means necessary and therefore revolutionaries, when confronted by that situation, should never think twice. Cowards are not for the revolution. 

“The EFF must be known that it is not a playground for racists, that any racist that plays next to the EFF and threatens and beats up the membership and the leadership of the EFF, that is an application to meet your maker with immediate effect. 

“You were beaten by a racist and you never did anything. Let’s hope this new leadership will make a follow-up on that racist, because there must be a follow-up on that racist.”

Following Malema’s speech, there was an outburst of anger and threats against Van Wyk on social media.

Van Wyk’s legal team approached the South African Human Rights Commission (SAHRC) after he had received about 4,000 aggressive messages and had fled the Western Cape. He and his life partner had to deactivate their social media accounts. 

On 29 November 2022, the SAHRC filed a complaint against Malema and the EFF at the Equality Court in Cape Town. Van Wyk was the second complainant.

Malema and the EFF were given a chance to submit the complaint to mediation but rejected it. That led to an interim interdict against Malema to bar him from making any further threats against Van Wyk.

In the founding affidavit for the SAHRC, commissioner Fatima Chohan explained that apart from Malema’s words, the commission was perturbed by the aggression in his tone and manner. 

“It is a notorious fact that Malema has made it somewhat of a habit to call those who oppose the EFF’s policies as ‘racists’. This accusation has been levelled by him and other members of the EFF against numerous opponents in the political sphere, mostly white politicians, but also on occasion politicians of Indian descent,” she said. 

“It is not inconceivable that some amongst his most zealous admirers, supporters, followers and members might rise to his challenge; he cannot claim that he is merely singing a traditional struggle song, which has been his defence in another matter.

“The offending statements … also cause harm to the South African society at large.”

Van Wyk’s case

Van Wyk said in his affidavit that he and his family feared for their lives. 

“Malema refused in public to withdraw his scurrilous remarks. With probably thousands of supporters in the Western Cape I cannot trust anybody I meet on the street,” he said. “My own and my family’s life has become a misery. I am continuously anxious and sleep with the proverbial one eye open. There is no escape for me in South Africa, considering the large number of supporters of Malema spread all over the country.”

Malema and the EFF’s response

In their reaction to the judgment, Malema and the EFF said the ruling was a “grave distortion of history, philosophy and the nature of political speech in a democratic society”.

The party said the judgment was a “deliberate misreading of context and meaning” and ignored critical realities, including that racism itself is violence. It reduced “revolutionary critique” to criminality.

Professor Stephen Friedman of the University of Cape Town testified in defence of Malema and the EFF, stating that what Malema had said did not constitute hate speech. Friedman was found by the court to be an unsatisfactory witness. Counsel for Malema conceded this in final argument.

Friedman said that Malema’s words did not constitute hate speech because they were not directed at white people as a group. 

They were directed at “very few” white people (those who beat up members of the EFF) and in any event those who were doing so could just “stop beating up black people” and “the problem would go away [sic]”, Friedman explained to the court. 

Other complaints

Chohan said the commission had received “numerous complaints” about Malema’s speech from other members of the public, including black people, who feared that EFF members would “beat up” anybody opposing the party’s policies.

What the court found

In his ruling, Judge Mark Sher said that the part of Malema’s speech that was later found to constitute hate speech was not political speech but aimed at “righting a past wrong”.

“It is noticeably incongruous with the rest of the speech,” the judge said. 

“It was not concerned with an analysis of the state of the EFF as an organisation in the Western Cape and its political aims and objectives, or how it could be grown to attract a larger share of the vote, or the abject living conditions of people in the province.

“It was concerned with avenging a past wrong which had been done to members of the party two years earlier, which Malema described as an act of racist violence,” Sher added, explaining that the EFF’s ideology compelled it to meet violence with violence…

“Whilst calling out someone who behaves as a racist may be acceptable, calling for them to be killed is not… 

“It is not acceptable in our society, which, in terms of the noble aims set out in the Equality Act, is trying to heal from a racially oppressive and violent past.”

A new hearing will be scheduled to decide on a sanction, but Malema and the EFF have already indicated that they will appeal against the ruling. DM

Hate speech convictions in South Africa

• In 2017, Bongani Masuku was found guilty of hate speech for anti-semitic remarks made in 2009, and was ordered to apologise.
• In 2011, Julius Malema was ordered to stop singing the song Shoot the Boer. He appealed this ruling and the matter was settled out of court.
• In 2016, Penny Sparrow was fined for referring to black people as “monkeys”.
• In 2018, Vicky Momberg was found guilty of crimen injuria (in a criminal court, not in the Equality Court) and imprisoned for three years of which one year was conditionally suspended. She used the k-word when she was arrested by the police.
• In 2019, columnist Jon Qwelane was found to have used homophobic hate speech. DM

This story first appeared in our weekly DM168 newspaper, available countrywide for R35.