How the Kunene-Malema case reshapes the conversation on hate speech in politics
Image: Sharon Seretlo / Independent Newspapers
Suspended Patriotic Alliance deputy president Kenny Kunene has no choice but to issue an apology to EFF leader Julius Malema for repeatedly calling him a cockroach during a television interview.
The Gauteng High Court, Johannesburg, on Tuesday turned down Kunene's appeal against an earlier Equality Court finding that his use of the words 'cockroach', 'little frog' and 'criminal' to refer to Malema amounted to hate speech within the meaning of the Equality Act.
These utterances were made during an eNCA interview with Kunene. The aggrieved Malema subsequently turned to the Equality Court.
The Equality Court at the time ordered Kunene to apologise for using these words to describe Malema and interdicted Kunene from doing so in the future. On appeal, it was argued that Kunene's remarks were personal attacks on Malema rather than targeting any group of which Malema is a member.
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To the extent that Kunene's attacks on Malema might reasonably be construed to be based on his membership of an opposing political party, political attacks of that nature cannot amount to hate speech since political affiliation is not a ground on which the Equality Act recognises that hate speech can be addressed, it was further argued.
Judge Stuart Wilson, who wrote the judgment on behalf of the full bench, in the opening of his appeal judgment, remarked that the central question in this appeal is whether one political leader who calls another political leader a 'cockroach' in the course of a televised discussion of the outcome of a local election commits an act of hate speech.
'We conclude that he does. This is because that conduct falls squarely within the textual definition of 'hate speech' outlined in section 10 of the Equality Act.'
The judge added that political speech in South Africa must be prevented from degenerating into an act of mutual dehumanisation.
Judge Wilson said the consequences of such dehumanisation are written largely across the pages of history. 'They reveal themselves in the pogroms and genocides that the use of the word 'cockroach' evokes... The Constitution and the Equality Act require us to enforce the modest limits on political discourse that are necessary to prevent it from doing so.'
Kunene referred to Malema as a 'cockroach' four times during the televised interview about the outcome of an election. The court found that the words did amount to hate speech.
However, the order of the Equality Court cannot stand in its current form, the court said. It said the order must be purged of the declaration that the use of the words 'criminal' and 'little frog' was hateful.
Nor can the referral of Kunene's utterances to the National Prosecuting Authority be sustained. Criminal sanction of unlawful expression is a measure of last resort, which should be applied only in the most serious of cases, it remarked.
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