SA hate speech ruling offers sound legal guidance

South Africa's Constitutional Court declined to hear the appeal in AfriForum v EFF and Others, a case centred on the struggle song 'Dubul’ ibhunu' ('Kill the Boer; Kill the Farmer') in March 2025. The Supreme Court of Appeal had ruled that opposition leader Julius Malema’s singing of the song was an exercise of freedom of expression under section 16 of the Constitution, not a literal call to harm farmers or white Afrikaners. Legal expert Professor Balthazar, writing on the Daily Maverick, criticises the Constitutional Court’s refusal to provide a final judgment, calling it 'astonishing' and noting that it 'amazed many legal commentators'. Balthazar contrasts this with Western Cape High Court Judge Mark Sher’s recent handling of SAHRC and Another v Malema and Another. In this case, arising from a 2020 protest at Brackenfell High School, Malema’s remarks at his party's Third Provincial People’s Assembly in 2022 were scrutinised. Malema had stated: 'You were beaten by white people … why have you not … 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 … there must be killing because the killing is part of a revolutionary act.' The South African Human Rights Commission (SAHRC) labelled these remarks as hate speech, demanding a retraction and apology. Balthazar notes that Malema's party, the Economic Freedom Fighters had countered that the SAHRC had 'incorrectly and ignorantly' mischaracterised the comments.

The Equality Court, presided over by Sher, examined whether Malema’s words constituted hate speech under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, writes Balthazar on the Daily Maverick. Sher ruled: 'The court is required to answer whether a reasonable person … could … conclude that (the words) demonstrate … a clear intention to bring about … likely harm and the propagation of hatred.' Expert evidence from Professor Steven Friedman argued Malema’s speech was a vigorous opposition to racial domination, not hate speech. However, Balthazar notes, Sher found that Malema’s repeated references to 'a white man/guy' targeted white individuals based on race, not solely one person. His judgment stated: 'To call someone a racist in SA is … to invoke detestation … while calling out someone who behaves as a racist may be acceptable, calling for them to be killed is not.' Balthazar praises Sher’s 'legally sound approach', arguing that Malema’s call for violence against whites, justified by racist behaviour, violated section 10. He laments the Constitutional Court’s failure to earlier address the case, which could have clarified this dispute. 'Had it decided the 'Kill the Boer' case, the judgment … would have greatly assisted in the resolution of this particular dispute,' Balthazar concludes.