Calling Malema a ‘Cockroach’ is hate speech? Really?: Sara Gon

Key topics:High Court upheld “cockroach” insult as hate speech, sparking free speech concerns.Debate over limits of political insults vs. true hate speech continues.Context and historical connotations influenced court’s controversial ruling..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. The newsletter will land in your inbox at 5:30am weekdays. Register here.Support South Africa’s bastion of independent journalism, offering balanced insights on investments, business, and the political economy, by joining BizNews Premium. Register here.If you prefer WhatsApp for updates, sign up to the BizNews channel here..By Sara Gon*.Kenny Kunene, suspended deputy president of the Patriotic Alliance, aka The Sushi King and convicted fraudster, has failed in his appeal before a three-strong bench of the High Court in Johannesburg against the finding that calling Julius Malema a cockroach was hate speech.The Equality Court had decided that Kunene’s utterances did amount to hate speech. The utterances included “a little frog”, “a criminal” and “a cockroach”.I wrote about the Equality Court’s judgment in March 2023, and I refer you to the link as it contains my view as to why the court was wrong.So, why did the appeal to a three-man bench of the High Court confirm the Equality Court’s decision that Malema had committed hate speech?To give the High Court its due, it did find that “a little frog” and “a criminal” did not constitute hate speech. Deciding that “cockroach” was hate speech was plainly wrong. I submit that even the repeated charge of being a “cockroach”, in the context of the ‘debate’, amounted to insults and nothing more.The High Court’s finding that the particular context did confer hate speech status on the accusations is most concerning for freedom of speech. If an unenlightening though entertaining one-off political debate contains language considered by the judiciary to be hate speech, then much of what we all say much of the time could be hate speech. This is untenable.In a debate about whether the right of free speech should be limited, my colleague Terence Corrigan memorably said:“… when we speak of freedom without limit, we are talking about allowing the sinister, the blasphemous, the pornographic, the offensive, the hateful. Or what some might consider the ‘reactionary’. We are talking about those things that many influential interests would rather we were not exposed to.”Freedom of speech could be severely restricted on the altar of political correctness and a failure to see nuance by a judiciary wanting to be seen as “concerned”.Insults by one politician against another are at least a form of entertainment for the beleaguered citizenry. Malema must have thought it was Christmas that not one but two courts found in his favour. Why did the three judges fail to apply what most of us would have seen as common sense: that calling Malema a “cockroach” was not hate speech?The tone of the judgment became clear when Wilson J said: “The problem with this sort of expression is that it degrades the social arena in which it takes place. It makes us all less human, less tolerant of each other, and more tolerant of hate.”If Wilson J was concerned that politicians shouting at each other and calling each other names degrades the social arena, then Parliament should cease to function, politicians should be banned, and access by politicians to all forms of media (social and otherwise) should be forbidden. Absent this state of nirvana, what is needed is as much free speech space as possible to counter bad ideas and insulting speech. Free speech may be unpleasantly robust, but at least the social arena would be better exposed to issues, so that people can make informed decisions more confidently. Kunene’s advocate argued that Kunene’s utterances were a part of a “fierce political debate to which a margin of appreciation must be afforded. [This] saved them from being considered hate speech.”.Read more:.Isaac Mogotsi: Trump vs Malema, 'White genocide' myth and a diplomatic showdown.The judgment argued that “context simply compounded the harm Mr. Kunene’s words were likely to cause to Mr. Malema, and to society at large. It seems to me that one fundamental purpose of section 10 is to place limits on the terms of social and political debate, with the aim of ensuring that it cannot degenerate into mutual dehumanisation and violence.”This interpretation of the context suggests an unworldliness of which the judges surely cannot be guilty. I cannot understand how a nasty, one-on-one political slanging match should be elevated to become a political attack “that would reasonably be understood to incite harm and promote hatred against one’s political opponents”.Malema and Kunene clearly don’t like each other. However, not many people would have seen it as hatred of the EFF as a political entity or for its political ideology.Frankly, both men came out of the debate leaving us no better informed on the issues, and confirming the public’s generally held belief that politicians deserve lower status than lawyers and sharks. It was more akin to a verbal bar-fight.For the past 30 years, public and parliamentary discourse has been littered with vicious verbal attacks, the most frequent and nasty coming from Malema himself and the benches of the EFF. While some are in very bad taste or sinister, there can be very few that would be understood as inciting harm or promoting hatred for political opponents.Advocate Ben Winks, in an interview on Cape Talk, correctly said that hate speech is not just about hating a person based on their individual characteristics or conduct. It is about inciting or evoking hatred for a person because that person belongs to a certain group. He gave as examples, hatred because the victim is a woman, or transgender, or black or Muslim.Winks pointed out that it is identity as a member of a protected group that makes something hate speech, rather than just defamation of an individual. He believed that Kunene’s repetition of “cockroach”, in this particular context, was based only on his personal animosity towards Malema as an individual.In 2010, addressing about 3,000 ANC Youth League supporters, Malema called DA Federal Chair, Helen Zille a “cockroach”. He also called Zille a “representative of apartheid”.(Ironically it was at the same gathering that Zuma followed Malema saying that the ANC was determined to establish a media appeals tribunal, one of a number of ways in which the ANC has intended to restrict free speech.)Malema did apologise five years later, but by then he had discovered the value of apologising for saying things that were insulting, inflammatory, threatening, or all three.Wilson J rejected Kunene’s advocate’s argument about the context, because of the connotation that the word “cockroach” came from the Rwandan genocide in 1994. I submit that the judge, in putting so much store in the word, fails to take into account the various historical, political and social contexts in which that horrifying period fell.“Cockroach” has been used to dehumanise Jews for centuries, in the context of their simply belonging to a group. Together with legal and societal impediments over years, this led to the horrifying outcome that was the Holocaust. This still does not mean that the derogatory utterance of the word, in the context of an insult to a person, is an incitement to hatred of one group by another.If what Kunene said falls into the category of hate speech, then how much more should “Kill the Boer” be deemed hate speech, when chanted by Malema to crowds of people, creating a febrile atmosphere and encouraging the crowd to participate. And yet both the Equality Court and the Supreme Court of Appeal (SCA) have recently held that however hateful it is to those who are the subject of the chant, it did not meet the definition of hate speech. This attracted huge controversy which I covered inThe ConCourt refused leave to appeal “Kill the boer” – was this wrong?The Concourt has not made a decision on the merits of the SCA’s definition: well, not in so many words. In rejecting AfriForum’s application for leave to appeal the SCA judgment, the ConCourt held that there was no prospect that it would come to a different conclusion to that of the SCA.The ConCourt has never given reasons for its decision. I argued that there were arguments that merited the attention of the ConCourt. I didn’t suggest that the court had to come to a different decision. However, ConCourt’s rejection made it fairly clear that it would have agreed with the SCA. Should Kunene and the PA seek to appeal to the SCA, the court should find it very difficult to agree with the court’s a quo that Kunene’s repeated cockroach taunts amounted to hate speech, given its decision that Malema’s and the EFF’s numerous anti-Afrikaner chants were not.The impulse to circumscribe the speech of politicians threatens to move into the territory of banning criticism of political leaders. This is a blight on the free expression of many people in countries on the African continent. South Africa mustn’t fall into this trap. Our democracy wouldn’t survive this..*Sara Gon is a Fellow of the SA Institute of Race Relations. She was an employee of the IRR for 10 years, in which time she helped develop the Daily Friend, latterly serving as its Contributing Editor. Her ‘hobby’ of writing letters to newspapers about South African politics landed her her role at the IRR. Prior to that, Gon was an attorney at Webber Wentzel, and was a co-founder and manager of the Johannesburg Philharmonic Orchestra. Gon now manages the Free Speech Union of South Africa, and is engaged in other projects..This article was first published by Daily Friend and is republished with permission

Calling Malema a ‘Cockroach’ is hate speech? Really?: Sara Gon

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