Afriforum and Another v Malema and Another

• Jurisdiction: South Africa
• Judge: Lamont J
• Judgment Date: 12 September 2011
• Court: Equality Court, Johannesburg
• Hearing Date: 07 April 2011
• Citation: 2011 (6) SA 240 (EqC)
• Counsel: MSM Brassey SC (with MJ Engelbrecht) for the first claimant. R du Plessis SC (with RJ de Beer) for the second claimant. IV Maleka SC (with FM Sikhakhane and V Ngalwana) for the first and second respondents. Professor JJ Malan and N Hartman for the amicus curiae.
• Docket Number: 20968/2010

Lamont J:

[1] This is a matter which comes before me in the Equality Court. It concerns social conflict arising out of alleged hate speech. To understand the social interaction of the groups within society it is necessary to briefly F set out some historical facts. The legislation is initially set out in general terms to provide the legislative foundation within which the hate-speech legislation operates.

The Boers

[2] Several centuries ago people commenced, and since then have G continued, emigrating to the Republic from Europe and elsewhere. They brought with them their languages, cultures, moralities, laws and customs. Immigrants from Europe gained control of the country. They were able to, and did to a large extent, impose the norms, customs and morality of their former societies upon other inhabitants of the Republic. H The recognised laws in the Republic became their laws.

[3] Their morality did not recognise others as having rights of any significance. They proceeded to trample upon the rights of others and seize control of the assets of the Republic for themselves. I

[4] A faction of the immigrants who had their origin in Holland, France and Germany banded together at a point in time in consequence of conflict between European factions. This faction (known as Boers), in the pursuit of freedom, left the community of European settlers and went to live on their own. They established independent republics in which it was proposed by them that they would express and pursue their J

Lamont J

A economic, political and social ambitions. Those republics at a point in time were compelled to surrender to European forces. Notwithstanding their defeat, the zeal of that band and their ideal of pursuing their freedom remained intact. The Boers were able to seize control after the elections held during the late 1940s, and today are identified as a B community or set of persons calling themselves Boere or Afrikaners.

[5] Demonstrating excessive zeal, and rigid in their demands for freedom, the Boere pursued a policy of apartheid so as to maintain their political freedom. That policy, at the time the community commenced practising it, had deep-seated, long-standing recognition in the Republic. C Ever since the first immigrants arrived from Europe they had no regard for the rights, social, political, economic or otherwise, of other persons inhabiting the Republic. The Boer numbers were fewer than those of other communities. They would have been defeated at democratically held elections. Apartheid was the only way to retain control and power. This policy was pursued without regard for the growing clamour D worldwide that it be discontinued, and that the rights of others be recognised. It was pursued ruthlessly, and with violence sanctioned by the regime. The violence involved assaults upon dignity, freedom and economic standing of people. Every facet of life was affected and tainted. Its pursuit involved the conferring of privileges upon other Boere. Ultimately the regime became identified with the Boere who virtually E exclusively controlled the implementation of the policy.

The ANC

[6] During the early part of the twentieth century, members of the F oppressed groups began banding together. They banded together under the auspices of organisations which, broadly speaking, became united as the present African National Congress (ANC).

[7] The ANC represented what has colloquially been referred to as the suppressed majority. The suppressed majority largely comprised black persons who were disenfranchised politically, economically stripped of G wealth and subjected to ill treatment at the hands of the government of the day.

[8] The policy of the ANC originally was non-violent. With the passage of time and the increasing frustration of its members, the ANC eventually formulated a policy which included violence as an option. At H all times the policy was that, as far as possible, the violence be directed to the actual oppressor (the physical manifestation of the government), and that civilians be spared attack. The members of the ANC who were involved in violence euphemistically referred to it as 'the struggle'. The members of the ANC who participated in the struggle were drawn from I all walks of life, and comprised civilians. There was no known army wearing a uniform. In consequence of this, the government directed its attacks against civilians. Not all civilians were, however, participants in the struggle. Any member of the oppressed group was perceived as 'the enemy' by the government. With the passage of time the frustration and anger of persons belonging to the suppressed majority, the members of J the ANC and non-combatants who suffered attacks, increased.

Lamont J

[9] In Du Toit v Minister for Safety and Security and Another A 2009 (6) SA 128 (CC) (2010 (1) SACR 1; 2009 (12) BCLR 1171) para 17 the period was described as a time when there was a deeply divided society characterised by gross violations of fundamental human rights. Langa CJ referred to the words of Mahomed DP in Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC) (1996 (8) BCLR 1015) at para 17. B

'"Most of the acts of brutality and torture which have taken place have occurred during an era in which neither the laws which permitted the incarceration of persons or the investigation C of crimes, nor the methods and the culture which informed such investigations, were easily open to public investigation, verification and correction. Much of what transpired in this shameful period is shrouded in secrecy and not easily capable of objective demonstration and proof. Loved ones have disappeared, sometimes mysteriously and most of D them no longer survive to tell their tales. Others have had their freedom invaded, their dignity assaulted or their reputations tarnished by grossly unfair imputations hurled in the fire and the cross-fire of a deep and wounding conflict. The wicked and the innocent have often both been victims. Secrecy and authoritarianism have concealed the truth in little crevices of E obscurity in our history. Records are not easily accessible, witnesses are often unknown, dead, unavailable or unwilling. All that often effectively remains is the truth of wounded memories of loved ones sharing instinctive suspicions, deep and traumatising to the survivors but otherwise incapable of translating themselves into objective and corroborative evidence which could survive the rigours of the law." F

'[18] What followed was a negotiated transition premised on the need for the transformation of society and the building of bridges across racial, gender, class and ideological divides. The epilogue to the interim Constitution identifies it as an ''historic bridge between the past of a G deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence''. It goes on to state that:

The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. H

'By adopting that Constitution the nation signalled its commitment to reconciliation and national unity, and its realisation that many of the unjust consequences of the past can never be fully reversed but that it would nevertheless be necessary to close the book on the past.'

[Du Toit paras 17 – 18.] I

The agreement

[10] The agreement between the various communities became the Constitution of the Republic. The preamble to the Constitution which sets out the intention of the parties to the settlement provides: J

Lamont J

A 'Preamble

We, the people of South Africa,

Recognise the injustices of our past;

Honour those who suffered for justice and freedom in our land;

B Respect those who have worked to build and develop our country; and

Believe that South Africa belongs to all who live in it, united in our diversity.

We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to —

C Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;

Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;

Improve the quality of life of all citizens and free the potential of each D person; and

Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

May God protect our people.

E Nkosi Sikelel' iAfrika. Morena boloka setjhaba sa heso.

God seën Suid-Afrika. God bless South Africa.

Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.'

The consequence

F [11] Consequent upon the agreement between the groups, people who had lived lives separately from each other, who had hurt, tormented and degraded each other, and who in particular were not accustomed to each other in any way, commenced associating and interacting with each other. Persons previously comprising the privileged, essentially white, G grouping were suddenly, as equals, compelled to associate with persons whom they neither knew nor had interest in, persons they did not understand; persons from whom they had been isolated by force and law; persons who had been derided and degraded by them previously. Persons who had been oppressed similarly were, as equals, entitled and H required to interact as equals with people who had previously abused them, stripped them of their dignity and denied them their rights. All persons were compelled to interact as a unified society at social, political and economic levels. The...