On 27 August 2025, the Equality Court (Western Cape Division, Cape Town) handed down a reportable judgment in South African Human Rights Commission and Another v Julius Sello Malema and Economic Freedom Fighters (Case Nos EC 16/2022 & EC 17/2022), holding that parts of a 16 October 2022 speech by Mr Malema amounted to hate speech under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (the Equality Act). The Court, per Sher J, declared that the impugned statements “demonstrated a clear intention to incite harm and to promote or propagate hatred”, and found the EFF jointly liable with Mr Malema for costs.

Quick background

The case arose from EFF protests at Brackenfell High School in November 2020 and a later EFF event in the Western Cape on 16 October 2022. In that speech, Mr Malema criticised EFF members for not “following up” on a “white man” seen on video during the Brackenfell clashes and told supporters they “must never be scared to kill” in a revolutionary context, remarks the Court examined against the Equality Act and Constitutional Court guidance in Qwelane. The Court heard expert evidence, including a forensic linguistic analysis, and limited the first phase to the merits, with relief to be determined later.

The core legal finding

Sher J held that the offending passages:

• were based on prohibited grounds (race and, in parts, gender) because they singled out “white men”;
• could reasonably be construed by an objective listener to demonstrate a clear intention to incite harm (including violence) and to promote or propagate hatred; and
• therefore constituted hate speech under s 10(1) of the Equality Act.

The Court emphasised that political speech is not immune from the hate-speech prohibition, and that the test asks how a reasonable person would understand the words in context, not how the speaker subjectively intended them. The Court also held the EFF jointly and severally liable for costs because the speech was delivered by its President and Commander-in-Chief at an official party assembly and the party later endorsed the statements publicly.

Why this judgment is significant

1. Bright-line on incitement in political rhetoric. The Court draws a clear boundary: calls that normalise or encourage lethal violence, even in “revolutionary” framing, can be hate speech when grounded in protected characteristics such as race.
2. Organisational accountability. Parties and movements may incur joint liability when leaders speak in official capacities and the organisation adopts or amplifies the message.
3. Evolving hate-speech jurisprudence. The ruling adds to recent South African cases refining the scope of hate speech (e.g., Kunene v Malema on dehumanising slurs), reinforcing that context and effect trump labels and political framing.

What happens next?

This first phase resolved the merits; the remedial phase (sanctions/relief) stands over. The SAHRC has indicated it will pursue appropriate sanctions at the next stage. Possible remedies include apologies, interdicts, training orders, or other measures available under the Equality Act, though the Court will decide in due course.

Practical takeaways for leaders, organisations, and the public

• Audit public messaging. Political and advocacy groups should vet speeches for language that could be construed as endorsing or inciting harm against protected groups. Internal guidance and training should reflect the Equality Act thresholds.
• Context counts, but has limits. Historical or ideological references (e.g., Fanon, “revolutionary” framing) do not shield speech that crosses into incitement or promotes hatred.
• Document and report. Individuals who experience targeted incendiary speech should preserve recordings, transcripts, and posts and report to bodies like the SAHRC for assessment and potential action.