Despite what newly-minted trillionaires would like to suggest, freedom of speech is not absolute. Even the United States of America, thought of as the foremost champion of an approach which leaves the regulation of speech to the so-called “marketplace of ideas”, recognises restrictions on free speech. 

This of course makes the question of where we draw the line of where we restrict freedom of expression, and how we define prohibited speech, extremely important. 

In South Africa, the Constitution provides that propaganda for war, incitement of imminent violence, or advocacy of hatred based on race, ethnicity, gender, or religion which constitutes incitement to cause harm, are not covered by the Constitutional protection of freedom of expression. The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) amplifies this by setting out prohibited grounds of hate speech, including race, gender, sex, conscience, belief, culture, language, and any other ground where discrimination based on that ground causes systemic disadvantage, undermines human dignity, or adversely affects the enjoyment of rights in a serious manner, comparable to discrimination on a listed ground.  

Does describing a political opponent as a “cockroach” constitute hate speech? This is the issue in ongoing litigation between Kenny Kunene, the deputy president of the Patriotic Alliance (PA), and EFF leader Julius Malema, the outcome of which will be highly significant for the scope of freedom of expression and the prohibition of hate speech in South African law. 

In 2021, Kunene gave a television interview discussing the outcome of the recently-concluded local government elections. He was asked about Malema’s criticisms of an agreement between the PA and the ANC. Malema (according to a judgment in the subsequent litigation) referred to the PA as a “party of criminals.” Kunene, indicating that he would “be responding” to Malema’s criticisms of the PA, then repeatedly referred to Malema as a “cockroach” as well as a “little frog” and a “criminal”.  

It will be apparent that Kunene used these epithets in the course of political contestation and debate – however intemperate it may have been. Kunene argued that “whatever [Malema] criticises, he is”, and indicated that he would explain “the real truth” of why he (Kunene) had left the EFF.  

Malema did not view the remarks this way, and brought a complaint of hate speech against Kunene in the Equality Court. The court upheld the complaint, finding that the use of the words “cockroach”, “little frog”, and “criminal” amounted to hate speech, being directed at Malema’s political affiliation and belief.  

On appeal, a full bench of the high court set aside the findings relating to the words “little frog” and “cockroach”, but confirmed the finding of hate speech in respect of “cockroach”. The court’s reasoning is significant: it held that the use of the word “cockroach” was not a purely personal attack, but was one directed at Malema as a political rival in the context of party-political debate. Whilst political ideology or affiliation is not a listed ground of hate speech under PEPUDA, the court held that political affiliation should be recognised as an analogous ground of discrimination (and therefore as constituting hate speech).  

The court placed great emphasis on what it described as internationally recognised “genocidal connotations” of the word “cockroach”, finding that its political use “is always and everywhere a call to treat those to whom the term is directed as objects of hate.” The court further held that, far from saving the remarks from being classified as hate speech, the political context in which they were made compounded the harm, by undermining the legislative aim to place limits on political speech to ensure that it “cannot degenerate into mutual dehumanisation and violence.”        

The approach taken by the court will certainly be appealing to most people. Faced with the spectre of genocide and other horrors, it is instinctively difficult to argue a contrary position. But the decision does merit scrutiny, because it raises concerns that it may ultimately go too far in restricting freedom of expression and political speech.  

First, there is a strong argument to be made, grounded in international and comparative law, that hate speech is a group-based wrong that does not apply to personal insults and name-calling between politicians. Just because speech is hurtful, shocking or offensive does not necessarily make it hate speech.  A personal insult can still constitute hate speech where it vilifies a wider group. But a purely personally directed insult, whilst it may be offensive or even defamatory, does not constitute hate speech.  

In the context of this case, it is doubtful that Kunene’s remarks about Malema can reasonably be understood to apply to a wider target group. If that is so, they would not amount to hate speech.    

Second, holding that political context cannot be a defence is also open to question. There is a long line of case law, both in South Africa and overseas, which holds that politicians are expected to have a thick skin and to be prepared to be exposed to robust debate. The European Court of Human Rights has consistently held that politicians ought to withstand a higher degree of public scrutiny. (In separate cases, descriptions of an Austrian politician as a “Nazi” and an “idiot” was held to be protected free speech).   

This is surely a relevant factor in this context. Malema is one of the most outspoken politicians in democratic South Africa. He is no stranger to robust engagement and to making sometimes withering criticism of his opponents. As we have seen, Kunene’s remarks were made in response to the PA being described as a party of criminals. Is there not an argument that he should expect to receive his fair share of robust and withering comment in return?  

This points to a third concern, namely the dangers of considering political identify as a protected category. Is it correct to say that insults directed at or exchanged between politicians fall into the same category as inflammatory language used by politicians against vulnerable or marginalised groups?  

Political actors enter into a robust space. They make that choice, one must assume, fully aware of the likelihood that they will be on the receiving end of comment and criticism which they may not like and may find unfair. But, as the Constitutional Court has said, “[p]olitical life in democratic South Africa has seldom been polite, ordinary and restrained”, which the court regarded as “no bad thing”. An expanded definition of hate speech, which reduces the extent of permissible political expression, risks changing this fundamental character of South African political life and may leave hate speech protections open to abuse.   

Of course, there will be circumstances where political speech will cross the line. But in these egregious cases, the speech will likely infringe existing prohibited grounds. Political speech that falls foul of existing listed grounds of hate speech will not be protected. Is it therefore necessary to further expand the categories of hate speech, thereby diminishing the scope of free expression in political argument?  

The case between Kunene and Malema has now gone on appeal to the Supreme Court of Appeal. The Campaign for Free Expression will be acting as amicus curiae (friend of the court) and will be arguing that hate speech is a group-based wrong that must be distinguished from personal insult; that the political context of such comments as crucial; and that  political affiliation and opinion should not be recognised as a protected ground against hate speech. This is not an issue about personalities or favouring one political cause over another. It is about the precedent that the decision would set, and the potential risk of limiting debate and criticism of politicians. We would argue that a certain amount of robust, even unseemly, speech is part of the rough-and-tumble of politics. To deny this could have far-reaching consequences we may come to regret. 

Chris Oxtoby (Senior Legal Researcher, Campaign for Free Expression)