Hate speech law in South Africa sits uneasily at the intersection of history and context. Nowhere is this clearer than in South African Human Rights Commission & Another v. Julius Malema & Another, where the Equality Court – empowered by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA/Equality Act) to hear and decide cases related to unfair discrimination – found that white men were the victims of hate speech by Parliamentary opposition leader Julius Malema.

One might be surprised by such a decision in South Africa. After decades of colonialism and apartheid, where Black South Africans were racially oppressed, economic inequality means white South Africans still hold disproportionate power whilst Black people continue facing poverty. How do white men become targets of hate speech in such a context?

The answer is that Julius Malema, a controversial left-wing politician, uttered the words, “tell that white man to try me…you must never be scared to kill. A revolution demands that at some point there must be killing because the killing is part of a revolutionary act” at a rally in 2022. This was in response to an incident wherein members of Malema’s political party, the Economic Freedom Fighters (EFF), were allegedly assaulted by a white man outside a Western Cape high school.

The Equality Court found that Malema’s words constituted hate speech under section 10 of the Equality Act: inciting harm and propagating hatred on a “prohibited ground” of the Act, that being race.

This case joins South African Human Rights Commission v. Khumalo and Solidarity & Another v. Black First Land First and Others as high-profile cases where Black people have been found guilty of hate speech against white people in South African history.

This leads us to ask: what does this mean for human rights, both in South Africa and globally?

The most striking aspect of this judgment is how the Equality Court applied the Equality Act in a genuinely race-neutral manner. Whilst the optics of white men being declared victims of hate speech by a Black politician in South Africa are uncomfortable given the country’s history, the Court demonstrated that legal principles must transcend historical power dynamics when assessing contemporary harm.

This does not signal a judicial endorsement of so-called “reverse racism” narratives. Rather, it underscores that context remains key in hate speech determinations. The Court carefully considered the specific circumstances surrounding Malema’s statements – the inflammatory language, the public platform, and the potential for incitement to violence – rather than applying a blanket exemption based on historical disadvantage. This nuanced approach complicates the traditional narrative of hate speech law, but it reinforces legal consistency and protects white South Africans against possible harm.

This judgment also marks a significant development regarding political accountability for extremist rhetoric. Malema has faced numerous hate speech allegations throughout his career, including cases involving his singing of Shoot the Boer and other controversial statements. However, in  none of those instances was Malema found guilty of hate speech. This judgment represents the first time he has been found so guilty.

The finding demonstrates that political leaders cannot hide behind partisan rhetoric to escape hate speech liability. This precedent is important in South Africa’s polarised political landscape, where populist political figures have recently used more antagonistic language towards particular groups.

Significantly, this case illustrates how South African courts approach the tension between freedom of expression and the rights to security and dignity. When these fundamental rights appear to conflict, the judiciary has consistently prioritised the latter, recognising that unfettered speech can undermine the very democratic foundations it purports to protect.

The Court’s reasoning reflects a broader understanding that in societies emerging from systematic oppression, hate speech poses particular dangers to social cohesion and individual safety. This approach aligns with South Africa’s constitutional commitment to establishing a society based on human dignity, equality, and freedom.

This judgment warrants inclusion in international discussions about extremist political rhetoric. As democracies worldwide grapple with rising populism and inflammatory discourse from political leaders, South Africa’s experience offers valuable insights into how legal systems can respond to hate speech without abandoning fundamental rights.

Ultimately, the Malema case thus represents more than a single legal victory or defeat; it demonstrates that hate speech law can function in a way that is mindful of historical power structures while balancing this with a sensitivity to contemporary context.

The Equality Court has charted a course that other post-conflict societies might follow. In doing so, it has shown that true equality before the law sometimes requires the courage to protect even those who once held – or continue to hold – positions of privilege, when the circumstances demand it.