SANEF v EFF: What did the High Court say and was it correct?

Last week the Gauteng High Court dismissed the application of the South African National Editors Forum (SANEF) and various journalists against the Economic Freedom Fighters (EFF) and its leader Julius Malema, in which SANEF asked the court, among other things, to interdict Malema and the EFF from intimidating, harassing, threatening or assaulting journalists and from actively or tacitly encouraging their followers to do so. Curiously, SANEF and the journalists relied on the hate speech and harassment provisions of the promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), so it was not surprising that they lost the case.

It is a bid odd to read your own name in a court judgment, especially when it is not in a footnote that references an academic article you had written. But there it is in paragraph 8 of the Gauteng High Court judgment in the case of South African National Editors Forum and Others v The Economic Freedom Fighters and Others. It is contained in a quote from a speech delivered by Julius Malema at a time when the EFF’s Pravin Gordhan hysteria was reaching fever pitch. Malema seemed to have taken umbrage at various individuals who were insisting on sticking to the law and the facts in their reporting and analysis:

Peter Bruce, Max du Preez, there is Ferial Haffajee, there is Ranjeni Munusamy, there is another one from Cape Town called Palesa Morudu, there’s another called, this one that was the CEO of the Gender Commission, Nomboniso Gasa, and the husband, and that Pierre de Vos – that’s the Ramaphosa defence force… You must write them down, everywhere you see their names, attend to them decisively. You must attend to them decisively.

I am happy to report that no EFF member “attended to me decisively” after the speech (I just realised this sounds a bit suggestive.). At best there was a slight increase on my Twitter feed in the number of incoherent bigots bombarding me with tired clichés, and of homophobic insults stemming from their repressed desire for man on man action. But others were threatened and harassed (sometimes in a disturbingly sexist and violent manner), which led to SANEF and a group of journalists approaching the court for relief.

Unfortunately, SANEF did not ask me for legal advice, as I would have told them that it was a mistake to rely on provisions of PEPUDA to deal with the intimidation and harassment of journalists. It would have been better to use other legal mechanisms. Let me explain why.

First, SANEF argued that Mr Malema’s statement amounted to hate speech in contravention of section 10 of PEPUDA. When trying to show that hate speech has occurred, one must show that the person or group targeted was targeted on the basis of their race, sex, gender, sexual orientation or other prohibited ground.

Even where speech is “hurtful, distasteful and offensive” (The High Court’s description of Malema’s words), and even where speech actually incites violence against one or more people, this does not amount to hate speech unless the speech targets a person or group based on one or more prohibited ground.

This means if I stand on the corner of Keerom and Leeuwen Streets in Cape Town, point at the Cape High Court, and shout: “Kill all judges! Kill all lawyers!” I might be breaking the law in several ways, but I would not be guilty of hate speech because I am not targeting the judges and lawyers because of their race, sex, gender, sexual orientation or any other prohibited ground.

Similarly, if an ANC or DA leader went on a Twitter rant, claiming that Julius Malema was a thug, a charlatan, a thief, and a hypocrite, and appealing to his or her followers to deal decisively with Malema, this will not amount to hate speech – although Mr. Malema may have other legal tools at his disposal to deal with the matter.

The journalists (and the odd law professor, publisher and gender activist) were obviously not targeted by Malema because of our race, sex or gender, sexual orientation or because of some other prohibited ground. This means it was always going to be an uphill battle to convince the court this was hate speech.

As far as I can tell from the High Court judgment, SANEF’s lawyers only belatedly tried to address this point by arguing that “journalism or occupation” should also be considered a prohibited ground and that targeting journalists in the manner Mr Malema did in his speech should therefore constitute hate speech.

PEPUDA allows the courts to expand the list of grounds in terms of which discrimination and hate speech can occur. What is required is for these grounds to be considered as “analogous” to the grounds already listed. The Constitutional Court has found that both “citizenship” (in the context of xenophobia) and “HIV status” are analogous grounds of discrimination and therefore also grounds in terms of which hate speech can occur.

The Constitutional Court held Larbi-Odam v Member of the Executive Council for Education (North West Province) and in Hoffmann v South African Airways that it would expand the list of grounds if the group complaining of discrimination is a political minority; and/or is otherwise a vulnerable group; and/or has suffered from deeply entrenched prejudice and hatred; and/or because there is a long history of stigmatising and marginalising them; and the ground is sufficiently similar to groups already protected by section 9 of the Constitution.

The High Court argued that being a journalist was not analogous to either the listed grounds like race, nor the analogous grounds like citizenship and HIV status because “journalism is not an inherent and immutable quality”, but rather a career choice. The court could also have pointed out (but did not) that there is not a long history of journalists being stigmatised and marginalised in the way that, say, HIV positive people have and cannot be said to be one of the most vulnerable groups in society.

I would therefore argue that the High Court judgment was correct to reject SANEF’s hate speech argument. At the very least, the argument was a long shot.  

The second argument advanced by SANEF was that the harassment that the journalists have been subjected to by the EFF, Mr Malema, and their followers was prohibited by section 11 of PEPUDA as the section prohibits any person from subjecting another person to harassment. PEPUDA defines ‘harassment” as “unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences” and which is related to sex, gender or sexual orientation; or a person’s membership or presumed membership of another prohibited ground.

There has been very little said by our courts about the exact scope and content of section 11 of PEPUDA. The High Court recently held in Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others that displaying the apartheid flag in the face of most South Africans knowing that they recoil from it constitutes harassment, but the judgment contains no legal argument to back up this finding, so it’s of little use in the present case.

As is the case with hate speech, there are two parts to the question of whether harassment occurred in contravention of section 11 of PEPUDA. First, one must show that there is serious or persistent unwanted conduct that amounts to harassment. Second one must show that the harassment is linked to the sex, gender, sexual orientation or other listed or analogous ground.

For some reason, the High Court did not discuss the second question. This is probably because many of the harassers clearly targeted female journalists because they were women and tried to intimidate them with threats of sexual assault. I am going to assume the court believed, without any discussion, that this second requirement for harassment was met.

According to the High Court SANEF had argued that section 11 of PEPUDA applied to Malema and the EFF as:

evidenced by [Malema and the EFF’s] tweets, followed by their supporter’s tweets, followed in turn by [Malema and the EFF’s] express or tacit approval, the intention is to create a hostile and intimidating environment that discourages or stops the complainants in particular, and journalists in general, from reporting critically on [Malema and the EFF].

The High Court did not like this argument, holding that that there was not sufficient evidence of a causal link between the statements of Mr Malema and the EFF and the one hand, and the harassment of journalists on the other. In fact, said the court, “it is not clear whether those persons who tweeted are EFF members or supporters”.

This seems to be a fair point as those who tweeted hate at the journalists may just as well have been supporters of Jacob Zuma, Ace Magashule or of other politicians, officials and businesspeople and women involved in corruption.

The High Court also rejected the argument that Malema and the EFF had to take some responsibility for the harassment in terms of section 11 because they did not take reasonable steps to dissuade EFF supporters from harassing journalists in contravention of section 11. While the anonymous twitter users could theoretically be held responsible for harassment, those who may encourage them with a nudge and the wink cannot. While it is less clear cut than the court’s conclusion on hate speech, I suspect the High Court’s finding on harassment is not obviously wrong.

However, the most interesting aspect of the judgment is the High Court’s conclusion that trolling and harassment on Twitter are inevitable and not easily curtailed by the law. The High Court thus stated that:

With the huge numbers of social media users, all types of users will undoubtedly be subjected to some form of social media trolling during their usage… Social media has changed the way people communicate. The change specifically to social media is the anonymity of its agents; those who write and comment often use nicknames and aliases. Anonymity leads to avoidance of responsibility.

I have long since come to the same conclusion. Unless one is prepared to find out who the anonymous twitter trolls are, it is best to avoid the trolls by not reading what they write. That is why I mute the charlatans and bigots on Twitter (mute, because then they do not know that I cannot read what they write) and why I am not going to read the comments posted on my Twitter timeline in the next day or two. The trolls (many of them not having bothered to read this article) are going to go crazy with rage when they see I have written about the EFF judgment, not knowing that I will not read a single word they write.

Please don’t tell them their rants have no impact.

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