By: Bianca “BB” Binase
Patriotic Alliance Deputy President Kenny Kunene has filed papers with the Supreme Court of Appeal in Bloemfontein, asking the court to reverse the ruling of the Johannesburg High Court which ordered him to issue a public apology to Economic Freedom Fighters (EFF) leader Julius Malema for referring to him as “a cockroach”
Last month, the high court in Johannesburg ruled that Kunene committed hate speech by calling Malema a cockroach. The court ordered that Kunene issue an unconditional written and oral public apology to Malema, adding that the apology must unequivocally retract the use of the word “cockroach” to describe the Red Berets leader. It said the apologies must be published within one month of the date of the order and also ordered Kunene to pay the costs for Malema’s legal team.
The high court upheld an earlier ruling by the Equality Court, which in 2023 ordered Kunene to issue an unconditional public apology for referring to Malema as a cockroach, a “little frog” and a criminal during a 2021 interview on news channel eNCA. Judge Motsamai Makume ruled that Kunene’s remarks constituted hate speech under the Equality Act. However, Kunene immediately responded and said while he respected the decision of the Gauteng High Court, he would not apologise to Malema and would instead approach the Supreme Court of Appeal in Bloemfontein as he believed another court might reach a different conclusion.
Kunene said that he found it strange that calling the EFF leader a cockroach was deemed hate speech, while Malema’s continued use of the “Kill the Boer, Kill the Farmer” chant at rallies has been ruled not to be so. In his papers filed with the Supreme Court last week, Kunene said his appeal “not only has reasonable prospects of success but also, importantly, raises exceptional circumstances of a profound constitutional and public nature that require the urgent and definitive consideration of this court”. Kunene added that the central issue “concerns the proper interpretation and application of South Africa’s hate speech laws in relation to political discourse, a matter of fundamental importance for safeguarding freedom of expression and maintaining the health and functioning of our constitutional democracy.”
CLICK HERE TO READ MORE: Kunene and another v Malema Leave to Appeal SCA FA
“We remove hate speech from the constitutional protection given to free speech on the basis that hate speech substantially increases the likelihood of a very real harm against the person or group against whom it is directed. It is difficult to imagine that any reasonable person, hearing my reference to Mr Malema as a cockroach, in the context of robust (if responsible) political debate, would believe that Mr Malema and those who share his political views are, as a result of what I said in the interview, to be hated or harmed in the manner contemplated in Section 10(1) of the Equality Act.”
“There was no incitement to harm or propagation of hatred against the members of the EFF as a group, or against any other group to which the Mr Malema belongs. A reasonable observer would not have understood my statement as a call to action against EFF members or supporters. They would have understood it as a statement made within the context of a personal and political feud between two prominent political figures.” Kunene said the high court judgment “introduces a limitation upon freedom of speech that both this court and the Constitutional Court have carefully guarded against whilst holding that courts are obligated to delineate the bounds of the constitutional guarantee of free expression generously”.
Kunene added that the high court “is inconsistent with the views expressed by both this court and the Constitutional Court that the expression of unpopular or even offensive beliefs does not constitute hate speech, and that a “court should not be hasty to conclude that because language is angry in tone or conveys hostility it is therefore to be characterised as hate speech, even if it has overtones of hate or ethnicity”.
“This court’s intervention is required to correct the regressive interpretation of the free speech right, and the extension of the hate speech provision in section 10(1) of the Equality Act, to give clarity and certainty that has been lost in light of the Full Court’s reasoning that led to the impugned order. For these reasons, I submit that there is a substantial and realistic basis to believe that this Court would interfere with the judgment and order of the Full Bench. The Full Court’s errors of law are of such a nature that the admittedly high threshold for the grant of special leave is met.”
Speaking to Africa News Global Kunene said he was confident the Supreme Court of Appeal would come to a different conclusion. He said he was humbled by the support he has received from all corners of the country so far. Kunene also thanked “a number of organisations and institutions that have applied to the court to join the case in my support”. Kunene declined to name the organisations and institutions that have joined him, only saying “their identities would be revealed in court”.
