Actual case reduced to a sideshow

AfriForum’s hate speech case against ANC Youth League (ANCYL) leader Julius Malema in the Equality Court in Johannesburg has been turned into a public show outside the courthouse to such an extent that the case itself seems to have been reduced to a sideshow. In fact much of what has been happening outside the court probably amounts to little more than contempt of the court.

While the court is still hearing evidence and even before it has put its case in the court, Winnie Madikizela-Mandela last week on behalf of the ANC promised its supporters victory in the case. She declared to the hundreds gathered outside the High Court in Johannesburg: “You will have cause to celebrate, we promise you.”

Some elements of what is happening and is being said in front of the court about the court and the case could even be interpreted as attempts to intimidate the court and pre-judge the eventual judgment.

Malema, who himself has yet to say a word inside the court, made a political speech to supporters outside the court in which he referred to “untransformed courts” and colonial control of the economy.

“These courts are our courts, whether they are still not transformed… We are engaged in a struggle for economic emancipation. We are engaged in a debate with those who stole our land; we just want them to share the land with us,” he told his supporters.

“There is no individual on trial... they are testing our revolution... they are testing methods we used to defeat them.
“These judges are our judges, whether you like it or not, they work for the government... the government which is us the ANC” he also said.
He asked the group to maintain their militancy and not to apologise for being radical. “We are here to defend our history,”

Winnie Mandela in expressed her solidarity also said: “It isn't Julius who is on trial, as he says. It is the ANC which is on trial.”

In a discussion document for the ANCYL’s national congress to be held in June, the league last week accuses AfriForum of undermining democracy in the country with its case against Malema.

Survey on kill the boer

Meanwhile, a TNS Survey has found that three-quarters of metro adults believe the words “kill the boer” do constitute hate speech. The survey, which polled 2 000 metropolitan residents, found that 74% felt the phrase constitutes hate speech and 18% disagreed, while eight percent said they did not know.

Two-thirds of black respondents agreed the words constitute hate speech along with 90% of whites, 82% of coloureds and 91% of the Indians surveyed. Twenty-four percent of those who disagreed were black, five percent were white, 13% coloured and five percent Indian. Eighty-eight percent of those who agreed the words constitute hate speech were English speakers, 87% Afrikaans speakers, 68% Zulu, 67% Xhosa and 61% Sotho.

TNS Surveys said, “While there are important differences between race groups in metro South Africa, it is noteworthy that a majority of all groupings feel that these phrases do indeed constitute hate speech.”

In a telephone study conducted in 2004, 74% also agreed that the words constitute hate speech, showing that attitudes toward the phrase have not altered much in the last six years.

Under the circumstances some commentators have started questioning the wisdom of AfriForum’s tactics to take Malema to court.

They argue that it only assists Malema to build his stature and gave him a high profile political platform and increases rather than calms racial tensions in the country.

Some also claim that it plays into the hands of more radical nationalist formations inside the ANC. It gives them an opportunity to identify an enemy that they claim wants to rob them of their true freedom, to claim that full liberation has not yet been attained and that the revolution is still incomplete.

It also serves to divert attention away from the ANC-government’s failings – away from issues like service delivery and corruption charges that had it on the political backfoot in recent times, these arguments go.

The bigger question

The bigger question however, that should be posed is; what is the use of a constitutionally mandated instrument like the Equality Court if an aggrieved party first has to contemplate political and/or power play implications before he or she can make use of it?

That would amount to bowing to the intimidation that is implicit in what is happening outside the court at the moment.

If this constitutional instrument is allowed to be nullified by strong-arm tactics and threats, the question arises: what instruments remain for individuals or groups to protect themselves.

Surely, the very intention of an instrument like the Equality Court is to remove the need to meet a threat with a counter-threat, which is far more dangerous to peace and security to society at large, the counter arguments go.

In an interview with the Sunday newspaper Rapport, Flip Buys of AfriForum said the organisation tried all other possible channels to resolve the issue before they turned to the court. “We took the dialogue route with the ANC-leadership right up to president Jacob Zuma before we took Malema to court.

“When we went to talk to Malema, he refused to withdraw his hate speech and told us to go and look what happened before the 1994-elections with 19 Zulus in a march to Shell House … they were shot.

“No, all you always get is courteous contempt. What do you do then? You take the very last route. You go to court,” he said.

Not just rhetoric

Events outside the court were also not restricted to rhetoric only.

Malema arrived at court surrounded by bodyguards, dressed in black with red ties and armed not with defensive weapons, but with assault rifles associated with combating urban terror.

Not only did the presiding judge have to order weapons not to brought into the court, but it also prompted political analyst Nic Borain pose the question on his blog: "What do the Nazi party, the AWB and the ANC Youth League actually have in common?"

And he answers: "Certainly a sense of camp elegance and style; dark flowing fabric and the gleam of steel and silver, cut through with the clean heroic red.”

Roelof du Plessis, a co-complainant in the case told Sapa that he had been prohibited from entering the court “by people who were bodyguards, or who are not people with the court”.

On another occasion a lawyer, who has nothing to do with the particular case was harassed by the crowd gathered outside the Johannesburg court. Not only was her car jumped on but a man urinated at her as she walked passed.

It is claimed that police officers who saw the incident had done nothing, while ANCYL spokesman Floyed Shivambu denied that any member of the organisation was involved in the incident.