EFF hate speech appeal: ‘Protect equality before the law’, says FMF

FMF Principles_1

Heads of argument and soundbites linked below.

Today, the Rule of Law Project (RoLP), an initiative of the Free Market Foundation Foundation (FMF), will make submissions in the Supreme Court of Appeal (SCA) in Bloemfontein. 

This comes as the SCA is today hearing an appeal by AfriForum against a shock ruling by the Equality Court, which concluded that the EFF and Malema were not guilty of hate speech in their singing of ‘Dubul’ ibhunu’ (‘Kill the Boer’).

The FMF has entered the fray as a friend of the court in the matter, in an effort to stand up for equality before the law. 

‘The Equality Court ruling undermines the principle of equality before the law, as there have been many cases in recent years of less prominent individuals who were ordered to pay heavy fines or serve jail time for far less heinous utterances’, said David Ansara, CEO of the FMF. 

‘It can’t be that political elites like Julius Malema get off without so much as a slap on the wrist after deliberately inciting violence and calling for mass murder, yet ordinary citizens are treated far more harshly’, Ansara elaborated. 

According to the FMF, it is this double standard that is relevant today. 

According to the RoLP, the Equality Court ruling in question implies that South Africans are not equal before the law, as ordinary citizens face harsh sanctions if found guilty of hate speech but members of the high ranking political class, like Julius Malema, get off scot-free. 

‘We’re at risk of setting a dangerous precedent here, one that flies in the face of our constitution’, Ansara continued. 

Counsel for the RoLP, Adv Mark Oppenheimer, will make oral submissions along the following lines in court today:

  • Firstly, the Equality Court ruling creates a category of specially protected speech uttered by political roleplayers. This elevates politicians over ordinary citizens and flies in the face of the fundamental requirement of the rule of law that no one is above the law.
  • Second, equality before the law requires that the rules of evidence are applied equally to parties in similar circumstances, yet, the Equality Court both included and excluded expert and lay witness testimony for inappropriate reasons. 
  • Third, the Equality Court held that AfriForum had failed to show that the song “Kill the Boer” targeted people on any of the listed grounds like race or ethnicity that are mentioned in the Equality Act. The effect of this is to treat Afrikaners as second-class citizens unworthy of protection.
  • Fourth, the Equality Court’s judgment undermines the founding value of non-racialism by implicitly creating different rules based on the race of the perpetrators and the victims.

The RoLP is determined to make every effort to defend equality before the law in South Africa. The outcome of this appeal will set legal precedent, and will have a serious impact on the fairness of our legal system going forward.

‘We urge South Africans who care about defending the rule of law, to join our call and support our cause by visiting ruleoflaw.co.za’, Ansara concluded.


The RoLP’s heads of argument can be accessed here.


Soundbite 1 – David Ansara, CEO, FMF (English)
Soundbite 2 – David Ansara, CEO, FMF (English)
Soundbite 3 – Martin van Staden, Head of Policy, FMF (Afrikaans)

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