Kunene committed hate speech by calling Malema a cockroach, court rules

Julius Malema took Kenny Kunene to court, accusing Kunene of hate speech. Archive photo: Ashraf Hendricks

• The High Court in Johannesburg has found that the Patriotic Alliance’s Kenny Kunene committed hate speech by calling the Economic Freedom Fighters’ Julius Malema a cockroach.
• Even though the word was not used to refer to Malema’s ethnicity, it is associated with the Rwandan genocide and is “always and everywhere” a hateful term, the court said.
• But the court disagreed with an earlier Equality Court ruling that calling Malema a “little frog” and a “criminal” was hate speech.
• The Equality Court had also ruled that Kunene should be referred for criminal prosecution. But the High Court said this was not necessary and Kunene need only apologise.

A full bench of the High Court in Johannesburg has found that Kenny Kunene committed hate speech when he called Julius Malema a “cockroach”.

Kunene, of the Patriotic Alliance, had called Malema, of the Economic Freedom Fighters (EFF), a “little frog” and an “irritating cockroach” during a television broadcast in 2021. He also called the EFF a “party of criminals”.

In 2023, the Equality Court ruled that Kunene had committed hate speech by using these words. Kunene appealed the ruling in the High Court in Johannesburg.

On Tuesday, the Court mostly agreed with the Equality Court, but found that only the word “cockroach” was hate speech. The court also ruled Kunene should not be referred to the National Prosecuting Authority – an apology is sufficient sanction.

Kunene and the Patriotic Alliance had argued that the phrases did not amount to hate speech because they were a personal attack on Malema and not an attack on a particular group.

And, they argued, even if it is an attack on a group, it is merely on an opposing political party. Because political affiliation is not listed as a prohibited ground for discrimination in the Equality Act, such utterances cannot amount to hate speech, they argued.

They maintained that political dynamics are such that politicians should be afforded a wide margin to make unpleasant remarks about each other. Kunene’s speech should therefore be protected by freedom of expression.

A full bench of the High Court in Johannesburg heard the appeal: Judges Stuart Wilson and Sandiswa Mfenyana, and Acting Judge SM Wentzel.

In its judgment, the Court clarified that the test for hate speech in terms of the Equality Act is whether a person has uttered words which a reasonable person would understand as intended to harm and encourage hatred of a person merely because of their race, gender or other prohibited ground.

The High Court said that hate speech “degrades the social arena in which it takes place”, making us all “less human” and “less tolerant of each other”.

Only words which are intended to cause harm and encourage hatred are prohibited. Subjective hurt is not enough.

The court accepted Kunene’s submission that the utterances had nothing to do with Malema’s ethnicity. But, they said, speech based on differing political ideologies can qualify as hate speech.

This is because both “conscience” and “belief” are grounds in the Equality Act. Although not all political affiliations would coincide with one’s conscience or belief, there would be cases where this happens.

The court referred to the anti-communist pogroms in the United States in the mid-twentieth century as one clear example. In the court’s view, “dangerous currents of violence and dehumanisation will often flow along the lines of political ideology or affiliation”.

In this case, the court said, a reasonable observer could conclude that Kunene’s utterances were intended to cause harm and encourage hatred of Malema because of his political beliefs or conscience.

The court also said that the use of the word “cockroach” was “internationally recognised as hateful of those to whom it is directed”.

“The political use of the term cockroach is always and everywhere a call to treat those to whom the term is directed as objects of hate.”

The court referenced the Rwandan genocide as an example.

“That genocide was characterised by the use of the word ‘cockroach’ to dehumanise and mark-out for slaughter the hundreds of thousands of men, women and children who were hacked to death in its commission.”

The word “cockroach” should be seen in this way, regardless of the context.

The word was dehumanising because it sought to convey that Malema was less than human and should be “eliminated from public life, perhaps together with his followers”.

“It is the specifically genocidal connotations of the word ‘cockroach’ which take it into a different category,” the court said.

The court rejected the argument that because it touched on political matters, it was protected expression, pointing out instead that the purpose of hate speech law is “to place limits on the terms of social and political debate, with the aim of ensuring that it cannot degenerate into mutual dehumanisation and violence”.

But the court did accept that speech which is merely “angry or conveys hostility” would not qualify as hate speech. For this reason, calling Malema a “criminal” or “little frog” wasn’t hate speech, contrary to what the Equality Court found.

The court upheld the Equality Court’s ruling, but varied it to indicate only the word “cockroach” was hate speech, and that Kunene should not be referred to the National Prosecuting Authority.

The court ordered Kunene to issue an unconditional written and oral public apology.

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