Heads of argument: Don’t take Malema literally, says his lawyer

The Economic Freedom Fighters (EFF) on Monday 5 August accused the SA National Editors Forum (Sanef) of misrepresenting party leader Julius Malema’s comments and trying to invent a new category of persons who can be discriminated against that would have damaging legal consequences.

The party, represented by advocate Tembeka Ngcukaitobi, was responding to Sanef’s claims that the EFF had targeted journalists with hate speech and harassment. The case is being heard in the Pretoria Equality Court, sitting in the North Gauteng High Court.

“There is no reasonable basis for telling Mr Malema he must tone down the rhetoric. He is a politician after all,” said Ngcukaitobi.

The advocate was speaking about Malema’s November 2018 speech outside the State Capture inquiry where he criticised a number of journalists by name and told supporters to challenge “the enemy” on social media and “cut the head” when the party’s perceived opposition exposes itself.

“There is no way any reasonable person can take those comments literally,” said Ngcukaitobi.

Sanef and five journalists represented in the case say Malema’s comments led to a stream of online threats and vitriol from EFF supporters who wanted to intimidate them from doing their work, causing them to fear for their safety, as well as emotional stress.

Ngcukaitobi warned the court against limiting the EFF’s freedom of speech, claiming that as an opposition party, “it has only one instrument to hold power accountable: speech, nothing else”.

He accused Sanef of cherry-picking parts of Malema’s speech while ignoring his instruction not to use violence against members of the media and his suggestion that he was friends with some journalists.

“We are always against the parachuting of a clause in a sentence, or a sentence in a paragraph, or a paragraph in a speech,” said the advocate, claiming no reasonable person would view Malema’s “cut the head” comments separately from his dismissal of violence.

The EFF argued that Sanef’s view of the speech was “self-serving, grossly unreasonable and caricatures the speech”.

Ngcukaitobi said Malema only wanted journalists to be honest about President Cyril Ramaphosa and Public Enterprises Minister Pravin Gordhan’s roles in former president Jacob Zuma’s administrations.

“The rest of it is of course political rhetoric.”

SANEF and the five journalists – Adriaan Basson from News24, Barry Bateman from Eyewitness News, Max du Preez from Vrye Weekblad, Pauli van Wyk from Daily Maverick, and Ranjeni Munusamy from Tiso Blackstar – want the court to order the EFF to denounce the harassment of journalists and to issue an interdict preventing the party from directly or indirectly, through things like retweets, harassing the journalists.

“We submit that unless the interdict as sought is granted nothing will change,” said advocate Daniel Berger for Sanef and the journalists.

“Not only will they not intervene, my lady, they will continue to make statements and to tweet in a way that incites their supporters.”

Berger said the interdict should also prevent the EFF from publishing journalists’ home addresses and phone numbers.

“We have to protect the journalists from hate speech and we have to protect the journalists from harassment.”

Sanef said Malema had retweeted threatening statements instead of denouncing them, effectively endorsing threats of violence and potentially limiting the work of a free media.

The EFF had rejected Sanef’s attempts since November 2018 to meet the party and discuss online intimidation. The journalists said there were real consequences from the party’s comments, such as when it criticised Vodacom in December 2018 and people in EFF regalia vandalised Vodacom stores.

In his responding affidavit, Max du Preez compared EFF supporters to those from the Afrikaner Weerstandsbeweging (AWB): “When I was surrounded by protesters in EFF regalia, outside the building where the Zondo Commission sits, I had no doubt that they believed that they were doing what their leadership wanted them to do, just as I knew that when AWB supporters who manhandled me in Pretoria, Boksburg, Brits and elsewhere during 1989 to 1992 believed that they were doing what Eugene Terre’Blanche wanted them to do.”

Ngcukaitobi, however, argued Sanef had no legal authority to take the matter to court. He said the decision to litigate should have been made in a meeting of the whole forum and not its management committee or council.

Berger, supported by Media Monitoring Africa, which has joined the case, argued that journalists should be protected from hate speech due to the nature of their occupation and role in society, but Ngcukaitobi said the laws must protect immutable groups from discrimination, such as those based on race, gender and sex.

“We know that it is a dangerous opening up of the section,” he continued, claiming other groups would clog the courts if they can be considered discriminated against based on their occupation.

Ngcukaitobi will continue his defence of Malema and the EFF on Tuesday and is likely to elaborate on his claims that it’s unfair to hold the party liable for the actions of “unidentified and unidentifiable” people on Twitter.

The hearing is expected to continue until Wednesday. DM