EXPRESSION: THE MOUTH PIECE OF HUMAN RIGHTS- PT 2 WHEN DOES CALLING SOMEONE A COCKROACH SHATTER THE FABRICK OF SOCIEYT

In part two of the Hate Speech series have commenced our exploration already, we look into a more recent more popular culture legal judgment to help us understand Hate Speech further. The Qwelane judgement is the blueprint and the father of hate speech jurisprudence in South Africa. So best believe, close to every hate speech judgment will make reference to it.

Our focus on part two shift to a matter that involves two characters, who have a cult following, not because of their positive impact in society but because of their personalities. A collision course between these two men was always set to happen when one of them entered the political sphere.

We herein gather to dive into Hate speech throught the written legal judgment of Kunene and Another v Malema (A2023/092235) [2025] ZAGPJHC 742 (5 August 2025). With us having an understanding of what speech is prohibited in the south african legal freedom of expression framework, we will conduct a legal dive into the judgment of Kunene v Malema 2025 wherein we will look at the background facts, legal issues the court grappled with, the applicable law, the cours discussion and evaluation and lastly look into the courts judment and the impact of that judgment on the lived realities of society

Before we delve in to the background facts, i am not in agreement with this judgment. Utmost respect and admiration to the Judge of the High Court SDJ Wilson who penned the judgment. It was too sensitive and went way beyound the factual and social context in which Hate Speech is supposed to be assessed.

1) BACKGROUND FACTS:

The genesis of this matter was a political dispute following the 1 November 2021 local government elections. The Patriotic Alliance (PA), represented by its Deputy President, Mr. Kenny Kunene, struck a coalition deal with the African National Congress (ANC). On 16 November 2021, Mr. Julius Malema, leader of the Economic Freedom Fighters (EFF), took to social media to criticize the ANC for allying with a "party of criminals" (referred to as a "pati yama bantiti"), deliberately referencing the past criminal convictions of Mr. Kunene and PA President Gayton McKenzie. In my perspective, Mr Malema's speech can be regarded as a prohibited speech which can constitute as harmful. The judge did not touch on that, and i guess that due to it not having been raised or pleaded or placed on record before the court.

The next day, during an ENCA television interview, Mr. Kunene was asked about Mr. Malema's remarks. Visibly angry, Mr. Kunene retaliated by referring to Mr. Malema as a "little frog", a "criminal", and notably, an "irritating cockroach" that he must "deal with". He called him a "cockroach" again four other times during this interview. Is it fucked up that he called another man a "cockroach", it is, he called him that because he has a personal agenda against a political opponent who called him a criminal. The court, in its assessment of the social context of the word "cockroach" i think erred. Because it used the wrong social context. We will come back to this in due course.

Following this, Mr. Malema approached the Equality Court, arguing that these insults constituted hate speech. The Equality Court (per Makume J) ruled in Mr. Malema's favor, declaring the words "cockroach", "little frog", and "criminal" as hate speech, ordering an apology and an interdict, and referring the matter to the Director of Public Prosecutions. Not in agreement with the Equality courts conclusion, because if it stood and never went to the high court, then that would mean calling someone a frog and criminal is hate speech. Mind you, in the very same matter the Equality court was adjudicating in, the applicant himself called the response a criminal and technically referred to the political party, its memebers and all its followers as criminals by association because they are part of a party ran by criminals. Since the Equality court ruled that the word "criminal" is hate speech, why did it not order Malema to tender a apology aswell and be interdicted from calling Kunene that. The whole purpose of speech prohibition is to ensure social cohesion for purposes of achieving the south african project of a united society. Whether the respondent had pleaded it or not, that does not matter if the purpose is to ensure cohesion is achieved. Since Malema also used the same words, The Equality court should have also order for Malema to apologize.

Mr. Kunene and the PA subsequently appealed this decision to the High Court. And that brings us to the analysis of the High Court Judgement

2. LEGAL QUESTION/ISSUES COURT TASK TO ANSWER & RESOLVE:

Whether a political leader calling another a "cockroach" during a televised discussion constitutes an act of hate speech within the meaning of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act? In answering this question the court broke it the main legal question into 4 sub legal question:

1. Whether Mr. Kunene's utterances were merely personal attacks or if they were based on a "prohibited ground" under the Equality Act.

   
   

2. Whether political ideology or affiliation can be recognized as an unlisted, analogous "prohibited ground" for hate speech.

   
   

3. Whether the context of robust, fierce political debate affords political actors a wider margin of appreciation that excuses otherwise hateful rhetoric.

   
   

4. Whether the absence of a direct threat or explicit incitement to violence meant the words could not reasonably be construed as harmful

With the legal issues understood, the following are the applicable law that govern this litigation

3. LEGAL RULES AND PRINCIPLES APPLICABLE: THE LAW

Section 16 of the Constitution: Protects freedom of expression but explicitly excludes the "advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm" (Section 16(2)(c)).

Section 36 of the Constitution: The general limitations clause, which allows rights to be reasonably and justifiably limited.

Section 10 of the Equality Act: The statutory limitation on free speech that prohibits words based on prohibited grounds that could reasonably be construed to demonstrate a clear intention to be harmful, incite harm, or promote hatred.

Section 1 of the Equality Act: Defines "prohibited grounds" to include specific characteristics (like race, gender, etc.) as well as any other ground where discrimination causes systemic disadvantage, undermines human dignity, or adversely affects equal rights in a serious manner.

Qwelane v SAHRC Precedent: The Constitutional Court's objective standard must be applied. Hate speech is not determined by the speaker's subjective intent or the target's subjective hurt, but by whether a reasonable observer would understand the words as clearly intended to cause harm and promote hatred based on group identity. Qwelane also established that hate speech regulation serves a preventative purpose to protect the "nation-building project" and prevent societal harm

From the reading of what the law is, within the context of the legal question, i still stand with my position that the judgment reached was incorrect. It sets a bad precedence because that means the word "cockroach" cannot be used in banter. Its a word that has so much social connotation depending in which social setting you are in. I Fully agree with the court wherein it stipulated that saying that shit in Ruwanda is most definitely a terrible thing to say, the history of the word in that society is filled with trauma and does not advocate for the advancement of social cohesion. No constructive discourse can come from calling another person that word in Ruwanda given its historical and current social context of the word within the country.

4. THE COURTS DISCUSSION AND REASONING BEHIND ITS FINAL JUDGMENT

The brilliance of the Qwelance Constitutional court judgement outline perfectly the objective test that must be employed when determining as to whether a speech constitutes as prohibited speech, specifically Hate speech. The test is whether a reasonable observer would understand the words as clearly intended to to cause harm and promote hatred based on the ground outlined in Equality act. If the grounds in which the speech was directed towards is not based on the 4 grounds espoused in the Constitution (which is Race, Gender, Ethnicity and Religious belief) then the court has to determine whether such speech must be limited based on reasonable and justifiable society that is based on freedom, dignity and equality.

Here is how the court reasoned the answering of the legal issues it was faced with:

Applying the Qwelane objective test, the High Court evaluated the meaning of the word "cockroach" in its social and historical context:

Political Affiliation as a Protected Ground: The Court rejected Mr. Kunene's argument that political ideology cannot be a basis for hate speech. The Court held that political affiliation qualifies as an analogous ground under Section 1 of the Equality Act because discrimination based on it can severely undermine human dignity. The Court noted that "dangerous currents of violence and dehumanisation will often flow along the lines of political ideology".

This undermines the freedom of expression essential in political discourse. He called him a criminal and in response he called him a cockroach. Both words found to be alienating but not hate speech in my opinion.

The Genocidal Connotations of "Cockroach": The Court found that a reasonable observer would understand the word "cockroach" as an attempt to strip Mr. Malema of his humanity. The term carries internationally recognized, hateful connotations specifically tied to the Rwandan genocide, where it was used to dehumanize people and mark them out for slaughter.

The issue i have on this reasoning is that we look at the social and historical context of the word cockroach within the south african social and historical context. What weight does the word Cockroach have in South Africa. The history of the country has words which have been used in history to dehumanise and strip dignity away from a person, and amongst those words, cockroach has not been one of them. Therefore contextually speaking, the words has not weight attached to it which such weight is derived from his historical context. Socially speaking, the word has never caused uproach and be of such a nature that the social fabric of south africa would be dismantled. Now if Kenny had referred to Malema as a Kafir or Monkey, then we would have been speaking a different story on my side. But in my perspective, the word should not be grouped under prohibited speech. If it a fucked up thing to call someone else? most definitely, its not a nice thing to call someone else, but a limitation of speech cannot be based on a speech not being nice.

Political Context Compounds the Harm: Instead of excusing the speech, the Court found that the context of fierce political contestation actually compounded the potential harm. The Court emphasized that Section 10 of the Equality Act is designed to set "modest outer limits for social and political interaction". South African law does not tolerate political debate degenerating into mutual dehumanization, as this risks moving society toward resolving disputes through violence rather than democratic deliberation.

Discrimination at its core in south african has never been based on political affiliations and standing. For it to be regarded a ground would means that, someone must not be treated equally and with dignity because of the political side they stand on. Now in this context, Kunene was not referring to Malema as a cockroach on the basis of Malema's identity. Given the back and forts spats that have been exchange between the two, he reference of Malema as a cockroach was a return of an insult. It was not an advocacy of hatred or incitement of harm towards Malema. Kunene probably said the very first insult that came to his mind. Now i recognize that the subjective intent of the speaker has not weight on determining whether speech is hate speech. But given the non existent historical and social context of the word "cockroach" in South africa, then i cannot see how that word constitutes as hate speech. Kunene's response to Malema had nothing to do with Malema's identity or even his political standing as leader of EFF. This was personal given the personal history that they share. I dont think Politics should be regarded as a prohibited ground against which discrimination can not happen as i dont see how one can be discriminated against based on political affiliation. Not in modern, 21st century South Africa. People will say mean words, but thats not the text for determining whether speech is hateful speech

"Little Frog" and "Criminal" are not Hate Speech: Conversely, the Court overturned the Equality Court's finding regarding the other insults. The Court noted that speech cannot be policed merely because it is angry or conveys hostility. A reasonable observer would understand "little frog" and "criminal" as mere heated rhetoric, lacking the specifically genocidal and dehumanizing weight of "cockroach".

Cockroach in South Africa's social and historical context has never possessed as genocidal and dehumanizing weight. I might be wrong about dehumanizing, but i still disagree on it being regarded as Hate speech because then if calling someone a cockroach is Hate speech prohibited, then that means calling someone a Rat, or a Pig should be regarded as Hate speech because they are both words that in some social and historical context are dehumanizing. The speech has to possess some historical and context to it which grants it the weight of being hateful.

Criminal Sanction Unwarranted: The Court overturned the referral to the National Prosecuting Authority (NPA), noting that criminal sanction for speech is a measure of last resort

. In civil hate speech cases, the primary goal should be to repair the social breach through remedies like apologies and interdicts

5. The Court Order The High Court ultimately dismissed the appeal in its substance but varied the Equality Court's initial order to be more targeted and appropriate. The final order was as follows:

   Declaration: It was declared that Mr. Kunene's use of the word "cockroach" to describe Mr. Malema in the 17 November 2021 television interview amounted to hate speech in contravention of section 10 of the Equality Act. (The declarations regarding "criminal" and "little frog" were removed).

   Interdict: Mr. Kunene was interdicted and restrained from describing Mr. Malema as a "cockroach" in the future.

   Apology: Mr. Kunene was ordered to issue an unconditional written and oral public apology for referring to Mr. Malema as a cockroach.

   Costs: Because the appeal was substantially dismissed, Mr. Kunene and the Patriotic Alliance were held jointly and severally liable to pay the costs of the respondent (Mr. Malema), including the costs of two counsel on the "C" scale

CONCLUSION

During the course of this piece, as you have saw, i provided personal commentary on the Courts reasoning. Maby i am paranoid, but this opens us the flood gates to litigation ensuing just because someone was called a "cockroach" in a road rage incident or during a verbal spat wherein not so pleasant words are exchange.

The judgment in my opinion unjustifiable and unreasonable limited the freedom of speech in this regard.

But hey, i dont know, am just a mortal man.

Disclaimer: The views and analyses expressed on this blog are for informational and educational purposes only. This site serves as a self-guiding diary intended to facilitate my personal understanding of specific subjects and does not serve as an authoritative reference. Information is provided "as is" without any guarantees of completeness or accuracy. Please consult a local, professionally trained individual in the subject matter or you can conduct your own research for any formal inquiries or professional advice. PSA, dont corner an attorney at a Maza or a Braai on a weekend and consult there. Preferably arrange an appointment with the office