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SANEF Condemns The Harassment Of Journalists By Cape Town Metro Police

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Journalists equipment damaged in the scuffle.
Cape Town Metro Police officer barring a journalist from covering the eviction of refugees at the Central Methodist Mission on Greenmarket Square. Pic: Unknown

The South African National Editors’ Forum (SANEF) condemns the Cape Town metro police officer who pushed and harassed journalists barring them from doing their job on Sunday, 2 March, 2020.

According to freelance reporter Wesley Fester, who recorded the incident, Newzroom Afrika’s reporter Athi Mthongana was shoved and assaulted by a member of the  City of Cape Town’s Law Enforcement Department assigned to remove the refugees living around the Central Methodist Mission on Greenmarket Square on Sunday afternoon. There were other journalists whose equipment was also damaged in the scuffle.

SANEF also noted that last week, on Budget day, Wednesday, February 26, 2020, a SAPS police officer forcefully stopped Parliamentary reporter and photographer Jan Gerber from recording and reporting an incident where the police prevented DA interim and official leader of the opposition John Steenhuisen from entering Parliament ahead of the budget speech.

Gerber, a News24 journalist, was busy taking a cell phone video of this interaction when one brigadier then confronted him, saying he should turn his phone off because he was not “authorised” to make a video of the discussion. On the video, the brigadier in question pushed his phone away to prevent the recording.

Harassment of Journalists
Cape Town Metro Police officer barring a journalist from covering the eviction of refugees at the Central Methodist Mission on Greenmarket Square. Pic: Unknown

According to the police’s standing order 156, no police official may prevent a member of the media “taking photographs or making visual recordings”.

SANEF calls for decisive action against the metro police officers and the members of the SAPS who are identifiable breaking the law. They should be subjected to internal disciplinary action and held to account in terms of why they sought to censor the media.

SANEF is worried that these incidents where police and metro police officers randomly prevent journalists from using the tools of their trade to record and report stories are increasing. They have done so recently even inside courtrooms without the decision or the order of the presiding magistrate.

We are looking into engaging officials responsible for metro policing around the country to make the police’s standing order 156 possibly applicable to metro officers as well.

SANEF once again calls on the Ministers of Police as well as the Justice and Correctional Services in the security cluster to ensure that all state organs especially members of the SAPS and metro police protect journalists and stop this gross violation of the Constitution.

The prevention of journalists from covering stories infringes on the right of freedom of expression enshrined in Section 16 of our Constitution. Section 16 states that everyone has the right to freedom of expression, which includes “freedom of the press and other media” and “freedom to receive or impart information or ideas”. Therefore, the protection and encouragement of the free press, freedom of speech and the free flow of information are cornerstones.

Note for Editors: The South African National Editors’ Forum (SANEF) is a non-profit organisation whose members are editors, senior journalists and journalism trainers from all areas of the South African media. We are committed to championing South Africa’s hard-won freedom of expression and promoting quality, ethics and diversity in the South African media. We promote excellence in journalism through fighting for media freedom, writing policy submissions, research, education and training programmes.

For more information contact

  • Katy Katopodis – Acting SANEF Chairperson, (082) 805-7022
  • Mary Papayya – Acting SANEF Media Freedom Chair (082) 379-4957
  • Judy Sandison – SANEF KZN Convenor 0825713334
  • Sbu Ngalwa – SANEF Eastern Cape Convenor (073) 404-1415
  • Janet Heard – SANEF Western Cape SANEF Convenor, 0780419528
  • Hopewell Radebe – SANEF Acting Gauteng Regional Convenor 083 582 1734
  •  Kate Skinner – SANEF Executive Director – 082 926 6404
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Advocacy Release: Concourt to hear amaBhungane’s Rica challenge

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On Tuesday 25 February, the Constitutional Court will hear argument in amaBhungane’s landmark challenge against South Africa’s surveillance law, Rica.

The Constitutional Court must decide whether to uphold the high court’s September 2019 ruling that found in amaBhungane’s favour and declared several provisions of Rica to be unconstitutional.

As we unpack below, the high court’s ruling was a major victory against the abuse of the state’s surveillance capacity – Judge Roland Sutherland ordered several immediate changes to how Rica surveillance operations must be conducted going forward, and flagged a number of key flaws that must be fixed through a parliamentary process in the next two years.

The Constitutional Court will also hear counter-argument from two entities whose spying powers were curbed by the high court’s ruling: the police and the State Security Agency (SSA).

The high court case
AmaBhungane launched its challenge to Rica – the Regulation of Interception of Communications and Provision of Communication Related Information Act – in 2017 after learning that state security operatives had listened in on the phone communication of Sam Sole, one of our managing partners.

This followed a wider pattern of evidence that state spies routinely snoop on journalists, among many others. The information we secured about Sam’s spying served as scaffolding for a long overdue challenge to the reckless spying that Rica had enabled.

The September 2019 ruling by Judge Sutherland (available here) was a victory for journalists’ right to communicate securely with their sources, and against the politicised abuse of the state’s surveillance capacity in general.

  • (Read Sam’s analysis of the judgment here.)

Most notably, Sutherland struck down Rica’s system of total secrecy that prohibits people whose communications have been targeted for surveillance from ever being notified of it, even long after an investigation has been concluded.

The high court’s ruling would require authorities to notify those they have spied on within 90 days, unless a judge can be persuaded to postpone such notification to protect an ongoing investigation.

Secondly, he declared the SSA’s “bulk interception” activities to be unlawful and invalid. This would end the agency’s practice – which it finally acknowledged in this court case – of tapping into communication networks to collect vast amounts of sensitive digital data from untold numbers of unsuspecting people.

As the high court found, this untargeted “dragnet” surveillance has occurred with no legal mandate.

Judge Sutherland’s other orders included boosting the independence of the judge who oversees Rica interceptions, by providing that they should be appointed by the chief justice instead of the executive.

Among the flaws he left to Parliament to fix was the need to add more checks and balances in the process of deciding whether a person should be targeted for interception, and to add safeguards for how officials should handle, store or dispose of any sensitive communication that has been intercepted.

Now to the Constitutional Court
All this comes before the Constitutional Court on Tuesday. The two agencies most accused of abusing their surveillance powers – the police and the SSA – are opposing the high court’s ruling: in the police’s case, they wish only to overturn the ruling on surveillance notification; the SSA has asked the Constitutional Court to overturn the entire thing.

In the high court, the police argued that post-surveillance notification would be fatal to any crime-fighting efforts – even though such notification is a feature of many countries’ surveillance laws, and would by definition only apply when an investigation is concluded or at a non-sensitive stage.

Having failed to persuade the high court, the police minister has doubled down for the constitutional court, declaring in his appeal that “the very purpose of the RICA [combatting crime] can only be achieved if there is a total ban on notification”.

The SSA on the other hand has sought to convince the Constitutional Court to throw out the entire judgment. In a woefully late filing, the SSA declares that every aspect of the high court’s findings are deficient and should be set aside.

Friends of the court
The court will also hear from parties who have been admitted as friends of the court to make independent submissions. The first submission is made jointly by the Right2Know Campaign and Privacy International, and the second is by Media Monitoring Africa.

What is at stake
We do not deny that the state may at times be required to intercept a person’s communication. However, what we have seen in South Africa – mirrored across the globe – is that this power has routinely been abused to target people whose work threatens the interests of corrupt individuals and institutions.

In South Africa, we believe the Rica law has helped enable such abuses. The lack of safeguards in Rica have helped corruption and politicisation to thrive in our security agencies, and have turned the state’s security powers against journalists, whistleblowers, and other perceived troublemakers.

Our hearing on 25 February marks the next step in a long-overdue process to roll back the state’s unchecked powers to spy, and the corrosive effect this has on the constitutional right to privacy, and freedom of expression.

  • Download our court papers, as well as those of the other parties, here.
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Further Allegations Against Journalists At Zondo Commission Deeply Concerning – Sanef

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Judge Raymond Zondo head of the Commission of Inquiry into State Capture.

The South African National Editors’ Forum (SANEF) has noted on 1st October 2019 the testimony of Colonel Kobus Roelofse at the Commission of Inquiry into State Capture and the further allegations from whistleblower Colonel Naidoo. Naidoo told the Inquiry yesterday that several journalists including senior journalist at Tiso Blackstar, Ranjeni Munusamy received financial benefits from Crime Intelligence.

SANEF notes the problems that have been created by Col Naidoo’s mention of the fact that “journalists have been paid” without mentioning names. We believe that it is essential that the names are revealed and that the journalists implicated are given the space to respond.

We note that the Press Council Code is clear that “paid for” also called “brown envelope journalism” is completely unacceptable.

Section 2 of the Code deals with “Independence and Conflicts of Interest”. The Code states that:

The media shall:

2.1 not allow commercial, political, personal or other non-professional considerations to influence reporting, and avoid conflicts of interest as well as practices that could lead readers to doubt the media’s independence and professionalism;

2.2 not accept any benefit which may influence coverage;

2.3 indicate clearly when an outside organization has contributed to the cost of newsgathering; and

2.4 keep editorial material clearly distinct from advertising and sponsored events.

SANEF champions ethical journalism. If anyone has any evidence of unethical journalism – including the very serious breach of accepting funds for journalism – we encourage them to go to the Press Council.

Further, we have launched our own independent Inquiry into Media Credibility and Ethics, chaired by retired Judge Kathleen Satchwell. We encourage any South African with evidence of journalists acting unethically or illegally to approach Judge Satchwell and the authorities, including the Zondo Commission. Please send submissions to – [email protected].

In terms of Munusamy, we again welcome the decision by Tiso Blackstar to grant her special leave. We note Munusamy’s strong denial of any wrongdoing, her detailed affidavit explaining the circumstances of her car repayments and related issues and her promise to cooperate fully with the Zondo Commission. We await the outcome of the Commission’s hearings and Tiso Blackstar’s internal investigation.

For more information please contact:

  • Mahlatse Mahlase – SANEF Chairperson 083 399-2852
  • Judy Sandison – SANEF Media Freedom Committee 082 571-3334
  • Kate Skinner – SANEF Executive Director 082 926 6404
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Roundtable On Combating Of Harassment And Abuse Of Journalists

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Guests attending the breakfast roundtable discussion on “The combating of harassment and abuse of journalists: Seeking new rules of engagement on September 28, 2019

SANEF held a Breakfast Roundtable on World News Day marked by the World Editors Forum on Saturday, September 28, 2019. The roundtable focused on combating online harassment and abuse of journalists: seeking new rules of engagement.

The guest speaker was Rana Ayyub, internationally acclaimed Indian journalist and writer. Also, in attendance, was Commissioner Lawrence Mute, Special Rapporteur for Freedom of Expression and Access to Information in Africa. Journalists and civil society organisations, including the Special Freedom Rapporteur for Freedom of Expression and Access to Information in Africa, Media Monitoring Africa, the Press Council of SA and the Freedom of Expression Institute, made valuable contributions.

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South Africa’s Media Defamation Law in a Constitutional, Digital Age

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Helene Eloff’s Master’s Degree Research titled: “South Africa’s Media Defamation Law in a Constitutional, Digital Age” deals with the digitisation of journalism and our legal responses.

She has dedicated this research to those South African journalists who fulfil their mandate legally and ethically. She hopes that the contents of her research will contribute towards the research pool in both journalism and law.

Her dissertation finds that South Africa’s media law is unfair in that it differentiates between media defendants and non-media defendants. “The effects of doing so cannot be justified in terms of Section 36 of the Constitution,” she argues.

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Sanef Council Calls For Meeting With The EFF

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Sanef Chair Mahlatse Mahlase greets EFF leaders Julius Malema and Mbuyiseni Ndlozi at the Equality Court

The South African National Editors Forum (SANEF) held its September council in Pretoria on Saturday and discussed several issues, including the Economic Freedom Fighters’ EFF’s “banning” of amaBhungane, Scorpio and Daily Maverick from attending their party events, including press conferences.

Despite being told by Julius Malema on Social Media to “go to hell” at the weekend while our Council meeting was taking place, the SANEF Council still confirmed and reiterated the importance of trying to continue to engage with the EFF despite many failed attempts.

We believe it is critical to keep communication channels open and we will formally request a meeting.

SANEF confirmed its solidarity with the banned journalists and their commitment to holding the EFF to account.

SANEF, again, notes that the ban came after Scorpio published several exposés on Malema, party deputy president Floyd Shivambu, Shivambu’s brother Brian, as well as a cousin of Malema’s. Scorpio has alleged that an R16.1m transfer has been made from VBS to Brian Shivambu’s company Sgameka Projects – effectively a shell company. Scorpio has further alleged that at least R5.3m of the R16.1m flowed to Mahuna Investments. Scorpio reported that Mr Malema used Mahuna Investments’ business account as his “personal slush fund”.

Again, SANEF wishes to challenge Mr Malema and other implicated EFF leaders to disprove these reports and /or to use the appropriate channels such as the Ombud’s Office and the Press Council if they feel aggrieved at any aspect of the reporting.

SANEF wants to place on record that it is unacceptable for the EFF to respond to these allegations by attempting to ban journalists from press conferences. In the past, we have been opposed to other bans such as the EFF’s on ANN7 and the New Age.

Political parties should not be picking and choosing who covers their events – to ensure they get an easy ride. The duty of journalists is to hold the powerful to account and to act in the public interest.

It should be noted that SANEF and five journalists are seeking relief against the EFF and Malema in the Equality Court following a spate of abuse and harassment by people purporting to be EFF supporters against journalists who had been specifically named by Malema. At the heart of our case is the singling out of targeted individual journalists by Malema and the EFF leadership and the creation of an enabling environment for abuse and harassment to be levelled against them. SANEF and the journalists approached the Equality Court on legal advice as we believe that the conduct of the EFF and their supporters constitute hate speech and harassment against the named journalists. Judgement was reserved.

SANEF’s Council confirmed a roundtable on the harassment of Journalists scheduled to take place on 28 September 2019 in Johannesburg. All political parties including the EFF will be invited and we trust they will attend.

For more information please contact:

  • Mahlatse Mahlase – SANEF Chairperson, 083 399 2852
  • Sam Mkokeli – SANEF Media Freedom Chairperson, 082 084 2051
  • Kate Skinner – SANEF Executive Director 082 926 6404
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SANEF Appalled By EFF’s Banning Of Investigative Journalism Units

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EFF leader Julius Malema

The South African National Editors Forum (SANEF) is appalled by Economic Freedom Front (EFF) leader Julius Malema’s call for the “banning” of investigative journalism units, amaBhungane and the Daily Maverick’s investigative unit, Scorpio, from attending their party events, including press conferences on 13 September 2019.

SANEF believes these actions mimic the apartheid state’s censorious responses to investigative reports that exposed its brutal and corrupt activities.

Mr Malema called for this banning on Thursday during the EFF’s memorial service for former Zimbabwean president, Robert Mugabe. Speaking to party supporters, Mr Malema said the publications, “should be treated as the enemy, much like the EFF did when it banned Gupta-owned, The New Age newspaper and broadcaster, ANN7”.

He stated, “We declare them as an enemy of the revolution, they should never participate in our events, we should never answer any question from amaBhungane, Daily Maverick or Scorpio. Let them write any nonsense they want to write about us. We know [the person] who writes their questions is Pravin.”

The “ban” comes after Scorpio published an exposé on Malema, party deputy president Floyd Shivambu, Shivambu’s brother Brian, as well as a cousin of Malema’s, making allegations that they are involved in the illicit flow of funds from the plundered VBS.

Mapping out the VBS money trail, Scorpio has alleged that an R16.1m transfer has been made from VBS to Brian Shivambu’s company Sgameka Projects – effectively a shell company. Scorpio has further alleged that at least R5.3m of the R16.1m flowed to Mahuna Investments. Scorpio reported that Mr Malema used Mahuna Investments’ business account as his “personal slush fund”.

SANEF wishes to challenge Mr Malema and other implicated EFF leaders to disprove these reports and /or to use the appropriate channels such as the Ombud’s Office and the Press Council if they feel aggrieved at any aspect of the reporting.

SANEF believes it is unacceptable that the leader of the third-largest political party would engage in unconstitutional actions – actions that deny journalists the opportunity to work effectively by being refused the right to attend EFF’s meetings, press conferences and other activities. In doing so, Mr Malema fundamentally undermines the right to “freedom of the press and other media” which is guaranteed in section 16(1)(a) of the Constitution.  Worse, he undermines the right of ordinary people, the voting public, “to receive information and ideas” – another right that is expressly provided for in section 16(1)(b) of the Constitution – as the press is the most significant channel through which people access political/current affairs information and ideas.

Mr Malema is titled an “Honourable Member of Parliament” and as an MP he has undertaken, as part of his oath of office, to uphold the Constitution. His calling for this ban of the country’s leading (and award-winning) investigative journalism units is at odds with the oath he took and with accepted standards of conduct for members of parliament.

In the wake of these attacks, we hope that members of parliament will condemn, in the strongest terms, the EFF Leader’s attempts to drag South Africa back to the days of apartheid censorship where media intimidation by apartheid leaders was routine. Mr Malema needs to be held to his oath to uphold the Constitution.

SANEF is currently involved in a court case against the EFF – focusing on stopping the intimidation and harassment of journalists. The matter was heard in August in the Equality Court. Judgement is reserved.

For more information please contact:

  • Sam Mkokeli – SANEF Media Freedom Chairperson, 082 084 2051
  • Kate Skinner – SANEF Executive Director 082 926 6404

 

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SANEF Condemns Death Threats of Journalists & Unprofessional Behaviour of a Journalist

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The South African National Editors Forum (SANEF) wishes to strongly condemn on 11 September 2019 the escalating harassment and abuse of journalists in the country.

SANEF has learnt with sadness of an incident on Tuesday where Journalists Alex Mitchley of News24, Hanti Otto of Netwerk24 and Pule Letshwiti from etv were approached and threatened by a state witness in the Nicholas Ninow case.

Ninow is the man who pleaded guilty on Tuesday to raping a seven-year-old at a Dros restaurant last year. He pleaded guilty to rape, possession of drugs and defeating the ends of justice — but pleaded not guilty to assault.

According to Mitchley, the witness approached the journalists very angrily outside the Gauteng High Court in Pretoria on Tuesday during a tea break, asking why media houses named him.  It was explained that there was no court order not to name the witness as he testified in an open court. He then looked at the journalists and said, in Afrikaans, that he was going to slit their throats even making a throat-slitting gesture with his thumb while smiling and laughing.

“I told him to leave us alone and would inform the court of his threats. He tried following to apologize but I told him to get away from me as he had just threatened our lives,” Mitchley said.

The witness came to court to confront journalists as he finished testifying on Monday.

The harassment of journalists, not just by authorities and politicians, but lately general members of the public in protest areas, is a phenomenon that has prompted growing concerns for SANEF in recent months.

SANEF notes that while retaliation for the content of professional output is common to all journalists, female journalists face an additional burden in that they are also attacked purely based on their gender.

SANEF wishes to caution against impunity for threats of any nature and crimes against the media because it fuels and perpetuates the cycle of violence and the resulting self-censorship deprives society of information and further affects press freedom. It also directly impacts the United Nations’ human rights-based efforts to promote peace, security, and sustainable development.

On Economic Freedom Front (EFF) leader Julius Malema

SANEF also notes the raging debate on the matter of 702 journalists, Barry Bateman, and his uttering of an unsavoury word in public allegedly aimed at EFF leader Julius Malema. SANEF notes the concerns raised by the supporters of the Economic Freedom Fighters (EFF). We also note that employer Prime Media has apologised and has launched an investigation into the matter.

SANEF does not condone the unprofessional behaviour on the part of any journalist. However, we believe this should not be used as an excuse to trigger an all-out attack on the media and journalists as a collective. Rather than a verdict being debated on social media, we ask that this matter be dealt with via the media house concerned.

For more information please contact:

  • Sam Mkokeli – SANEF Media Freedom Chairperson, 082 084 2051
  • Mary Papayya – SANEF Media Freedom 082 379 4957
  • Kate Skinner – SANEF Executive Director 082 926 6404
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Setting The Record Straight On the SANEF vs EFF Case

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By Mahlatse Mahlase SANEF Chairperson.

The South African National Editors’ Forum (SANEF) notes and welcomes the public debate in the wake of our Equality Court application against the Economic Freedom Fighters (EFF) and its leader, Julius Malema. We believe that this discussion will strengthen and improve our national discourse on the importance of media freedom and freedom of expression, which we fundamentally stand for and promote.

Some of the commentary expressed has misinterpreted our case, which was brought under Section 10 of the Equality Act, and falsely accuses SANEF of undermining freedom of expression. This could not be further from the truth (our full set of court papers is available at https://sanef.org.za/sanef-vs-eff-court-papers-2/).

SANEF and five journalists are seeking relief against the EFF and Malema following a spate of abuse and harassment by people purporting to be EFF supporters against journalists who had been specifically named by Malema. At the heart of our case is the singling out of targeted individual journalists by Malema and the EFF leadership and the creation of an enabling environment for abuse and harassment to be levelled against them.

SANEF and the journalists approached the Equality Court on legal advice as we believe that the conduct of the EFF and their supporters constitute hate speech and harassment against the named journalists.

SANEF’s choice of lodging the complaint in the Equality Court and using the Equality Act

SANEF approached the Equality Court as we believed this court was both appropriate and relatively expeditious. For reasons beyond the control of SANEF, this case is being heard almost eight months after it was lodged. This is unfortunate but regardless of that delay, SANEF remains of the view that the Equality Court is an appropriate court.

In addition to infringing the constitutionally protected freedom of the media, we believe that the statements by the EFF and Malema as well as the resulting conduct of the EFF and their supporters constitute hate speech and harassment in terms of the Equality Act.

Section 10 of the Equality Act states: “[N]o person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to –

(a)  Be hurtful;

(b)  Be harmful or to incite harm;

(c)   Promote or propagate hatred.

This section does not require hate speech to involve incitement to imminent violence, as wrongly quoted by some commentators.

Sections 10 and 11 of the Act prohibit hate speech and harassment respectively based on expressly prohibited or similar grounds that negatively affect human dignity and enjoyment of rights, such as, in this case, the complainants’ occupation as journalists.

According to the EFF’s papers in the Equality Court, the basis of this abuse has been the complainants’ occupation as journalists and the perceived bias in their reportage on the EFF. While SANEF welcomes fair criticism of journalists, we cannot condone individuals being subjected to harassment or hate speech based on their occupation, in contravention of the Equality Act.

The trigger for the case

On 20 November 2018, Malema made a statement outside the Zondo Commission during which he named several journalists whom he perceived to have been biased in their reportage against the EFF and in favour of the EFF’s political rivals. He identified these journalists as “the enemy” who need to be dealt with decisively. These statements were also shared on Twitter by the EFF in addition to other tweets by the leadership of the EFF singling out and targeting specific journalists.

The journalists named by Malema have been subjected to a barrage of abuse and harassment by purported supporters of the EFF, ranging from name-calling and insults to threats of violence and calls for the addresses of journalists to be made public. This abuse appears to be a direct result, and in support, of the statements made by the EFF. SANEF has made Malema and the EFF aware of the results of their utterances and has requested that they condemn the abuse on the part of their purported supporters. They have however refused to do so. This has created an environment which enables the abuse and harassment of journalists whose reportage the EFF and its supporters do not agree with.

Max du Preez, one of the applicants in the matter, was one of the journalists named by Malema outside the Zondo Commission. In his affidavit before the court, he details what he believes to have been the impact of Malema’s words.

“I attended the Zondo Commission hearings on Wednesday 21 November 2018. I left after lunch. While I was waiting for my Uber driver to collect me (right next to the BP garage), some of the EFF protestors walked by. One of them recognised me and shouted my name. About a dozen of the protestors then mobbed me, shouting threats and abuse at me. One threat I remember was ‘You’re not safe on these streets, you white bastard’. I was distressed by this incident and feared for my safety. Fortunately, two policemen were very close by and intervened. The protestors then moved away and I was not harmed. It did make me wonder, though, what could have happened if there were no policemen around.’

Three days after Malema’s speech, Ranjeni Munusamy, one of the applicants, was intimidated at a shopping mall. She states in her affidavit:

“At approximately 18:00 on that day, I visited a shopping centre near my house. I go there often on my way home from work. I do not wish to disclose the precise location because I do not want a repetition of what happened on the day. While shopping, I noticed three men looking at me. As I walked past them, they repeatedly called my surname in a mocking tone. I tried to ignore them, walking past them quickly. The men were waiting for me at the entrance of the shop when I left. As I passed them they hissed at me and shouted my name. I was so distressed by the incident that I tweeted what had happened. As a consequence, I am wary of going out to public places.”

SANEF believes and has argued in court that these and other online forms of abuse, harassment and hatred levelled at the applicants were ‘directly’ as a result of Malema’s speech outside the Zondo Commission.

The purpose of the case

The purpose of our complaint is not to stifle criticism of the media and journalists – the issue is that we believe that the comments by the EFF, Malema and Malema’s purported supporters go beyond fair criticism of the media and constitute hate speech under the Equality Act.

SANEF had initially attempted to resolve its concerns with the EFF through direct engagement and twice requested a meeting. However, the EFF refused to meet with SANEF. In the end, we had no option but to seek legal recourse.

The crux of SANEF’s and the journalists’ complaint is the nature and effect of Malema’s and the EFF’s statements. SANEF believes that Malema has been shown to make inflammatory statements which he is aware will incite a violent and abusive response from his purported supporters and that he has refused to condemn the abuse when it is brought to his attention. As the leader of the third biggest party in South Africa, Malema should be aware that his and the EFF’s words and actions, or lack thereof, have consequences. They should also be held responsible for those consequences. Furthermore, they have to protect the rights enshrined in the Constitution and a duty therefore to condemn the violation of media freedom which has resulted from their statements.

Ultimately, after our failed attempts to meet with the EFF leadership and try to resolve the matter amicably, we had no option but to approach the Equality Court for the relief we are seeking. The alternative was not an option: to do nothing and wait for a journalist to be assaulted, injured or killed before we approach the courts to determine if the EFF’s utterings meet the test for hate speech.

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