By Johnathan Paoli
The Economic Freedom Fighters (EFF) has welcomed the South Gauteng High Court’s decision upholding a previous Equality Court ruling that Patriotic Alliance (PA) deputy president Kenny Kunene committed hate speech.
He referred to EFF leader as a “cockroach” during a televised political interview.
EFF national spokesperson Sinawo Thambo said in a statement that was “a victory for the right to dignity and the rejection of political dehumanisation”.
He said that the judgment affirmed that Kunene’s remarks fell well outside the bounds of legitimate political expression.
“The EFF is pleased that this judgment will restrain vulgar individuals from bringing tendencies and attitudes learnt in prison into the political arena.
“We will continue to ensure that the political arena is not tainted by foul-mouthed associates of syndicates and encourage the Department of Justice and Correctional Services to improve its capacity to rehabilitate convicts to avoid producing individuals of this nature in future,” Thambo said.
The case originates from an eNCA interview on 17 November 2021, during which Kunene, visibly angered by Malema’s criticism of the PA’s coalition talks with the ANC, launched into a tirade.
He called Malema a “little frog”, a “criminal”, and repeatedly labelled him a “cockroach,” vowing to “deal with this cockroach publicly”.
Malema had earlier commented on social media that the ANC was partnering with a “party of criminals”, referring to Kunene and PA leader Gayton McKenzie’s prior convictions.
While Kunene argued his words were a personal response, Malema filed a complaint under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act), arguing the comments constituted hate speech.
On 31 January 2023, the Equality Court agreed with Malema and ruled that Kunene’s remarks were not only offensive but also unlawful, violating Section 10 of the Equality Act.
The court ordered Kunene to apologise publicly, interdicted him from repeating the term and referred the matter to the National Prosecuting Authority (NPA).
Kunene and the PA appealed the decision, arguing that their deputy president’s remarks were personal, not based on any protected characteristic and should be shielded under political free speech.
However, the high court dismissed the appeal and upheld the earlier ruling.
Delivering the unanimous judgment, Justice Stuart Wilson, with Justice Sandiswa Mfenyana concurring, reaffirmed that Kunene’s reference to Malema as a “cockroach” constituted hate speech.
The court found the term to be a deliberate act of dehumanisation, not merely a personal insult.
While the court removed the finding that the words “little frog” and “criminal” amounted to hate speech, and set aside the referral to the NPA, it maintained the key aspects of the Equality Court’s ruling.
Kunene must issue a written and oral apology within one month, is interdicted from using the word “cockroach” to refer to Malema and must pay the costs of both the Equality Court case and the appeal.
Wilson stressed that while political expression enjoyed broad constitutional protection, Section 10 of the Equality Act sets modest but necessary limits to prevent speech that promotes hatred, even if not explicitly inciting violence.
“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 said, referencing its genocidal use in the Rwandan context.
Thambo said that the ruling “restrains vulgar individuals from dragging politics into the gutter” and called on authorities to strengthen rehabilitation programmes to avoid the emergence of such figures in future political life.
The EFF further welcomed the court’s dismissal of Kunene’s argument that his remarks were provoked by Malema’s earlier criticism.
The court ruled that Malema’s comments about the PA’s inclusion of ex-convicts in governance were made in good faith and in the public interest.
Stating an objective fact, that PA leaders have criminal records, did not equate to hate speech, the judgment noted.
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