18/06/2018 12:56 BST | Updated 18/06/2018 12:56 BST

Can Indian South Africans Sue Malema? This Is What Legal Experts Say

HuffPost sought expert legal advice on whether Indian and coloured people who feel insulted by the EFF leader can take him to court.

Siphiwe Sibeko / Reuters
EFF leader Julius Malema.

Julius Malema's comments about Indian South Africans have the South African Minority Rights Equality Movement (Samrem) threatening legal action against the EFF leader.

According to The Independent, Samrem chairperson Daleep Lutchman said the movement would meet to decide what charges to press against Malema for "going back to the apartheid system of classifying people by race".

Lawyer from the Free Market Foundation (FMF) Martin van Staden told HuffPost on Monday: "There may be a crimen injuria case against Julius Malema for what he said, but there is [also] the Equality Act, which prohibits unfair discrimination based on race. So currently in South African law, these two [could] be used against Julius Malema."

He explained, however, that there is no way the Constitution can be used to file a case against the EFF leader.

"We should look at what the Constitution says, and basically it says that freedom of expression is protected unless there is advocacy of hatred based on gender or religion or incitement to cause harm. On the constitutional standing I would say no, they do not have a case," he explained.

On Youth Day, the leader of the red berets spewed race-baiting utterances about Indian and coloured people at a Youth Day rally in North West, claiming that they were racist.

"The majority of Indians are racists... they see themselves better than most of us. Even coloureds see themselves [as] better than blacks," Malema said.

"If you want to see that majority of Indians are racists, they are not many marriages between blacks and Indians. If you marry a black person as an Indian, you are rejected," he added.

University of Pretoria Centre For Human Rights expert Dr Ololade Shyllon also believes the Constitution cannot be used against Malema.

"In this instance it might be difficult to basically use the Constitution," she said, pointing out that the Equality Act might be a better option, because it is "more expansive than the Constitution".

"It is more specific, I would say." She says in this instance, there are a couple of question that could be asked — like "would you say the words are hurtful? I am sure some people think it is hurtful," she said.

She says the issue for Malema would be to prove his sweeping statements.

"The problem there would be what is the data? It is not socially possible. Who would actually admit to you that 'I am racist'?" she said.

Writing in a different context concerning religious hate speech, constitutional expert Pierre de Vos objected to the provision in the Equality Act that prohibits speech that can reasonably be construed as having the intention to be hurtful.

He said it has led to people having a "tendency wrongly to invoke the hate speech provision in the Equality Act whenever somebody they do not like (or who they fear) says nasty things about them or about the group they belong to".