The Equality Court has heard that comments made by the man, who allegedly called for whites to be "subjected to what Hitler did to the Jews", constituted a grave form of hate speech and amounted to incitement to genocide on the grounds of race.
Twenty-nine-year-old Velaphi Khumalo faces charges of crimen injuria in the Equality Court, sitting in the South Gauteng High Court in Johannesburg after 19 complaints were lodged at the South African Human Rights Commission (SAHRC).
Advocate for the SAHRC Mark Oppenheimer argued before Judge Roland Sutherland that Khumalo's defence was bad in law because he sought to make out a partial defence of provocation.
Khumalo posted his comment on Facebook in January 2016, after an incident in which former estate agent Penny Sparrow referred to black people as monkeys in a complaint over litter on the beach.
He wrote: "I want to cleans this country of all white people. we must act as Hitler did to the Jews. I don't believe any more that the is a large number of not so racist whit people. I'm starting to be sceptical even of those within our Movement the ANC. I will from today unfriend all white people I have as friends from today u must be put under the same blanket as any other racist white because secretly u all are a bunch of racist fuck heads. as we have already seen (sic)."
Oppenheimer told the court that Khumalo's statements constituted hate speech in terms of Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.
The act aims to give effect to Section 9 of the Constitution to prevent and prohibit unfair discrimination and harassment and to promote equality.
Oppenheimer also told the court that Khumalo's statements amounted to the crime of direct and public incitement to genocide as a matter of public international law binding on and applicable in South Africa.
"Furthermore, the statements are incitement under the Riotous Assemblies Act, 1956," he said.
He added that the court had broad powers, in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, to make an appropriate order.
However, Khumalo's advocate Stuart Wilson disagreed.
He argued that the comments would have been understood as Khumalo's way to "hit back" at remarks he justifiably found to be deeply hurtful.
"There is accordingly nothing in Mr Khumalo's remarks, reasonably construed in their proper context, that evinces a serious intention to cause or incite harm. They were not serious threats. They were harmless, though pungent, political hyperbole," Wilson argued.
'Experience of racism'
Wilson submitted that Khumalo's words did not amount to hate speech and said Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act defined hate speech as "words based on one of more of the prohibited grounds".
In other words, a reasonable person must be able to construe Khumalo's words as "clearly" intended, not just to hurt but to promote hatred and cause or incite actual harm.
"We submit that his test has not been met. While there is no doubt that Mr Khumalo's words were meant to hurt - coming as they did from a place of hurt and anger themselves, a reasonable person would not seriously have thought that his words were actually intended to cause or incite any real harm."
Wilson argued that any reasonable person would have identified Khumalo as a black South African. He said they would have been aware that his words carried with them direct experience of racial discrimination.
He added that a reasonable person would have read the words in context and would have understood them as meaningless hyperbole.
"We know from Mr Khumalo's answering affidavit that his first experience of racism was when he was six years old. His 16-year-old black neighbour was beaten by a white farmer with a wooden stick encased in barbed wire."
'More is required'
Wilson said the SAHRC had failed to make out a case that Khumalo's words amounted to hate speech.
"They were the angry words of a hurt young man and would be interpreted as such by any reasonable observer.
Wilson added there was no doubt that Khumalo should not have said what he said and that he sincerely and deeply regretted it.
"Clearly the remarks were neither appropriate, nor of value, but that is a question on which this court has any jurisdiction to pronounce," he said.
Wilson added that their defence was not one of "provocation", but one based on the words used in the Promotion of Equality and Prevention of Unfair Discrimination Act itself. He said hate speech was only hate speech if it was reasonably construed as evincing a clear intent to incite or cause actual harm.
"It has long been recognised that angry words or political hyperbole do not fall into the category of true threats, even if they convey hostility or, appear on their face, to invoke violence. More is required. To constitute a true threat, the words used must presage a real and imminent threat of actual harm, not a fanciful or far-fetched invocation of excessive or cartoonish violence," Wilson argued.
Wilson added that they asked for the SAHRC's complaints be stayed or dismissed.
"As we appear pro bono for Mr Khumalo, there is no need for this court to make any costs order in his favour. Likewise, we submit that this is not a case in which it would be appropriate to mulct Mr Khumalo in costs, even if he is unsuccessful," he said.
Advocate Thembi Ntoane, representing Minister of Justice and Constitutional Development Michael Masutha, told the court the statements published by Khumalo were unbecoming and should be discouraged with appropriate measures or punishment put in place by the country's laws.
"The minister undertakes to act as aforesaid to regulate the unsatisfactory position concerning multiple referrals on an expedited basis," Ntoane said.
The court will proceed on Tuesday and the Legal Resources Centre, which has been admitted as amicus curiae (friend of the court), is expected to submit written submissions.