Magistrate Daniel Thulare shocked the Cape Party on Tuesday by ruling that posters bearing the words “Fuck White People” are not hate speech or racist. The Cape Party, which is a registered political party seeking to declare the Western Cape a sovereign republic, had filed a case against the Iziko South African National Gallery for exhibiting the suit.

The posters, which were covered with the words Fuck White People in black-and-white all caps letters, has been on display since 2016 alongside a chair and “goldendeanboots” as part of an exhibition called The Art of Disruptions at the gallery. The work was created by Dean Hutton, a Masters student in fine art at the University of Cape Town who wore a suit with the same print publicly before Iziko approached them.

The Cape Party sought an order for the Cape Town magistrate’s court to declare that the posters are hate speech and racist because they violate the Promotion of Equality and Prevention of Unfair Discrimination Act. But Magistrate Thulare dismissed their case.

He criticised reactionaries to Hutton’s work with a “pity-me-I’m-a-victim attitude” which sought to suppress views like Hutton’s.

“If there is one thing that the work has achieved, through this complaint and others to which my attention has been drawn if this matter, is to draw South Africans to a moment of self-reflection, if we are serious about building one nation, one collective with the same values and agreed principles,” Thulare said in his judgment.

Thulare relied on the artist motivation Hutton had put next to their work at the exhibition, which explained that the posters, the chair and the boots were a demand that “what we must strive for is complete dismantling of the systems of power that keep white people racist”. Hutton acknowledges that white people may feel anger or hurt by the posters, but they should “Learn to fuck the white in you, too”.

The artist created the posters after Zama Mthunzi, a student at the University of Witwatersrand, wore a shirt that had “Fuck White People” smeared on the back in black paint. Mthunzi was threatened with expulsion from Wits and a hearing at the South African Human Rights Commission. Hutton says they wore the suit to illustrate that white privilege keeps white people safe from the treatment Mthunzi endured.

“None of the complainants (against Mthunzi) said anything about the front of the T-shirt which read ‘Being Black is Shit’,” Hutton wrote in their motivation.

“But I can do it – that is white privilege.”

The Cape Party had asked the court to order an unconditional apology from Iziko for exhibiting the posters and to declare that it is hate speech to say, print, display or in any way communicate the phrase “Fuck White People”. It sought R150 000 in damages, for Iziko to remove Hutton’s work, a restraining order against any other such displays, and a referral to the director of public prosecutions.

Cape Party leader Jack Miller told the Mail & Guardian that the party had used the Oxford Dictionary definition of “fuck” to make their argument, but the magistrate said that in the context of art, a literal definition was not sufficient to explain what Hutton meant.

“It’s very disappointing. We’re quite shocked by the decision, because it’s a massive setback and it sets a dangerous precedent,” Miller said.

“We’re worried about future actions against anyone, not just white people, but people of all races,” he continued.

For Hutton, the judgment on Tuesday was a relief.

“I felt like I was holding my breath since the charges were made,” they told the Mail & Guardian.

Hutton said that their confidence in the Constitution had been strengthened and that the case and the exhibition had drawn attention that black artists often do not receive.

“My work is a response to the work of, in particular, black intellectual thought leaders and the work gets attention because I’m white. That is a function of white privilege and people need to know that.”

Magistrate Thulare said that the reaction of some white people to the exhibition is to be expected, but reiterated that in Hutton’s work the word white is used within the context of protest art and debate to refer to “structures, systems, knowledge, skills and attitudes which keep White people racist which are to be rejected confronted and dismantled”.

“For reasons I have already given, in my understanding of Hutton, I am unable to find that what they said amounts to advocacy of hatred of for White South Africans based on their race, which hatred constitutes incitement to cause harm,” Magistrate Thulare said in his judgment.