Speaking outside the Newcastle Magistrate’s Court after the postponement of a court case against him in November 2016, Malema said: "They found peaceful Africans here. They killed them. They slaughtered them like animals. We are not calling for the slaughtering of white people - at least for now. What we are calling for is the peaceful occupation of the land and we don't owe anyone an apology for that."

In a report dated March 8 2019, the commission said that the context in which Malema had made the statement meant it did not appear to amount to hate speech.

The commission explained that the statement was about how white people had behaved historically.

"It is not about how they are behaving now. Mr Malema also specifically says he is not calling for the killing or slaughtering of white people now. He is only calling for the occupation of their land.

"Viewed in its context, the statement does not appear to amount to hate speech," the commission found.

It further said the historical context in which the statement had been made was one of unjust land dispossession by white colonists and the apartheid government. Reference to the "slaughtering" of people was first made in expressing an opinion as to the actions of colonialists.

The social context in which the statement was made was one of continued landlessness, poverty and inequality, giving rise to anger and frustration by the black majority. The SAHRC said the statement should therefore be read in line with the Supreme Court of Appeal’s caution that vulnerable groups must be able to express anger and pain through robust speech.

The SAHRC further commented that the factual context of the statement showed that the subject of the statement was not perpetrating harm against white people, but the highly emotive and contested issue of land reform.

"The statement calls for the ‘peaceful’ occupation of land. Furthermore, Mr Malema explicitly states that he is not calling for the slaughter of white people. Mr Malema expanded the factual context by subsequently stating that ‘not under my leadership will I call for the slaughter of white people, even though I cannot guarantee what will happen after me’."

The commission's finding, which was signed by its deputy chairperson, Priscilla Jana, further noted that regardless of whether a conjunctive or disjunctive reading of Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act was adopted, a determination of hate speech in this case hinged on whether the addition of "at least for now" to the statement that Malema was "not calling for the slaughter of white people" could be reasonably construed to demonstrate a clear intention to incite harm at some indeterminate time in the future.

"Such incitement is not ‘imminent’ as per the language of section 16(2)(c) of the Constitution, or foreseen at the time when the utterances are made. Moreover, viewed in its context, the statement deals with the subject matter of land dispossession and redistribution, and is not aimed at inciting harm to white people," found the commission.

Therefore, it concluded that the statement in this context did not amount to hate speech and dismissed the foundation's complaint, saying Malema did not violate the rights of white people.

In a statement, the FW de Klerk Foundation's Dave Steward, Zohra Dawood and Theuns Eloff expressed their concern over the commission's dismissal of their complaint.

"The SAHRC brushed aside the truly chilling implication that Malema might call for the slaughter of white people at some later stage. Also, his highly prejudicial version of history that 'white people' slaughtered peaceful Africans 'like animals' was clearly intended to sweep up racial hatred.

"His words, by his own admission, also constituted incitement to cause harm. Does the SAHRC really think that the illegal occupation of the land of white farmers could be achieved without causing them ‘harm’?" the foundation wrote.

They argued that the very notion that a leader of a major political party in a multi-racial country could say that he was not calling for the slaughter of another ethnic group "at least for now" constituted not only hate speech, but verged on advocacy of genocide at some future date.