25 August 2022
The Equality Court has dismissed Afriforum’s application and ordered it to pay the EFF’s costs. Illustration: Lisa Nelson
The singing of the song Dubul’ ibhunu - “Kill the Boer - Kill the Farmer” - was not hate speech, Judge Edwin Molahlehi, sitting as an Equality Court in the High Court in Johannesburg, ruled on Thursday.
“It does not constitute hate speech and deserves to be protected under the rubric of freedom of speech - it articulates the failure of the current government to address issues of economic empowerment and land division,” he said.
Judge Molahlehi was giving judgment in a matter brought by Afriforum against the EFF and its leader Julius Malema. It comes after supporters of the EFF chanted the slogan outside the Magistrate’s Court in Senekal in October 2020 where those accused of murdering farm manager Brendin Horner were appearing.
In 2011, Malema was found guilty of “hate speech” by Johannesburg High Court Judge Colin Lamont (sitting as an Equality Court) who ruled that “the morality of society dictates” that he and others should not use the words, nor sing the song.
Malema appealed to the Supreme Court of Appeal, but the matter was withdrawn after the parties agreed to mediate.
However, Afriforum, in the case before Judge Molahlehi argued that Malema was still duty bound not to sing the song and to discourage his supporters from doing so because it incited racial hatred, in particular against farmers, who were under siege in constant farm attacks.
Afriforum wanted Judge Molahlehi to issue another interdict against Malema and the party, order the EFF to apologise, pay R50,000 to an appropriate organisation and refer the matter to the National Director of Public Prosecutions to investigate whether Malema, or other office bearers, should be criminally charged.
But Judge Molahlehi dismissed the application and ordered Afriforum to pay the EFF’s costs.
The judge said none of Afriforum’s witnesses, including Ernst Roets, its head of policy and action, had laid a proper basis for their complaints. None were “experts” and in the case of Roets, he was “not neutral or independent”.
Two survivors of farm attacks who gave evidence on behalf of Afriforum, had also provided no link to the singing of the song and what happened to them. One had been attacked in 2008. The EFF was only formed in 2013. “In this context, the question is how the singing of the song (by the EFF), could have triggered the attack,” the judge said.
Referring to Malema’s evidence, he said he had not disputed chanting “Kill the Boer - Kill the Farmer” while he was president of the youth league but in his current position he only chanted “Kiss the Boer, Kiss the Farmer”.
He said the word “kiss” had been deliberately chosen to offend the white people who believed that blacks should not kiss whites.
He said neither chants should be taken literally and they had been used during the apartheid era when black policeman had abused people in townships. They referred to the “oppressive state” in the context of struggle, and African culture.
Judge Molahllehi said the purpose of the Equality Act was to advance constitutional values and promote democracy.
He said he was not bound by the previous judgment by Judge Lamont because the Constitutional Court had deemed the provision of the Act – which prohibited speech that was “harmful” – to be unconstitutional.
“The broad principle of freedom of expression is tolerance of different views. Society has a duty to allow and be tolerant of both popular and unpopular views of its members,” he said.
Afriforum had failed to show that the lyrics showed a clear intention to incite harm or propagate hatred. Its witnesses could not speak to the philosophy and history of the song.
“The most important aspect of Malema’s evidence was that it has a significant relationship to issues of land. It was sung during the apartheid regime because of the dispossession of land by colonial powers.
“According to him, it is directed to land issues, and the failures of the current government,” the judge said. “It is intended to mobilise the youth to become part of the struggle for economic freedom.
“He testified that land justice cuts across racial demographics, to even include white women.
“I find no reason to reject his evidence.”
The judge said that while under a different inquiry, the chant may be found to be “offensive and undermining”, Afriforum had failed to make out a case that it was hate speech, as defined in the Act.