Cape Town - The anti-apartheid chant, “Dibula Ibhunu/Kill the Boer” and Struggle song “Biza ama’firebrigate/Call the fire brigade” do not incite violence, but should, rather, be protected, according to the South Gauteng High Court.
AfriForum had hauled the EFF’s Julius Malema and Dr Mbuyiseni Ndlozi to court asking it to declare that the songs constitute hate speech and unfair discrimination in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act and in addition that the two pay R500 000 to an organisation that combats racial hatred.
However the court found against AfriForum, dismissing its case with costs.
In a scathing judgement, Judge Edwin Molahlehi said AfriForum failed to show that the EFF contravened the Equality Act in that it did not prove that the lyrics of the two songs were based on prohibited grounds set out in the Act.
“The approach adopted by AfriForum in its proposition that these songs are hate speech is premised on the literal interpretation of the lyrics of the songs.
“It is important to note that in this regard the witnesses could not speak to the philosophy and the history of the songs. Roets (AfriForum’s head of policy and action) came to know the song after the 1990s when it was apparently translated by the media into English.
“The most important aspect of Malema’s testimony is that the song has a significant relationship to both the issues of land and economic empowerment of the previously disadvantaged members of society. Before democracy, the song was directed at the apartheid regime and more particularly to the dispossession of the land of the majority of the members of society by colonial powers,” said Judge Molahlehi.
He said a “reasonable listener” would conclude that the song did not constitute hate speech but rather deserved to be protected under the rubric of freedom of speech.
But AfriForum said it would appeal against the decision.
Roets said the judgement “creates a very dangerous precedent”.
“We are therefore deeply disappointed with today’s verdict. There is no place in society for songs that encourage the killing of people based on their identity,” said Roets.
Malema claimed he had chanted “kiss the boer/farmer” in a rally. In a statement, EFF said it welcomed the judgement, saying liberation chants and Struggle songs were not instructions to any action and no supporter of the party recognised them as that.
“This aspect of the judgement is critical, as it not only undermines the baseless narrative by swart-gevaar proponents, who want to create a picture that there is a white genocide in South Africa, but also undermines the racist trope that black people are irrational beings, who will kill because of a chant or a song.
The case by the racists, which sought to erase the cultural element of the liberation Struggle in South Africa, has fallen flat on its face.”
Legal expert, Dr Paul Ngobeni said the singing of Struggle songs denouncing apartheid, racial domination and oppression could not be outlawed in the way AfriForum sought to achieve this.
“Speaking out or advocating against laws or offences believed to be unjust ought not to be easily prescribed by statute. And so is invoking the memories of apartheid oppression and struggles through songs – all South Africans have accepted the peaceful transition from a country at war to a constitutional democracy where violence is not a means used to resolve political conflicts.
“Singing songs about yesterday’s struggles with a group of committed but politically astute activists is not likely to incite such persons to go on violent sprees attacking whites in general. Allowing the singing of such songs in a political gathering of activists who can contextualise such historical songs – in line with their constitutional right to freedom of ‘thought’ and ‘opinion’ - is the best way to deal with the matter,” said Ngobeni.
Political Science expert, Professor Amanda Gouws, said the EFF was “hypocritical”. “There is a legal norm (in international law) for hate speech – it has to be extreme speech.
Some speech can be considered merely objectionable, but not extreme. So this song is considered as objectionable. As long as the court cannot demonstrate that there was an intention to harm it will not be considered hate speech.,” said Gouws.
Cape Times