By Lehlohonolo Lehana.
Judgment has been handed down in the AfriForum vs EFF matter in the High Court in Johannesburg on Thursday.
The case has been dismissed.
Lobby group AfriForum brought a hate speech case in which the “Kill the Boer” song came into sharp focus.
AfriForum argued that EFF leader Julius Malema is guilty of inciting violence and hate speech by singing the controversial song.
Judge Edwin Molahlehi found AfriForum failed to make a case “that the lyrics in the impugned song constitutes hate speech as envisaged in section 10 (1) and 7 (a) of the Equality Act”.
Molahlehi ruled that AfriForum’s evidence and submission failed to show that the “EFF contravened the provisions of the Equality Act by singing the impugned song. It has failed to show that the lyrics of the impugned song are based on prohibited grounds set out in the Equality Act”.
The lobby group also failed to show that the song’s lyrics could incite harm or propagate hatred, said Molahlehi.
In contrast to AfriForum’s proposition that the song’s hate speech is premised on the literal interpretation of the lyrics, Malema previously testified that the freedom songs “should not be interpreted literally, but within the context of the struggle and the political message that it sought to agitate”.
Molahlehi did not find any reason to reject Malema’s evidence.
“Before democracy the song was directed at the apartheid regime and not particularly the disposition of the land of the majority of the members of the society by the colonial powers,” reads Molahlehi’s judgment.
In his evidence Malema maintained that “since the dawn of democracy” the song is directed to the issues of land justice and “in this respect more highlighting the failures of the current government”.
AfriForum has indicated it will appeal the outcome.
“This ruling creates a very dangerous precedent. The disturbing message sent with this judgment is that encouraging the gruesome murder of a certain group based on their identity is acceptable and carries no consequences,” argues Ernst Roets, head of policy and action at the civil rights group.
The party has constistently emphasised that its liberation chants and struggle song, are not instructions and none of its supporters recognised it as such.