By Lehlohonolo Lehana.
The Supreme Court of Appeal (SCA) has dismissed Civil Rights Group, Afriforum’s ‘dubula ibhunu (kill the boer) song appeal against the Economic Freedom Fighters (EFF) and its leader Julius Malema with costs.
AfriForum was appealing the Equality Court Judgement that the song does not constitute hate speech or incite violence.
The Equality Court ruled that the song plays a crucial role in South African political history.
The SCA handed down the 41-page judgement on Tuesday, just a day before the country goes to the national and provincial elections on May 29.
The court also dismissed Afriforum’s application for the recusal of Justice Raylene Keightley finding that the test for recusal as laid down in several Constitutional Court judgments had not been met.
The SCA dismissed AfriForum’s appeal ruling that the “reasonably well-informed person” would appreciate that when Malema sang Dubula ibhunu, he was not actually calling for farmers, or white South Africans of Afrikaans descent to be shot nor was he romanticising the violence exacted against them in farm attacks, as contended by AfriForum.
“The reasonably well-informed person would understand that Malema was using a historic struggle song, with the performance gestures that go with it, as a provocative means of advancing his party’s political agenda.
“Understood in its full context, it was a form of political speech. Even if Malema’s performance of Dubula ibhunu may be regarded by some people to be shocking or even disturbing, the Constitution required a measure of tolerance,” it said.
The court held that what Malema was doing was no more than exercising his right to freedom of expression, which was protected under Section 16 of the Constitution.
“He was doing so in the course of participating in the activities of, and campaigning for, the political party of which he was leader, which rights are protected under s 19(1)(a) of the Constitution. The same reasoning applied in respect of EFF MP Mbuyiseni Ndlozi regarding Shisa lamabunu.”
AfriForum was seeking an interdict based on its stance that the song is a clear-cut example of hate speech and endangers South African farmers.
According to Kallie Kriel, CEO of AfriForum, farmers and Afrikaners deserve the same protections against hate speech as any other profession or cultural group. If the courts are not going to protect these groups from hate speech, they will have to take their safety into their own hands.
Kriel said, In light of this judgment, AfriForum will intensify its focus on investing a large and growing amount of its resources and time into improving and expanding our community safety networks through means such as training and equipment.”
He added that, AfriForum will convene with its legal team to discuss the possibility of a Constitutional Court challenge.
“Kill the Boer”, also known as Dubula iBhunu, was popularised in the early 1990s by former African National Congress Youth League (ANCYL) president Peter Mokaba.
The ANC vowed in 2012 to no longer sing the song, following controversy stemming from claims the song was related to a series of violent attacks on white farmers, and expelled Malema that same year in an effort to ease racial tensions in the country.
AfriForum initiated the case against the EFF and Malema after supporters chanted the song’s slogan outside the Senekal Magistrate’s Court in October 2020 during the appearance of the accused in the murder of 21-year-old farm manager Brendin Horner.
When he took the stand in 2022 during AfriForum’s civil case against him, his party and Ndlozi for singing “Kill the Boer” on various occasions, Malema told the court in his defence that the lyrics should not be interpreted literally.
He further claimed that he chanted “Shoot to kill, kiss the Boer, kiss the farmer” and not “Kill the Boer, Kill the Farmer”.
In July this year, Malema ended off his keynote address at the party’s 10th anniversary rally at Soweto’s FNB Stadium by chanting “Kill the Boer”, sparking a renewed wave of outrage with even Elon Musk seeing red.
The South African-born billionaire X’ed that the song promotes “white genocide”, while Democratic Alliance (DA) leader John Steenhuisen expressed the party’s intention to file charges against Malema with the United Nations Human Rights Council.