The ANC's pact to stop singing the song with words 'Dubula i'bhunu' is a failure - it should have been used to question the definition of hate speech.
There was a moment at the end of the press conference to announce the Dubula i'bhunu (kill the boer) settlement between the ANC and AfriForum on Wednesday when it appeared the taut veneer of reconciliation between the parties was cracking open.
Transvaal Agricultural Union (Tau) president Louis Meintjes – an amicus of AfriForum in the court case – had latched on to a question posed to ANC secretary general Gwede Mantashe about his party's policy initiatives to staunch the flow of South African farmers leaving the country in "droves".
In response to Mantashe's suggestion that this was an "exaggeration", Meintjes said: "I am not exaggerating by saying farmers are not happy. What the issues are, are farm attacks and farm murders, the other issue is land reform."
Meintjes continued, saying the agreement allowed white farmers a chance to "to exploit the opportunity" that the "ANC does not have a choice but to speak to us, to sit around a table to discuss these issues".
Mantashe quickly took umbrage and said that Meintjes was "committing a dangerous mistake". Noting that the parties had committed "to engage in dialogue", which was "underpinned by mutual respect", Mantashe said: "There is no section of the population that has a monopoly on anger and disaffection."
It was a thunder, but a quiet one by the ANC secretary general’s usual standards. Mantashe, flanked by an array of pale males, some of whom belonged to an organisation that appeared to be stuck in a time warp oblivious to the (name) changes in South Africa, looked uncomfortable during the conference.
Not merely because, as Ebrahim Harvey pointed out in his political biography of ANC deputy president Kgalema Motlanthe, Mantashe likes revolutionary songs: Motlanthe, then-National Union of Mineworkers secretary general had to, apparently, caution a young Mantashe several times about singing revolutionary songs in the Chamber of Mines during negotiations in the 1980s.
But, to put it bluntly, AfriForum and Tau are the natural political enemies of the progressive values of the ANC and the larger liberation movement – they are unreconstructed and reactionary.
This settlement reached "in the interests of promoting reconciliation and to avoid inter-community friction" commits the ANC and its expelled youth league president Julius Malema to "counseling and encouraging their respective leadership and supporters to act with restraint to avoid the experience of such hurt" that may be caused by "the lyrics of certain songs".
This mediation agreement will be made an order of court to replace Judge Collin Lamont's Equality Court ruling, which found Dubula i'bhunu tantamount to hate speech with the potential to snowball into genocide against minorities.
It would appear an act of reconciliation. An attempt at social cohesion. A magnanimous wooing of the far-right that President Jacob Zuma, especially, appears rather fond of.
Yet, it could also be construed as a failure. Had the ANC challenged Lamont's ruling in court, it would have allowed for the definition of hate speech to be further clarified in South African law.
Constitutional law expert Pierre de Vos argued in his blog, Constitutionally Speaking, that the hate speech provisions in the Equality Act are too "sweeping" in its wording – perhaps even unconstitutional.
Media lawyer Dario Milo earlier on Wednesday tweeted that from the "perspective of free speech jurisprudence" it was a "pity" the matter was not going to be heard at the Supreme Court of Appeal on Thursday. He, like others in the legal fraternity, believed the ANC had an "excellent case" that would have deepened South Africa's jurisprudence around freedom of expression.
So why this about-turn by an ANC that had resulted in a last-minute, late-night settlement on Tuesday? The obvious answer is Julius Sello Malema – the elephant in the room who was, according to Mantashe, "writing exams".
The ANC's case – the decent fight for the freedom of expression – appeared winnable. The high-profile nature of the case would also mean Malema would again be in the spotlight. Only this time, sharing platforms alongside the ANC leaders who had cast him out. Could the ANC leadership intent on returning for another five years when the party holds its electoral conference in just over a month's time afford such public exposure to the man who appears intent on deposing its current president, Zuma?
Mantashe dismissed such an idea, saying, "Dubula i'bhunu is not Malema's song, it's a liberation song. To make this a Malema issue is stretching issues to the limits. We are committing to this because we are committed to say "the struggle and its songs, it's our heritage, it's part of our history … It is history that must be preserved … let's not try and vulgarise it and hurt other people."
Fair enough. But if Mantashe and the ANC have ceded ground on a noble deepening of South Africa's definition of freedom of speech and hate speech for party political reasons, then, they would appear to be singing to the tune of the boers (in its historical sense).