South Africans should be able to understand that what is legally permissible and what is wise or constructive are not the same.
On the face of it, the settlement between Afriforum and the ANC over the struggle song Dubula iBhunu (Shoot the Boer) and its revival by Julius Malema is a laudable contribution to the social cohesion of a fractured country.
Afriforum, the political arm of trade union Solidarity, is effectively a minority rights organisation that displays considerable legal and tactical savvy in defending the interests of Afrikaans-speaking whites.
It won an order in the South Gauteng High Court last year interdicting the ANC and its members from singing the song in public and in private, on the grounds that it is hurtful to some potential audiences (Afrikaners) and contravenes the hate speech provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act.
The judgment was clearly also intended to signal a broader injunction against the song.
“Persons who are not parties to the proceedings must be dealt with by way of structuring the order so that society knows what conduct is acceptable. Persons who are aware of the line which has been drawn by the court are as a matter of both law and ubuntu obliged to obey it,” Judge Colin Lamont wrote.
The ANC was due to ask the Supreme Court of Appeal to overturn the judgment on Thursday but, in an 11th-hour deal with Afriforum, opted for compromise, which was made an order of the court.
In terms of the deal, the governing party concedes that some struggle songs may be hurtful and agrees to discourage its members from singing them.
Afriforum, for its part, “abandons” the Lamont judgment. It will not seek enforcement of a costs order, or of the relief granted.
The precedent, however, stands, and that is unfortunate. There can be little doubt that singing Shoot the Boer on a public platform as part of a political strategy of racial mobilisation is reprehensible and damaging. The ANC should have made it clear to Julius Malema before any court process began that he was forbidden by party discipline from doing so. It should also have communicated more clearly its belief that the song is a historical artefact, not a contemporary rallying cry.
A legal ban is a different matter entirely. To define as hate speech, and legally actionable, any words that may be hurtful to some people threatens to shut down swathes of crucial democratic space. The settlement robs us of an opportunity to test the constitutionality of the hate speech provisions of the Act and to pose much sharper questions about how context and intent are assessed when regulating speech.
A victory for the ANC in court would not have prevented a political settlement of the kind they have now reached. The settlement, however, forestalls the testing of a questionable judgment with far-reaching implications. South Africans should be able to understand that what is legally permissible and what is wise or constructive are not the same. The law must leave wider parameters than political morality.