Juju recently serenaded us with the melodies of an apartheid-era struggle song. And the applause? Another hate-speech charge landed on his lap. This has got the country buzzing with questions and possible answers on what constitutes hate speech. Among the defences for “dubul’ ibhunu” (“Shoot the Boer”) was the preservation of history, but at what cost?
Comparisons have been made between the song and the old South African flag. The latter was clearly offensive to different groups of our society and was banned — though it too is a part of our history. Some have argued that if the old flag has been locked away in an apartheid museum, then songs of this nature deserve the same fate. If this fails, others may find reasons to pull out their old flags and wave them in the air as a statement of history.
But this is only part of the point. According to Jane Duncan, professor of journalism at Rhodes University, “The song sung by Malema at University of Johannesburg appears to have been an adaptation of ‘Kill the Boer, kill the farmer’, made popular by Peter Mokaba. The song as sung by Mokaba could not be considered hate speech, even when people sung it at Mokaba’s funeral, and the South African Human Rights Commission [SAHRC] erred in making this judgement at the time. In order for speech to constitute incitement to cause harm, specific targets of that harm need to be identified.
“The song cannot be said to be directed at specific individuals, and in fact, the song is strongly metaphorical in that it refers to the system of apartheid being killed, so the specificity of speech that is necessary for something to constitute incitement to cause harm, was absent. In addition, the SAHRC extended the definition of harm too far, to include psychological harm to ‘minorities or vulnerable groups’: forms of harm that are virtually impossible to prove as they are too subjective. If the song was not hate speech then, then it is doubtful that Malema’s rendition of the song constituted hate speech either.”
I beg to differ. This song is directed at specific individuals, the Boer. And the system of apartheid has been dead for over a decade now.
On that note, let’s stick to the example at hand. In Malema’s case, there are two examples. The first is the Equality Court ruling on March 15 on comments he made about Zuma’s rape accuser last year: Malema was quoted as saying: “When a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, request breakfast and ask for taxi money. In the morning that lady requested breakfast and taxi money.”
The judgement handed down by magistrate Colleen Collis said: “This court is satisfied that the utterances by the respondent … amounted to hate speech. The uttered words constitute harassment as contemplated in the Equality Act.”
In an article in the Citizen on March 15, constitutional law expert Pierre de Vos “questioned the guilty verdict handed down by the Equality Court in ANC Youth League president Julius Malema’s hate speech trial … He was surprised at the ruling as it did not appear that there was an intention by Malema to incite hurt on rape victims or women groups.”
I, for one, understand De Vos’s point. That does not mean to say I agree with Juju’s comments, which are lined with disrespect and ignorance along with extreme insensitivity, but I do not think they fit the definition of hate speech.
It is the second incident – with the lyrics of Juju’s ‘dubul’ ibhunu” melody – that I am more concerned about. Now, just for some context, in 2003 an
Tags: African National Congress, African National Congress Youth League, Julius Malema, South Africa, Vuvu Vena