Judge Leon Halgryn defended his order banning the words “shoot the boer” in the South Gauteng High Court in Johannesburg on Monday.
He said the insertion of the words “Jew”, “faggot” and the “K” word would still render it unconstitutional.
Halgryn had ruled the words were prima facie incitement, which is a crime.
“This is simple as far as I am concerned,” said Halgryn as advocate Gilbert Marcus applied for leave to appeal Halgryn’s order on behalf of the African National Congress (ANC).
Earlier this year, ANC Youth League president Julius Malema sang the lyrics at a University of Johannesburg rally, sparking outrage, particularly among Afrikaners and farmers, who believed the song was directed at them.
A small protest outside the court, organised by the Pro-Afrikaanse Aksie Groep (PRAAG), highlighted its concerns over the song, saying that more than 3Â 000 farmers have been murdered in the country since 1994.
“For the size of the population that is a high rate,” said one woman protester.
“It is against the minority; I think it is very dangerous given the Darfur and Rwandan experiences,” she said, not wanting to give her name.
They had a number of T-shirts printed, one bearing a picture of Queen Elizabeth II, framed with the words “I love Afrikaner genocide”.
She and a fellow protester said the “genocide” of the Boers began when the British invaded South Africa and started conquering Boer people.
They said the “genocide” started when 36Â 000 boers, women and children died in British concentration camps in South Africa.
Other T-shirts bore the faces of former president FW de Klerk and US President Barack Obama, with slogans: “I don’t care a damn” and “Yes, we can kill Afrikaners”.
Afrikaans singer Sunette Bridges was part of the group, saying she did not believe the lyrics should be legal.
“It is a threat to a minority group in the country,” said Bridges, whose T-shirt carried a picture of Malema and the words “genocidal juvenile delinquent”.
Words to be banned
In March, Mpumalanga farmer Willem Harmse successfully applied for an order that the words be banned. He and a businessman in the area, Mohammed Vawda, belonged to a group called The Society for the Protection of our Constitution.
Speaking outside the court, their lawyer, Zehir Omar, explained that the society had planned a march against crime and farm murders, and Vawda wanted to put the words on a poster because he interpreted them to mean “shoot apartheid”.
Harmse and Vawda argued about this, which led to Harmse taking it to the South Gauteng High Court.
Omar said the two had since reconciled, and Vawda agreed the words could be divisive.
They wanted Halgryn’s order to stay as it was.
The ANC, however, had applied to be part of the proceedings because it believed Halgryn did not take into consideration the historic context of the song, sung during the days of apartheid.
But, said Halgryn, “the oppressive regime doesn’t exist anymore, why should the song still be lawful”.
Afrikaner lobby group AfriForum and another group, Lawyers for Afrikaners, had also applied to be part of proceedings.
However, these were put on hold as a power failure plunged the court into darkness as Marcus was about to explain the context of the song.
As people held up their cellphones for light, and one lawyer a lighter, Halgryn said he wouldn’t mind continuing in the dark, but that he preferred to make eye contact. — Sapa