The ANC will appeal the decision by Judge Collin Lamont to effectively ban the singing of dubul’ ibhunu or “shoot the boer” — which he said was hate speech, in a ruling slammed by advocates of free speech.
Lamont “interdicted the ANC and Julius Malema from singing the songs in private or public” in his Monday ruling in the South Gauteng High Court in Johannesburg, sitting as the Equality Court.
The judge also ruled that all members of society should “refrain from singing and using the words”.
People who sing the song would be in contempt of court.
But the ANC, legal experts and proponents of freedom of speech have slammed the ruling that singing of song constitutes hate speech and say the appeal would go all the way to the Constitutional Court.
Unfazed, the chief executive of AfriForum, Kallie Kriel, told the Mail & Guardian: “We will oppose any appeal”.
“We have been successful against Malema — with costs — twice now, and think we will be successful a third time.”
Lamont ruled that singing of the song was “discriminatory and harmful” to the Afrikaner community and said on Monday “there was no justification for singing the words”.
“The words undermine their dignity, are discriminatory and harmful [to Afrikaners]” he said, citing the Promotion of Unfair Discrimination and Equality Act.
Constitutional law expert Pierre de Vos told the M&G that while “Lamont made a reasonable ruling under the Equality Act”, the Equality Act itself was not constitutional when referring to hate speech.
“I have said for ages that the Act is unconstitutional,” said De Vos. “The Equality Act’s definition of hate speech is far broader than that in the Constitution.”
The Act’s definition of hate speech “includes saying something that could be construed by a reasonable person as hurtful against a particular group”, he added.
“If a religious group were to say that ‘homosexuals are going to hell’, then according to the Equality Act, the group would be committing hate speech because the comment would be construed by a reasonable person as hurtful to homosexual people”.
The Equality Act defines hate speech in this manner: “No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; or (c) promote or propagate hatred.”
Lamont ruled that the song was hateful, harmful and propagated harm against both Afrikaans people and farmers.
There is a “strong argument to be made that the Equality Act, when referring to hate speech, is unconstitutional”, agreed Rhodes Journalism Professor Jane Duncan, previously of the Freedom of Expression Institute.
Duncan said that hate speech, according to the Constitution, “had to advocate hatred based on race, ethnicity, gender and religion” and had to “incite listeners to cause harm”.
She added there was still a big debate in legal circles about what constitutes harm.
“Those who value freedom of speech want a narrow definition of harm as possible” she said.
Leave to appeal
The ANC could question the constitutionality of the Equality Act if they appealed Lamont’s ruling, De Vos said.
“But the fact they hadn’t made a constitutional argument in the initial court case makes it more difficult to raise constitutional issues later on,” he said, adding that the ANC could also appeal the ruling because of the judge’s “sweeping interdict”.
The fact that anyone would be in contempt of court if they sang the song was going overboard, he said.
“That ANC members may not sing the song even in private, borders on thought control,” said Duncan.
Lamont’s ruling “will not make the song go away”, she said. “But it may make the singing of the song an act of rebellion in eyes of people who sing it.”
This was shown when ANC supporters outside the South Gauteng High Court started singing Dubhula ‘Ibhunu on hearing it had been banned by the Equality Court, she added.
Duncan also said she thought that the judge had stretched the definition of hate speech in ruling that the song had undermined Afrikaners’ dignity.
“Hate speech is a direct invasion of dignity,” Lamont said in his ruling, effectively balancing the right to dignity with the right to freedom of speech.
But legal analysts have questioned whether dignity is as important as freedom of expression.
M&G editor-in-chief Nic Dawes said the judge had gone as far as “banning speech on the basis that people found it nasty”.
“If the judgment stands it will open the door for attacks on all kinds of uncomfortable but democratically necessary speech including satire, cartoons and robust journalism.”
“In my view, it isn’t a song that leaders of respectable political parties should be singing but it isn’t a song that political parties should be banning.”
But main complainant in the case AfriForum says it does believe in freedom of speech and is even preparing to fight the Protection of Information Bill if it becomes law .
“We believe the Constitution makes ample room for freedom of expression” AfriForum chief executive Kriel told the M&G.
“People can make use of any language that doesn’t dehumanise people,” added Kriel.
In his ruling, Lamont found that the reference to Afrikaners as dogs in the song Dubhula I’bunu — “they rob us, these dogs” — was dehumanising.