The South Gauteng High Court ruling banning the singing of Dubul’ ibhunu (Shoot the Boer) constituted an “absurd and drastic” infringement on freedom of speech, according to constitutional law expert Pierre de Vos.
- Read the full judgment here
In a column published in the Star on Thursday, De Vos criticised Judge Colin Lamont’s ruling, saying it was based on racial stereotypes.
The judgment meant any person singing the song could be held in contempt of court, he wrote.
“This, in my opinion, constitutes a rather absurd and drastic infringement on the right to freedom of expression not warranted by the Equality Act — even given the broad provisions of that Act.”
On Monday Lamont handed down his ruling on a complaint by AfriForum Youth. He ruled that ANC Youth League president Julius Malema’s singing of the words at public gatherings constituted hate speech and threatened farmers.
Lamont declared that the words “shoot the boer” and “shoot the boers, they rape” were hate speech. He interdicted Malema and the ANC, which had joined proceedings, from singing them publicly or privately.
De Vos writes in the column, also published on his blog Constitutionally Speaking, that Lamont had divided society into a majority and a minority along racial lines.
“This rather essentialistic and simplistic division of South Africans into different race groups could be viewed as problematic.”
“Instead of dealing with South Africans as South Africans and instead of demonstrating a blindness to race (as required by opponents of affirmative action), the court relied on racial assumptions and stereotypes to justify its finding,” wrote De Vos.
“One would assume that all the critics of race-based affirmative action would be quick to condemn this judgment on the basis that it invokes apartheid-era race categories and assumes that one would have a different reaction to words depending on one’s race and/or the language that one speaks. Surely the principled DA supporters who complain about affirmative action will have to reject this judgment because of its purported unholy valorisation of race?”
League to challenge ruling
The league announced on Wednesday it would appeal the ruling as far as the Constitutional Court, and would approach Parliament for legislation to protect songs considered part of the ANC’s heritage.
De Vos wrote that part of the problem with Lamont’s ruling was, in his opinion, the hate speech section of the Equality Act itself was too broad.
AfriForum said on Wednesday that would fight any attempts to overturn the ban after the youth league accused the group, and South Africa’s white minority, of having “too much power”.
“While the ANC Youth League is still claiming that Malema’s inflammatory statements are not to be taken literally, people are literally being killed,” AfriForum’s chief executive officer, Kallie Kriel, said in response to the league’s announcement that it intended to appeal the Equality Court ruling.
The youth league slammed Lamont’s judgment on Monday, saying his findings were a “misrepresentation of reality” and that the court was being controlled by a “coloniser”.
The league vowed to appeal the ruling in the supreme court and the Constitutional Court, and ask Parliament to draw up legislation to protect struggle songs.
But Kriel said this would further polarise the nation.
“It is unwise and polarising for the youth league to continue the fight for the right to dehumanise Afrikaners by calling them dogs and encouraging violence against them,” he said.
In his ruling, Lamont translated the words of Dubul’ ibhunu words as: “They are scared, the cowards, you should ‘shoot the boer’ — the farmer! They rob, these dogs.”
“All genocide begins with simple exhortations that snowball,” Lamont said in his judgment on Monday, adding that South Africa was a signatory to international treaties on genocide.
But Malema rubbished ideas that the song could lead to genocide.
“Why are we told of the potential to cause genocide even when we didn’t do it under apartheid?”
History does not have to be remembered by struggle songs
Lamont on Monday suggested that the ruling party find new ways to celebrate and remember history.
“If the words do constitute hate speech, does the fact that they have a place in our heritage vest an overriding right in the singer to sing the song and make the gestures?” asked Lamont, referring to the machine-gun actions made by the youth league leader while singing the chant.
Malema mocked the judge’s ideas, asking how a white man could tell black people how to remember their history.
“The judge says we must learn new morals — but from whom?” he asked
“What does freedom mean?” he asked. “[The white minority] is still in control of our lives, but this generation has a mission to turn things around.”
“No coloniser brought land to Africa, and no settler will impose on us how our lives are lived,” agreed the youth league’s secretary general, Sindiso Magaqa.
“The judgment has criminalised the struggle against apartheid,” he added.
The league’s deputy president, Ronald Lamola, said they would not instruct members to sing the song in defiance to the court ruling, but that “comrades will continue to sing revolutionary songs” and would do so spontaneously.