The African National Congress’s application for leave to appeal against a ruling that banned the singing of the song Dubul’ ibhunu, or “shoot the boer”, succeeded in the South Gauteng High Court on Thursday.
- Read the full judgment here
The ANC said last week it would appeal the decision by Judge Colin Lamont to ban the singing of the song — which he said was hate speech, in a ruling slammed by advocates of free speech.
Lamont “interdicted the ANC and [ANC Youth League leader] Julius Malema from singing the songs in private or public” in his September 12 ruling.
The judge also ruled that all members of society should “refrain from singing and using the words,” saying those who did so would be in contempt of court.
The Congress of South African Trade Union’s (Cosatu) president S’dumo Dlamini has already defied the ban on the liberation-era struggle song.
The Dispatch Online reported on Tuesday that Dlamini led hundreds of shop stewards in East London in a lively rendition of the song, saying that the ban meant nothing to those who had sacrificed their lives for the country’s liberation.
Addressing Cosatu’s second provincial shop stewards council meeting, Dlamini urged the workers to ignore the “clueless judge” and continue singing the song at their gatherings.
In his judgment, Lamont said there was no justification for the song to be sung, adding that it unlawfully singled out white Afrikaners and farmers as the subject of hate.
Meanwhile, the chief executive of AfriForum, Kallie Kriel, told the Mail & Guardian last week that AfriForum would oppose an appeal.
“We have been successful against Malema — with costs — twice now, and think we will be successful a third time.”
Constitutional law expert Pierre de Vos told the M&G last week 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.” — Additional reporting by Sapa