The song, Larney Jou Poes, which grapples with the plight of farmworkers in light of the De Doorns protests, was released on an EP this week by the Cape Town group.
Civil rights group Afriforum said on Sunday it would take the matter to court unless the band retracted the song and video within 24 hours. As of Thursday, the band had not done so, and Afriforum had not gone to court. It has, however, submitted a complaint to the South African Human Rights Commission.
A finding of incitement or advocacy of hatred by a court would be binding, according to Sheniece Linderboom, head of the Freedom of Expression Institute’s law clinic.
The song would effectively be banned, should Afriforum win in court, she said.
Afriforum says that the song is a “vulgar form of hate speech”.
The song’s video shows images of workers burning tyres on farms. Its chorus is a play on the children’s Bible song Father Abraham: “Farmer Abrahams had many farms/ and many farms had farmer Abrahams/ I work for one of them and so would you/ So let’s go burn ’em down.”
Freedom and incitement of hatred
Section 16 of the Constitution protects freedom of expression. But freedom of expression does not extend to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.
Afriforum says the song “romanticises violence”. But the band told the Mail & Guardian this week that their intention was to spark debate, and that they felt they had been “relatively successful” in achieving that. They said they were careful not to show anyone being harmed in the music video.
“The intent was to express anger at an issue of social injustice through our art. We wanted to highlight the plight of the farmworkers. The video is a metaphor. We don’t want to burn down farms. The farm is not burnt – we merely ‘made our mark’ on the land,” said band member Damian Stephens, whose stage name is Human Waste.
“The question is whether, in the context of the speech, it [the song] amounts to hate speech or protected expression,” says Dario Milo, partner at law firm Webber Wentzel and a media and information law expert.
Critically, this context is music.
“Here the first important point is that the speech argued to be objectionable is contained in a song. It might be different if the words were chanted at an emotionally charged gathering, where there may be a likelihood of physical harm resulting. So the context of the expression suggests that it cannot amount to hate speech,” Milo says.
The second key issue, according to Milo, is that the Constitution defines hate speech narrowly, “and rightly so … the Constitution makes it clear that the speech must advocate hatred based on, for example, race, and constitute incitement to cause harm. You must therefore instigate or actively persuade someone to cause harm”.
Again, context is crucial to the Dookoom debate.
This is not just a philosophical or academic debate, as the law sometimes exempts artists from being found guilty of hate speech in the interests of protecting freedom of expression.
Artistic expression is exempt even in the Equality Act, which defines hate speech more broadly, says Milo. He thinks this would apply in the Dookoom case.
Linderboom points to the Promotion of Equality and Prevention of Unfair Discrimination Act. Here artists are exempt from hate speech if their “artistic expression” is deemed bona fide.
“Bona fide artistic expression is expression made in good faith – in other words, without intention [to harm],” Linderboom says.
But the test for hate speech, as stated in the Act, and the practical application thereof, “is a little more foggy”, she adds.
The Act’s provisions are broader, but are not necessarily in line with Section 16 of the Constitution. Linderboom says this needs to be addressed.