The equality court dismissed, with costs, AfriForum’s complaint against the Economic Freedom Fighters (EFF) and its president, Julius Malema and their singing Kill the Boer, Kill the Farmer on multiple occasions between 2016 and 2019.
AfriForum filed a complaint to have the two songs — Dubul’ ibhunu! (Shoot the Boer) and Biza a ma’firebrigate (Call the Fire Brigade) — declared hate speech and unfair discrimination in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act).
AfriForum lodged its complaint in October 2020 after EFF supporters sang Dubul’ ibhunu! outside Senekal magistrate’s court where the murder accuseds of farm manager Brendin Horner appeared.
Judge Edwin Molahlehi found AfriForum failed to make a case “that the lyrics in the impugned song constitutes hate speech as envisaged in section 10 (1) and 7 (a) of the Equality Act”.
Molahlehi ruled that AfriForum’s evidence and submission failed to show that the “EFF contravened the provisions of the Equality Act by singing the impugned song. It has failed to show that the lyrics of the impugned song are based on prohibited grounds set out in the Equality Act”.
The lobby group also failed to show that the song’s lyrics could incite harm or propagate hatred, said Molahlehi.
In contrast to AfriForum’s proposition that the song’s hate speech is premised on the literal interpretation of the lyrics, Malema previously testified that the freedom songs “should not be interpreted literally, but within the context of the struggle and the political message that it sought to agitate”.
Molahlehi did not find any reason to reject Malema’s evidence.
“Before democracy the song was directed at the apartheid regime and not particularly the disposition of the land of the majority of the members of the society by the colonial powers,” reads Molahlehi’s judgment.
In his evidence Malema maintained that “since the dawn of democracy” the song is directed to the issues of land justice and “in this respect more highlighting the failures of the current government”.
To this, Molahlehi dismissed the complaint against the EFF and Malema.
AfriForum has indicated it will appeal the outcome.
“This ruling creates a very dangerous precedent. The disturbing message sent with this judgment is that encouraging the gruesome murder of a certain group based on their identity is acceptable and carries no consequences,” argues Ernst Roets, head of policy and action at the civil rights group”.
In a separate case, AfriForum laid charges against Malema for contravening the Firearms Control Act in 2018. The case is set to recommence in the East London regional court on 5 September.