Case Summary and Outcome

The President of the African National Congress Youth League, Julius Malema, was found to guilty of hate speech after he, on several occasions, sang verses from a South African liberation song. The words of the song translated to “shoot the Boers/farmers they are rapists/robbers.” He was thereafter prohibited to sing the song, at either public or private functions.

Facts

Julius Malema, President of the African National Congress Youth League, while addressing public audiences, had sung/chanted the words “Awudubula (i) bhulu”; “Dubulu amabhunu baya raypha”; “They are scared the cowards you should ‘shoot the Boer’ the farmer! They rob these dogs” (para 49). The first two lines translate to “shoot the Boer/farmer”; “shoot the Boers/farmers they are rapists/robbers” (para 49). Afri-forum brought suit against Malema on the grounds that these “objectionable utterances” undermined the human dignity of and adversely affected the rights and freedoms of Afrikaners and Afrikaner farmers, as well as demonstrated an intent to hurt an ethnic group and to incite and promote hatred (para 49). Malema argued he had a right to sing these words, which were taken from a liberation song. He also argued that the words spoke to the symbolic destruction of white oppression, not a specific desire to shoot Boers (para 53).

Decision Overview

The court began its analysis by delving into the history of South Africa, detailing the events from the immigration of the Boers to South Africa from Holland, France, and Germany, to their institution of the policy of apartheid (paras 2-5). The court then introduced the rise of the African National Congress (ANC) as an opposition party (paras 6-9), and the subsequent creation of the South African Constitution (para 10). Article 16(1) of the Constitution guarantees freedom of expression, but limits this right in subsection 2, which states the right doesn’t extend to “(a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” (para 20).

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act) was enacted under Article 9 of the Constitution, which allows national legislation to be put in place to combat discrimination and promote equality (para 22). Section 10 of the Equality Act prohibits hate speech: “No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against a person, that could reasonably construed to demonstrate a clear intention to…be hurtful…harmful or to incite harm [or] promote or propagate hatred” (para 24). Section 15 sets the parameters that the Equality Court must use when deciding on cases involving hate speech. Section 15 states, “[h]ate speech and harassment [are] not subject to determination of fairness…the Court is obliged to seek the solution which is just, not which is fair” (para 25).

In this case, Julius Malema was brought before the Equality Court by the Afri-Forum after he repeatedly sang lyrics from the song “Dubul’ibhunu,” while making hand gestures that mimicked the look of a firearm (paras 56, 49). The lyrics he sang translate to “Shoot! Shoot! Shoot them with a gun/shoot the Boer/…These dogs rape up/shoot shoot shoot them with a gun” (para 59). The court first acknowledged the “tension between the right of the speaker to freedom of expression and the obligation of the speaker not to use words constituting hate speech” (para 31); however, the court clarified that whenever there are issues involving “majoritarian or minoritarian positions,” the test to be applied “must always be whether the measure under scrutiny promotes or retards the achievement of human dignity, equality and freedom” (para 34).

Malema sang the song on the following occasions: at his birthday, at the University of Johannesburg, during a public address on Human Rights Day, and at a public speech in Rustenburg (para 67). After each incident, the media response and reporting on the event was great, with different papers translating the words and both showcasing and stoking a public uproar around Malema’s singing after the translation of the one of the phrases was repeatedly set as “shoot the Boer/farmer” (paras 77, 78, 83).

The Equality Court acknowledged that prior to the media publication of the translation, the song had had no effect because either the song was innocuous or else there was ignorance among the targeted group of the song’s meaning and/or the fact that the song had been sung (para 85). The court then looked to the “actual audiences” so as to determine song’s impact. At Malema’s birthday party, the courtt found the audience to be closed, with likeminded people who likely knew the song’s meaning (para 86); at the University of Johannesburg, the audience was a “multi-racial cross-section” (para 87); and at the public address at Human Rights Day and at the rally in Rustenburg, the audience contained likeminded people who had been involved in the struggle (paras 88, 89). The Equality Court found that, regardless of the actual audience, “the public at large, even those who did not attend the rallies, must be treated as being the audience at political rallies” (para 91).

Therefore, in the context in the current, at-peace state of South Africa and of the ability of the sung words “shoot the Boer” to incite and promote violence against white Afrikaners, the Equality Court held that, even though the song is a part of South Africa’s history, to sing it now is no longer acceptable (para 108). As such, Malema should bear the responsibility of the consequences of singing these words (paras 106). The court found that Malema’s words constituted hate speech, and further declared: “[t]he words undermine [the speakers’] dignity, are discriminatory and harmful…[n]o justification exists allowing the words to be sung…[t]he words were in any event not sung on a justifiable occasion” (paras 108, 109). The court thereby banned Malema from singing the song, in public or in private (para 120).