Not a case for court

18 September 2011 - 03:06 By Sunday Times Editorial

Sunday Times Editorial: A culture of subjecting every major political and social disagreement to a court case would do little to strengthen our relatively young democracy and, in the long run, would reinforce dangerous - and often wrong - perceptions about the role of the judiciary.

ANC Youth League president Julius Malema addresses his supporters in downtown Johannesburg during a break in his disciplinary hearing, yesterday. His hearing has been moved to a secret location after his supporters rioted in the city centre Picture: LEBOHANG MASHILOANE
ANC Youth League president Julius Malema addresses his supporters in downtown Johannesburg during a break in his disciplinary hearing, yesterday. His hearing has been moved to a secret location after his supporters rioted in the city centre Picture: LEBOHANG MASHILOANE

Constitutionally, lobby group AfriForum was within its rights to approach the Equality Court over ANC youth leader Julius Malema's singing of a controversial liberation struggle song, Shoot the Boer.

But we submit that the matter would have been better handled through dialogue among all the affected parties, rather than through the courts.

Judge Colin Lamont's ruling that the song constitutes hate speech - and that it should not be sung in public or at private ANC functions - should be respected, but the judgment has done little to promote national reconciliation and could be seen as a major blow to the right to freedom of expression.

Freedom of speech is a cornerstone of a democratic state and the right of every individual to express themselves, no matter how unacceptable we may find what they say, should always be guaranteed, as long as those pronouncements do not constitute incitement to violence.

Judge Lamont's finding is set for a challenge in the higher courts.

While the constitutionality of key aspects of the ruling are being reviewed by the judiciary, a parallel conversation needs to begin in the rest of society aimed at promoting more tolerance and understanding among citizens.

The courts should not be seen as an easy substitute to the difficult conversations and disagreements we need to have as we build our democracy.

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