The Supreme Court of Appeal on Tuesday dismissed an appeal by AfriForum concerning the singing of Dubula iBhunu (“Shoot the Boer”) by EFF leader Julius Malema and the song Shisa lamaBhunu ( “Burn these Boers”) by EFF MP Mbuyiseni Ndlozi.
The SCA found in its judgment on Tuesday that the high court correctly found AfriForum had failed to establish that the song constituted hate speech under section 10(1) of the Equality Act.
The court said AfriForum and friend of the court Rule of Law Project argued that Malema’s singing of the song was based on a prohibited ground because of the term, “ibhunu”.
This word, according to their arguments, meant white South Africans of Afrikaner descent.
“In our view, this is not the correct approach. The question of whether Dubula iBhunu, and for that matter Shisa lamaBhunu, is based on a prohibited ground within the meaning of section 10 of the Equality Act is more complicated than AfriForum and the [friend of the court] suggest.”
The court said it was not a question that a simple reference to a dictionary could answer. This was because the word “ibhunu” was part of a verse in a song.
“Its meaning must be determined with reference to that verse as a whole. The meaning of the verse, in turn, must be assessed in its broader context, including, but not limited to, the circumstances in which the verses were sung on the particular occasions identified.”
It said “bhunu” may have different meanings in different contexts.
“What characterises the inquiry in this case is that the Dubula iBhunu complaints are directed at the singing of a known, pre-existing song with its own history.”
A case decided by the Constitutional Curt illustrated the importance of context in a hate speech inquiry. In that case, the words “kill all whites” in a T-shirt could be interpreted literally because there was no context to provide a different, or more nuanced, meaning.
“In contrast, in a case like the present, context is everything. This requires a consideration of who the singer is, the context in which the songs were sung and their likely impact.”
The court said in six of the seven occasions when Malema sang the song, it was at EFF events.
“In this context, the reasonably well-informed person could and would understand that Dubula iBhunu was sung on these occasions as an expression of the EFF’s political identity.”
In light of this judgment, AfriForum will intensify its focus on investing a large and growing amount of its resources and time into improving and expanding our community safety networks through means such as training and equipment.
— Kallie Kriel, AfriForum CEO
The court said a reasonably well-informed person would know that the EFF is a leftist-aligned party, with a particular concern for the struggle to overcome economic and land injustice in South Africa.
“He or she would know that the party, and its leader, Mr Malema, are very outspoken on these issues.”
The court agreed with the expert evidence that the EFF relied on, of Prof Elizabeth Gunner, that South Africans daily observe members of organisations and ordinary citizens singing and performing in public as a form of protest and a quest for change.
“Similarly, we can accept Prof Gunner’s further evidence that the performance is part and parcel of the political song within the genre. The mimicking of shooting by a singer is part of the call for change. Neither the words nor the gestures forming part of the performance are meant literally.”
The court said a reasonably well-informed person would have some understanding of Dubula iBhunu’s history in South Africa as a protest song linked to the liberation struggle.
“They would certainly understand that when protest songs are sung, even by politicians, the words are not meant to be understood literally, nor is the gesture of shooting to be understood as a call to arms or violence.”
Reacting to the judgment, AfriForum CEO Kallie Kriel said farmers and Afrikaners deserved the same protections against hate speech as any other profession or cultural group.
He said if courts were not going to protect these groups from hate speech, they would have to take their safety into their own hands.
“AfriForum has already established more than 172 neighbourhood and farm watches nationwide. In light of this judgment, AfriForum will intensify its focus on investing a large and growing amount of its resources and time into improving and expanding our community safety networks through means such as training and equipment,” Kriel said.
It would also convene with its legal team to discuss the possibility of a Constitutional Court challenge.
