The Supreme Court of Appeal in Bloemfontein is set to hear an appeal by AfriForum who last year lost the battle to have the song declared hate speech in the Equality Court.
JULIUS Malema’s Economic Freedom Fighters (EFF) and AfriForum, the civil rights organisation, will clash again in court over the controversial “Kill the Boer” Struggle song.
On Monday, the Supreme Court of Appeal (SCA) in Bloemfontein is set to hear an appeal by AfriForum who last year lost the battle to have the song declared hate speech in the Equality Court.
In addition, the Rule of Law Project (RoLP), an arm of the Free Market Foundation (FMF), will join the fray as a friend of the court, championing the principle of equality before the law.
David Ansara, CEO of the FMF, expressed concern over the Equality Court’s decision, stating it “undermines the principle of equality before the law”.
He pointed out the disparity in judgments, where less prominent individuals faced severe penalties for milder statements, while political figures like Malema seemingly escape accountability.
Ansara emphasised, “It’s concerning when political elites like Julius Malema face no repercussions after inciting violence, while ordinary citizens face stricter consequences.”
Both the FMF and RoLP argue that the ruling suggests a double standard, implying that South Africans aren’t treated equally under the law. They contend that while ordinary citizens face stringent penalties for hate speech, influential political figures appear to be exempt.
“We risk establishing a perilous precedent that contradicts our Constitution,” Ansara warned.
Last year, in a ruling by the High Court in Johannesburg, Judge Edwin Molahlehi declared that the song “Dubul’ ibhunu” or “Kill the Boer – Kill the Farmer” does not qualify as hate speech.
The judgment emphasised that the song should be safeguarded under the principles of freedom of speech.
The song, according to Judge Molahlehi, highlights the government’s shortcomings in addressing economic empowerment and land distribution concerns.
This decision was a result of a case initiated by AfriForum against the EFF and its leader, Malema.
The case was prompted by EFF supporters chanting the song’s slogan outside the Magistrate’s Court in Senekal in October 2020, coinciding with the appearance of the accused in the murder of farm manager Brendin Horner.
It’s noteworthy that in 2011, the Johannesburg High Court, with Judge Colin Lamont presiding as an Equality Court, had deemed Malema guilty of “hate speech” for using the song’s lyrics. Despite Malema’s appeal to the Supreme Court of Appeal, the case was later withdrawn, with both parties opting for mediation.
In the case overseen by Judge Molahlehi, AfriForum contended that Malema should refrain from singing the song and also dissuade his followers, asserting that it fuels racial animosity, especially towards farmers who are frequently targeted in farm attacks.
In July this year, Malema caused an outcry when he sang the controversial song during his party’s 10th anniversary celebration at the FNB stadium.
Even the world’s richest person, South African-born billionaire Elon Musk waded into the debate, saying Malema was calling for the genocide of white people.
Malema has held steadfast and promised to continue singing the song, saying it was historically significant due to it being a liberation struggle song.
He pointed to the Equality Court judgment, saying the song had been litigated and he had won – and therefore the matter was closed.
