A song sung by the EFF leader and another senior member, which included the words “shoot the boer”, is not hate speech, despite claims by AfriForum.
This was the finding of the Supreme Court of Appeal (SCA) after the civil rights group tried to have the words sung by EFF leader Julius Malema and Mbuyiseni Ndlozi declared hate speech.
AfriForum is now discussing an appeal to the Constitutional Court after its loss this week. The group says the SCA’s judgment “puts both farmers and Afrikaners in danger”. AfriForum, which has 265,000 members, says its goal is to protect minority rights, including campaigning on farm murders.
AfriForum approached the Johannesburg high court in 2022 where it highlighted occasions, mainly at EFF rallies or celebrations, where the song commonly known as Dubula ibhunu was performed numerous times by Malema, and once by Ndlozi. AfriForum’s main complaint related to the lyrics “awudubula ibhunu, dubula amabhunu baya raypha”, which AfriForum says literally translates to “Kill the Boer — the farmer”.
In response, Malema told the High Court that the EFF as a political party has, as one of its priorities, land expropriation without compensation. The basis for this, said Malema, was that colonial settlers took land from African people by force.
Over several days in 2022, the High Court heard from several witnesses but dismissed AfriForum’s complaint.
In his 2022 judgment, high court judge Edwin Molahlehi said the song “has to be located within the political context in which Mr Malema is pushing for the land reform and radical economic policy”. The so-called “reasonable listener” would not interpret the song being sung in that political context as a threat towards farmers, let alone white South Africans.
AfriForum appealed to the SCA, arguing the court was wrong to take Malema’s “subjective” view and had ignored that “boer” is reference to an “ethnic group” deserving legal protection.
During the SCA hearings in 2023, AfriForum also tried to get one of the SCA judges, acting SCA judge Raylene Keightley, to recuse herself.
According to AfriForum, Keightley demonstrated “bias” as a High Court judge in 2018 when she presided over a case involving AfriForum and Unisa, Africa’s biggest open distance-learning institution. Unisa had phased out teaching Afrikaans in 2016, but AfriForum had challenged that decision.
While presiding in the High Court, AfriForum said Keightley had made various comments — “I think your client is barking up a tree”, “I, as a white South African, feel very strongly” and so on — demonstrating strong personal views. As a result, she should not be presiding over its case in the SCA.
The SCA dismissed AfriForum’s entire case on Wednesday.
Writing for a unanimous court, SCA judge Halima Salduker said AfriForum had not made out a case for either overturning the high court’s findings on the song or for Keightley’s recusal.
Regarding Keightley, Salduker said judges “bring their personal and professional experiences to bear” all the time.
While Salduker said the debates between Keightley and AfriForum were “robust”, they did not demonstrate bias. Keightley even indicated in the same exchange her willingness to change her mind and that she might be wrong.
Regarding hate speech, Salduker noted the songs were all sung openly, in public, at highly reported EFF events. “The reasonably well-informed person could, and would, understand that [the song] was sung on these occasions as an expression of the EFF’s political identity,” she said. People know the EFF and Malema are “outspoken” about their political goals, particularly land, and that Malema “is known not to mince his words.” This also applied to Ndlozi.
Salduker noted the song was part of the “canon of SA liberation songs” going back a century.
As a result, she dismissed the case with costs.
In a statement, AfriForum said the SCA’s dismissal of its case “puts both farmers and Afrikaners in danger”.
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