Judgment has been reserved in AfriForum’s appeal case and ongoing battle against the EFF, Julius Malema and Mbuyiseni Ndlozi over the singing of the “Kill the Boer” song.
This case, which was heard in the Bloemfontein Court of Appeal on Monday, follows the equality court’s finding last year that AfriForum could not provide sufficient evidence that the song was directed against a specific group of people, caused violence or amounted to hate speech.
AfriForum’s case
Adv. Jeremy Gauntlett argued on behalf of AfriForum on Monday that all the elements of hate speech are indeed present in “Kill/Kiss the Boer” as well as the song “Bizani iFire Brigade” with the lyrics “Burn the Boer”.
AfriForum’s case is based on section 10 of the Equality Act which states that no person may use words based on one or more of the prohibited grounds towards any other person that can reasonably be interpreted as a clear intention to be harmful, cause harm or hate do not propagate.
The prohibited grounds mentioned in the law are race, ethnicity or social origin.
According to AfriForum, both songs meet the hate speech requirements as detailed in the article and applied in the 2021 constitutional court case of Qwelane vs. the South African Human Rights Commission.
This case established the precedent that the subjective intent of the alleged perpetrator of hate speech should not be used as a measure of hate speech, but rather whether the reasonable person could consider the disputed words to be speech that demonstrates a clear intent to be harmful, to cause harm or propagating hatred.
According to AfriForum, this reasonable person test determines the impact of the alleged hate speech on the reasonable person and is therefore more important than the intention of the alleged perpetrator of hate speech.
Measured against this, AfriForum maintains that both songs meet the hate speech requirement in that they pass the damage test as set out in the Qwelane case.
One important difference in emphasis between the appeal application and AfriForum’s case in the equality court is the issue of causality. In the current application, AfriForum makes it clear that the Qwelane case does not require any evidence of causality between the hate speech and resulting damage.
In the case before the equality court, AfriForum argued a causal connection between the offending song and farm murders and attacks. According to the court, AfriForum could not provide sufficient evidence in this respect.
The EFF’s case
Adv. On Monday, Tembeka Ngcukaitobi argued on behalf of the EFF, Malema and Ndlozi that the songs in question do not amount to hate speech because they do not meet one of the two requirements as set out above.
According to the EFF, first of all, the song is not aimed at people of a specific race, ethnicity or social origin, which means that none of the prohibited grounds set out in section 10 are violated.
Ngcukaitobi argued that the song was instead aimed at the system of unequal land ownership.
Furthermore, the EFF argued that the songs do not amount to inciting violence because they should be interpreted figuratively, rather than literally. Seeing that it is a struggle song, it has a specific and generally accepted meaning and purpose.
Even measured by the objective test as outlined above, Ngcukaitobi argued, the general public in general and EFF supporters in particular are sufficiently informed about the historical context of the song that they would not reasonably believe that these statements could lead to violence not.
Consequently, it cannot be argued that there is a clear intention on the part of the EFF, Malema or Ndlozi to fuel hatred or violence against a particular group.
In light of this, Ngcukaitobi argued that the section 10 requirements are not met, which means that the songs in question do not amount to hate speech.
The Free Market Foundation’s case
Adv. Mark Oppenheimer argued on behalf of the Free Market Foundation as friend of the court that the status of the EFF as a party as well as Malema and Ndlozi as individuals in terms of the Qwelane case must also be taken into account in the damage test.
Because of these figures’ political prominence, they must be measured to a higher standard precisely because of their influence.
Likewise, a denial that the song is aimed at Afrikaners as a cultural group amounts to treating Afrikaners as second-class citizens. The Free Market Foundation also argued through Oppenheimer that the court undermines the constitutional principle of non-racialism by creating double standards for dealing with alleged hate speech depending on the race of the perpetrator and the victim.
