‘Kill the Boer’ case: Court of Appeal judge asked to withdraw


The civil rights organization AfriForum’s legal team sent a letter to the registrar of the highest court of appeal on Friday in which it is officially requested that acting appeals judge Raylene Keightley recuse herself from further participation in the panel of judges that must decide in AfriForum’s appeal application against Julius Malema and the EFF’s use of the chant “Kill the Boer”.

This request follows after it came to light last week that Keightley went against AfriForum in a court in 2018 by arguing that this organization is unwilling to renounce “anachronistic positions”. She also said at the time that AfriForum might consider asking for her withdrawal, should she again preside over a case in which AfriForum is involved.

The law firm representing AfriForum in the case was only made aware of Keightley’s comments after the hearing on 4 September 2023.

The lawyer who represented the firm in the earlier case, Werner Human, has since left the firm.

“No official or staff member of our client who was involved in the earlier case, which is now more than five years ago, was involved in the current case at any stage,” says the lawyer’s letter. “The official who was involved in the Unisa case, Alana Bailey, was not involved in the current case at any stage. So it was only after the hearing that we or our client happened to become aware of Judge Keightley’s earlier comment, through a casual comment to a former candidate attorney, who is now a director of this firm. If the members of our firm who were involved in this case, or the officials of AfriForum who gave us instructions, were aware of what happened above, our client – as we were instructed – would undoubtedly have already done so before the hearing in this court requested that Judge Keightley recuse herself.”

AfriForum asks in this lawyer’s letter that Keightley should follow her conscience and withdraw herself, but indicates that, should she not do so, AfriForum will bring an official court application for her withdrawal from the panel. According to AfriForum, judge Keightley’s actions during the hearing that took place in Bloemfontein last Monday, as well as previous statements by this judge about AfriForum, gave rise to the reasonable suspicion that she is biased against AfriForum.

Kallie Kriel, CEO of AfriForum, says that he and AfriForum’s legal team in the “Kill the Boer” case were only informed of Keightley’s then-tirade against AfriForum in the High Court after Monday’s hearing, in which he said Keightley was openly biased. Pretoria in 2018.

According to Kriel, at the time Keightley ruled against AfriForum in the court case regarding Unisa’s decision to delete Afrikaans as a language of instruction. Keightley granted leave to AfriForum to appeal against her ruling and then, according to Kriel, said that, given the fact that she had already delivered a decision, she could only say “these things” about AfriForum. Kriel pointed out that both the Court of Appeal and the Constitutional Court subsequently ruled in AfriForum’s favor against Keightley’s initial ruling.

According to Kriel, Keightley’s partisan actions put the spotlight anew on the danger that the current political composition of the Judicial Service Commission poses to the credibility of the judiciary.

“Keightley, who is currently acting as a judge of appeal, would have to appear before the Judicial Service Commission, of which Julius Malema is a member, and be recommended for the position by Malema and co. AfriForum has always had high regard for the Court of Appeal and its judges, but this kind of conflict of interest and Keightley’s actions pose the danger that ordinary people may lose faith in the courts,” adds Kriel.