The Equality Tribunal dismissed, with costs, AfriForum’s claim against the Economic Freedom Fighters (EFF) and its chairman, Julius Malema and their chant Kill the boer, kill the farmer several times between 2016 and 2019.
AfriForum sued for having the two songs — Dubul’ibhunu! (Shoot the Boers) and Biza to my firefighter (Call the fire department) — declared hate speech and unfair discrimination under the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act).
AfriForum filed its complaint in October 2020 after EFF supporters sang Dubul’ibhunu! outside Senekal Magistrates’ Court where those accused of murdering farm manager Brendin Horner have appeared.
Judge Edwin Molahlehi found that AfriForum had failed to prove “that the lyrics of the impugned song constitute hate speech as contemplated by section 10(1) and 7(a) of the equality”.
Molahlehi ruled that the evidence and AfriForum’s submission did not show that “the EFF breached the provisions of the Equality Act by singing the disputed song. She has failed to demonstrate that the lyrics of the disputed song are based on prohibited grounds set out in the Equality Act”.
The pressure group also failed to show that the song’s lyrics could incite harm or spread hatred, Molahlehi said.
Contrary to AfriForum’s proposal that the song’s hate speech is grounded in the literal interpretation of the lyrics, Malema previously testified that freedom songs “should not be interpreted literally, but in the context of the struggle and the political message they sought to convey”. ”.
Molahlehi found no reason to reject Malema’s testimony.
“Before democracy, the song was directed against the apartheid regime and not particularly against the disposition of the lands of the majority of society’s members by the colonial powers,” Molahlehi’s judgment reads.
In his testimony, Malema argued that “since the dawn of democracy”, the song has been directed towards issues of land justice and “in this regard, further highlights the failures of the current government”.
For this, Molahlehi dismissed the complaint against the EFF and Malema.
AfriForum said it would appeal the result.
“This decision sets a very dangerous precedent. The disturbing message sent with this judgment is that encouraging the horrific murder of a certain group on the basis of their identity is acceptable and carries no consequences,” said Ernst Roets, head of policy and action at the within the civil rights group.
In a separate case, AfriForum brought charges against Malema for breaching the Gun Control Act in 2018. The case is set to resume in East London Regional Court on September 5.