WATCH | Singing 'Shoot the Boer' not hate speech, declares Equality Court
The singing of Dubul’ ibhunu (“Shoot the Boer”) does not constitute hate speech.
This was the Equality Court's finding in the case brought by AfriForum against EFF leader Julius Malema and MP Mbuyiseni Ndlozi over the alleged singing of Dubul’ ibhunu [“shoot the Boer”].
They allegedly sang the song outside the Senekal magistrate’s court during the bail hearing of those accused of murdering Free State farm manager Brendin Horner in October 2020.
Handing down judgment in Johannesburg on Thursday, judge Edwin Molahlehi ruled in favour of the EFF.
“It is not in dispute that a song is a form of hate speech, but AfriForum has failed to show that the lyrics of the song are based on prohibited grounds in the Equality Act. They have failed to show that the song incites violence.
“The objective evaluation does not constitute hate speech but rather has to be protected under freedom of speech. AfriForum failed to prove that the song constitutes hate speech.
“The matter is dismissed,” said Molahlehi.
AfriForum called three expert witnesses. Ernst Roets, AfriForum's head of policy, testified Malema used the land expropriation argument to incite violence.
Molahlehi said Roets was disqualified as an expert in this matter because of his proximity to the case, and his testimony was based on hearsay.
The second witness for AfriForum, Gabriel Crouse from the Institute of Race Relations, was found to have not assisted the court in his testimony.
“His testimony is of no assistance to the court and did not assist in any manner or advance the case for AfriForum. It is rejected as he is not an expert,” Molahlehi said.
The testimony of a third witness, a survivor of a farm attack, was also not considered as he claimed the singing of the struggle song incites violence. “It doesn't show how the singing incited violence,” said the judge.
Molahlehi said the court took a flexible and less formal approach to the evidence in the matter.
The EFF brought two experts to testify — Malema and African literature scholar Prof Elizabeth Gunner.
Malema said the song should not be taken literally and that it was not a song but a chant.
Gunner dissected the role of songs in performance politics and how the struggle past intersects with the present. She spoke of the deeper meaning of political songs and their role in the public life of a state, particularly an African state, given the long cultural matrix and history.
“You can see the song as an example of a song working to call people together, to make a point about the SA present and history, using it as a means and expression of defiance.”
The court accepted her testimony.
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