ANC reversing 'shoot the boer' will test the Constitution

The African National Congress has confirmed that it will be taking legal steps to reverse the decision of the South Gauteng High Court on Thursday which granted an interdict against ANCYL leader Julius Malema singing dubula ibhunu [shoot the boer].

ANC spokesperson Jackson Mthembu issued a statement on Friday in terms whereof the ruling party confirmed it will be approaching the courts, including the Constitutional Court, in order to challenge the High Court’s ruling. It also expressed disappointment at Judge Eberhard Bertelsmann’s “lack of consideration” for the historical context of the song.

The matter has been referred to the Equality Court by Bertelsmann.

Two interest groups are confronting each other on this issue: The ANC/ANCYL, who believe that the song — regardless of how inappropriate the words may be — forms part of the country’s history and culture and the white, Afrikaner community represented by Afriforum, who say the word “boer”, in the context of the song, is derogatory and refers to farmers, whites and Afrikaners in particular.

Interestingly, certain members of the legal fraternity across racial lines have sympathy with the ANC on this issue.

This arises out of concern for the attack on South Africans’ Constitutional right to freedom of expression rather than any love for the song itself.

Professor Pierre de Vos, an expert on constitutional law, believes that the hate speech provisions which form the basis for granting the order may be unconstitutional in themselves.

“One should be careful not to endorse legislation merely because it is being used in one case against one person whom one may not like very much. It is always better to look in a principled manner at legislation and to ask whether the legislation is good or bad for our democracy and whether the legislation passes constitutional muster. This is why I believe it is important to look critically at the hate-speech provision in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (The Act).

Such a critical evaluation will reveal that there are serious questions about the constitutionality of the hate-speech provision. In fact, I suspect that the provision is unconstitutional and hope that it will be challenged by someone (Julius are you there?), so that it can be declared invalid by the Constitutional Court.” (De Vos)

The professor then sets out the basis for his assertion that the provisions may well be unconstitutional.

Those who are following the case should click on the link and take the time to read his argument.

Of course there are also other issues that come into play here.

In terms of the Bill of Rights (Chapter 2 of the Constitution), equality (Section 9) may well conflict with freedom of expression, (Section 16) in respect of this issue.

In this regard Section 9 reads as follows:

9.1 Everyone is equal before the law and has the right to equal protection and benefit of the law.
9.2 Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
9.3 The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
9.4 * No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (9.3). National legislation must be enacted to prevent or prohibit unfair discrimination.
9.5 Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Unlike the Act (see above) being too wide when regard is had to the Constitution — thus making the hate-speech provisions potentially unconstitutional — here we are dealing with two sections of the Constitution which appear to be in conflict with each other when it comes to dealing with the legality of the song.

Do the rights of the farmers to protection under the law supersede those of Malema’s to freedom of expression or vice versa?

The answer is not simply one or the other.

In practice our courts interpret legislation in order to see where certain rights begin and end, thereby giving them boundaries. In that way people are made to understand to what degree their rights extend.

In this case, to what extent the song may be sung, if at all, before it infringes on the Constitutional rights of others, if at all?

It will certainly provide for fascinating argument and enrich our democracy no end if conducted in the spirit of debate and not confrontation.