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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.

Author

  • Mike Trapido is a criminal attorney and publicist having also worked as an editor and journalist. He was born in Johannesburg and attended HA Jack and Highlands North High Schools. He married Robyn in 1984 (Mrs Traps, aka "the government") and has three sons (who all look suspiciously like her ex-boss). He was a counsellor on the JCCI for a year around 1992. His passions include Derby County, Blue Bulls, Orlando Pirates, Proteas and Springboks. He takes Valium in order to cope with Bafana Bafana's results. Practice Michael Trapido Attorney (civil and criminal) 011 022 7332 Facebook

24 Comments

  1. Atlas Reader Atlas Reader 3 April 2010

    Dancing on the head of a legal pin, if this incitement to kill is ruled acceptable. It will only underline just what a complete ass the law has become.

  2. Rod of Sydney Rod of Sydney 3 April 2010

    In the context of politics, it sucks and is definitely criminal. If some smart alec lawyer things otherwise, … well that figures.

    Now “pour sewage on the lawyer”, that would would have universal voter appeal.

  3. Anne Coventry Anne Coventry 3 April 2010

    I heard an analogy once that seems to me also to apply to freedom of speech: that watching violence on TV was like holding a lit flame over an open bottle of petrol – but since most of us aren’t carrying an open bottle of petrol around with us it only affects those that are.

    Why can’t the ANC, just once, take the moral high ground? If they had just come out and said that while the song is part of the history of the country, all that is now behind us and singing it should be discouraged it might have felt as though the government was actually looking after all of its people and not just members of the ANC.

    The ANC’s true colours are really coming out in the wash – clearly demonstrated by their latest need to fight a ruling by the Southern African Development Community (SADC) which, in 2008, found that Zimbabwe had wrongly taken land from nearly 80 farmers, saying they had been targeted due to their race. My disgust at this stand from OUR Government is beyond words.

    Some people obviously feel that since the ANC does not follow the constitution of their own free will the only option left is that they must be forced to do so through the courts.

  4. Siobhan Siobhan 3 April 2010

    Surely it is the use of the command to “KILL the boer” that is the heart of the matter.

    The encouragement to KILL anyone is, in a constitutional democracy, not acceptable. This case is not about ‘freedom of expression’ in the usual sense of that phrase, to express an opinion or a point of view. “Kill the rapist, Kill the boer” is not an OPINION; it is an incitement to take a specific illegal action against a specific targeted group.

    Further, there is no ambiguity in the statement “Kill the boer”. Kill means KILL; it is not a euphemism for anything. It is a direct call to take action–illegal action.

    The Horst Wessel-Lied sung by Hitler Jugend of the 30s was used to terrorise and intimidate the Jewish population across Europe. It functioned as a kind of soporific for the German conscience, using the momentum of melody, cadence and pseudo-military marches to turn ordinary young men into psychopathic thugs.

    Singing lulls the critical mind and creates a sense of solidarity (real or imagined) in the group consciousness. With the critical sense turned off, the momentum of the group takes over, creating a greater likelihood of violence than if the song were not sung.

    Songs that encourage violence against any individual or group are not acceptable in a democratic society where all are entitled to equal protection against violations of the person on any grounds. Killing is the ultimate violation of law. Incitement to kill cannot, therefore, be legal.

  5. nzs nzs 3 April 2010

    Given that our courts are still slanted towards the needs of the perpetually whingeing racial group, I suspect that any future reference (in song or speech) to the concept used to refer to this whingeing racial group would soon be outlawed.

    Next time, these songs (or chants) will also be banned – just brace yourselves:

    a) AbeLungu bo-swine!
    b) Dubula magazine, safa yindlala
    c) Amabhulu zizinja
    d) Amapolisa azonda thina, i-CCB izonda thina, naleSADF izonda – thina maqabane safa yinzondo

    e) Nkosi Sikelel’iAfrika…. (even more ironical is that this is now part of the very national anthem that Julius Malema and the fellow Pirates of Polokwane must lobby intensely for its drastic reconfiguration – so as to remove any reference to that ‘unsingable’ Die Stem)

    I already suspect that even venturing on this ‘holy ground’ (doing away with Die Stem) will be declared unlawful and unconstitutional, by a power-crazed pale-skinned judge who wished this year was 1948).

    It remains to be seen if the Constitutional Court will arrive at a different determination on the matter of the song in question. We wait with baited breath.

    And, hey, even expressing an opinion on whether the song should have been sung in the first place, could very well be (yes, you guessed it right!) “unlawful” and “unconstitutional”.

  6. Siphiwo Siphiwo Siphiwo Siphiwo 3 April 2010

    The question we should all be asking is whether the judge who presided over this case is not the member of Johan Kriegler’s Freedom Under Law (FUL) or not. Otherwise if he is, then “cry our beloved just ‘n fair justice system”

  7. Oscar Oscar 3 April 2010

    Siphiwo, what are you going on about? Unable to copy, I am afraid.

  8. Owen Owen 4 April 2010

    My understanding of this particular ruling is that it was made when just the phrase ‘kill the boer’ was used and not the whole song. Wern’t the one side going to have placards with the phrase printed on them. In which case it is no longer the song that is the hate speech but the phrase. So while the song may have a certain historical meaning the phrase when isolated does not have the same meaning.

    The ruling did not ban the song per se.

  9. RogerP RogerP 4 April 2010

    Piere de Vos has suggested that the motive for singing the song and the intention of the singer would influence the decision. What of the intention of the writer of the words that Mr Malema is repeating? If it is a liberation song, the intention of the words “kill the boer” is clear.

    If I stood in a public place and read the more objectionable passages from “Mein Kampf” would I escape prosecution simply because my intention is not for people to be harmed?

  10. grant9 grant9 4 April 2010

    Now that ET has been murdered the time has come to sober up. Kill means kill.
    If anybody thought we were going to host a successful world cup, think again!

  11. Peter Joffe Peter Joffe 4 April 2010

    Keep the songs – both of them! Bring back the “K” word (also freedom of speech) and the old flag as they too are part of our history. Bring back the buses that we once had and make them ‘whites only’ but now we can have blacks only buses as well. Give the whites the guns they once had and lets slip into a civil war. Let’s divide the country on racial grounds as it once was and we all will be happy again as we live in the past and perpetuate those wrongs in the future. The future is all about looking forward, not trying to use the past to inflame emotions. Let us build a new South Africa based on the good ideals that were enshrined in our constitution. If we keep living in the past we will tarnish our future which is happening for all to see. Lets infame emotions and causes to build a better country, not to detroy what little is left of the one we have!

  12. MLH MLH 4 April 2010

    I must be the first here to have heard of the Eugene Terrblanche murder.
    Frankly, what you sing in the privacy of your own shower is no problem to me, but when you sing it in front a mass of already seething young people, it can only be called incitement.
    Many people would call singing the old anthem, in all its Afrikaans glory, a pestilence, but why? Even in public, why?
    Its words in praise of this country’s beauty are glorious.
    Personally, I believe only those near and dear to him will mourn ET to any great extent. He was no longer relevant to society or our politics. In fact, many thought him a bit of a buffoon.
    But no person should be murdered, let alone so callously.
    The fact that he was a farmer, murdered at this time, is far more relevant, particularly to the ANC’s take on a court ruling to which they have openly accorded a total lack of respect.
    I think it is also enormous fuel for the opposition’s fire and I do hope the incident is bled for all it’s worth in that respect. Now that would make sense of the man’s life and show us all that he served a worthwhile purpose!
    In any normal society, this is when the fat would have hit the fire. In ours? Who knows.

    The ANC should perhaps, take note, that there are plenty of black farmers now.

  13. pap & wors pap & wors 4 April 2010

    One can accept that the song may be part of their ANC’s struggle history. It can also be argued that the “K” word is also part the history of other race groups. Are they then entitled to use it whenever they see fit? Any challenge can always be opposed by the contention that it is being viewed out of context.

    Now according to the argument purporting to the right to freedom of speech, each group may liberally use whatever derogatory song or words at will. And to hell with anybody who doesn’t like it.

    Where does that leave the sensitivities and respect for the different race groups in this country? And how does that bear on the culture of nation building?

    Perhaps it is time to get real and accept that the concept of the ‘Rainbow Nation’ never existed to begin with.

  14. The Idiot The Idiot 4 April 2010

    Sigh.

    The Law is an ass. People may have many legal rights, but exercising them with utter disregard of the consequences may have damaging consequences. Obviously the case here. Malema might have been within his rights (wrt hate speech, not so sure about the incitement), but I fail to see how his contribution in this matter constitutes nation-building or anything positive – and if politicians do not contribute positively they are worse than useless.

    As long as people see “Justice” as any decision in their favour, South Africa cannot move on in a positive direction. When it is politicians who have such a mindset, and show utter disregard for the Constitution, expect to be sucked down the rabbit hole.

    If people feel ET’s death is related to the song (and ET identified himself as a Boer, and the song was aimed at people with his views, there is no denying that), do not expect people to express themselves in a civilised way towards people who can’t see the problems the song poses.

    With ET murdered, the argument that Siobhan made becomes ever more important. Tit-for-tat assassinations are on the cards now; courtesy of some hopelessly irresponsible actions from our “leaders”.

    South Africa has many problems, and yet government is more involved in damage control as opposed to governing, with disastrous consequences. Rather than preventing the fire from spreading, government refuses to call in the fire brigade, and I fear for the consequences.

  15. blogroid blogroid 4 April 2010

    What is the likelihood that the young men who murdered the unlamented Mr Terre’Blanche, allegedly over unpaid wages or the like, had heard the song “kill the Boer” and maybe even sang it lately, and chose to kill the biggest Boer of all.

    Would our so called free society permit us to know that or would it be carefully suppressed like so many other things in our increasingly divided society or in the interests of protecting FIFA?

  16. ian shaw ian shaw 4 April 2010

    Siphiwo:
    So according to you it was the judge’s race that made him to make the ruling against the song. I could equally well say that it is your race that make you deny the equal application of constitutional law to everyone in the country.

  17. Bill Rogers Bill Rogers 4 April 2010

    Another item in the South African Bill of Rights is the right to life, which is supported by the legal sanctions on murder and culpable homicide. Murder is a criminal offence and therefore so are incitement and conspiracy to murder; those who incite and conspire to murder are as guilty of murder as those who physically commit the deed. All it will take is for one murder accused to state under oath that s/he committed an offence under inspiration of Malema’s rhetoric and Julius will be sitting in the dock as a co-accused. Freedom of speech is not a license to commit crime.

  18. Judith Judith 4 April 2010

    To call for the death of another, however long and well founded that tradition is, when the circumstances have changed completely, is wrong. We are building a new nation and such divisiveness is not useful.

    Calling for another death is primitive and demonstrates an inability to move forward. It saddens me deeply. Must humanity always be awash with the blood of those we do not agree with – a bit childish I think?

  19. shane brody shane brody 4 April 2010

    if our constitution is worth anything it will ban this blatant call for genocide!

  20. Mark Mark 5 April 2010

    It is time that those involved in ‘the struggle’ acknowledge that simply by virtue of that fact that the end of ‘the struggle’ resulted in freedom and equality, it does not necessarily justify all of the means. In the same vein, just because something played a significant role in history, it does not make it right.

    The first two verses of the national anthem, ‘Deutchlandlied’, which celebrate German nationalist spirit are in fact no longer part of the official anthem. The first verses are considered to be too nationalistic and prejudiced to be included, despite the fact that these sentiments were integral to where Germany is today.

    Why can we not see past our blind acceptance of what happened in the struggle as being good and just. No entire liberation movement is completely ethical or unquestionably good. Thus, we should use our rational capacity to discern that any sentiments that endorse violence should not be endorsed by the powers that be in our country, should we be holding peace as our prime goal.

    I think this should be applied to songs beyond those which involve ‘killing the boer’. Calling for a machine gun should not be celebrated as just means to achieve peace. The struggle for equality in the eyes of the law is over. Let us now struggle to engage with one another in a spirit of peace and acceptance, to build our country towards a better future.

    Peace and love!

  21. MLH MLH 5 April 2010

    For me, the fascinating thing is that the two workers who admitted killing ET called the cops and sat around awaiting their arrival.
    Why on earth would they do that?
    What other murderers do that?
    Unless because they expect to be hailed as heroes and martyrs? The possibility exists…
    And definitely, in this case and its surrounding political climate (JM et al), the devil is surely in the detail…

  22. ZekiSA ZekiSA 5 April 2010

    I believe that for ANC to announce the attempt to reverse the ruling has nothing to do with Malema or the song (or words in the song) – it is all about them. They behave like the untouchables and they defend themselves against all criticism, whether good or bad.

    They know clearly that Malema shouldn’t have sung that song, and they should have taken steps against him, but they can’t – why? Because they want to show the media/AfriForum/opposition parties that no one can deter them – that they bow to no one.

    You think why they opposed the vote of no confidence against JZ? Why they are not disciplining JM? It is not because all people who criticise JZ or JM are wrong – they just don’t wanna give in to criticism, especially not from opposition parties. IT IS ALL ABOUT POWER.

  23. Nick Nick 7 April 2010

    This is all an April fools joke!!! It has to be, what are the chances of someone singing a song abour about killing Farmers and a popular one is killed. Then the guy who sings the song goes to Zimbabwe for advise…ha ha ha this is a classic April fools, because if it is not I would be very worried about hosting the SWC.

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