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The “struggle song” saga continues

12 June 2012: Freedom of Expression Institute and Section 16 Seek to Intervene as Friends of the Court in Appeal Against Justice Lamont’s Judgement in the Case of AfriForum and TAU-SAU vs Julius Malema and the ANC.

According to a media release posted on SANGONeT, The Freedom of Expression Institute (FXI) and Section 16 have jointly applied to the Supreme Court of Appeal (the SCA) to intervene as friends of the court (amici curiae) in the appeal to the SCA of Justice Lamont’s judgement in AfriForum and TAU-SAU vs Julius Malema and the African National Congress (Case No 20968/2010).

Firstly, that the definition of hate speech, contained in section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000 (the Equality Act), is unconstitutional and should be struck down, inter alia on the basis that it is inconsistent with the narrower definition of hate speech in section 16(2) of the Constitution.

Secondly and alternatively, if the definition of hate speech contained in section 10 of the Equality Act is constitutional, we wish to posit a test made up of various objective factors which will enable courts to determine how to establish whether speech falls within the current definition of hate speech in the Equality Act.

In this regard, we propose that factors such as the intention of the speaker, the audience at which the expression is targeted, the meaning of the expression used in context, and other surrounding factors, are relevant factors to consider. Moreover, we will seek to place international law before the court in this regard.

Finally, we would like to make submissions on the over breadth of the Order made by Judge Lamont, in the context of the right to freedom of expression.

Sunday 20 November 2011: Malema and the ANCYL oppose uMalema song!

According to Time Live, ANC Youth League secretary general Sindiso Magaqa said the league would fight the release of the song in court and would sue the group for defamation.If they release that stupid song, we will hit them hard,” Magaqa said.

The controversial song by Maskandi band Izingane Zoma calls for leaders to reprimand Malema for his disrespectful behaviour towards the elderly, and question his upbringing.

The same group released a song about President Jacob Zuma before he was elected ANC president in 2007. The song, entitled Msholozi, Zuma’s clan name, called for him to be president.

The Mail and Guardian reports that the head of the law clinic at the Freedom of Expression Institute, Mbalenhle Cele, said that even if Malema did feel offended by the track once it was being played on radios all over the country (and, given the amount of publicity the track has already received, it seems unlikely that its release will be a quiet affair), it would not mean that he or anyone else could simply demand that it be removed from the airwaves.

“The right for freedom of expression must not impose on someone else’s right to dignity, but it’s a balancing act. The Constitution protects freedom of expression, including artistic expression, which this example would fall under, but does not protect expression which incites, or harms, or is hate speech.”

Nevertheless, Sunday World reports that popular Ukhozi FM radio personalities Khathide “Tshath’ugodo” Ngobe and Ngizwe Mchunu were suspended after playing the song. Apparently it wasn’t on the station’s playlist!

Saturday 5 November 2011: Malema loses bid for Constitutional Court hate speech appeal

Times Live reports that ANC Youth League president Julius Malema, and the ANC who joined him in the application, have lost an application for leave to appeal directly to the Constitutional Court against a hate speech ruling.

“It is not in the interests of justice for this court to hear the application at this stage, because leave to appeal to the Supreme court of Appeal has been granted.”
In his ruling on the matter Judge Colin Lamont said: “No justification exists [for] allowing the words to be sung… the words were in any event not sung on a justifiable occasion.”

The ANC has argued that banning the song was tantamount to erasing history and the party’s and the country’s struggle heritage.

Thursday 23 October 2011: Malema seeks to fast-track hate speech ruling in Constitutional Court

The Sunday Independent reports that Malema and the ANC have asked the Constitutional Court to fast-track the hearing of the Dubul’ iBhunu appeal application, so that it can be concluded before the party’s centenary celebrations in January.

In an affidavit before the court, Malema says that the ANC “seeks to embark on the celebrations knowing whether its liberation songs, most of which are similar to the ones banned (by Judge Colin Lamont) can be sung at gathering without the risk of breaking the law.”

Malema has applied to direct access to Concourt to appeal the Equality Court decision. AfriForum have opposed his application.

Malema’s told the court that, “The constitutional issue involves in this case is the right to freedom of expression and the provisions of the Equality Act prohibiting hate speech. The judgment of the Equality Court has effectively banned the singing of the song on the basis that it constitutes hate speech regardless of the context and the occasion”.

Malema adds that he has never sung liberation songs with the intention to incite violence of cause harm. The notion that the singing of the song was intended to incite violence “is founded upon a belief that black people are so gullible they would simply mistake a liberation song for a call to war against their fellow citizens. I submit that at the centre of the anxiety of the sort expressed in the complaint is this unfortunate prejudice”.

Thursday 22 September 2011: Malema wins song appeal

The Cape Argus reports that Malema and the ANC have been granted leave to appeal to the Supreme Court against a ruling that the ANCYL leaders was guilty of hate speech.

Judge Colin Lamont conceded that his judgement, in which he ruled that the singing of the song was hurtful and an incitement to murder, attracted “significant social interest’ and therefore allowed Malema to appeal the verdict in the Supreme Court of Appeal.

Sunday 18 September 2011: to sing or not to sing

The Sunday Independent quoted two opinions on the matter

Mosiuoa Lekota, “Freedom songs advocating armed struggle should be recorded in the books, on CDs and through other available technology and filed in libraries for preservation for future generations.

But to regularly sing them and teach young people these instruments of war do not encourage national unity among the communities which were divided by apartheid.

They alienate sections of the youth of different communities from each other.

Such alienation over time can lead to catastrophic results, as the world witnessed in Rwanda, Burundi and others not long ago.

If we wish to reap peace tomorrow, we must plant the seeds of peace today!”

Ayandla Dlodlo, contextualising the song, offered a different opinion, “In a country where the heroes and heroines of the armed struggle have no shrine or monument they can visit in recognition of their existence, those songs and slogans take their place, including the toyi-toyi, as borrowed from the Zimbabwe People’s Liberation Army.

To take this way from a people who gave their all for the liberation of this country is to defacate on the graves of Sisulu and Luthuli, an spit in the face of Mandela. If we accept this judgment we will be accepting that the heritage and legacy of Umkhonto weSizwe is to some as distasteful today as it was before 1994.”

See also Ayandlo Dlodlo’s on the Politicsweb website

Wednesday 14 September 2011: Dialogue beats lyrics

Columnist S’Thembiso Msomi, writing in Times Live posed a question that many others were asking, “Did it really have to come to this – a court giving a judgement on what is essentially a political matter that could be resolved through persuasion and dialogue?”

Monday 12 September 2011: Judge rules that singing the song constitutes hate speech

Johannesburg High Court Judge Colin Lamont has ruled that the song Dubul i’Bhumu (shoot the boer) constitutes hate speech and interdicted all members of the ANC and the ANCYL “from singing the song at any public or private meeting”.

Lamont also ruled that the meaning of the phrase was “such a gross infringement of the target group’s rights that it cannot be that Malema did not know that he has acting wrongfully against them”.

The judgement shocked the ANC and its alliance partners.

An ANC statement on the ruling notes that, “The African National Congress is appalled at the decision of the Southern High Court to outlaw the ANC song ‘Dubulibunu’ as hate speech as pronounced by Judge Collin Lamont in the hate speech case.  We view this judgement as an attempt to rewrite the South African history which is not desirable and unsustainable. This ruling flies against the need to accept our past and to preserve our heritage as an organization and as a people.

The ANC will carefully study the judgement and understand its full implications before releasing a much more comprehensive response.  In the meantime we will respect the decision of the court while investigating options of dealing with this judgement. The we will explore every possibility to defend our history, our heritage and our traditions.

In its statement on the ruling, Cosatu said that “The Congress of South African Trade Unions is seriously disturbed by the judgment of the Equality Court which (12 September 2011) that the song ‘dubhula ibhunu’ constitutes hate speech. The judgment that the song is “discriminatory” and “harmful” is a gross insult to our history as a country.

As COSATU, we have repeatedly said that the song, like many other national liberation songs, is part of our heritage and history of struggle.

The intention of the song was never literal. Rather, it is a song that merely echoes the anger and frustration of the black majority that was robbed of all rights and dignity under the inhumane apartheid system and all legal recourse through which to challenge the system.

The song was also never directed at individual white South Africans but rather a class of land barons who brutally exploited black workers and immensely benefitted from their subjugation under apartheid rule.

Although we embrace and fully support efforts to unite South Africans across race, colour and creed, our unity as South Africans and non-racialism as a democratic project would be hollow and meaningless if it is founded on an imposed amnesia about our apartheid past and its legacy, which still haunts many black South Africans to this day.

That this disturbing judgment is handed down during the month of September, which is a month in which we celebrate our heritage, depicts the extent to which our society daily forces the black majority as the main victims of apartheid to make compromises about their history and memory of suffering under apartheid brutality under the guise of unity and non-racialism.

South Africa`s struggle heritage and culture is part of our history. It is thus very dangerous and destructive for the courts to decide what songs South Africans can be allowed to sing and banning those they object to. We still maintain that the appropriateness of songs is something that should be subject to a political discussion and not settled in the courts.

COSATU strongly believes that rulings such as these are only cosmetic as most the conditions that motivated black South Africans to sing such songs still exist even today, particularly in the economy.
The only time that such songs will lose relevance is when we no longer have a class of people who own vast tracts of green land whilst the majority of the population lives in overcrowded spaces formerly known as Bantustans, having inherited barren land that cannot host any vegetation or life”

The Freedom of Expression Institute commented that, “The Freedom of Expression Institute is deeply concerned with the judgement and it’s implications for freedom of expression. We note that the judgement is based on the provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000) and confirms our stance that the definition of hate speech in the act is far too broad and require urgent scrutiny and challenge with the view to align it to the definition of hate speech in the SA Constitution.”

AfriForum welcomed the news that the controversial song “Shoot the Boer” was declared as hate speech. “AfriForum is overjoyed by the ruling. It sends a clear message to Malema that he isn’t above the law and that he can’t sow divisions wherever he goes,” CEO of AfriForum, Kallie Kriel, said.

Friday 20 May 2011: Meaning of ‘shoot the boer’ song was lost in translation

The Cape Times reports that Malema’s lawyer, Vincent Maleka, in his closing arguments noted that, “the problem is not with the word but the translation” and that ‘bhunu; referred not to Afrikaners but to a system of violence and, that the words did not incite violence because they did not refer to specific people. Maleka also argued that the judge should take into account the context in which the song was sung.

Thursday 21 April: Judge George Lamont adjourned the Equality Court case in which ANC Youth League leader Julius Malema stands accused by Afriforum and TAU SA (formerly the Transvaal Agricultural Union) of hate speech for singing the struggle song dubul’ ibhunu (shoot the boer).

In an editorial Heritage or Hate Speech? posted on the Archival Platform website in May 2010, we asked a number of questions. In the light of recent events, we’d like to revisit some of these.

If the song is banned, what comes next? What other elements of our past could come under censure? Might one group demand that the monuments that commemorate the victories of another be demolished? While we’ve seen statues of vanquished rulers toppled in other parts of the world here, at home in South Africa our transition to democracy has been marked by a respect for the monuments, and the songs of the past: The Voortrekker Monument stands atop a hill, opposite Freedom Park and our national anthem blends the anthem of the apartheid era with the unofficial anthem of the struggle.

“The trial really is about the incomplete – and in some ways stalled – project of national reconciliation, reduced to a clash of white Afrikaans speaking fear and demagogic triumphalism”. Mail & Guardian April 21- 26 2011, page 28

What is the role of the state in general and the judiciary in particular in mediating conflict? In South African’s we’re fortunate to have a number of judicial bodies tasked with assessing whether our constitutional rights have been breached. But, the question we should be asking is, is the singing of the ‘struggle song’ really an issue for the courts? Isn’t it indicative of broader and deeper issues: the uneven success – some may say failure - of the project of national reconciliation; our inability as a nation to deal with the difficult issues of the past, our history, in a way that allows us to move unfettered into the future; our failure, despite the Truth and Reconciliation Commission to heal the deep wounds inflicted on individuals and communities by apartheid and; our struggle to engage in dialogue with one another. 

Is there really anyone out there who believes that banning a song will advance the project of national reconciliation? In May 2010, we suggested that the best way to address through this issue was to engage in robust dialogue? We’re reassured to see that several of the witnesses called to give evidence in this case have posed the same question and, that as the hearing ended, both sides have indicated that they are open to dialogue, as a parallel process to the court action. But surely this is an occasion for a ‘national conversation’, not just a dialogue between the parties involved in this court action?

The difficult question to address is, of course, how do we remember and commemorate the past? Threading through the arguments in defence of the struggle song is the notion of its enduring value as a part of our history and heritage. However offensive it may be deemed to be in the present, it has a role to play in relation to our collective memory/memories of the past and in the way in which our society advances into a more just future.

“The case is another example of how we are just not using memory as a weapon in our quest to build a new society. On the one side, you have Afriforum, essentially a bunch of Neanderthal-like individuals, arguing that a significant memory of the liberation struggle be wiped from memory. On the other side, you have the ANC, correctly arguing against the banning of a freedom song, but taking narrow view of its role in leading society”. Mondli Makhanya in the Sunday Times Review, April 24, 2011, page 4

Afriform has suggested that the ‘struggle song’ has a limited place in the present and that it should be consigned to the archive of history, and used only on special occasions, such as the funerals of struggle veterans. If that’s the case, we need to ask are: who has guardianship of it; who has access to it; who decides when and how it can be brought out and how it may be used and under what conditions. It is untenable to think that the archival fragment – the song may be banned. But, if it’s deployed in contemporary society in a way that is problematic, there may be good cause to mediate the contemporary intervention. It is not the fragment itself that is the problem but when, where, how and by whom it us sung.

“Songs, buildings, poems, symbols are as much as part of who we are as people as our individual DNA. There is no escaping the social and historical construction that has shaped us. And yet, we can choose what to make of it and how to take it into the present and the future”. Nomboniso Gasa, in The Sunday Independent, April24, 2011, page 15

We have seen that under different conditions, people walk items, like this song, out of the archive, and use them to do things in the present: to commemorate, to mourn, to celebrate to incite and so on. It is not the symbols of the past that are at issue, it’s the contemporary actions and activities – and the effects of these on us as individuals, groups and a nation - that have to be considered critically.

The Archival Platform is concerned that the business of memory stays open, that the record of the past is inclusive and expansive, not skewed by prejudice or current political interests and that no part of the past should be repressed. We will continue to ask the hard questions, to ask what is in the public interest, not just in the present but also for the future.

Thursday 21 April 2011: Both sides say they are open to dialogue

The case was adjourned on Thursday 21 April. A date has yet to be set for final argument, but both sides have said that they would be open to dialogue as a parallel process to the court case.

Wednesday 20th April and Thursday 21st April 2011: Julius Malema says you don’t just sing struggle songs anywhere, you must have a sense of occasion.

ANC National Executive Committee (NEC) member and minister in the presidency, Collins Chabane took telling the court that he had first heard the song when he went to ANC camps in Maputo in the 1980s while he was member of the ANC military wing Umkhonto We Sizwe (MK). Chabane said that although some claim that Malema’s singing of the song creates fear, especially among Afrikaaners or farmers, he believed that these fears were misplaced. He said that even when the song was sung by MK soldiers, they never led them to attack anyone.

Julius Malema was called to the stand on Wednesday. In his testimony to the court, Malema said, “ we sang these songs not saying ‘shoot farmers’, but saying you must shoot the police and the soldiers who were coming to parents’ houses in the middle of the night, asking them for their Ids and asking where are their children.”

Complaining that Afriforum’s action “isolates an individual amongst many people who are singing the song”, Malema added, “it’s not Julius’s song”.

Speaking of his visit to Orania, and making the point that it is appropriate to sing the song on some occasion, but not on others, Malema said “I ate koeksisters... they said that it is their food. We shared a cup of coffee. It was very nice”, adding that, “I didn’t sing in Orania, because singing struggle songs, you don’t just song anywhere. You must have a sense of occasion”. 

Under cross-examination, Malema said that the song had been taken out of context, blaming the media for portraying him on a bad light, and accusing the Afrikaner group of ‘cheap politicking”, saying, “if Julius sings revolutionary songs, it’s a headline, but when they sing Die Stem it’s not a headline”.

Malema told the court that he believed that continuing dialogue between different cultural groups was the best resolution to the matter – not a court case.

Tuesday 19th April 2011: Gwede Mantashe says it’s about protecting history and heritage

ANC secretary-general Gwede Mantashe told the court that Afrikaners were irritated by Malema. He said that the song needed to preserved “It’s about protecting history and heritage,” adding that future generations would be angry if it were not. Making the point that while the court case focussed on Malema’s ‘utterances’ he said that the song did not belong to Malema but to the movement and that it was intended to inspire and mobilise people.

Mantashe pointed out that at the time of the murder of Afrikaner Weerstands Beweging (AWB) leaders, Eugene Terreblanche, April 2010, the ANC called on its members to use restraint when singing struggle songs and that he had invited Flip Buys, of trade union Solidarity as well as the former AWB secretary general to a discussion on struggle songs. Afriforum advocate Martin Brassey said that the organisation had no recollection of this invitation, but agreed in principle that a dialogue would be preferable to an “oppressive order’ handed down by Judge Colin Lamont.

Monday 18th April 2011: Wally Serote testifies that the ANC taught him the principles of non-racilaism

Mongane ‘Wally’ Serote, chief executive of Freedom Park, and former Umkhonto We Sizwe (MK) activist, told Roelof du Plessis, TAU SA’s advocate that, struggle songs were “as important as the Voortrekker monument”, which was kept, “as a memory even after apartheid”. Serote called on South Africans to be tolerant of the past, “including versions of the past that make us feel uncomfortable”. 

Describing the evolution of his own political thought, Serote said, “As a young man coming out of Alexandra township, I wanted to kill white people until I joined the ANC (in 1969) which taught me the principle of non-racialism.”

Characterising the songs as ‘history’ Serote said that they were, “not intended to advocate hatred” and were not linked to farm killings which were “nothing but criminal and barbaric acts”.

Asked by Afriforum how he would feel if a right wing group sang songs calling for black people to be killed, Serote told the judge that he was being asked to speculate and defended the ANC’s reconciliation record saying, “many children were killed because they said we’re not going to speak Afrikaans … today we protect and defend the speaking of Afrikaans”.

Like Derke Hanekom, the first person to testify for Malema, Serote said that he believed the way forward was through dialogue rather than court action

The Cape Argus reported that President Jacob Zuma, in an interview about the case currently before the Equality Court, spoke about the “danger of erasing history” and said that, “they (the court) must understand that the judgement today must help us reconcile and strengthen where we are going”. 

Sunday 17 April 2011: Unions speak out in support of struggle songs

The National Union of Metalworkers of South Africa (NUMSA), issued a statement, arguing that:

“We are of the view that liberation or struggle songs, especially the song ‘Dubula’ ibhunu’ do not amount to hatred or incitement of racial violence, especially when sung today, post the formal Apartheid era…

... The songs like ‘Uthisixolelekanjani, amaBhunu abulala uChris Hani’, ‘uMshinWam’, ‘Ilenja uBotha, kanye nalenja uMalan’, are part of the living and collective memory of our struggle, part of the collective culture of that struggle, part of the soul and spirit of that struggle, and they continue to play an important mobilisation tool in the on-going workers and community struggles in South Africa today…

... AfriForum should remember that our people have accepted the ‘Die Stem’ to be part of our national anthem in line with our commitments to unity and reconciliation. To millions of our people they accepted Die Stem in protest given the oppressive system and regime the Die Stem personified. We will not allow the likes of the AfriForum to insult the extreme generosity of our people by tempering with any aspect of the soul of our liberation struggle in the past, now, and in the future!”

The Congress of South African Trade Unions (COSATU) issued a statement urging AfriForum to drop their attempt to persuade the courts to ban the Dubul’ Ibhunu song, and, if they persist, for the judge to reject their case, saying that:

“It would be a grave mistake to try to ban the singing of struggle songs including this one. These songs are part of our national heritage. They do not constitute a call to take up arms against whites as a race group or as individuals, but against the system of oppression and apartheid.

Whether the lyrics of such struggle songs should be sung today is another debate, but banning them is not practical; people will still sing them nevertheless.”

The National Union of Mineworkers (NUM) issued a statement calling on Afriforum to abandon its case saying that:

“The NUM believes it will be totally incorrect to have such heritage songs banned under the guise that they promote hate speech.

South Africans fought very hard for the freedoms we enjoy today including the freedom of speech.  When leaders of the progressive movement were recently caricatured holding so-called lady justice in a distasteful and harmful manner, many South Africans including Afriforum kept quite and argued in the media that South Africans should appreciate satire and be able to laugh at themselves.

Mineworkers have always sung these songs and continue to sing these songs today and there have never been any killings of people. It is therefore not correct to argue that the singing of such songs promotes violence.
When Chris Hani was assassinated, the masses of our members sang the song but there has never been any retaliation towards the race of those who killed him.”

Friday 15th April 2011: Derek Hanekom says let’s talk about ‘shoot the boer’.

Deputy Minister of Science and Technology, Derek Hanekom, testified that the song was not meant to target any ethnic group, but that its lyrics characterised a general description of racial oppression. He said that he did not feel threatened by the song and that it was not intended to incite violence.

When cross examined by Afriforum’s advocate Martin Brassey, Hanekom said that after 1994, he had seen white people waving the old South African flag. He said that this was hurtful to black people who associated the flag with the oppressive apartheid regime, but that there had been no call for the flag to be banned.

Hanekom defended the singing of struggle songs, arguing that they were a celebration of the victory over apartheid and a tribute to those who fought against the regime, rather than a call to arms. Explaining that during the struggle songs were used to mobilise people, Hanekom said that, today, they were sung in celebration of “who we are”, that the represented “every part of our history”, “and the fact we’ve brought to an end an unjust system”.

Hanekom, who is also a member of the ANC national executive committee, suggested a national dialogue on the matter of struggle songs, “If it offends certain people, I strongly believe we should engage one another.”

TAU SA issued a statement outlining its legal arguments in the case against Julius Malema, noting that:

“1. The Constitution provides for freedom of expression, however, this right, incitement of imminent violence, and/or advocacy of hatred based on race, ethnicity, gender or religion that constitutes incitement to cause harm.
2. The Constitution defines boundaries beyond which fundamental rights do not extend. In accordance with that hate speech is not afforded Constitutional protection.
3. Utterances such as those of Malema cause emotional damage and have grave psychological and social consequences such as humiliation, degradation, attacking self-worth and impairment of dignity.
4. The promotion of equality legislation in South Africa prohibits the publication, propagation and advocacy of words against any person that can be construed to demonstrate a clear intention to be hurtful, be harmful or to incite harm, promote or propagate hatred. Such prohibited grounds for hate speech are inclusive of language, culture and sexual orientation or birth.
5. Regard being had to the South African authorities we are of the view that it is binding law that such utterances are perceived by the receiver amongst others the Afrikaner minority and that it is not limited to direct physical harm but also extends to an attack on dignity. A test can be formulated as follows:  Are the words communicated based on one or more prohibited grounds? May any reasonable person consider the words to be intended to hurt, harm or incite hatred?

If the answer to either of the questions is in the positive, the words amount to hate speech. Very important is that the intention on the part of the addressor is not required. Accordingly, the question is whether a reasonable person would construe the speech as demonstrating a “clear intention” to be harmful. His Lordship Mr Justice Bertelsman in the Gauteng North High Court already considered the singing and in fact found that prima facie it constitutes hate speech.”

Thursday 14th April 2011: Danie Goosen asks, what is a ‘boer’?

Danie Goosen, chairman of the Federasie van Afrikaanse Kultuurvereniginge (FAK), testifying on behalf of TAU SA, dealt with the historical meaning of the terms ‘boer’ and ‘Afrikaner’. Maintaining that the term ‘boer’ was considered, particularly by young Afrikaners, to be associated with the concept of a freedom fighter, Goosen argued that Afrikaners felt physically and psychologically threatened by Dubul ‘ibhunu.

Retired army general, Chris van Zyl, said that he felt “victimised by that particular song” adding that, “about struggle songs I have no specific feelings, but this refrain makes me feel targeted as a member of a specific community.

Professor Anton Kok, acting Dean of the Faculty of Law at the University of Pretoria, who has been conducting research into farm murders since 1990, also testified on behalf of Afriforum and TAU SA.

Wednesday 13 April 2011: The power of song…

Criminologist Christiaan Bezuidenhout, called by TAU SA, the second respondent in the case, told the court that music exerted a powerful influence on young people and could affect their thinking and emotions.  An expert on farm murders, Bezuidenhout, said that the farm murder rate in South Africa was 700% higher than anywhere else on the world.  Saying that the song, ‘Dubul’ ibhunu’ was not in line with reconciliation, he said that, “we need to rethink the value of this song”.  Describing the concept of “excitation transfer”, Bezuidenhout said that, “if you take a young person who has grown up in a marginalised situation, poor and unemployed, but who want to be successful and goes to a political rally and hears the chants that say ‘kill’ and ‘shoot’, that can contribute to their thinking. They may not act on it immediately, but they might carry that chanting excitement over to another situation where they do act out”.

Outside the court, hundreds of Malema’s supporters, many bearing placards chanted and sung, joining in as Malema sung, “shoot to kill, shoot to kill … kiss the boer, kiss the boer”.

Tuesday 12 April 2011: Musicologist testifies that Dubul’ ibhunu is not a song, but a chant

Dr Anne-Marie Gray, a musicologist testified that ‘Dubul’ ibhunu’ was not a song, but a chant, and was therefore much more threatening to people who do not understand it. Explaining the history of ‘struggle songs’, Gray said that the songs of the early 20th c sounded more like hymns and that the more militant call and repeat style of Zulu songs was introduced in the 1950s. In the 1980s toyi-toying and chanting had become more prevalent and she had found evidence that this scared white people. Explaining that a chant induced an almost “trance-like state” Gray said that “it makes you want to almost do something”.

Malema’s lawyer, Musi Skhakhane after cross examining Gray, said that he would be calling a heritage expert to testify that changing the words of the struggle song would be like ‘tearing a chapter” from South Africa’s history.

At the end of her testimony, Gray called for dialogue between the communities. She also said that there was a place in society for liberation songs but asked that people displayed sensitivity when it came to singing them.

Malema told supporters gathered outside the court that, “it is not me who is on trial. The revolution is on trial”. Winnie Madikizela-Mandela, who sat alongside Malema for much of the day agreed, telling supporters that it was not Malema who was on trial but the ANC.

The Young Communist League (YCL) issued a statement noting that:

“The Young Communist League [uFasimba] has been observing with keen interest the proceedings at the Equality Court brought against the ANC Youth League and joined by the ANC by Afri-Forum seeking to ban the lyrics of the song dubbed dubhul’ ibhulu. The YCL believes that these proceedings are reminiscent of apartheid era tactics of suppressing freedom of speech and contemporary tactics of burying the history of the liberation movement.

We must state categorically that those who do not agree with Cde. Julius Malema should not confuse the issue of the song as it does not belong to an individual but to the movement, and should in principle defend the history and legacy of the movement. “

Monday 11 April 2011: The hate speech case between ANC Youth League president Julius Malema and civil rights group Afriforum opened in the Equality Court, Johannesburg.

Afriforum’s Advocate, Martin Brassey explained that Afriforum was taking Malema to court to prevent him singing the controversial struggle song because the lyrics “denigrate, marginalise and oppress” white people and Afrikaners in particular. He said that Afriforum were not seeking an outright ban on this or any other ‘struggle song’, saying that there were circumstances in which the singing of such songs was appropriate, such as at the funerals of struggle icons.

Afriforum’s first witness former youth chairman, Ernst Roets, testified that, at a meeting the day before Afriforum’s proposed march to ANC headquarters at Luthuli House to protest the singing of the song, Malema told him, “if you come to my office tomorrow what happened to the IFP in 1994 will happen to you. (19 members of the IFP were shot dead in a protest outside the ANC headquarters (then known as Shell House), during a 1994 protest). Roets said that his underlying concern was the murder of farmers.

Saying that he did not feel welcome in South Africa due to statements such as the one being argued over, Roets added that his Afrikaans community, which is a minority, would be increasingly threatened and marginalised by songs such as Dubulu’ ibhunu. He said the song had a place in museums, history books and plays but not in the political environment.

Papers filed by Afriforum outline the complaint against Malema

The substance of Afriforum and TAU SA’s complaint against that Malema is that he, while addressing various public meetings recited and/or sang and/or chanted the words, which they describe as objectionable utterances, including, ‘Awudubele (i)bhulu’ (‘shoot the Boer/farmer’); ‘Dubula amaBhuntu baya raypha’ (‘Shoot the Boers/farmers. They are rapists/robbers’); and ‘They are scared, the cowards. You should shoot the Boer/farmer! They rob, these dogs’ and caused and/or incited participants to recite and/or sing and/or chant the objectionable utterances.

Afriforum notes that the word “boer or ‘i’bhulu’, taken literally, refers to Afrikaans farmers. Within the context of the song, it refers to white people more generally, especially white Afrikaaners and suggests that they are the enemy at least to be shunned and at most to be killed.

Afriforum claims that the respondent, Malema, may reasonably be expected to be, aware of the associations made with these utterances; and/or has been made aware of the objections to the use of the objectionable utterances.

Afriforum state that the ‘objectionable utterances of the respondent’: conveyed a message of racial inferiority; and/or were directed against a minority group; and/or were persecutorial, hateful and degrading. Furthermore, the objectionable utterances engendered a response of humiliation and degradation from the white individuals targeted thereby, Afrikaners and Afrikaner farmers not least and; the derision, hostility and abuse encouraged by the objectionable utterances had a negative impact on the sense of self-worth and acceptance experienced by the targeted individuals and groups, Afrikaners and Afrikaner farmers not least.

Afriforum argues that the objectionable utterances have: caused or perpetuated systemic disadvantage to those targeted thereby, Afrikaners and Afrikaner farmers not least; undermined the human dignity of those targeted thereby, Afrikaners and Afrikaner farmers not least; and/or adversely affected the equal enjoyment of the rights and freedoms of those targeted thereby, including Afrikaners and Afrikaner farmers. Furthermore, the objectionable utterances published, propagated, advocated and/or communicated words based on ethnic or social origin, culture; language and/or birth that were reasonably construed by the complainant and its members to demonstrate a clear intention to: be hurtful to certain ethnic groups, Afrikaners and Afrikaner farmers not least; and/or be harmful to or to incite harm against certain ethnic groups, Afrikaners and Afrikaner farmers not least; and/or promote or propagate hatred against certain ethnic groups, Afrikaners and Afrikaner farmers not least, in contravention of s 10(1) of the Promotion and Prevention of Unfair Discrimination Act 4 of 2000 (‘the Equality Act’).

Noting that the respondent has been requested to apologise for the objectionable utterances, but refused to do so, Afriforum asked for an order declaring the objectionable utterances to be hate speech within the contemplation of s 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 2 of 2000 and to Interdictthe respondent from inciting, encouraging or promoting hostility towards any ethnic group, Afrikaners and Afrikaner farmers not least, within the contemplation of s 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 2 of 2000.

In his written response to the charges, Julius Malema argues that the background is relevant and notes that:

“The liberation songs represent the history of the anti-apartheid struggle, in particular the liberation of all South Africans from the political, economic and social oppression caused by the colonial and apartheid systems; The liberation songs have always been sung and continue to be sung at various gatherings of the African National Congress (“ANC”), including conferences, branch meetings, funerals, veteran’s conferences, meetings of other progressive organisations, student’s organisations, labour unions, youth and women’s league gatherings, as well as gatherings organised under the auspices of the ANC and/or any of its structures or sister organisations;  Their lyrics, some reflecting the tension and conflict of the anti-colonial and anti-apartheid struggle; They are not sung with an intention to incite violence, harm, degrade or humiliate any person or group of persons (ethnic, racial or religious). They are simply part of the heritage of the struggle and must be understood in the historical context of the role of song in liberation struggles all over the world; In particular, the song into which the words “Dubul’ ibhunu” are sometimes transposed is a liberation song that is sometimes sung without the said words, depending on the occasion, context and sitting;  The words “ibhulu” or “ibhunu” in the context of the song was used to symbolise white oppression rather than to target individuals or group of persons. It was sung and continues to be sung by ANC members and supporters of all races and ethnic groups, including those who are Afrikaaners; In all of the occasions referred to in paragraph 4 of the particulars of claim the singing of the liberation song did not result in the killing, maiming, or harming of any person or the Afrikaaners purportedly represented by the complainant.”

Malema, “denies inciting any participants to recite or make “objectionable utterances”; and further denies that he sang this liberation song with the intention to incite violence against any person or group, nor was it intended to cause any group of persons to be “shunned” or “killed””.

Sunday 10 April 2011: ANCYL calls on South Africans to show support for the struggle songs

ANC Youth League (ANCYL) spokesperson Floyd Shivambu called on “all South Africans from all walks of life to come in their numbers to shown support for struggle songs of the ANC, which in a manner reminiscent of apartheid, might be banned because of some unexplainable fears of some few people” and asked that “all heritage activists and practitioners, artists, musicians, and those who care for the protection of South Africa’s struggle heritage and songs are called upon to reject claims that ANC songs incite violence, whilst they do not”.

Sources used in the accounts of the case, summarisd above, include: The Sunday Independent, The Sunday Times, The Weekend Argus, The Cape Times, The Argus, The Citizen, The Sowetan, New Age, Mail & Guardian, SABC News, Eyewitness news, Independent Online, Legalbrief, Politicsweb and

The Mail & Guardian published a useful timeline of events summarising the saga of the ‘struggle song’, see below. We will be continue to update this as the story unfolds over the next couple of months!

Timeline of events

The timeline of events below was published on page 4 of the Mail & Guardian, February 11 to 17 2011. We have and will be supplementing it from time to time.

February 18 2011: The Times reported that Steve Hofmeyr has theratened to include ‘Afrikaans struggle song’ words in his songs if the controversial ‘kill the boer’ song is legalised. The SA Institute of Race Relations slammed his omments as ‘divisive’ and unhelful’.

February 16 2011:In an interview with Redi Direko on Talk Radio 702, Bono clarified his position on the ‘struggle song’ saying, “You can’t pretend they [struggle songs] don’t exist. They’ve become folk music’ adding that, ‘it is irresponsible, and worse than that, to use these songs to stir uop more hate”.

February 14 2011:The Sunday Times reported this week that Bono, the U2 front man, had responded to a question about Julius Malema and the ‘shoot the boer’ chant by saying that ‘struggle music’ had its place. According to the newspaper when asked about the controversy around the song Bono responded by commenting that when he was a child he’d “sing songs I remember my uncles singing… rebel songs about the early days of the Irish Republican Army.” He then proceeded to sing a song whose lyrics spoke of carrying guns and readying them for action before adding: “We sang this and it’s fair to say it’s folk music… as this was the struggle of some people that sang it over some time. Would you want to sing that in a certain community? It’s pretty dumb. It’s about where and when you sing those songs. There’s a rule for that kind of music.” AfriForum welcomed Bono’s statement saying, ” We don’t want to wipe struggle songs off the history books. He (Bono) said there are rules as to when you can sing these songs and Julius Malema does not abide by those rules”. Afrikaans singer, Steve Hofmeyr subsequently threw his tickets for Bono’s concert into the Jukskei River in protest.

February 11 2011: Malema slams the law firm Edward Nathan Sonnenbergs (ENS) as “racist and unprofessional” after they withdrew from representing him. ENS gave no reasons for its decision. According to the M&G, insiders report that the decision to withdraw was the result of “internal politics”, “one group of lawyers argued for the withdrawal because Malema’s singing of the song could affect their own families who owned farms. Another group argued that the decision could not be based on personal interests.”

January 24 2011: AfriForum receives plea documents from Malema defending his right to sing the “shoot the boer” song. In a press conference Malema accused AfriForum of a witch-hunt because it had excluded the ANC, which had taught him to sing the song, as a respondent in its court battle. He noted that, ” these songs were banned by a nonsensical, racist and brutal apartheid regime. You can’t do it now, not in our lifetime. these songs must be sung. This is our heritage: it is our culture and on that one I am not compromising.”

January 22 2011: Malema attacks AfriForum for waging a “campaign” against him and vows to take the matter to the Constitutional Court if necessary

January 19 2011 :The Equality Court in Johannesburg makes a cost order against Malema because of his failure to submit his plea on the charge of hate speech against him by the court’s deadline of November 30, in spite of several reminders.

November 1 2010: The hate speech complaint against Malema is transferred from the Equality Court to the South Gauteng High Court in Johannesburg. On the same day, AfriForum announces its decision to withdraw its case against the ANC.

April 7 2010: ANC secretary general Gwede Mantashe calls for restraint from all ANC members and asks them to avoid making statements likely to cause racial problems.

April 2 2010: AWB leader Eugene Terre’Blanche is murdered on his farm outside Ventersdorp, sparking an outcry against the song. Malema subsequently dismisses suggestions that Terre’Blanche’s murder could be linked to his singing of the song.

April 1 2010: Malema is barred from singing dubula ibhunu (shoot the boer) after AfriForum is granted an interdict by the North Gauteng High Court against the sining of the controversial song.

March 26 2010: The South Gauteng High Court rules that the use of the words dudula ibhunu (shoot the boer) is unconstitutional and unlawful. This is an unrelated case in which the action was brought by Delmas businessman Willem Harmse to prevent his colleague, Mahomed Vawda, from using the words on banners and singing them during a march.

March 15 2010: AfriForum Youth files a complaint of hate speech against Malema in the Equality Court.

March 10 2010: Freedom Front Plus leaders and Deputy Agriculture Minister Pieter Mulder lay criminal charges against Malema at the Brooklyn police station in Pretoria.

March 10 2010: The ANC Youth League president Julius Malema leads students at the University of Johannesburg in a song including the words “shoot the boer (farmer), they are rapists.”

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  • The Zulu for shoot would be “dubula”, not “dudula” (I presume). However, a much more serious transgression is the term for Afrikaans in various languages - all directly translated as “Language of the Boer”, e.g. isiXhosa “isiBhulu”, isiZulu “isiBhunu”, seSotho “seBuru”. It stems from the Afrikaner “Boer” having been the oppressor, thus the language ascribed to the oppressor being “the language of the Boer”.

    By Kobus Faasen on 18/02/2011
  • Do you have more great artlices like this one?

    By Lorraine on 23/06/2011
  • Let the truth be told. The ANC is not, yes, not non-racial or non-racist. As long as citizens are classified as “Black”, “White”, “Coloured”, “Indian” and “Other”, we are doomed to live in a racist society. As long as former MK combatants are buried with the words “Kill the Boers” in their funeral elegy “Hamba Kahle, Mkhonto”, as long as Afrikaans are known as “language of the Boer”, as long as there is a “Bushmanland” and fellow Africans are referred to as “MaKwerekwere”, we are doomed to live in a racist society. Racism is not discrimination against former disadvantaged citizens, racism is the perpetuation of the myth known as “race”, created by some crazy scientist, and entrenched by ignorant denialists.

    By Kobus Faasen on 27/06/2011