Equality Court rejects Dubul’ibhunu as hate speech
Judge Edwin Molahlehi says AfriForum failed to show that the song incited violence
EFF leader Julius Malema and MP Mbuyiseni Ndlozi earned a reprieve on Thursday after the Equality Court ruled that singing Dubul’ibhunu (Kill the Boer) does not constitute hate speech.
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.
“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,” Judge Edwin Molahlehi said in his ruling.
“The objective evaluation does not constitute hate speech, but rather has to be protected under freedom of speech. AfriForum [which brought the application] failed to prove that the song constitutes hate speech”.
AfriForum said it would appeal the ruling.
The civil rights group had called three witnesses: Ernst Roets‚ its head of policy‚ Gabriel Crouse from the IRR, and John Prinsloo a survivor of a separate farm attack.
Roets testified Malema used the land expropriation argument to incite violence, but Molahlehi said Roets was disqualified as an expert in the matter because of his proximity to the case‚ and that his testimony was based on hearsay.
Crouse’s submissions were also rejected. “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.
Prinsloo’s testimony also “doesn’t show how the singing incited violence‚” the judge said.
The EFF called Malema and African literature scholar Prof Elizabeth Gunner as witnesses. Malema said the song should not be taken literally and that it was a chant, not a song.
Gunner dissected the role of songs in performance politics and how the struggle against apartheid 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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