AfriForum says EFF has violated hate speech mediation deal

AfriForum has invoked a mediation agreement with Julius Malema 11 years ago in the “Dubul’ ibhunu” or “Kill the Boer” case in its appeal against equality court judgment in 2022 on the song.

The appeal, being heard in the Supreme Court of Appeal (SCA), emanates from a judgment by the equality court in Johannesburg in which judge Edwin Molahlehi ruled that the song does not constitute hate speech. The lobby group’s witnesses and its deputy CEO, Ernst Roets, failed to link the song to an allegation that it incites genocide of white farmers, he said.

On Monday, the court heard that in 2011 the equality court, sitting at the Johannesburg high court, with judge Colin Lamont presiding, found Malema guilty of hate speech for using the song. The case was then withdrawn as the parties made a deal and opted for a mediation process.

AfriForum’s legal representative, advocate Jeremy Gauntlett, said the agreement has not served its purpose.

“In the proceedings, the parties had too much enthusiasm and it’s clear that the mediation set of agreement has not been brought to fruition. How, I don’t know. He signed the mediation agreement ... But Mr Malema acted in contravention of the court’s previous order.

“His conduct and that of his supporters is a stark contrast to the commitment,” argued Gauntlett. He was adamant that though one could not prove hurt, the words used inflict severe and lingering psychological harm on those believed to be targets.

The legal battle was renewed over the alleged singing of “Kill the Boer” outside the Senekal magistrate’s court by Malema and MP Mbuyiseni Ndlozi during the bail hearing of those accused of murdering Free State farm manager Brendin Horner.

Advocate Tembeka Ngcukaitobi, representing Malema, argued that the matter should be struck off the roll as it is a political trial and not necessarily a question of law.

“The issue we are dealing with is dead, they abandoned the judgment and accepted a settlement agreement. This appeal should be struck. What one cannot do is spend three weeks in a political trial, in law it should have been stopped in the beginning. We ask for costs if you dismiss the appeal,” Ngcukaitobi said.

Gauntlett further argued that though the subjects of the complaint (white farmers) may be supersensitive and ignorant of the nuances of the lyrics, the point that should be entertained is whether a reasonably informed South African listening to the song would think it is not hate speech.

“One of the terrible hangovers of the apartheid education system is that white people, in particular, were not taught indigenous languages other than Afrikaans. You’re excluding Sweden and Norway, because you’re talking about who is going to hear this. The question would be, what would this reasonably convey?” Gauntlett argued.

Ngcukaitobi said the constant theme in the trial is racism and the exercise of economic power. “I’m not suggesting that whites do not deserve protection.”

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