JOHANNESBURG – AfriFroum has lost its hate speech case against the Economic Freedom Fighters (EFF) over the party’s use of "Shoot the boer".
The lobby group's case centred on some six instances between 2016 and 2019 in which the struggle song Dubul’ ibhunu, which translates to “Shoot the boer”, was used by members of the party, as well as by EFF leader Julius Malema himself, at rallies and the like.
The case went to trial in the Johannesburg High Court in June. Judge Edwin Molahlehi delivered his ruling on Thursday.
Scenes of jubilation erupted outside the court, where a crowd of EFF supporters had gathered, following the ruling.
At trial, AfriForum’s Ernst Roets testified as an expert witness.
Judge Molahlehi said in his judgement, though, that the role of an expert witness was to assist the court and not to be partisan.
And he said that it was clear, even from the version of the lobby group, that Roets was disqualified from being an expert witness in this matter and didn’t meet the standard required of an expert witness.
The judge also found much of the evidence of AfriForum's other witnesses not to have been of assistance to the court and, moreover, that the group hadn’t been able to show that the EFF had contravened the Equality Act.
When it came to Malema’s evidence on the stand, he found no reason to reject it. He also accepted the evidence of the EFF's expert witness.
The case was dismissed with costs.
Reacting to the judgement, the EFF's Leanne Mathys said: “The court ruled that the song must actually be protected under the rubric of free speech and debates around this song must be left to political contestation within our society.
"The case by these racists, who actually sought to erase the cultural element of our liberation struggle in South Africa has fallen flat on its face. The landmark judgment must be welcomed by all progressive forces as a victory against racists.”
AFRIFORUM TO APPEAL JUDGMENT
Meanwhile, Roets said that they would be taking the dismissal of their hate speech on appeal.
“We are concerned that we live in a political system in a country, a legal system where it’s quite obvious and this ruling makes it quite obvious that when a leader of a political party blatantly and openly romanticises violence towards minority communities it is condoned and it is accepted by the courts. That’s something we cannot accept,” he said adding that the ruling contained “several fundamental errors”.
“Despite the fact that throughout my testimony, throughout the arguments given by our legal team we have repeatedly stated the test for whether something is hate speech does not depend on whether there is a causal link.
“The judge at least from his summary seems to us that he thinks you need to prove some form of a causal link. Well that’s not what the act says, that’s not what our argument is.”
SONG ‘COULD CAUSE SERIOUS DIVISION IN SA’
The Freedom Front Plus has said if the lyrics are seen as lawful, “it could cause serious conflict and division in South Africa” and that “other groups might tend to start using similarly negative and inflammatory statements”.
The party maintained that the song was “definitely inciting violence and that if it is declared lawful, it would lead to an increase in the number of farm attacks and murders”.
The DA has also weighed in, saying while it respected the court’s ruling it believed that “the persistent effort of the EFF to defend the indefensible in this case, sets an extremely dangerous precedent for our young democracy”.
It’s labelled the lyrics of the song “racially divisive and inflammatory”.
Additional reporting by Maki Molapo.
Artmotion S.Africa
