Afriforum and Another v Malema and Another

• Jurisdiction: South Africa

Afriforum and Another v Malema and Another
2011 (6) SA 240 (EqC)

2011 (6) SA p240

Citation	2011 (6) SA 240 (EqC)
Case No	20968/2010
Court	Equality Court, Johannesburg
Judge	Lamont J
Heard	April 7, 2011
Judgment	September 12, 2011
Counsel	MSM Brassey SC (with MJ Engelbrecht) for the first claimant.; R du Plessis SC (with RJ de Beer) for the second claimant.; IV Maleka SC (with FM Sikhakhane and V Ngalwana) for the first and second respondents.; Professor JJ Malan and N Hartman for the amicus curiae.

Flynote : Sleutelwoorde D

E Constitutional law — Human rights — Right to freedom of expression — Exclusions — Hate speech — What constitutes — 'Dubula ibhunu' (shoot the Boer/farmer) — Originally intending the destruction of apartheid regime — Regime destroyed and no more — Object of song presently white, Afrikaans-speaking members of society — Words reasonably capable of being construed as having intention to be hurtful, to incite harm and promote F hatred against the white, Afrikaans-speaking community — In post-apartheid democracy members of society enjoined to embrace all citizens as their brothers in the spirit of ubuntu — Constitution, s 16 and Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10.

Headnote : Kopnota

The first respondent, Malema, had on various occasions sung the song Dubula G Ibhunu. The complainants argued that the words amounted to hate speech. Malema and the second respondent, the ANC, maintained that Malema had a right to sing the liberation song, and that the song formed part of South Africa's heritage, and should be retained to preserve our complete history.

Held, that the evidence was that at the time the song originated the words H 'Dubula ibhunu' were words which were meant to destroy the apartheid regime. The word 'bhunu' was used to identify the regime, as it was descriptive of the persons who implemented the will of the regime. Those persons were the white Afrikaans-speaking members of society. Primarily the way in which the regime could be destroyed was by injuring the proponents of the regime, namely those who enforced its will, the white I South African Afrikaans-speaking members of the community. The way in which those persons would be injured would be by shooting. (Paragraph [102] at 273E – G.)

Held, that, when the gestures made by Malema were added to the context, then it was clear that the words concerned the use of a weapon — a gun. Whether the verb alone meant to destroy or shoot made no difference. The verb J contained an exhortation to violence. The gesture imported the weapon.

2011 (6) SA p241

The person to be shot was the object of the verb, namely the regime. The A regime included the Boere or white Afrikaans-speaking sector of society. This sector might also include farmers. (Paragraph [104] at 274C – E.)

Held, further, that the regime had been destroyed at the time of the transformation of the country into a democracy. It was no more. Post-democracy the song was nonetheless sung, seeking its destruction. The response of B Malema to this conundrum was to say that the regime lived on in the form of the untransformed person who held benefits conferred upon him by the regime, and which he had not relinquished. He accepted that there was an object to the verb, and that that object was alive and well and lived in South Africa. It was a simple matter to identify the object. It was those persons who received benefit from and who promoted the regime. Those persons were, broadly speaking, the white Afrikaans-speaking members of society. C (Paragraph [105] at 274E/F – G.)

Held, further, that the message which the song conveyed, namely to destroy the regime and 'shoot the Boer', might have been acceptable while the enemy, the regime, remained the enemy of the singer. Pursuant to the agreements which established the modern, democratic South African nation, and the D laws which were promulgated pursuant to those agreements, the enemy had become the friend, the brother. Members of society were enjoined to embrace all citizens as their brothers. It must never be forgotten that in the spirit of ubuntu this new approach to each other had to be fostered. Hence the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 allowed no justification on the basis of fairness for historic E practices which are hurtful to the target group, but loved by the other group. Such practices may not continue to be practised when it came to hate speech. Malema published and communicated words which could reasonably be construed to demonstrate an intention to be hurtful, to incite harm and promote hatred against the white Afrikaans-speaking community, including the farmers who belonged to that group. The words accordingly constituted hate speech. (Paragraph [108] at 275C – F.) The first and second respondents F were interdicted and restrained from singing the song known as Dubula Ibhunu at any public or private meeting held by or conducted by them.

Cases Considered

Annotations:

Reported cases G

Southern Africa

Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) ([1994] 2 All SA 160): dictum at 20E applied

Azanian Peoples Organisation (AZAPO) and Others v President of the Republic of South Africa and Others 1996 (4) SA 671 (CC) (1996 (8) BCLR 1015): referred to H

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691): referred to

Bel Porto School Governing Body and Others v Premier, Western Cape, and Another 2002 (3) SA 265 (CC) (2002 (9) BCLR 891): dictum in para [84] applied

Betta Eiendomme (Pty) Ltd v Ekple-Epoh 2000 (4) SA 468 (W): dictum in I para [3.3] applied

Bhe and Others v Magistrate, Khayelitsha, and Others (Commission for Gender Equality as Amicus Curiae); Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 (1) SA 580 (CC) (2005 (1) BCLR 1): referred to J

2011 (6) SA p242

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014): referred to A

Dikoko v Mokhatla 2006 (6) SA 235 (CC) (2007 (1) BCLR 1): referred to

Du Toit v Minister for Safety and Security and Another 2009 (6) SA 128 (CC) (2010 (1) SACR 1; 2009 (12) BCLR 1171): referred to

Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC) (1996 (4) BCLR 537): dictum in paras [60] and [61] applied B

Freedom Front v South African Human Rights Commission and Another 2003 (11) BCLR 1283 (SAHRC): referred to

Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC) (2007 (3) BCLR 249): referred to C

Hoffmann v South African Airways 2001 (1) SA 1 (CC) (2000 (11) BCLR 1211; (2000) 21 ILJ 2357; [2000] 12 BLLR 1365): referred to

Laugh It Off Promotions CC v SAB International (Finance) BV t/a SabMark International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) (2005 (8) BCLR 743): referred to

Le Roux and Others v Dey 2010 (4) SA 210 (SCA): dictum in paras [7] and [60] – [61] applied D

Manong and Associates (Pty) Ltd v City of Cape Town and Another 2011 (2) SA 90 (SCA): referred to

Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) (2008 (1) BCLR 1): referred to

Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others, Amici Curiae); Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others 2006 (1) SA 524 (CC) (2006 (3) BCLR 355): dictum in para [94] applied E

Mohamed and Another v Jassiem 1996 (1) SA 673 (A): dictum at 702E – 703B applied

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC) (1998 (2) SACR 556; 1998 (12) BCLR 1517): dictum in paras [25] and [136] applied F

NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) 2007 (5) SA 250 (CC) (2007 (7) BCLR 751): dictum in paras [186] – [188] applied

Phillips and Another v Director of Public Prosecutions (Witwatersrand Local Division) and Others 2002 (5) SA 549 (W) (2002 (2) SACR 375): dictum in paras [14] – [17] applied G

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC) (2004 (12) BCLR 1268): referred to

Pretoria City Council v Walker 1998 (2) SA 363 (CC) (1998 (3) BCLR 257): dictum in para [48] applied H

Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC) (2001 (1) SACR 217; 2001 (2) BCLR 133): dictum in para [26] applied

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665): referred to

S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) (2001 (1) SACR 686; 2001 (5) BCLR 449): dictum in paras [40] – [41] applied I

S v Sheehama 1991 (2) SA 860 (A): dictum at 879 applied

Selemela and Others v Independent Newspaper Group Ltd and Others 2001 (4) SA 987 (NC) (2002 (2) BCLR 771): dictum in para [3] applied

Tsedu and Others v Lekota and Another 2009 (4) SA 372 (SCA) ([2009] 3 All SA 46): dictum in para [13] applied J

2011 (6) SA p243

Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others A 2007 (4) SA 395 (CC) (2007 (4) BCLR 339): referred to.

United States

Chaplinsky v New Hampshire 315 US 568 (1942): applied. B

Statutes Considered

Statutes

The Constitution of the Republic of South Africa, 1996, s 16: see Juta's Statutes of South Africa 2010/11 vol 5 at 1-28

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, s 10: see Juta's Statutes of South Africa 2010/11 vol 5 at 1-260. C

Case Information

A complaint of hate speech following the...