SCA dismisses AfriForum’s appeal against ‘kill the boer’ song

The Supreme Court of Appeal (SCA) has dismissed, with costs, AfriForum’s appeal against the court ruling that the EFF singing the “kill the boer” song was not hate speech.

The SCA handed down the 41-page judgment on Tuesday, just a day before the country goes to the national and provincial elections on May 29.

The court also dismissed AfriForum’s application for the recusal of Justice Raylene Keightley, finding that the test for recusal as laid down in several Constitutional Court judgments had not been met

The SCA ruling emanates from a judgment by the Equality Court in Johannesburg in August 2020 where Judge Edwin Molahlehi ordered that the “kill the boer” song does not constitute hate speech after AfriForum’s witnesses and its deputy CEO Ernst Roets failed to link the song to an allegation that it incited a genocide of white farmers.

AfriForum also pointed to a single occasion when EFF MP Mbuyiseni Ndlozi chanted a similar song including the words: ‘Shisa lamabhunu, EFF ingen’endaweni’ (Shisa lamabhunu). The literal English translation of that chant was: ‘Burn these boers, EFF enters in the space, or place’.

ALSO READ: AfriForum loses appeal as court upholds ruling that apartheid flag is hate speech

‘Kill the boer’ judgment

The SCA dismissed AfriForum’s appeal ruling ruling that the “reasonably well-informed person” would appreciate that when Malema sang Dubula ibhunu, he was not actually calling for farmers, or white South Africans of Afrikaans descent to be shot, nor was he romanticising the violence exacted against them in farm attacks, as claimed by AfriForum.

“The reasonably well-informed person would understand that Mr Malema was using a historic struggle song, with the performance gestures that go with it, as a provocative means of advancing his party’s political agenda.

“Understood in its full context, it was a form of political speech. Even if Mr Malema’s performance of Dubula ibhunu may be regarded by some people to be shocking or even disturbing, the Constitution required a measure of tolerance,” it said.

Freedom of speech

The court held that what Malema was doing was no more than exercising his right to freedom of expression.

“He was doing so in the course of participating in the activities of, and campaigning for, the political party of which he was leader, which rights are protected under s 19(1)(a) of the Constitution. The same reasoning applied in respect of Dr Ndlozi regarding Shisa lamabunu.”

In 2022, the Pretoria High Court dismissed AfriForum’s hate speech case against the EFF over the party’s use of the struggle song, Dubul’ Ibhunu, which translates to “Shoot the Boer”.

ALSO READ: AfriForum’s application for judge’s recusal ‘politically motivated’

Recusal of Keightley

In the application for the recusal of Keightley, AfriForum brought an appeal before the SCA claiming the judge lashed out against the organisation in court in 2018, arguing it was “unwilling to move beyond its anachronistic positions”.

This is because of comments Keightley made about the group during previous litigation around the language policy at Unisa, which AfriForum maintains gives rise to a reasonable apprehension of bias.

However, the SCA emphasised that judges do not exist in a vacuum.

“They bring their personal and professional experiences to bear in their adjudicative function. Not only is this appropriate but in our multilingual and multiracial society, it cannot reasonably be expected that judges should share all the views or prejudices of the parties before them.

“Consequently, proving that a judicial officer holds a particular view does not, without more, establish a reasonable apprehension of bias. We have considered the full transcript of the exchange in which the impugned comments were made. It is clear from it that Justice Keightley was engaging in a robust debate with AfriForum’s counsel on matters about nation-building,” the SCA said.

Fail

The SCA said Keightley’s expressed view was that white South Africans, in particular, have a responsibility to work towards inclusionary efforts to dismantle their historical privileges, rather than seeking to preserve them.

“AfriForum does not suggest, nor could it, that her views in this regard are perverse. They are consistent with the Constitution.”

“In view of all of the foregoing, it cannot be said that the test for recusal as laid down in the Constitutional Court has been met or that there is any reason to apprehend bias from Justice Keightley. Thus, AfriForum’s application for recusal must fail,” the SCA ruled.

The EFF said it was pleased with the decision of the SCA to dismiss the appeal by AfriForum

Afrikaners in danger

Meanwhile, AfriForum said the SCA’s judgement that the “Kill the Boer” chant is not hate speech puts both farmers and Afrikaners in danger.

According to Kallie Kriel, CEO of AfriForum, farmers and Afrikaners deserve the same protections against hate speech as any other cultural group.

“If the courts are not going to protect these groups from hate speech, they will have to take their safety into their own hands.

“AfriForum has already established more than 172 neighbourhood and farm watches nationwide. In light of this judgment, AfriForum will intensify its focus on investing a large and growing amount of its resources and time into improving and expanding our community safety networks through means such as training and equipment,” Kriel said

AfriForum said it will meet with its legal team to discuss the possibility of a Constitutional Court challenge.

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