SUPREME COURT OF APPEAL RULES ‘DUBULA IBHUNU’ IS NOT HATE SPEECH

by Central News Reporter
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supreme court of appeal


Supreme Court of Appeal on Dubula iBhunu

In a landmark judgement ahead of South Africa’s national and provincial elections, the Supreme Court of Appeal (SCA) dismissed AfriForum’s appeal against the Economic Freedom Fighters (EFF) and Julius Malema over the controversial “dubula ibhunu” (“kill the boer”) struggle song. The court’s decision came with an order for AfriForum to cover the costs.

AfriForum had previously challenged the Equality Court’s decision, arguing that the song amounted to hate speech and incited violence. Nevertheless, the Equality Court, and now the SCA, determined that the song did not meet the criteria for hate speech under South African law.

Court Judgement Overview

Justice Saldulker, leading the panel of judges, provided an extensive analysis. The court decreed:

“singing of the song by respondents not prohibited hate speech.”

The case, AfriForum v Economic Freedom Fighters & Others (1105/2022) [2023] ZASCA 82 (28 May 2024), was deliberated by a judicial panel comprising Justices Saldulker, Matojane, Molefe, Nhlangulela, and Keightley. The judgement emphasized the importance of context in determining hate speech and upheld the principle that historical and political backgrounds must be factored in.

Statements from the Parties

AfriForum’s CEO Kallie Kriel expressed concerns over the safety of farmers and Afrikaners, stressing that:

“The Supreme Court of Appeal’s ruling that the ‘Kill the Boer’ chant is not hate speech puts both farmers and Afrikaners at risk.”

Kriel stated that AfriForum plans to intensify its community safety networks, which include training and equipping neighbourhood and farm guards.

On the other hand, the EFF issued a statement, celebrating the ruling:

“The EFF is pleased with the decision of the Supreme Court of Appeals (SCA) to dismiss an appeal by the racist organisation of right-wingers called AfriForum.”

The EFF argued that the song is a historical struggle chant and should be viewed in its political and cultural context rather than as an incitement to violence.

Historical Context and Legal Framework

The court’s judgement outlined the need to view the song within the broad spectrum of South Africa’s history and ongoing struggle for economic and land justice. Emphasising the Preamble of the Constitution, the ruling reflected upon the nation’s commitment to healing past injustices and building a society founded on democratic values.

“Despite the decades that have elapsed since its adoption, it is sometimes necessary to remind ourselves of the commitments we made in this nation’s founding document,” the judgement noted.

The ruling aligns with Section 10 of the Equality Act, which requires an assessment of whether words could reasonably be construed to show a clear intent to be harmful or to incite harm and propagate hatred. The judgement found that Mr Malema’s singing of the song, in the identified contexts, did not meet these criteria.

Moving Forward

While AfriForum deliberates the possibility of taking the case to the Constitutional Court, the SCA’s decision stands as a pivotal ruling on freedom of expression as it intersects with historical and cultural narratives.

electricity to be cut off on 29
SUPREME COURT OF APPEAL RULES 'DUBULA IBHUNU' IS NOT HATE SPEECH 7

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