ConCourt shuts door on AfriForum over "Kill the Boer": Why they got it wrong - Sara Gon - Biznews

Sara Gon
On 27 March 2025 the Constitutional Court (ConCourt) ruled against AfriForum in an application for leave to appeal against a decision of the Supreme Court of Appeal (SCA) which found that the singing of the song “Dubula ibhunu” or “Kill the boer” was not hate speech.

The apex court held that there should be compelling reasons why the appeal should be granted, that AfriForum’s reasons weren’t compelling and ruled that it had no reasonable prospects of success on appeal.

Bewilderingly, the ConCourt has given no reasons for its decision.

This article argues that the prospect of success of an appeal is not a foregone conclusion. Accordingly, leave to appeal should have been granted.

There are reasons why the previous courts’ (Equality Court and SCA) decisions could be wrong. The proposition is that there are reasonable alternative arguments the ConCourt could have considered. The decisions of both the Equality Court and the SCA contradicted the Constitutional Court’s own judgments and other high court judgments that had found differently in the same or similar circumstance, and, arguably, deviation from them was not justified.

Granting leave to appeal does not guarantee that alternative arguments would have been successful. It just means that there are alternative arguments that could have had reasonable prospects of success.

Qwelane

The seminal ConCourt judgment was that of Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 which decided that section 10(1) of the  Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (Act) should provide that, subject to section 12, a person may not:

Communicate words;
On one or more prohibited ground;
Against any person;
That could reasonably be construed to demonstrate a clear intention to be harmful or incite harm; and
Promote or propagate hatred.
Section 1 of the Act defines “prohibited grounds” to include race, ethnic or social origin.

In the appeal to the SCA, AfriForum argued that the Qwelane judgment is based on two objective inquiries:

First, once the Court found that words were communicated and were based on prohibited grounds, the speaker’s intention is determined objectively, not by what the speaker intended.
Second, whether the words used could “reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred” is also determined objectively. The subjective intent of the speaker is irrelevant.
Qwelane confirmed the interpretation in South African Human Rights Commission v Khumalo (EQ6-2016; EQ1-2018) [2018] that the objective test in section 10(1) of the Act implies “that an intention shall be deemed if a reasonable reader would so construe the words. The objective test of the reasonable reader is to be applied, it is the effect of the text [or words], not the intention of the author, that is assessed.”

Qwelane also held that in the context of civil remedies for hate speech prohibitions, a proven causal link between the hateful expression and actual harm is not required.

The Equality Court

In the Equality Court, Molahlehi J agreed that the singing of the song met the requirements of Section 10 – the song was sung by Malema on six occasions between 2016 and 2019. On some of those occasions Malema gestured the pointing and shooting of a gun with his hand, and uttered sounds of a machine gun firing.

So why did the judge not find it to be hate speech?

The Equality Court considered all the evidence then rejected all of AfriForum’s’s evidence as either inadmissible, without probative value, or both.

After ruling on the evidence, the Equality Court then analysed the requirements of Qwelane.

AfriForum argued (in its appeal to the SCA) that the correct approach would have been the other way round: first set out Qwelane’s requirements, then determine whether the evidence had any relevance.

The Equality Court found that AfriForum’s interpretation was literal, and that there was no reason to reject Malema’s insistence that the lyrics should not be interpreted literally, but rather within the context of the struggle and his political message.

The Equality Court also held that reference to “Boers” was not an ethnic reference to South Africans who are Afrikaans-speaking or of Afrikaner descent. No explanation for this decision was given.

Additionally, although the Equality Court accepted evidence of Malema making shooting gestures, it expressed no view on it.

In cross-examination, Malema ominously said “when” not “if” the time to attack comes he will not sing. He will simply give the command and this may include slaughter on grounds of race. The Equality Court did not comment on this.

Contrast this with Afri-Forum and Another v Malema and Others (20968/2010) [2011] ZAEQC 2 on identical facts, after a careful historical and contextual analysis of the same song, Lamont J said that the whole public is the audience, not just those at rallies. “Public” included White Afrikaners as the target group.

Lamont J found it sufficient that there is “a variety of members of society who act for large constituencies and who say that their constituencies are affected in that they perceive the song to be harmful and/or hurtful towards them.” This reaction was found to be due “to the context and manner in which Malema repeatedly sang the song and exploited the publicity his singing the song had in translation as well as in the original language.”

Arguably, the Equality Court could depart from Lamont J’s judgment only if it held it to be clearly wrong. It did not do that, Lamont J’s judgment stands as precedent.

In a similar case, South African Human Rights Commission v Khumalo (EQ6-2016; EQ1-2018) [2018], Sutherland J referred to the risk of “a spiral of invective as a result of an incitement by a text sprouting hatred and contempt”.

Sutherland J held that:

Section 10 is an instrument to advance social cohesion;
The “othering” of whites or any group is inconsistent with our Constitutional values;
“These utterances” set out a rationale to repudiate whites as unworthy and that they deserve to be “hounded out, marginalised, repudiated, and subjected to violence in the eyes of a reasonable reader”;
The utterances could be construed to incite the causation of harm through Blacks endorsing those attitudes, Whites reacting to demoralisation and responding similarly and, “on a large enough scale”, derail the transformation of our society.

The Supreme Court of Appeal

The SCA confirmed both the stages of enquiry set out in Qwelane and the application of the objective ‘reasonable person’ test.

The SCA supported the formulation that it is the effect of the utterance, not the intention of the speaker that is assessed per S v Mamabolo & Others [2001] ZACC 17. Mamabolo held that the criterion is what meaning of the “reasonable reader of ordinary intelligence” would understand a statement in its context to be and “would have had regard not only to what is expressly stated but also to what is implied”.

For the SCA, what characterised the inquiry was that the complaints were directed at “the singing of a known, pre-existing song, with its own history”. It compared the case as differing from is Qwelane, Khumalo and others, where the respondents were the authors of the impugned words. Is this a distinction without a difference?

Except for one of the occasions when Malema sang the song, “They were public celebratory occasions most of which were organised by, and for, the EFF”. The SCA found that there is no suggestion that the events were closed to all but EFF members, and in all likelihood there would have been “some reporting”.

The SCA held that the “reasonably well-informed person” would understand the song on these occasions to be an expression of the EFF’s political identity.

“The reasonably informed person would also know that the EFF is a registered political party that competes for seats at all levels of government, is a very active political party, and its manifesto and pillars of the EFF’s political ideology are no secret to the general public” and “They would know that Mr Malema is often labelled as a populist politician and that he is known not to mince his words.”

The SCA appears to have elevated and thus narrowed who the “reasonable person” may be. Various occasions were very public and it’s disingenuous for the SCA to have said “in all likelihood there would have been some reporting”. Since Malema came on to the scene and repeatedly since, he has cultivated a very public persona. His audience at rallies are neither his only intended audience nor the audience at whom the “threats” are aimed.

The SCA held that understood in its full context, it was a form of political speech. While some may regard Malema’s performance as shocking or even disturbing, the Constitution required a measure of tolerance. The Court held that what Malema was doing was no more than exercising his right to freedom of expression protected under s 16 of the Constitution.

Thus the SCA concluded that the test is an objective one of the “reasonable well-informed person” which had to be seen in the above context, and could not reasonably be understood in the manner advanced by AfriForum.

What Malema was doing was in the course of participating in political activities, which rights are protected under s 19 of the Constitution. It was an expression of EFF’s political identity.

The SCA held that the EFF’s manifesto and the pillars of its political ideology are no secret to the general public. The “reasonably well-informed person” would know that the EFF is leftist aligned, has a particular concern for overcoming economic and land injustice, that the party and its leader are very outspoken, and that Malema is labelled as a populist politician “known not to mince his words”.

The SCA accepted expert evidence in the court a quo that the performance of the song is part and parcel of the political song within the genre. “The mimicking of shooting by a singer is part of the call for change. Neither the words nor the gestures forming part of the performance are meant literally.”

The SCA held that, understood in its full context, it was a form of political speech, that the Constitution required a measure of tolerance even though Malema’s performance as shocking or even disturbing and that Malema was only exercising his right to freedom of expression protected under s 16 of the Constitution.

The SCA recognised that Section 19(1) of the Constitution, read with Section 16 protects the right of “every citizen to make free political choices, to form a political party, to participate in the activities of a political party and to campaign for a political party or cause.”

The SCA held that this reading is critical to our democracy. It is through support for the free expression of political ideas by political parties that our system of government and its election ultimately operate.

Possible arguments to the ConCourt

The proposition is that it is not a given that the only conclusions that the ConCourt could reach are those reached by the Equality Court and the SCA respectively.

In term of the case law (its own and others) the ConCourt could consider the argument that Equality Court was wrong to hold that:

• The song was not hate speech because Malema subjectively never intended it to be;
• The reference to ‘Boere’ was not explicitly ethnic – the Equality Court should not have departed could depart from Lamont J’s judgment unless the Equality Court had held it to be clearly wrong. As it did not do that, Lamont J’s judgment stands as precedent;
• The intention to incite harm or propagate hatred is not determined by the subjective intention of the speaker, but rather by the objective test of the ‘reasonable person’;
• Afriforum’s evidence as regards the social milieu and their impact should be rejected – in argument, Malema et al conceded that some people might take ‘Kill the Boer’ literally;
• Although the argument for the right to freedom of expression is that it encompasses the right to say whatever one likes (Section 16(1)), it does not allow freedom or expression for propaganda for war (16(2)(a)), incitement of imminent violence (16(2)(b)), or advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm(16(2)(c)). It is significant that the rights to dignity, life and freedom from violence come before the right to free expression.

It could also be argued that:

• Singing the song could also harm the group “partaking in the utterance”. It participates “in morally corrupt activity which detracts from their own dignity. It lowers them in the eyes of right-minded balanced members of society who then perceive them to be social wrongdoers” per Lamont J;
• The words of one person leads others to action. “All genocide begins with simple exhortations which snowball. Words provide the stimulus for action, the means to numb the natural repugnance against hurting humans and the reward which is to be harvested after action. Words are powerful weapons which if they are allowed to be used indiscriminately can lead to extreme nd unacceptable action” per Lamont J;
• The Equality Court considered the evidence and rejected AfriForum’s evidence, before it analysed what the criteria set out by the ConCourt in Qwelane, it should have been the other way round;
• A reasonable person hearing the chant could understand it to mean an incitement to cause harm. This resolves Equality Court’s error of requiring actual or potential incitement to harm;
• The SCA only considered what the “reasonably well-informed person” would understand if that person knew the history of the song and its  context of the past on. It is plausible that over time increasing distance from the apartheid era the song may not be known as commonly as it once was as a “struggle song”;
• In the years under consideration of the matter, the EFF’s target voters would not have grown up under apartheid and would have seen their quality of life stagnate or be diminished by poor ANC governance and may regard the chant as an exhortation to “get” what is “rightly theirs”.As Sutherland J stated in Khumalo: “[i]n South Africa…our policy choice is that utterances that have the effect of inciting people to cause harm [are] intolerable because of the social damage [they] wreak and the effect [they have] on impeding a drive towards non-racialism.”;
• The “enemy” in the heady days when the song was sung is not the enemy now. The Constitution “the enemy has become the friend, the brother” and the song should no longer be sung;
• That a high-profile political leader is under greater obligation because of his or her status, not more easily excused for what he or she says;
• The song as signifying that it was part of the EFF’s identity is irrelevant, or perhaps more relevant in finding it to be the inciting of harm;
• The EFF’s manifesto and the pillars of its political ideology in broad brush strokes may be no secret to the general public, but inciting unlawful land grabs, allegations of threats and assaults, shooting a forearm into the air at a rally, numerous public comments by Malema about killing whites may be better known than their policies; and
• It is significant that the rights to dignity, life, and freedom from violence, torture and degrading treatment (Sections 10, 11 and 12 respectively) literally come before the rights to free expression (Section 16) and and political expression (Section 19) in the Constitution.

Has AfriForum actually won?

Did President Trump “win” AfriForum’s case for it? Viewing Trump’s documentary’ at the media meeting in the White House in May was sobering. It must have looked awful to those in Western democracies who watched it. It was pretty ghastly even seen unclearly at a distance.

Gareth van Onselen, the CEO of Victory Research conducted a survey for the Social Research Foundation on how South Africans view the song. As far as he was aware, it is the first substantive piece of dedicated research on this subject. “For a subject that elicits so much debate, there is precious little data on what people actually think, and hopefully this will help fill something of a vacuum.”

Perhaps the most interesting finding is that 57% of EFF supporters identified the song as “clearly hate speech”, and a further 26% said singing the song was “irresponsible”. “So a total of 83% of EFF supporters felt the song irresponsible or hate speech. That is a remarkable finding.”

Perhaps the tide has turned in society. Darryl Swanepoel, CEO of the Inclusive Society Institute, writing in Daily Maverick said it best:

”While the slogan may be constitutionally protected, its deliberate use in contemporary political settings is not merely provocative, it is profoundly unwise. In a society still grappling with the legacies of apartheid, endemic inequality and fragile race relations, words carry weight far beyond their legal definitions.

“‘They [chants] are symbolic vessels, carrying the memory of past struggles, but also the potential to stir contemporary fears. So, with this in mind, it follows that the historical justification of the chant – which is rooted in anti-apartheid resistance – does not automatically make its current use, politically or socially, justifiable.

“It is a way of stoking populist sentiment, galvanising political bases and appealing to historical loyalties. But this comes at a steep cost: the polarisation of society, the re-traumatisation of communities and the erosion of hard-won intergroup solidarity.

“…legality does not equate to wisdom, unity or responsibility. In a country with such deep wounds, where race, land, identity and violence intersect in volatile ways, rhetoric matters.

“This is by no means a call for censorship. It is a call for ethical and moral restraint and for choosing reconciliation over rhetoric.”

Maybe the time has come to kill “Kill the Boer”.

Sara Gon rants professionally to rail against the illiberalism of everything

https://www.biznews.com/rational-perspective/concourt-shuts-door-afriforum-kill-boer-sara-gon

This article was first published on the Daily Friend.