Court to be asked to gag Malema

2010-03-29 22:19

Johannesburg - Lawyers for civil rights group AfriForum and trade union TAU-SA will on Thursday apply for an urgent interim interdict to stop ANC youth league president Julius Malema from singing "shoot the boer".

This, pending the Equality Court's final adjudication of the complaint AfriForum laid on March 12, according to a notice of motion filed with the North Gauteng High Court in Pretoria on Monday.

The application asks to court to interdict and restrain Malema from publicly uttering any words or singing any songs or communicating lyrics using words "which can reasonably be understood or construed as being capable of instigating violence, discord and/or hatred" between blacks and whites.

In an affidavit forming part of the court documents, AfriForum's deputy chief executive officer Alana Bailey said Malema had, on at least four occasions publicly sung, chanted or recited the words:

- "Awudubele (i)bhulu" (shoot the Boer/farmer);

- "Dubula amaBhuntu baya raypha" (shoot the Boers/farmers. They are rapists/robbers); and

- "They are scared, the cowards. You should shoot the Boer/farmer. They rob, these dogs."

"The word 'boer', in this context, is a derogatory word referring to farmers, whites and to Afrikaners in particular," Bailey submitted.

Struggle song

She said it appeared there was more than just one "struggle song" containing similar words.

"The respondent [Malema] may be taking his cue from a prior president of the ANCYL, Mr Peter Mokaba, who commenced meetings with an infamous chant which contained the words: 'Kill the Boer, kill the farmer'," Bailey said in her affidavit.

"These words were declared to constitute hate speech by the South African Human Rights Commission in 2003..."

Bailey submitted that 'the use of the word "shoot" in the song was synonymous with the word "kill".

"It is my respectful belief that the use of the words by the respondent is calculated to incite racial disharmony and constitutes a call to assassinate white South Africans.

"I also have no doubt that who the respondent intended to refer to and did in fact refer to, are white South Africans.

"Here can be little doubt that the respondent on the occasions mentioned called upon members of the ANCYL to kill white South Africans. 

Incitement

The only possible reason for doing so, in my respectful view, is in order to foster racial hatred, discord and violence between white and black South Africans."

Bailey further submitted the words constituted "a dangerous incitement to violence" against white South Africans.

"The words must be understood, as I am sure they were by the public, to be an instruction that white South Africans should be shot."

Last week, AfriForum threatened to seek the interdict unless Malema apologised in writing by Friday. It later extended the deadline to Sunday.

The South Gauteng High Court in Johannesburg ruled on Friday that use of the words "dubula ibhunu" (shoot the boer) was unconstitutional and unlawful.

The court action was brought by Delmas businessperson Willem Harmse to prevent his colleague Mahomed Vawda from using the words on banners and singing them during a planned march against crime.

The ANC has indicated its intention to appeal against the ruling.

Urgent

"We are working on that," ANC spokesperson Jackson Mthembu said on Monday.

He said the ANC's lawyers received the ruling and documents pertaining to the case on Monday morning.

Although he could not indicate exactly when papers would be filed with the Constitutional Court, he said the legal team had been instructed the matter was urgent.

The ANC believes the high court would have reached a different conclusion had it consulted the party about the struggle song's history and purpose.

FF Plus leader Pieter Mulder laid a criminal charge against Malema after he sang the words at the University of Johannesburg earlier this month.

The FF Plus and the Afrikanerbond complaining to the Equality Court and the SA Human Rights Commission (SAHRC) on Tuesday.

The DA indicated on Wednesday that it planned to lay 351 complaints against Malema with the SAHRC for singing "shoot the boers".

- SAPA