- The Equality Court has dismissed the application by lobby group AfriForum to have the songs Kill/Kiss the Boer and Bizani iFire-Brigade declared hate speech.
- In his judgment, Judge Edwin Molahlehi said AfriForum failed to prove the lyrics could reasonably be construed to demonstrate a clear intention to harm or propagate hatred.
- AfriForum was ordered to pay the respondents' legal costs.
The Equality Court found on Thursday lobby group AfriForum had failed to prove the lyrics in Kill/Kiss the Boer and Bizani iFire-Brigade could reasonably be construed to demonstrate a clear intention to harm or incite harm or propagate hatred.
This was the judgment handed down by Judge Edwin Molahlehi as he dismissed AfriForum's application to declare as hate speech the two songs.
"The song does not constitute hate speech, but rather deserves to be protected under the rubric of freedom of speech," Molahlehi said.
"I find that AfriForum has failed to make out a case that the lyrics in the song constitute hate speech. The court's order dismisses the argument that the songs, Kill/Kiss the Boer and Bizani iFire-Brigade, constitute hate speech, and the applicant [AfriForum] should pay costs."
In yet another blow to the lobby group, Molahlehi found Ernst Roets, its head of policy and action, did not meet the standards of being an expert witness as he had purportedly been on the applicant's legal team.
The judge said he found Roets' testimony to have been based on hearsay or circumstantial evidence.
AfriForum also sought to have the respondents, EFF leader Julius Malema and MP Mbuyiseni Ndlozi, pay R500 000 to a charity organisation, and the pair apologise for singing the songs.
The judgment was well received by EFF treasurer-general Omphile Maotwe and deputy secretary-general Poppy Mailola who started celebrating as soon as the judgment was handed down.
Addressing the media, Maotwe described the judgment as being "sober", saying "the ruling puts to bed the case by the racists, which sought to erase the cultural element of the liberation struggle".
"The court reaffirmed the submission by the commander-in-chief [CIC], Julius Malema, that liberation songs should not be interpreted literally, but recognised as a critique of a system of oppression.
"The view of CIC Julius Malema that liberation songs sought to agitate people during the struggle against the apartheid system and today agitate society against a system that benefits white men. Struggle in South Africa has fallen flat on its face."
AfriForum said it would appeal the verdict.
Roets added "this ruling creates a very dangerous precedent. The disturbing message sent with this judgment is that encouraging the gruesome murder of a certain group based on their identity is acceptable and carries no consequences".
"AfriForum constantly works with the victims of farm attacks, as well as the families of those killed in these gruesome crimes.
"We understand the pain and trauma these victims and survivors have to live with. We are, therefore, deeply disappointed with today's verdict. There is no place in society for songs that encourage the killing of people based on their identity.
"Today's ruling proved how the political order in South Africa is becoming radicalised, especially against minorities.
"A political order where the incitement and romanticisation of violence against minorities is sanctioned by the judiciary is not a free, democratic order, but an oppressive order.
"This case once again confirms that AfriForum must now focus its attention on strengthening and intensifying our safety structures and security training," Roets said.