AfriForum v EFF

Hate Speech: AfriForum v EFF [2024] 3 All SA 319 (SCA)

In 2020, AfriForum brought a case against Mr Julius Malema, Dr Mbuyiseni Ndlozi, and the Economic Freedom Fighters (EFF) (“the respondents”) in the Equality Court, alleging that two songs sung by the respondents constituted hate speech and unfair discrimination. The first song included the chant “Kill/Kiss the Boer | Kill/Kiss the Farmer,” while the second was “Biza a ma’firebrigate” (Call the Fire Brigade). AfriForum argued that these songs incited violence and farm attacks.

The court applied an objective test for hate speech, established in previous cases, which requires determining if a reasonable person would view the words as inciting harm or hatred. Ultimately, the court ruled that the songs were protected political speech, reflecting the EFF’s calls for economic justice rather than racial hatred. It dismissed AfriForum’s claim, affirming the importance of context and freedom of expression under South Africa’s Constitution.

AfriForum subsequently appealed the matter to the Supreme Court of Appeals (SCA). Its heads of argument were accompanied by a new draft order that, if the appeal were to succeed, sought a broader declaration than what it originally claimed in the Equality Court. Unlike the original claim, which restricted the declaration of hate speech to the words uttered by the respondents, the new draft order effectively called for a declaration that the relevant parts of “Dubula ibhunu” and “Shisa lamabunu” constituted hate speech in toto, irrespective of who used them or in what circumstances. This broader relief was not originally argued in the Equality Court, where the hate speech averment was limited to the singing of the songs specifically by Malema and Ndlozi, and on specific occasions.

Counsel for AfriForum accepted that the amended relief was overly broad and conceded that, should the appeal succeed, any declaration that the songs constituted hate speech would need to be expressly limited. Thus, the appeal was not aimed at imposing an outright ban on “Dubula ibhunu” as hate speech per se but rather at determining whether, when Malema led the singing of the song on the occasions identified by AfriForum, it constituted hate speech in the manner alleged. A similar issue arose with respect to Ndlozi’s singing of “Shisa lamabunu” in Senekal.

AfriForum’s appeal in the SCA was based on two principal arguments:

that the Equality Court erred in finding that AfriForum had failed to establish that the impugned words were based on a prohibited ground; and
that the Equality Court erred in its application of the objective test in matters of hate speech.

AfriForum submitted that, as in Hotz v University of Cape Town,¹ individuals who hear Malema sing the words of “Dubula ibhunu” may perceive it as an incitement to violence against ‘Boers’, in other words, as a call to kill ethnic white South Africans of Afrikaans descent. According to AfriForum, this risk is exacerbated by Malema’s accompanying hand gestures during his performances. Moreover, AfriForum argued that the song poses a broader risk to societal harmony by potentially inciting inter-racial hostility.

Conversely, the respondents contended that the Equality Court was correct in finding that AfriForum had failed to establish that the songs were based on prohibited grounds. They maintained that, when Malema sang “Dubula ibhunu”, he was engaging in political speech that expressed his party’s dissatisfaction with land and economic injustice. In the context in which the songs were performed, a reasonable person would interpret the words metaphorically rather than as a literal exhortation to incite harm or violence against farmers or white South Africans of Afrikaner descent. Consequently, the respondents argued, the songs were not hate speech but constituted protected political expression under section 16 of the Constitution.

The SCA ultimately dismissed AfriForum’s claim that Malema’s singing of “Dubula ibhunu” (which contains the term “bhunu”) constituted hate speech under section 10(1) of PEPUDA. AfriForum had argued that, according to dictionaries and other reference sources, the term “bhunu” explicitly refers to white South Africans of Afrikaner descent. However, the court rejected this literal interpretation, opting instead for a contextual approach that has become a mainstay in our jurisprudence. The court held that the term “bhunu” derives its meaning from its usage in a historical liberation song rather than from isolated definitions. It cited SAHRC obo South African Jewish Board of Deputies v Masuku² and Hotz to stress that words must be assessed within their broader socio-political context.

In Hotz, a “skill all whites” slogan on a shirt, where the “s” was markedly smaller than the rest of the text, was deemed hate speech due to its unambiguous intent. The court emphasised that this is in stark contrast to “Dubula ibhunu”, which is rooted in anti-apartheid resistance. The court further noted that the song was performed at public EFF events advocating land reform and economic justice and that the EFF’s manifesto, coupled with Malema’s role as a populist leader using provocative rhetoric, would lead a reasonable, informed person to interpret the song as a symbolic political critique rather than a literal call to violence.

Expert testimony from Professor Gunner was again considered, highlighting the song’s role in South Africa’s tradition of liberation struggle, where protest songs function metaphorically. Consequently, gestures such as mimicking gunfire symbolise defiance rather than literal intent to cause harm.

While AfriForum contended that the song normalised violence against white farmers, the court found no evidence of an intent to incite harm. Citing Qwelane, the court underscored that offensive or controversial political speech is protected under sections 16 and 19 of the Constitution, provided that it does not propagate hatred or cause harm. As the court observed, “Malema was doing no more than exercising his right to freedom of expression, which is protected under section 16 of the Constitution, in the course of participating in the activities of, and campaigning for, the political party of which he is leader, which rights are protected under section 19(1)(a) of the Constitution.”

In conclusion, the SCA determined that “Dubula ibhunu”, when contextualised as a decades-old struggle song repurposed to critique post-apartheid inequities, constitutes protected political speech. Malema’s performances were aligned with the EFF’s public agenda, and AfriForum’s literal interpretation failed to account for historical and performative nuances. Accordingly, the claim failed to satisfy the objective test for hate speech under PEPUDA, thereby reaffirming the necessity of tolerance for dissenting political expression in a democratic society.

AfriForum then sought leave to appeal the judgement to the Constitutional Court but the Apex Court dismissed this application holding that the appeal had no reasonable prospects of success.

Written by Theo Tembo