VERY BAD: BLACK RACISM: S.Africa’s Highest Court: The ConCourt fails on Kill the Boer
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Dave Steward says threatened minorities have nowhere left to turn
Last week’s refusal of the Constitutional Court to grant AfriForum leave to appeal against the Supreme Court of Appeal’s judgement that the singing of the “Kill the Boer” song was not hate speech has very disturbing implications.
On 24 May last year the Supreme Court of Appeal dismissed AfriForum’s appeal against the 2020 judgement of the Gauteng Equality Court that the singing of the “Kill the Boer” song by Julius Malema on six occasions between 2016 and 2019 was not hate speech. In the Supreme Court’s opinion “Mr Malema was doing no more than exercising his right to freedom of expression …. in the course of participating in the activities of, and campaigning for the political party of which he is leader” – which rights are protected by the Constitution.
The Court insisted that the singing of the song had to be seen within its correct context. “… in a case like the present, context is everything. This requires a consideration of who the singer is, the context in which the songs were sung and their likely impact.” For the Court, reasonably well-informed people know Mr Malema to be “a populist leader who expresses controversial views. They would appreciate that this is part of his political persona.”
Perhaps the Court, in its consideration of context, should have delved a little deeper into Malema’s “political persona”.
On 7 November 2016 Malema made a speech in which he said that “we are not calling for the slaughtering of white people, at least for now”. He added the following:
· “I am here to disturb the white man’s peace. They are right, the white man has been too comfortable for too long. We are here unashamedly to disturb the white man’s peace.”
· “But white minority be warned, we will take our land. It doesn’t matter how. It is coming unavoidable, it is coming inevitable. The land will be taken by whatever means necessary. This land will be returned to black people.”
· “You (whites) are a visitor… No white person is a rightful owner of the land here in South Africa and in the whole of the African continent.”
On 16 October, 2022 Malema attended a meeting of the EFF’s Western Cape Provincial People’s Assembly which was festooned with banners proclaiming that the “honeymoon is over for white people in South Africa”, and “a revolutionary must become a cold killing machine motivated by pure hate.” He asked his supporters why they had not dealt with a white man – Mr Dante van Wyk – who had been involved in an altercation with the EFF outside the Brackenfell High School two years earlier. “Why have you not, as a revolutionary organisation, followed up on that guy, him alone, to take that guy in an isolated space and attend to the guy properly?” He added, “You must never be scared to kill [in] a revolution; demand that at some point there must be killing because the killing is part of a revolutionary act.”
Subsequently, 19-year-old Van Wyk and his pregnant wife received thousands of death threats on social media and had to flee to another province.
In his testimony to the Equality Court in August 2022, Malema was asked what he meant when he said “we are not calling for the slaughter of white people, at least for now.”? He replied that “it may not be me “(who calls for slaughter) – but that “it could be.” He refused to pledge that he would never call for the slaughter of white people.
He admitted that he had said on a prior occasion that “we need a system to get rid of white people.” “So, if we go into a conference, or into Parliament and made a constitutional amendment that all whites should be driven into the sea, and any whites who remain here is going to be killed, then we engage in that type of programme to drive all whites into the sea.”
All this information was available to the Supreme Court of Appeal. They had seen videos of the “Commander-in-Chief" sweeping up tens of thousands of red-clad supporters with emotional harangues against white South Africans.
The Supreme Court might also have considered s. 39(b) of the Constitution which requires courts to consider international law in their interpretation of the Bill of Rights. The International Convention on the Elimination of All Forms of Racial Discrimination calls on signatory states – including South Africa – to sanction as offences punishable by law:
· ‘all dissemination of ideas based on racial or ethnic superiority or hatred, by whatever means;
· incitement to hatred, contempt or discrimination against members of a group on grounds of their race, colour, descent, or national or ethnic origin;
· threats or incitement to violence against persons or groups on the grounds in (b) above;
· expression of insults, ridicule or slander of persons or groups or justification of hatred, contempt or discrimination on the grounds in (b) above, when it clearly amounts to incitement to hatred or discrimination….’
Article III of the Convention on the Prevention and Punishment of the Crime of Genocide – to which South Africa is also signatory – prohibits “direct and public incitement to commit genocide”.
All these factors should have persuaded the Constitutional Court to grant Afriforum’s application for leave to appeal. As the Court had explained in Qwelane v South African Human Rights Commission and Another, hate speech can be understood as “extreme detestation and vilification which risks provoking discriminatory activities against that group.” One would have thought that the context of Malema’s political persona – which is inextricably linked with his singing of the “Kill the Boer” song – would certainly have met this criterion.
The Constitutional Court might also have considered the impeccably reasoned 2011 judgement of Judge Colin Lamont in which he found that the singing of “the Kill the Boer” song was, indeed, hate speech. In that judgement, Lamont emphasised the role of courts in protecting minorities that had “no legislative or executive powers”
“It must not however be forgotten that minority groups are particularly vulnerable. It is precisely the individuals who are members of such minorities who are vulnerable to discriminatory treatment and who in a very special sense must look to the Bill of Rights for protection. The Court has a clear duty to come to the assistance of such affected people…”
Nevertheless, the apex court dismissed Afriforum’s application for leave to appeal, despite the unambiguous context of Malema’s political persona, because it “bears no reasonable prospects of success.” Well, of course, it would have no prospects for success because the Constitutional Court had already decided on the issue.
Afriforum then approached President Ramaphosa with a request that he should unambiguously condemn the singing of the song. He refused to do so, and in a response dripping with cynicism, advised Afriforum to “take its case to the courts”.
And that is why the Constitutional Court’s decision is so disturbing: it means that threatened minorities may have nowhere in South Africa to turn to with assurance – neither to the judiciary or the executive – for the protection of their foundational constitutional rights.
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