The Council for the Advancement of the SA Constitution (Casac) has been granted permission to serve as amicus curiae (friend of the court) in the hate-speech case against expelled ANC Youth League president Julius Malema.
The NGO maintains that the Equality Court used too narrow a definition of “minority” and that its process was flawed when it ruled in September last year that the Dubul’ iBhunu (Shoot the Boer) song constituted hate speech.
Malema is appealing against the ruling.
The Supreme Court of Appeal issued a court order confirming the admission of Casac last week.
Casac executive secretary Lawson Naidoo said the NGO would argue that the Equality Court’s process for determining whether the singing of Shoot the Boer was hate speech was “flawed because it did not adequately consider the relevant speech in its proper context”.
“Context … includes the historical and constitutional context,” Casac said in a statement.
“The Equality Court understood the concept of a ‘minority’ in an inappropriately narrow fashion. A definition of the word ‘minority’ must include factors other than numbers, and may encompass a group that is in the numerical majority, but which finds itself in a minority-like position.”
Casac believes the Equality Court failed to strike an “appropriate balance” between section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act – the right to human dignity – and section 16 of the constitution – freedom of expression.
“(The Equality Court) tried to look at the words in isolation, not in the context of the song being historical,” he said.
Naidoo said the Equality Act was “far broader” than what was argued in the constitution.
Malema submitted his heads of argument to the Supreme Court of Appeal on Friday, and Afriforum and TAU-SA have a month to do the same.