The Equality Court’s banning of Dubul’ iBhunu (shoot the boer) may have inadvertently painted ANC Youth League president Julius Malema as a victim of the justice system and may help repair his fractious relationship with the ANC, say political commentators.
Director of the Centre for the Study of Democracy Steven Friedman said that while freedom of speech was not unlimited and there were clearly wrong instances, such as referring to people as cockroaches, which was clearly inviting people to harm others, “when a judge sits and rules on a matter like this (Dubul’ iBhunu) we are on a very dangerous path. Where do you start and where do you stop?”
Friedman said it would lead to underground political activity. “It’s not an accident that soon after the judgment, Malema’s supporters sang the song. The judge knew they would and had said that in court.”
A disciplinary hearing involving Malema and five fellow leaders is expected to resume on Tuesday.
Malema received a break from the hearing on Monday for the Equality Court judgment, during which Judge Colin Lamont found that his singing of “shoot the boer” constituted hate speech.
He has banned the ANC from singing the song in public or at private meetings.
The ANC said it would appeal against the ruling, and that it would be impossible to implement.
AfriForum Youth opened a civil case against Malema after he sang the words at ANCYL gatherings last year.
President Jacob Zuma told the Cape Argus’s sister newspaper, The Star, that Malema could stay in the ANC provided he allowed the party to mould him into a good leader.
The ANC did not aim to remove Malema from public space, he said.
“I think the objective is how do you help Malema? Because Malema has a lot of elements that are good in him.”
Zuma said Malema should not be allowed to do “wrong things” and that it was the ANC’s job to help mould him into a dynamic leader. “What you have to do, is deal with things that are not right with Malema.”
The ANC is conducting disciplinary hearings after it charged the ANCYL leaders with violations of the party’s constitution. Malema and ANCYL spokesman Floyd Shivambu face charges related to comments on helping bring about regime change in Botswana.
Deputy president Ronald Lamola, secretary general Sindiso Magaqa, his deputy Kenetswe Mosenogi, and treasurer-general Pule Mabe are charged with contravening rule 25.5(q) and rule 25.5(o) of the constitution of the ANC.
Independent political and policy analyst Somadoda Fikeni said the Equality Court matter could have been resolved outside the courts.
“If you begin to criminalise them you may be inviting more disaffected youth to sing these songs and creating more criminals inadvertently. You do not regulate attitude, you educate.
“If you begin classification of hate speech, you may end up with no freedom of expression. Someone may challenge street names and say a Verwoerd Street represents a hateful heritage.”
Fikeni said the judgment also came at a time when the race discourse and race relations were at their lowest in the recent past.
He cited the debate on land, Archbishop Emeritus Desmond Tutu’s call for a wealth tax, the appointment of Chief Justice Mogoeng Mogoeng, the Eric Miyeni-Ferial Haffajee black snake debate and the general discourse in the build-up to the local government elections in May.
“The rainbow nation aspiration is being challenged on all fronts.”
Fikeni said the events leading to Monday’s ruling had given impetus to institutions like AfriForum, Afrikanerbond, the FW De Klerk Foundation, the DA and Solidarity, with issues of racial solidarity given precedence over national social cohesion.
“The fact that well-organised minority groups with resources are rushing to court every day may lead to a judicial fatigue, where even the judiciary will be seen in a negative light by the majority..”
Friedman said he didn’t think the ruling would affect Malema’s disciplinary hearing. If anything, it would make things easier for him inside the ANC, he said.
He said the ANC rallied around its own when it believed they were under attack from outside the party. “We’ve seen that with Winnie Madikizela-Mandela and former health minister Manto Tshabalala-Msimang.”
Analyst Susan Booysen said the ruling might help to forge unity between Malema and the ANC, and had implications for other songs. “I would be surprised if the president (Jacob Zuma) wouldn’t think twice before singing Umshini wami.”
Jane Duncan, the Highway Africa chair of the Media and Information Society, said: “I don’t think this will make the song go away. It will make singing it an act of rebellion.”
The danger in the ruling was that it was “one step away from thought control”.
Freedom of Expression Institute director Elston Seppie said this was a clear danger for freedom of speech and that it was highly likely another court would find differently.
The youth league said it noted the judgment and would consult with the ANC and other fraternal organisations.
ANC spokesman Jackson Mthembu said the ruling was an attempt to rewrite South African history and “flies against the need to accept our past and to preserve our heritage as an organisation and as a people”.
SACP spokesman Malesela Maleka said the ruling fit into the ongoing process to erase from the collective memory that part of the struggle against “colonial conquest”.
Freedom Front Plus leader Dr Pieter Mulder hoped the ruling was the first step toward the “recovery of balance” and the promotion of good relationships between all groups.
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