Uproar over EFF leader Julius Malema singing ‘Kill the Boer’. This is what the courts said about the song

EFF President Julius Malema addresses scores of the party's supporters during its 10th birthday celebration at FNB stadium. Picture: Oupa Mokoena / African News Agency (ANA)

EFF President Julius Malema addresses scores of the party's supporters during its 10th birthday celebration at FNB stadium. Picture: Oupa Mokoena / African News Agency (ANA)

Published Jul 31, 2023


EFF leader Julius Malema has been sharply criticised by prominent white South Africans for singing the Struggle song, "Shoot to kill, kill the Boer, kill the farmer".

The Equality Court in Johannesburg ruled in August last year that the song was not hate speech or incitement, after AfriForum took the matter to court.

The court held that the song was freedom of speech and had to be left in the political arena.

The court said the lyrics of the song - “Shoot to kill, kill the Boer, kill the farmer” - were not to be taken literally.

This weekend, the EFF leader Malema and nearly 100,000 supporters, who painted the FNB Stadium in a sea of red, were seen and heard singing the song after Malema concluded his speech at the party’s 10th-anniversary celebrations.

Some have taken offence, saying Malema should be reported to the SA Human Rights Commission and legal action should be taken against him.

The DA announced earlier on Monday that it was exploring avenues to hold Malema accountable after DA leader John Steenhuisen said the party would file charges at the United Nations Human Rights Council.

In October last year, AfriForum was granted leave to appeal the August 2022 order, but as things stand, the order stands.

The court also heard how Struggle songs should be allowed to be sung as freedom of speech and in the political arena.

Judge Edwin Molahleli, who presided over the matter, explained in his judgment why he had ruled in favour of the EFF, saying AfriForum’s witnesses had all failed to show evidence to the court about how the songs and political chants had any relationship with farm attacks and farm murders.

Malema held that the songs were meant to agitate and mobilise support and were not a literal call to arms.

One of the reasons the judge rejected AfriForum's evidence, was that AfriForum had used Ernst Roets, who is the head of policy at the organisation and an author of a book on farm murders, as an expert witness.

EFF lawyers poked holes, saying the court could not rely on his evidence as expert evidence, as he was an affected party in the matter.

Molahleli agreed with the EFF, explaining that an expert witness had to assist the court and they had to be neutral.

The judge said that although Roets held an LLM, his neutrality and independence were flagged, and also the fact that he relied on hearsay evidence in some aspects.

“He could not sustain this proposition under cross-examination. When asked, for instance, to provide examples of cases involving the correlation between the singing of the song and farm attacks and murders,” wrote Molahleli, who said Roets was only aware of one case directly linked to the singing of the song.

Roets’ book, “Kill the Boer: Government Complicity in South Africa's Brutal Farm Murders”, did not assist AfriForum's case either, said Molahleli, as there was no evidence in the book that linked the farm attacks and murders back to the song.

AfriForum's two other expert witnesses, the Dutch Reform Church’s Mr Human and a campaign manager for the Institute for Race Relations, Mr Gabriel Crouse, had their evidence rejected by the Equality Court, which found their evidence lacked probative value to assist the court.

Two other AfriForum witnesses who were farm attack survivors, a Ms Muller and a Mr Prinsloo, could not show cause to the court, how the song had anything to do with them being victims of crime.

Prinsloo had been attacked five years before the EFF’s formation, the judge noted and thus concluded there was no evidence that the song was sung to incite harm against him or any group.

“It seems to me that Mr Prinsloo’s conclusion is that because the three men are black, they must have been influenced by EFF singing the impugned song. It is important to note that the attack on Mr Prinsloo occurred in 2008 about five years before the formation of the EFF,” said Molahleli.

The EFF relied on Malema as a witness, and the University of Johannesburg's Professor Liz Gunner, as an expert witness, who holds a PhD in African Languages and Literatures, and the title of her thesis in her PHD was Ukubonga Nezibongo: Zulu Praising and Praises.

She has also published an article titled, “Song, Identity, and the State: Julius Malema’s Dubul ibhunu Song as a Catalyst”.

Gunner told the court that the song was not a "decoration”.

“It still carries huge weight as a historical statement, and it shows how songs can move through time and cause inspiration through memory to a later generation,” she said.

“It is true, she contended, that a political idea can be enacted through a song. In other words, according to her, listeners can enact a political idea and deduce messages through a song,” the judge wrote.

Gunner also advanced that struggle songs were a form of speech and believed that the song and its lyrics should be left to be contested in the political arena.

Malema, testifying as a lay witness, did not dispute singing the song "Kill the Boer" when he was still ANCYL president, but he said he sang "Kiss the boer“ when he was EFF leader.

He testified further that he was taught not to take the songs in their literal meaning, but to understand them to be referring to the oppressive state system. He did not dispute that he had during the chant, displayed the gesture of a gun in his hands.

He referred to the "Kiss the Boer“ as a chant, saying it was meant to agitate and mobilise.

“They are used to make sure that the youth become interested in the struggle. And then that is why there will be sounds like that.

“But to show that there is nothing literally even the shooting of the gun is not a real gun. So if it was meant in a literal sense, we would have taken guns and shot them in the air. That is why we are doing it with our hands,” said Malema.

The EFF leader also relied on former president Thabo Mbeki's testimony about the song in the TRC, that it ought not to be interpreted literally, but in the context of struggle and African culture.

Further, the court held that the 2010 Dubul’ ibhunu case between Malema and AfriForum was not binding, as the Constitutional Court in Qwelane versus SA Human Rights Commission had expunged section 10 (1) of the Equality Act, which relied on the test for “hurt”, which has since been expunged.

The previous Malema case relied on the same test.

Molahleli said Afriforum failed to show that the lyrics in the songs could reasonably be construed to demonstrate a clear intention to harm or incite to harm and propagate hatred.