ANC Youth League leader Julius Malema and the ANC lodged its appeal on Tuesday against a Johannesburg High Court ruling that effectively banned the singing of Dubul’ ibhunu (Shoot the Boer).
Malema argued that the verdict had impeded his and other ANC members’ constitutional right of freedom of expression.
“The judge erred in finding that the morality of society dictates that persons should refrain from using the words and singing the song. The order sought is unenforcable,” Malema argued.
Lawyers acting for Malema and the ANC served Judge Colin Lamont – who ruled against the singing of the song in private and public gatherings – AfriForum and the Transvaal Agricultural Union with papers indicating their intention to appeal.
Malema and the ANC are challenging Judge Lamont’s decision last week in which he ruled that the singing of the song was “hurtful and incited murder”.
The appeal is set down for next Thursday.
Malema and the ANC are asking Judge Lamont to grant them permission to appeal his verdict directly to the Constitutional Court. If this fails, Judge Lamont will hear the appeal first.
Malema and the ANC argue that Judge Lamont made a mistake in issuing “absolute prohibition on the song”. They said his banning of the song did not form part of AfriForum’s initial hate speech application against Malema.
They further argued that AfriForum’s application was particularly made against Malema following his singing of the song on five different occasions, including his birthday on March 3 last year.
They said Judge Lamont was wrong in concluding that the singing of the song constituted hate speech. They said he ignored any other supporting evidence before him.
Malema and the ANC accuse Judge Lamont of not having considered that AfriForum and TAU had to “provide contradicting evidence presented by the witnesses in any manner that demonstrates that the song constitutes hate speech or incitement of imminent harm”.
“The statistics provided by TAU could not show that farm killings could either be linked to the singing of the said song, or that they constituted a relevant context of the dispute as contemplated by section 3 of the Equality Act, or that the singing of the said words or song could be likened to a context of genocide,” the papers stated. - The Star