Johannesburg - The Rule of Law Project (RoLP) has become the latest organisation to enter the fray, seeking to appeal the Equality Court’s ruling that the singing of Dubul’ iBhunu (Kill the Boer) by the EFF and its leader Julius Malema was not hate speech.
As the court case brought by civil organisation AfriForum kicked off in the Supreme Court of Appeal in Bloemfontein on Monday, Rolp, an initiative of the Free Market Foundation (FMF), announced its entry into the spat.
The foundation said it entered the matter as a friend of the court in an effort to stand up for equality before the law against what it described as a “shocking ruling”.
“The Equality Court ruling undermines the principle of equality before the law, as there have been many cases in recent years of less prominent individuals who were ordered to pay heavy fines or serve jail time for far less heinous utterances,” said FMF CEO David Ansara.
“It can’t be that political elites like Julius Malema get off without so much as a slap on the wrist after deliberately inciting violence and calling for mass murder, yet ordinary citizens are treated far more harshly.”
The organisation said the decision by the courts created an impression of “double standards”, which implied that South Africans were not equal before the law, as ordinary citizens faced harsh sanctions if found guilty of hate speech while members of the high-ranking political class, like Malema, got off scot-free.
“We’re at risk of setting a dangerous precedent here, one that flies in the face of our Constitution,” Ansara added.
The organisation’s counsel, advocate Mark Oppenheimer, submitted in court that the ruling created a category of specially protected speech uttered by political role-players.
He added this elevated politicians over ordinary citizens and flew in the face of the fundamental requirement of the rule of law that no one was above the law.
He added that equality before the law required that the rules of evidence were applied equally to parties in similar circumstances, yet the Equality Court both included and excluded expert and lay witness testimony for inappropriate reasons.
Oppenheimer also submitted that the finding that AfriForum had failed to show the song targeted people based on race and ethnicity posed a threat to Afrikaners as second-class citizens unworthy of protection.
“The Equality Court’s judgment undermines the founding value of non-racialism by implicitly creating different rules based on the race of the perpetrators and the victims.”