EFF leader Julius Malema's singing of Kill The Boer is a matter of fierce public debate, again.
Image: Phando Jikelo/Parliament of SA
There is no current legal instrument in South Africa which can bar Economic Freedom Fighters leader Julius Malema from singing the political chant, "Shoot to kill, kill the Boer, kill the farmer".
Malema, in terms of the law, in terms of his freedom of speech and freedom of expression, is permitted by the law to make political statements through text and chants, and the case of “Kill The Boer” is exactly that.
Several legal experts have said same on television news channel in the past week, citing the Equality Court ruling in favour of political speech and freedom of expression. The political chant or Struggle song, is not hate speech, the courts emphatically declared.
Of course, Malema can sing it, but if he should, is another question altogether, but in the eyes of the law, there is not a single South African Police Service station that will entertain a complaint over the chanting of the political chant made famous by the former ANC Youth League leader Peter Mokaba.
Malema in his own defence of the continued use of the political chant paid homage to Mokaba this week on X.
And of course, Malema has been sharply criticised from all corners for the chant - not least in Washington where Elon Musk and officials in the Donald Trump administration noticed that the red berets leader burst out into “Kill The Boer” song again on March 21, on Human Rights Day.
For the past month, the Trump administration and those close to it, have been using past videos of Malema chanting the chant to packed stadiums as part of their ludicrous misinformation about the slaughter of white people and a so-called white genocide in South Africa.
The Trump administration has rolled out the red carpet for white farmers to seek refuge in the US. Reportedly, thousands have enquired, but Afrikaner lobby groups such as AfriForum have publicly announced their intention to stay in South Africa.
The Equality Court in Johannesburg ruled in August 2022, that the political chant - kill the boer, kill the farmer - was not hate speech nor 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. The court found no evidence between the chanting of the words “Kill The Boer” and the farm murders of white farmers, or any farmers for that matter.
AfriForum has yet to appeal the matter in any court since that August 2022 ruling.
It is not the first time, nor is it the last time, that the song will cause controversy and public scrutiny. There have been calls for Malema to be reported to the SA Human Rights Commission, but those have come to nil.
DA leader John Steenhuisen in the past has 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.
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. And agitate and offend they do, as shown by the likes of Kallie Kriel of AfriForum and right wing groups in the US.
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, 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.
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 chant 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.
Malema 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.
Ironically, Mbeki has since questioned Malema about his continued singing of the political chant, kill the boer.
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.
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