In March 2025, the Constitutional Court declined to hear the appeal in the case of AfriForum v Economic Freedom Fighters (EFF) and Others. The case had turned on the song that is commonly known as Dubul’ ibhunu (Kill the Boer; Kill the Farmer).
When the case reached the Supreme Court of Appeal, it was held that a reasonably well-informed person would appreciate that when Julius Malema sang Dubul’ ibhunu, he was not actually calling for farmers or white Afrikaners to be shot. He was using a historical struggle song and accordingly did no more than exercise his right of freedom of expression as protected under section 16 of the Constitution.
Astonishingly, this controversial case was not regarded as sufficiently deserving of a final judgment from our apex court — a decision that amazed many legal commentators. By contrast, in South African Human Rights Commission and Another v Malema and Another, Judge Mark Sher of the Western Cape Division of the High Court laid bare the Constitutional Court’s inexplicable omission by dealing with great care and thorough research with another episode involving Malema.
Admittedly, this was a different matter than singing “Kill the Boer; Kill the Farmer”. But it did again trigger a dispute regarding freedom of expression versus hate speech of a kind that one would have hoped the Constitutional Court would ultimately have resolved.
In this case, the events which led to it being brought before the Equality Court began in September 2020 when an event at Cape Town’s Brackenfell High School was allegedly organised for white scholars only. Members of the EFF held a protest at the school.
A clash took place between the protesters and some of the parents. Of relevance was that a member of the EFF was “manhandled” by a group of these parents and “several blows were directed at him by persons in the residents’ group, including the complainant”.
Some two years later, Malema addressed the Third Provincial People’s Assembly of the EFF in the Western Cape, in which he said the following:
“You went to a school here to protest the other time, and you were beaten by white people, and there is a white man who is visible on camera. If I were to ask you, ‘What have you done in terms of follow-up after being beaten by that white guy? Why have you not, as a revolutionary organisation, followed up on that guy, him alone, to check that guy in an isolated space and attend to the guy properly? What type of revolutionaries get beaten, and they don’t have a follow-up?’
“You must never be scared to kill. A revolution demands after some point, there must be killing because the killing is part of a revolutionary act. The EFF must be known that it is not a playground for racists, that any racist that plays next to the EFF, and threatens and beats up the membership and leadership of the EFF is an application to meet your maker with immediate effect. You were beaten by a racist and never did anything. Let’s hope this new leadership will make a follow-up on that racist, because there must be a follow-up on that racist.
“You get beaten by white people here, and you call yourself an organisation of Fanon. Racism is violence, and violence can only be ended with violence, not any other necessary means.”
Hate speech
The South African Human Rights Commission took the view that there were statements in this that constituted hate speech and addressed a letter to Malema and the EFF calling upon them to provide a written public retraction and an apology together with an undertaking that they would desist from making any future statement which encouraged EFF members or supporters to kill or inflict physical violence or harm on any person or group and which promoted or propagated an incitement to hatred, unfair discrimination or harassment.
However, the EFF considered that the Human Rights Commission had “incorrectly and ignorantly labelled the comments which he had made as incitement to violence and hate speech”.
The matter was heard before the Equality Court. The case focused on section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000.
Section 10, which contains the prohibition of hate speech, as Judge Sher noted, provides for two requirements for speech to be classified as hate speech by a court: it must be based on one or more of the prohibited grounds of discrimination and it must contain an expression which “could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.
“In particular, the court is required to answer whether a reasonable person in hearing or reading the words used ‘could, not would, conclude that they demonstrate — ie, show — that the speaker/author had a clear intention to bring about the prohibited consequences of likely harm and the propagation of hatred”.
The court had the benefit of expert evidence; in particular, on behalf of the EFF, evidence was provided by Professor Steven Friedman, the eminent political commentator and author.
Judge Sher took the view that the essence of Friedman’s evidence was that Malema’s speech was “no more than an assertive and vigorous way of opposing what he saw as racial domination and white privilege, and did not express hatred, nor did it clearly incite harm to white people. Thus, none of the speech could be classified as hate speech. By contrast, the court noted that Mr Malema’s continued reference to those responsible for acts and who were thus to be held to account focused on whites.”
To the argument that there was only a reference to one particular white man, the court found that hate speech may clearly “have as its target, individuals, as opposed to the group to which they belong or with whom they identify. Hate speech is commonly directed at specific persons because of their membership of a group rather than directly at the group, but to say that if it is directed at them and not at the group to which they belong as a whole, the speech vilifying them cannot be hate speech is plainly wrong”.
The court concluded that when Malema had referred to a white man/guy who was visible on the video and who should be “followed up”, he “was not referring to a specific white man but to any, or all of the white men who participated in the assault and who could be identified on the video”. But even if the reference was to an individual, that individual was selected because of his membership of a group; that is, white people, and he was targeted on the grounds of his race.
Extreme form of harm
The critical passage from the judgment reads:
“To call someone a racist in South Africa is, given our racially oppressive past, inevitably to invoke detestation, enmity, ill will and malevolence against such a person. Whilst calling out someone who behaves as a racist may be acceptable, calling for them to be killed is not. And calling for someone to be killed because they are a racist who has acted violently is an act of vigilantism and an incitement of the most extreme form of harm possible. It is not acceptable in our society, which, in terms of the noble aims set out in the Equality Act, is trying to heal from a racially oppressive and violent past and to encourage and foster reconciliation, social cohesion and goodwill amongst all races.”
On a very narrow reading of the speech, it is possible to argue that Malema was targeting but one person. However, the repeated emphasis of a white guy and whites compels a conclusion that, read as a whole, the offending statements fell within the scope of section 10 of the Equality Act.
That the “white man/guy” behaved in a racist fashion justified a response, but to call for violence against whites on the basis of such behaviour offends the purpose of section 10 of the Act. Judge Sher therefore adopted a legally sound approach to this difficult case for which he should be commended.
It stands in sharp contrast to the unfortunate way in which the Constitutional Court ducked out of an equally controversial decision that unquestionably required a determination from it. Had it decided the “Kill the Boer” case, the judgment that would then have been delivered by the Constitutional Court would have greatly assisted in the resolution of this particular dispute. DM