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[2010] ZAGPPHC 39
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Afriforum and Another v Malema (18172/2010) [2010] ZAGPPHC 39 (1 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT.
)
PRETORIA
CASE
NO
:
18172/2010
DATE
:
2010-04-01
In
the matter between
AFRIFORUM
1
st
Applicant
TRANSVAAL
AGRICULTURAL UNION OF
SOUTH
AFRICA
2
nd
Applicant
and
JULIUS
SELLO MALEMA
Respondent
JUDGMENT
BERTELSMANN.
J
:
I
would have preferred to have more time to prepare my judgment, but as
this matter was heard in the urgent court and had to be
disposed of,
the judgment is of necessity somewhat shorter and sparser than it
might otherwise have been.
The
court is indebted to counsel on both sides for their thorough and
comprehensive arguments and the stimulating debate that ensued
between counsel and the court, and the professional manner in which
both parties guided the court toward a solution in this matter.
The
parties are the following: The first applicant is Afriforum, a
section 21 company fully compliant as required by the Companies
Ad 61
of 1973, with its registered address at 1, Eendracht Street,
Kloofsig, Centurion, Gauteng, acting on behalf of its members
and
specifically also on behalf of a certain class of persons, commonly
known as the Afrikaners of South Africa. As such the first
applicant
is an active non-governmental organisation involved with the
protection and development of civil rights within the context
of the
South African Constitution 1996. At present the first applicant has
10 829 members. I hasten to add that this description
is the one that
the first applicant has used to describe itself.
The
second applicant is the Transvaal Agricultural Union of South Africa,
a voluntary non-governmental organisation with its registered
address
at 194 James Avenue, Silverton, established, as it describes itsetf,
to guard over and protect the rights and interests
of its members who
are mainly commercial farmers, many of whom have been victims of
violent farm attacks over the past number of
years.
The
respondent is Mr Julius Sello Malema, a major male person with
identity number 8103035973084 and working address on the 7* Floor
Luthuli House, 54 Sauer Street, Johannesburg whose further and fuller
particulars are not mentioned. The respondent, it is common
cause
between the parties, is the President of the African National
Congress Youth League. The respondent will henceforth be referred
to
as the "first respondent".
When
the matter commenced this morning, counsel for the first respondent
indicated to the court that he was also briefed on behaff
of the ANC
and the ANC Youth League. After a short debate it was common cause
that these parties had an interest in the matter
and could properly
be joined by order of the court as the second and third respondent
respectively.
The
relief that the applicant claims, in as much as it is relevant for
this judgment, is the following
"2
Pending the final adjudication of a complaint laid by the first
applicant at the Equality Court in Johannesburg on 12 March
2010, the
respondent is interdicted and restrained from publicly uttering words
or singing any songs or communicate lyrics using
words which can
reasonably be understood or construed as being capable of instigating
violence, distrust and/or hatred between
black and white citizens in
the Republic of South Africa ...
This
paragraph shall issue as a temporary interdict with immediate effect,
pending the return day of the order, when the respondent
is to show
cause why the orders in paragraph 2 above shall not be confirmed with
costs."
Obviously
this now refers to the first respondent.
The
reference to the Equality Court is significant. First applicant has
filed a complaint with the Equality Court in which the first
respondent is accused of having used hate speech and having been
guilty of discrimination, because of the song "Avudubele
Ibulu",
translated as "shoot the boer or farmer". The second
respondent is joined in those proceedings, in which
an order is
sought against it to prevent the aforesaid song from being sung at
its meetings.
The
first
respondent
has
filed
opposition
to the comoiaint in which
he
pleads
as
follows:
"1.
The complaint relates to a matter of national importance.
2.
The substance of the complaint has already been the subject matter of
debate and determination, be it in a different context,
in the South
Gauteng High Court,
3.
The subject matter of the complaint concerns issues affecting
political, historical and cultural interests.
4.
The competing interests sunounding the subject matter of the dispute
is likely to attract other interested parties in the form
of
amicus
curae.
5.
Without being exhaustive, the first respondent denies that he
partidpated in hate speech or sought to unfairly Impinge on the
dignity of any other person.
6.
The alleged offending portion of the song must be seen in the
following context.
i)
The
song which contains the alleged offending portion is
part of the
struggle history of the second respondent and
embedded as part of
the liberating history of this country.
ii)
The
reference to 'boer' is well entrenched and universally
accepted In
our country as a reference not to the Afrikaner
people, but
reference as a word denoting an oppressor.
The
first respondent will amplify his defence by reference to
expert
witnesses to be filed and served within a reasonable
period of
time."
The
applicants have proceeded by way of urgency in th:* ccuri in spite of
the proceedings pending in the Equality Court, it is not
clear why
this court had to be approached as the remedy of an urgent interdict
is available in the Equality Court. The parties
are agreed that the
matter will have to be transferred to the Equality Court, but are not
in agreement whether the court should
grant interim relief in the
meantime. Mr Soni appearing for the respondents has urged the court
not to grant any interim interdict
because :
a)
the respondents have been given very short notice of the proceedings;
b)
no papers have been prepared on their behalf;
c)
to grant an order at this stage would fly in the face of the
respondents' fundamental right to be heard as guaranteed by the
Constitution;
d)
this step would be a transgression of fundamental constitutional
principles;
e)
a temporary interdict, however qualified, would be extremely
prejudicial to the first respondent;
f)
there would be no significant prejudice to the applicants if the
proceedings were to be postponed to allow the respondents to
file
their affidavits;
g)
to grant an order would infringe first respondent's constitutional
rights to freedom of expression;
h)
to
present the respondents' justification of the case of the song
would
require evidence of historians and experts;
i)
granting
an order at this stage would be fundamentally unfair to
the
respondents;
j)
it could therefore undermine the respect-for the courts; and
k)
an interdict would oniy be grantee! against one oerson and would
net serve to prevent others from singing the song or using
similar
words. These are very weighty considerations that must be given
serious
consideration,
which has been anxiously done by the court. On the other hand
the
applicants argue that:
a)
the words that are used in the song are not in dispute;
b)
they clearly constitute hate speech;
c)
the fact that the applicants' members and many other South Africans
are concerned about the song and its effect upon them and
upon
persons that may be incited thereby is not really in dispute;
d)
the song clearly advocates violence against fanners who are
predominantly white and Afrikaans speaking;
e)
their constitutional rights are threatened directly and immediately
and the threat to life, limb and the right to emotional and
psychological integrity outweighs any temporary procedural prejudice
that the respondents might suffer and in particular the first
respondent might suffer.
Section
16 of the Constitution reads as Follows: "Freedom of expression:
1.
Everyone
has the right to freedom of expression, which includes:
freedom
of the press and other media;
freedom
to receive or impart information or ideas;
freedom
of artistic creativity; and
academic
freedom and freedom of scientific research.
The
right in subsection 1 does not extend to:
a)
propaganda for war;
b)
incitement of imminent violence; or
c)
advocacy of hatred that is based on race, ethnicity, gender or
religion, and that constitutes incitement to cause harm."
Prima
facts
the words
"shoot the farmer" mean that farmers should be attacked or
killed. If this is correct it would clearly constitute
hate speech
against that population group. The words "shoot the farmer"
can hardly be distinguished from the words "kill
the boer, kill
the farmer", which slogan was declared to be hate speech in the
matter of Freedom Front v
The
South African Human Rights Commission
2003
11 BCLR 1283
(SAHRC). The chairperson, K. Govender, who spoke on
behalf of the unanimous committee, said the following on page 1229:
"The
slogan, under consideration in this appeal, was chanted at high
profile functions organised by the African National Congress,
the
ruling party in this country. These events and the chanting of the
slogans were widely publicised. There can be no doubt that
the
slogan, given its content, its history and the context in which it
was chanted, would harm the sense of wellbeing, contribute
directly
to a feeling of marginalisation, and adversely affect the dignity of
Afrikaners. The slogan says to them that they are
still the enemy of
the majority of the people of this country. It contributes to the
alienation of the target community and conveys
a particularly
divisive message to the majority community that the target community
is less deserving of respect and dignity. This
generalised slogan is
directed against an entire community of people. Words
convey
meaning and do cause hurt and injury. There is a real likelihood that
this slogan causes harm."
The
same conclusion would have to be reached in this instance, if the
words "shoot the farmer" in the song cannot be explained
by
their context. As in the matter of the
South
African Human Rights Commission
they
were uttered at high profile occasions in public in a political
setting. To explain, as the first respondent apparently intends
to
do, that the context of a historical struggle song of great
significance to the majority of this country, justifies singing
or
speech that Is experienced as a direct threat by a large number of
South Africans appears to be a very shaky basis upon which
to justify
what appears to be extremely aggressive language. The true yardstick
of hate speech is neither the historical significance
thereof, nor
the context in which the words are uttered, but the effect of the
words, objectively considered upon those directly
affected and
targeted thereby.
Section
10
of the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
defines hate speech as follows:
"...
words based upon one or more of the prohibited grounds (Unfair
discrimination generally or unfair discrimination on the
ground of
race, gender or disability) ... that could reasonable be construed to
demonstrate a clear intention to -
a)
Be hurtful;
b)
Be harmful or to incite harm;
c)
Promote or propagate hatred."
If
this yardstick is applied to the offending words in the relevant
song, they constitute
prima
facie
hate
speech. See further
Strydom
v Chiloane
2008
(2)
SA247
(T).
It
cannot be contested that applicants' members and others are offended
and alarmed, if not threatened by the song. This is a fact
of which
respondents must clearly be aware, given the high level of
controversy that has surrounded the singing thereof. Our democracy
is
still fragile. Participants in the political and socio-political
discourse must remain sensitive to the feelings and perceptions
of
other South Africans when words were used that were common during the
struggle days, but may be experienced as harmful by fellow
inhabitants of South Africa today.
Seen
in that light the offending words do constitute hate speech, for
which there is neither justification, nor protection In the
Constitution. The rights of those whose fundamental constitutional
rights are threatened by hate speech must take precedence over
procedural prejudice that may arise in the context of this particular
matter.
This
court is very decidedly aware of the fact that the respondents have
not had an opportunity to present evidence and were brought
to court
on very short notice. This court's finding is therefore merely
provisional. Even though the court accepts that the granting
of a
provisional order in the present context may disadvantage the
respondents, that consideration is outweighed by the very strong
prima
facie
case
established by the applicants that the offending words do constitute
hate speech.
The
court wishes to emphasise, however, that this finding is provisional
only and is not binding on any other court that will deal
with the
matter once all the parties are ready, have presented evidence and
have made their submissions. The court is furthermore
of the view
that this application should have been brought in the Equality Court,
altnough this court's jurisdiction has not been
affected
by
the
act creating that court. Tne court is also aware of the fact that,
although the applicants have established a right to an interdict,
the
manner in which the national discourse should be conducted in our new
dispensation
can only be determined to a very limited extent by interdicts and
other court orders. The parties are urged to avail
themselves of the
mediation processes in the Equality Court to eliminate obstacles that
might continue to cause divisions in the
national debate and to
encourage a form of discourse that is sensitive and respectful of all
South Africans' dignity and self respect,
The following order is
consequently made:
ORDER
1.
The matter is regarded as urgent.
2.
The matter is referred to the Equality Court.
3.The
first respondent is interdicted and restrained from publicly uttering
the words of the song identified in the applicant's
founding
affidavit "Avudubele Ibulu", and from uttering and singing
any songs or communicate lyrics using words of a
similar nature,
which can
reasonably
be understood or construed as being capable of instigating violence,
distrust and/or hatred between black and white citizens
in the
Republic of South Africa.
4.
This
order is effective only until the first date upon which the matter
may
be heard in the Equality Court once all the parties have filed
their
submissions.
5.
Costs are reserved for the decision by the Equality Court.