THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1105/2022

In the matter between:

AFRIFORUM APPELLANT

and

ECONOMIC FREEDOM FIGHTERS FIRST RESPONDENT
JULIUS SELLO MALEMA SECOND RESPONDENT
MBUYISENI NDLOZI THIRD RESPONDENT

RULE OF LAW PROJECT
(FREE MARKET FOUNDATION) AMICUS CURIAE

Neutral citation: AfriForum v Economic Freedom Fighters & Others
(1105/2022) [2023] ZASCA 82 (28 May 2024)
Coram: SALDULKER, MATOJANE and MOLEFE JJA and
NHLANGULELA and KEIGHTLEY AJJA
Heard: 4 September 2023, 15 February 2024
Delivered: This judgment was handed down electronically by circulation
to the parties’ legal representatives via e -mail, publication on the Supreme Court

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of Appeal website and released to SAFLII. The date and time for hand -down are
deemed to be delivered on 28 May 2024.
Summary: Equality – Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 – s 10(1) – prohibition of hate speech – res judicata
–issue estoppel – recusal – on grounds of bias or apprehension of bias – test for
recusal – application of test requiring both that apprehension of bias be that of
reasonable person and that it be based on reasonable grounds – test to be applied
to the true facts on which application is based – test not satisfied – issue estoppel
– not in the interests of justice and equity to apply – hate speech – importance of
context in determining whether hate speech established – in full context singing of
the song by respondents not prohibited hate speech.

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_________________________________________________________________
ORDER
_________________________________________________________________

On appeal from: Gauteng Division of the Equality Court, Johannesburg
(Molahlehi J, sitting as court of first instance):
1. The application for the recusal of Keightley AJA from the adjudi cation of or
further participation in the determination of this appeal is dismissed with costs,
such costs to include those of two counsel where so employed.
2. The appeal is dismissed with costs, such costs to include those of two counsel
where so employed.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
THE COURT : Saldulker, Matojane and Molefe JJA and Nhlangulela and
Keightley AJJA:
Introduction
‘We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme
law of the Republic so as to-
Heal divisions of the past and establish a society based on democratic values, social justice and
fundamental human rights;

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Lay the foundations for a democratic and open society in which government is based on the will
of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in
the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika, Morena boloka setjhaba sa heso.
God sëen Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.’

[1] These are the words of the Preamble to the Constitution. Despite the decades
that have elapsed since its adoption, it is sometimes necessary to remind ourselves
of the commitments we made in this nation’s founding document. In many respects
this appeal lays bare the obstacles that may impede the attainment of these
constitutional objectives. The two main litigants occupy positions on opposite ends
of South Africa’s spectrum of diversity.

[2] The appellant is AfriForum. It is a civil rights organisation operating within
South Africa wit h an emphasis on the protection of minority rig hts. AfriForum
claims a membership of 265 000 individual members. It conducts several
campaigns. One of these is a campaign against farm murders, another is a campaign
against hate speech.

[3] These two campaign objectives were drawn together in December 2020
when AfriForum lodged a complaint in the Gauteng Division of the Equality Court,
Johannesburg (the equality court) in terms of s 20 of the Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). AfriForum
averred that the respondents, being the Economic Freedom Fighters (the EFF), the
EFF’s President, Mr Julius Sello Malema (Mr Malema), and Dr Mbuyiseni Ndlozi

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(Dr Ndlozi), who is an EFF Member of Parliament, had committed hate speech in
terms of section 10(1) of the Equality Act.

[4] The hate speech complaint centred, in the main, on the song which is
commonly known as ‘Dubula ibhunu’. AfriForum’s complaint was directed at the
words ‘awudubula ibhunu, dubula amabhunu baya raypah’, t he literal English
translation, relied on by AfriForum, is ‘Kill the Boer – the farmer’.

[5] AfriForum pointed to six occasions on which Mr Malema had chanted the
song, albeit that on some occasions Mr Malema had substituted the word ‘kiss’ for
‘kill’. In addition, it pointed to a single occasion when Dr Ndlozi chanted a similar
song including the words: ‘Shisa lamabhunu, EFF inge n’endaweni’ (Shisa
lamabhunu). The literal English translation of that chant is: ‘Burn these Boers, EFF
enters in the space, or place’ . The alleged utterances occurred between 2016 and
2020.

[6] Mr Malema describes his political party, the EFF, as a leftist organisation
that subscribes to the struggle for economic emancipatio n. One of its cardinal
pillars, which Mr Malema states is non -negotiable, is the expropriation of land
without compensation. The foundation for this objective, according to Mr Malema,
is that the colonial settlers took land from indigenous African people by force. For
the EFF, the land issue is central to the economic struggle it pursues.

[7] The equality court heard the evidence of several witnesses ov er a period of
ten court days. It dismissed AfriForum’s complaint1 but granted leave to appeal to

1 The judgment of the equality court is reported as AfriForum v Economic Freedom Fighters and Others [2022]
ZAGPJHC 599; 2022 (6) SA 357 (GJ) (AfriForum v EFF (2022)).

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this Court. The Rule of Law Project (Free Market Foundation) (the amicus curiae)
was admitted as amicus curiae with leave of this Court.

[8] Before dealing with the merits of the appeal , we need to address an
application instituted by AfriForum for the recusal of Acting Justice of the
Supreme Court of Appeal Keightley , which arose under the following
circumstances. The appeal against the equality court’s judgment and order was
heard on 4 September 2023. The bench consisted of Justices Saldulker, Matojane
and Molefe JJA, and Acting Justices of Appeal Nhlangulela and Keightley AJJA.
Judgment in the appeal was reserved on 4 September 2023.

[9] Four days later, o n 8 September 2023, Hurter Spies, attorneys for
AfriForum, addressed a letter to the Registrar of this Court . They stated that
subsequent to the hearing of the appeal on 4 September 2023 their attention had
been drawn to a trans cription of remarks made by Acting Justice of Appeal
Keightley (Justice Keightley) concerning AfriForum in a previous hearing in the
high court in which it was a party. The transcription was attached to the letter.
According to Hurter Spies, the comments by Justice Keightley demonstrated bias
against their client AfriForum. Alternatively, they showed that Justice Keightley
had expressed herself in terms directed at AfriForum such as to establish a
reasonable apprehension of bias against it. Their instruction from AfriForum was
to request that Justice Keightley recuse herself from any further involvement in the
adjudication of the appeal.

[10] On 20 September 2023, AfriForum launched a formal application in this
Court for the recusal of Justice Keightley from the adjudication of or further
participation in the determination of the appeal, together with ancillary relief. The
latter included a request that the President of this Court direct the hearing of oral

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argument in relation to the recusal application, the filing of further affidavits, and
the composition of the Court regarding any consequential rehearing of the appeal.
The EFF opposed the recusal application. The President issued directives on the
filing of further affidavits and heads of argument, and the recusal application was
set down for hearing on 15 February 2024. After the hearing, this Court reserved
judgment.

[11] This judgment deals with both the recusal application and the appeal against
the decision of the equality court. We turn first to deal with the recusal application.

The application for the recusal of Justice Keightley
[12] In its application for the recusal of Justice Keightley , AfriForum claimed
that it had learned two days after the judgment was reserved in the hearing of the
appeal that Justice Keightley had made certain prior comments on 15 June 2018
about AfriForum (the impugned remarks) . They were made to counsel for
AfriForum during the hearing of the leave to appeal her ruling in the high court in
the matter of AfriForum v Chairman of the C ouncil of the University of South
Africa and Others 2 (the Unisa matter ). The Unisa matter concerned the use of
Afrikaans as a language of instruction in higher education.

[13] The CEO of AfriForum, Mr Carl Martin Kriel (Mr Kriel) set out the factual
circumstances relating to the launching of the recusal application in his affidavit.
He explained that it was instituted as soon as AfriForum became aware of the
circumstances and that AfriForum had raised it at the earliest stage that this could
be done, which was on or around 7 September 2023.


2 Afriforum v Chairman of the Council of the University of South Africa and Others (54450/2016) [2018] ZAGPPHC
295 (26 April 2018).

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[14] A fellow director of Hurter Spies, Mrs Marjorie Van Schalkwyk (Mrs Van
Schalkwyk), had been in court on 15 June 2018 when the impugned remarks were
made. Despite her request , the transcribers were unable to provide her with a
transcript. It was only when she was watching the live feed of the present appeal
that she had heard lead counsel for AfriForum say ‘excuse me, Justice Keightley’.
Suddenly and, according to her, for the first time, Mrs Van Schalkwyk realised that
Justice Keightley was the same judge as in the Unisa matter. She informed Mr
Spies. On 7 September 2023 they were able to obtain a full transcription of the
proceedings of 15 June 2018.

[15] Correspondence was exchanged with the Registrar of this Court and with the
respondents' attorneys . Thereafter, the recusal application was filed on 20
September 2023. This was more than two weeks after the appeal was heard and
judgment reserved.

[16] The impugned remarks identified by AfriForum are the following:
‘I think your client is barking up a tree that it should you know p erhaps there are other ways to
use its resources.’

‘You know when you are dealing with such a small... such a small segment’.

‘[M]aybe I just do not get it. But I think one has to move beyond anachronistic positions which
your client seems to be unwilling to do.’

‘[I]t does not matter I am granting you leave.’

‘And next time you in front of me with them you might to wish to apply for my recusal.’

‘[A] tiny minority on the back of we cannot lose this’.

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‘I could have said it to you over a dinner table’.

‘I now have no longer any involvement in this matter which is why I can say these things and
can I just stress because it is all on record. They are extremely general points that I made simply
as a responsible South African and I am not at all commenting on you know on this particular
case at all. I as a white South African feel very strongly’.

‘[W]hat you [are] wanting to do is to preserve for the sake of principle’.

[17] The gist of AfriForum’s case in its founding affidavit was that the impugned
remarks show that Justice Keightley holds very strong personal views based on her
perception of AfriForum as ideologically driven and litigating ‘anachronistically’,
for the sake of it . She sees AfriForum as ‘going backward’ and litigating only in
the interests of a tiny minority of white South Africans. AfriForum contends Justice
Keightley’s gratuitous remarks inevitably demonstrate actual bias, or that ‘when it
comes to cases involving AfriForum she is unable to bring an impartial mind to
bear on their adjudication’.

[18] In opposing the substance of the recusal application, the EFF pointed out
that the impugned remarks must be read in their fuller context. When this is done,
the personal beliefs and dispositions of Justice Keightley, reflected in the remarks
relied on by AfriForum, do not meet the test for bias developed in our
jurisprudence. The EFF pointed out that the applicant in an application for recusal
must clear a high threshold to succeed, and AfriForum has failed to do so.

[19] We should record that the EFF also objected to the recusal application on
the basis that the delay in instituting the application evidenced that it was instituted
mala fides. In short, the EFF argued that AfriForum had known for five years about
the impugned remarks . Yet they had taken no steps, either in the Unisa appeal

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matter or when the current appeal was enrolled in this Court, to seek Justice
Keightley’s recusal. The respondents submitted that this demonstrated that the
recusal application was being instituted for an ulterior purpose, namely, to collapse
the panel that had heard the appeal and secure a new hearing de novo. Considering
the decision that we reach on the substance of the recusal application, it is not
necessary to adjudicate the mala fides point as a stand-alone ground of opposition.

[20] The principles relevant to determining applications for recusal are well
settled, finding endorsement by the Constitutional Court in South African Human
Rights Commission obo South African Jewish Board of Deputies v Masuku and
Another,3 (Masuku) and President of the Republic of South Africa and Others v
South African Rugby Football Union and Others (SARFU).4 The impartiality and
independence of judicial officers are essential to the requirements of a
constitutional democracy, being core components of the constitutional right s of
access to cou rts and a fair trial. 5 For this reason, a judicial officer should not
hesitate to recuse herself if there are reasonable grounds for apprehending that she
was not or will not be impartial.6

[21] On the other hand, it must be assumed that ‘judges are individuals of careful
conscience and intellectual discipline, capable of applying their minds to the
multiplicity of cases which will seize them . . . without importing their own views
or attempting to achieve ends justified in feebleness by their own per sonal

3 South African Human Rights Commission obo South African Jewish Board of Deputies v Masuku and Another
[2022] ZACC 5; 2022 (4) SA 1 (CC); 2022 (7) BCLR 850 (CC).
4 President of the Republic of South Africa and Others v South African Rugby Football Union and Othe rs [1999]
ZACC 9; 1999 (4) SA 147 (CC); 19999 (7) BCLR 725 (CC).
5 Masuku fn 3 para 56; SARFU fn 4 para 48.
6 SARFU fn 4 para 48.

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opinions’. 7 It is assumed that judges can disabuse their minds of any irrelevant
personal beliefs or predispositions.8

[22] The effects of this presumption of impartiality are that : a judge will not
lightly be presumed to be biased; this presumption is not easily dislodged;9 cogent
evidence demonstrating bias or a reasonable apprehension of it is required;10 and a
judge has a duty to sit in any case in which they are not obliged to recuse
themselves.11 The presumption of impartiality must always be taken into account
when conducting the inquiry into bias or a reasonable apprehension of bias.12

[23] The test for recusal is objective, with the applicant bearing the onus of
establishing bias or a reasonable apprehension of bias. The question is whether a
reasonable, objective and informed person would, on the correct facts, reasonably
apprehend that the judge has not, or will not bring, an impartial mind to bear on the
adjudication of the case, that is a mind open to persuasion by the evidence and the
submissions of counsel.13 A double reasonableness requirement is involved in the
application of the test: the apprehension of bias must be that of a reasonable person
in the position of the litigant , and it must be based on reasonable grounds. 14 The
test requires a reasonable apprehension that the judicial officer might be biased,
not that they would be biased.15


7 Masuku fn 3 para 58.
8 SARFU fn 4 para 48.
9 Masuku fn 3 para 59.
10 Ibid para 60.
11 SARFU fn 4 para 48.
12 Masuku fn 3 para 62.
13 SARFU fn 4 para 48.
14 Masuku fn 3 para 64.
15 S v Roberts 1999 (4) SA 915 (SCA) paras 32-34.

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[24] According to AfriForum, the impugned remarks indicate that Justice
Keightley has a pejorative view of AfriForum, perceiving it as promoting the
archaic ideology of a small minority of primarily Afrikaans -speaking whites. Her
view, demonstrated through her remarks, is that AfriForum is motivated to
preserve and advance the privileged status of that segment of the population as a
matter of ideological purpose and principle . Further, she perceives this to be
adverse to what she believes is the South African constitutional project o f
multicultural inclusivity and equality for all groups and individuals.

[25] These, AfriForum contends, are, in her own words, strongly held personal
views. Moreover, she did not suggest that they have been prompted by anything
AfriForum had done in the case before her. They were far more widely stated and
related to what she saw as AfriForum’s activities and aims generally. Additionally,
in making the remarks, she contemplated her future recusal in any matter
concerning AfriForum.

[26] Of course, as the principles recorded earlier make clear, AfriForum’s
subjective understanding of the impugned remarks is not the test. The test is
objective. AfriForum must first satisfy this Court that the reasonable, objective,
and informed person, with knowledge of the correct facts, would understand the
impugned statements to reflect the views AfriForum ascribes to Justice Keightley.
If this is established, AfriForum must then meet the double reasonableness
requirements inherent in the test, considering the strong presumption of
impartiality, and t he recognition that a judge’s personal views are not in and of
themselves evidence of bias.

[27] We accept that the exchange between Justice Keightley and counsel for
AfriForum could objectively be construed as a perception on her part that she and

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AfriForum do not share the same ideology. She expresses that she has more
progressive views than those she perceives as endorsed by AfriForum. However,
this is not enough to establish bias warranting her recusal.

[28] As the Constitutional Court explained in Masuku:
‘This test does not mean that any judge who holds certain social, political or religious views will
necessarily be biased in respect of certain matters , nor does it naturally follow that, where a
judge is known to hold certain views, they will not be capable of applying their minds to a
particular matter. The question is whether they can bring their mind to bear on a case with
impartiality’.16 (Emphasis added.)

[29] The Court went on to emphasise that judges do not exist in a vacuum. They
bring their personal and professional experiences to bear in their adjudicative
function. Not only is this appropriate, but in our mult ilingual and multiracial
society, it cannot reasonably be expected that judges should share all the views or
prejudices of the parties before them.17 Consequently, proving that a judicial officer
holds a particular view does not, without more, establish a reasonable apprehension
of bias,18 and:
‘It is safe and pragmatic to assume that judges are able to set aside their personal views and be
guided by the relevant legal principles when deciding any matter. We must, after all, be reminded
of the weight of the presumption of impartiality’.19 (Emphasis added.)

[30] We have considered the full transcript of the exchange in which the
impugned comments were made. It is clear from it that Justice Keightley was
engaging in a robust debate with AfriForum’s counsel on matters pertaining to
nation-building. Her expressed view was that white South Africans, in particular,

16 Masuku fn 3 para 66.
17 Ibid para 67, citing SARFU para 42.
18 Ibid para 68.
19 Ibid para 83.

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have a responsibility to work towards inclusionary efforts to dismantle their
historical privileges, rather than seeking to preserve them . AfriForum does not
suggest, nor could it, that her views in this regard are perverse. They are consistent
with the Constitution.

[31] The remarks were made in open court and in good faith as part of a robust
exchange with counsel for AfriForum after Justice Keight ley had already very
clearly indicated to both parties that she would grant leave to appeal. Justice
Keightley acknowledged that the remarks were ‘all on record’. She stated more
than once that they were her personal views, that they were of a broad and general
nature, and that they were not directed specifically at AfriForum.

[32] Moreover, the transcript shows that Justice Keightley understood that the
responsibility of white South Africans to question their previous privilege and its
continued effect were ‘difficult questions . . . (and that) the law and the courts . . .
are there to guide us’. She acknowledged that she might be wrong. She expressed
that she was happy for the matter to go on appeal because ‘we will get further
guidance from the courts about . . . that difficult situation ’, leading to a better
understanding of ‘what we can hold on to for purposes of nation building and what
we cannot’.

[33] Viewed objectively, this is not the type of conduct a reasonable person
would expect of a judicial officer so fixed in her personal views that she may be
unable to act impartially in a matter involving AfriForum. It shows a mind open to
persuasion and a willingness to embrace a higher court’s guidan ce on the
ideological issues she had raised.

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[34] AfriForum relied on the fact that Justice Keightley had said to counsel for
AfriForum in the Unisa matter that ‘the next time you (are) in front of me with
(AfriForum) you might wish to apply for my recusal’. It submitted that this
demonstrated that Justice Keightley was aware , as a judicial officer who
understood the test for bias, that she had overstepped the bounds in her earlier
impugned remarks. In our view, this takes AfriForum’s case no further. The full
transcript shows that this remark was made in response to a statement by counsel
for AfriForum that she had an ‘unfortunate perception’ about his client. In fact, he
responded to her reference to a possible future recusal application by saying ‘No,
no’. Justice Keightley responded, ‘that was not where (she was) going’. Seen in its
context, her suggestion to counsel cannot reasonably be understood to have been
based on a seriously weighed judicial view that her remarks merited recusal then,
or in the future.

[35] In view of all of the aforegoing, it cannot be said that the test for recusal as
laid down in the Constitutional Court has been met or that there is any reason to
apprehend bias from Justice Keightley. Thus , AfriForum's application for recusal
must fail. Justice Keightley is not only permitted to adjudicate the appeal but , as
SARFU makes clear, she has a duty to do so. Justice Keightley is to remain part of
the coram in the appeal before this Court. This is where we now direct our attention.

The appeal
Point in limine: issue estoppel
[36] The EFF raises a point in limine against AfriForum’s hate speech complaint
based on res judicata , or more accurately, issue estoppel. They point out that
AfriForum previously instituted a hate speech complaint in the equality court
against Mr Malema (the first complaint). As in the complaint before us on appeal,
the first complaint was also directed at Mr Malema’s singing of Dubula ibhunu. At

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that time, Mr Malema was a member of the African National Congress (ANC), and
he sang the song in public at meetings convened by the ANC Youth League. The
ANC was joined as a respondent in the first complaint.

[37] The equality court upheld the first complaint. It declared that the singing of
the song constituted hate speech and granted an interdict against the ANC and Mr
Malema singing the song at any public or private meeting conducted by them. 20
The matter came on appeal to this Court and was enrolled for hearing on 1
November 2012. At the suggestion of the President of this Court the parties
engaged in a mediation process. This resulted in a mediation agreement entered
into and signed by, AfriForum and Mr Malema. An order was made by this Court
on 1 November 2012, under case number A815/2011 (the settlement order).

[38] The terms of the settlement order recorded that:
a. It was in full and final settlement of the dispute between the parties.

b. The parties agreed that it was crucial to mutually recognise and respect the
right of all communities to celebrate and protect their cultu ral heritage and
freedom. To this end , they committed to deepening dialogue among leaders and
supporters of their respective organi sations to contribute to developing a future
common South African heritage.

c. They recognised that certain words in certain struggle songs may be
experienced as hurtful by members of minority communities.

20 AfriForum and Another v Malema and Others [2011] ZAEQC 2; 2011 (6) SA 240 (EqC); [2011] 4 All SA 293
(EqC); 011 (12) BCLR 1289 (EqC) (AfriForum v Malema 1).

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d. The ANC and Mr Malema recognised that ‘the lyrics of certain songs are
often inspired by circumstances of a particular historical period of stru ggle which
in certain instances may no longer be applicable’. In the interests of promoting
reconciliation and avoid ing inter-community friction, they committed to
counselling and ‘encouraging their respective leadership and supporters to act with
restraint to avoid the experience of such hurt’.

e. AfriForum agreed to abandon its equality court order, and the ANC and Mr
Malema agreed to abandon their appeal to this Court.

[39] The EFF contends that the issue in this appeal was finally disposed of by the
first settlement order and that it was impermissible for AfriForum to seek to
relitigate the same issue in the equality court, and subsequently on appeal to this
Court. They accept that there is not a complete overlap in the identities of the
parties in the two hate speech complaints. The ANC is not a party to the complaint
on appeal to this Court, and neither the EFF nor Dr Ndlozi were parties to the first
complaint. The first requirement of the classic res judicata defence, which requires
that the dispute must involve the same parties, is thus not satisfied. However, the
EFF submits that the development of the offshoot, issue estoppel defence, in terms
of which the requirements of the classic res judicata defence may be relaxed, finds
application in this case. They submit that the appeal ought properly to be dismissed
on this basis alone.

[40] AfriForum disputes that the defence of issue estoppel is available to the EFF.
It points to the fact that the EFF was not even in existence at the time the first
complaint was litigated and the settlement order made. AfriForum submits that a
considerable period has elapsed since the settlement order. Moreover, according to
AfriForum, the complaints that form the subject matter of this appeal constitute

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new acts of hate speech, in blatant disregard of Mr Malema’s undertakings in the
settlement order.

[41] In its classic formulation, res judicata applies when a dispute arises between
the same parties , based on the same issue , and the same relief is sought as in a
previously decided matter.21 This Court’s judgment in Prinsloo NO and Others v
Goldex 15 (Pty) Ltd22 (Prinsloo NO) is authority for the limited development of the
classic res judicata defence in appropriate cases. The Court found that ‘ issue
estoppel allows a court to dispense with the two requirements of same cause of
action and same relief, where the same issue has been finally decided in previous
litigation between the same parties’.

[42] Prinsloo NO only considered the relaxation of the second and third
requirements of res judicata, not the requirement that the disputes must involve the
same parties. In Royal Sechaba Holdings (Pty) Ltd v Coote and Another 23 (Royal
Sechaba) this Court accepted a further development in respect of the first
requirement, finding that:
‘It is, however, the view of this court that the ‘same parties’ requirement is not immutable and
may in appropriate cases and in line with this court’s duty to develop the common law, be relaxed
or adapted in order to address new factual situations that a court may face.’24

[43] However, the Court issued the following caution:

21 South African Human Rights Commission v Khumalo [2018] ZAGPJHC 528; 2019 (1) SA 289 (GJ); [2019] 1 All
SA 254 (GJ) para 54 (Khumalo).
22 Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another [2012] ZASCA 28; 2014 (5) SA 297 (SCA) paras
23-24.
23 Royal Sechaba Holdings (Pty) Ltd v Coote and Another [2014] ZASCA 85; [2014] 3 All SA 431 (SCA); 2014
(5) SA 562 (SCA).
24 Ibid para 19.

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‘In order to develop the common law, by either relaxing or extending the ‘same person’
requirement, persuasive reasons must be placed before the court for doing so . If fairness and
equity dictate a development of the law, and to do otherwise would defeat the very purpose of
the defence, consideration should be given to allowing issue estoppel as a defence even wher e
there is not, strictly speaking, identity of parties.’25 (Emphasis added.).
The question is whether there are persuasive reasons in this case for allowing the
issue estoppel defence, despite there being an absence of complete identity of
parties, issue and relief.

[44] We leave aside for the moment the complaint against Dr Ndlozi, which
requires separate consideration. Insofar as the singing of D ubula ibhunu is
concerned, the EFF is correct that if one looks at the substance of AfriForum’s first
complaint and its present one, Mr Malema was, and remains, the central
protagonist. He was joined individually as a respondent in both complaints. This
is because it was his conduct in singing Dubula ibhunu at political events that
formed the basis of that complaint . AfriForum’s complaint before the equality
court was about precisely the same kind of conduct by Mr Malema, albeit that his
audience in the present complaint was the EFF rather than the ANC Youth League.

[45] Mr Roets, who deposed to the affidavit supporting AfriForum’s complaint
to the equality court, expressly confirmed that Mr Malema was the central focus of
the complaint. He described Mr Malema as ‘the main and single most significant
and the single most influential person’ who con tinues to sing Dubula ibhunu. In
other words, in both the first complaint, and that before us on appeal , what
AfriForum sought primarily to have declared hate speech, and to interdi ct, is Mr
Malema’s singing, or instigating the singing of, Dubula ibhunu. By extension, the
complaint in both matters also sought to interdict the political party in respect of

complaint in both matters also sought to interdict the political party in respect of

25 Ibid para 21.

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which he was a member at the relevant time. Consequently, despite the substitution
of the EFF in the present complaint for the ANC in the first complaint, there is an
overlap in the identity of the central respondent in both complaints.

[46] It follows from this that there is also commonality, in certain respects, with
the cause of action and relief sought. The basis for AfriForum’s complaint remains
the same as that for its first complaint. Its contention was, and is, that the singing
of Dubula ibhunu by Mr Malema is an incitement to hatred or harm on the grounds
of race or ethnicit y against white, Afrikaans South Africans, and particularly
farmers.

[47] It is for all these reasons that the EFF submitted that it would be appropriate
to apply the issue estoppel defence and to hold AfriForum bound to the settlement
order. To do otherwise, the EFF contended, would be to permit AfriForum, under
the guise of fresh litigation, to resurrect a complaint it had effectively abandoned
under an agreement endorsed by order of this Court. Implicit in the EFF’s argument
is the proposition that it would be in the interests of justice to hold AfriForum to
the bargain it struck previously, and which was endorsed by this Court. Mr Malema
should not be expected to face a repeat of what was essentially the same complaint,
nor should this Court be required to interrogate an issue which has been settled
between, in essence, the same parties.

[48] Are these reasons sufficiently persuasive to justify an application of the issue
estoppel defence in this case? Other relevant factors suggest not. It is so that where
parties have entered into a bargain, justice and the rule of law bind them to it.
However, this applies to both parties. In the settlement order AfriForum agreed to
abandon the previous equality court order in its favour, in exchange Mr Malema
gave certain personal undertakings . Importantly, and with reference to the

21

continued singing of struggle songs, he undertook to encourage his followers to act
with restraint.

[49] AfriForum contends that he did not stick to his side of the bargain, as is
manifested by his repeated singing of Dubula ibhunu on the occasions identified in
AfriForum’s complaint. Mr Malema disputes this. It is not necessary for this Court
to make a finding on whether he breached the terms of the settlement order or not.
However, it would not be fair or equitable to deprive AfriForum of the opportunity
to proceed with their appeal in circumstances where they contend, not without
reason, that Mr Malema has failed to comply with the terms of the very order which
he now seeks to hold up as a shield.

[50] There are additional reasons for reaching this conclusion. The issues in this
appeal involve important constitutional rights. The rights to dignity and equality,
on the one hand, and those of freedom of expression and the right to engage in
political activity on the other. The Equality Act is an important constitutional law.
Courts are bound by the Constitution to adjudicate in a manner that advances
constitutional rights. The issue estoppel defence would prevent this Court from
making a determination on the competing rights of the parties, and of interpreting
and applying the relevant provisions of the Equality Act. This would be contrary
to this Court’s constitutional obligations. It is also in the public interest that the
appeal should be heard, particularly in circumstances where the equality court has
delivered two diametrically opposed judgments on the issue.

[51] For all these reasons, we conclude that the interests of justice and equity do
not support the application of the issue estoppel defence in this case. We turn to
consider the merits of the appeal.

22

Merits
Legal principles
[52] We commence by setting out the legal principles regulating the prohibition
of hate speech. As the Constitutional Court observed in Qwelane v South African
Human Rights Commission and Another 26 (Qwelane), this involves a delicate
balance between the fundamental rights to freedom of exp ression, dignity and
equality. Freedom of expression is protected unde r s 16(1) of the Constitution.
However, s 16(2) qualifies this right by excluding from its protection the:
‘(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.’

[53] Of relevance too is s 19(1) of the Constitution , which protects the right of
every citizen to make free political choices, to form a political party, to participate
in the activities of a political party and to campaign for a political party or cause.
The combination of s 16 and s 19 are critical to our democracy. It is through support
for the f ree expression of political ideas by political parties that our system of
government and its election ultimately operate.

[54] Speech that is merely unpopular, offensive or shocking remains protected
under s 16(1). As the Constitutional Court explained:
‘Thus, it would appear that hate speech travels beyond mere offensive expressions and can be
understood as “extreme detestation and vilification which risks provoking discriminatory
activities against that group.” Expression will constitute hate speech when it seeks to violate the
rights of another person or group of persons based on group identity. Hate speech does not serve
to stifle ideology, belief or views. In a democratic, open and broad -minded society like ours,
disturbing or even shocking views are tolera ted, as long as they do not infringe the rights of

26 Qwelane v South African Human Rights Commission and Another [2021] ZACC 22; 2021 (6) SA 579 (CC); 2022
(2) BCLR 129 (CC) para 2.

23

persons or groups of persons. As was recently noted, “[s]ociety must be exposed to and be
tolerant of different views, and unpopular or controversial views must never be silenced.”’27

[55] The Equality Act is t he vehicle through which the right to equality and
protection from unfair discrimination, safeguarded under s 9 of the Constitution,
are given effect. 28 The objects of the Equality Act, which are identified in s 2,
include:
‘(a) . . .
(b) to give effect to the letter and spirit of the Constitution, in particular-
(i) the equal enjoyment of all rights and freedoms by every person;
(ii) the promotion of equality;
(iii) the values of non -racialism and non -sexism contained in section 1 of the
Constitution;
(iv) the prevention of unfair discrimination and protection of human dignity as
contemplated in sections 9 and 10 of the Constitution;
(v) the prohibition of advocacy of hatred, based on race, ethnicity gender or religion,
that constitutes incitement to cause h arm as contemplated in section 16(2)( c) of the
Constitution and section 12 of this Act;
(c) to provide for measures to facilitate the eradication of unfair discrimination, hate speech
and harassment, particularly on the grounds of race, gender and disability; . . .’

[56] Hate speech is expressly prohibited under s 10. Following the declaration of
constitutional invalidity of this section in Qwelane,29 and until the section is
amended by the legislature, section 10 is to be read as follows:
‘(1) Subject t o the proviso in section 12, no person may publish, propagate, advocate or
communicate words based on one or more of the prohibited grounds , against any person, that

27 Ibid para 81, citing, among others, Economic Freedom Fighters and Another v Minister of Justice and
Correctional Services and Another [2020] ZACC 25; 2021 (2) BCLR 118 (CC); 2021(2) SA 1 (CC); 2021 (1) SACR
387 (CC) para 155.

387 (CC) para 155.
28 AfriForum NPC v Nelson Mandela Foundation Trust and Others [2023] ZASCA 58; 2023 (4) SA 1 (SCA); [2023]
3 All SA 1 (SCA) para 31. (AfriForum v NMFT).
29 Ibid fn 26 para 2 of the Order of the Constitutional Court.

24

could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm
and to promote or propagate hatred.’ (Emphasis added.)

[57] In its original form, s 10(1) also included as hate speech words that could
reasonably be construed to demonstrate a cl ear intention to be ‘hurtful’. The
judgment in Qwelane effectively excised this ground from the section on the basis
that it constituted an unjustifiable limitation on the freedom of expression
guaranteed in s 16.30

[58] The phrases highlighted in s 10(1), above, describe a two-stage hate speech
inquiry. The first leg is directed at establishing that the impugned words are ‘based
on’ one of the identified prohibited grounds. If this is established by the
complainant, the second leg of the inquiry is to determine whether the words ‘could
reasonably be construed to demonstrate a clear intention to be harmful or to incite
harm and to promote or propagate hatred’.

[59] Section 1 of the Equality Act identifies the grounds for the prohibited
purposes of the first stage of the inquiry. Of relevance to this case, they include
race, ethnic or social origin 31 or any other ground where discrimination based on
that other ground undermines human dignity.32

[60] As to the second stage of the inquiry, Qwelane has clarified that the phrase
‘could reasonably be construed to demonstrate a clear intention’ involves an
objective, reasonable person test . On this test, an intention to incite harm and
promote hatred will be deemed if the reasonable reader could construe the words

30 Qwelane fn 26 para 144.
31 Definition of ‘prohibited grounds’ in s 1(a).
32 Definition of ‘prohibited grounds’ in s 1(b)(ii).

25

or speech as reflecting that intention. Critically, it is the effect of the text that is
assessed, rather than the subjective intention of the author or speaker ,33 or the
subjective perception of the targeted group.34

[61] It is accepted that the reasonable reader is one of reasonable intelligence ,
that she would understand the statement in its context, and would have regard not
only to what is expressly stated but also to what is implied. 35 Important
considerations in applying the test include who is the speaker, the context in which
the speech occurs, the impact of the speech, and the likelihood of inflicting harm
or propagating hatred.36

[62] No causal link between the impugned speech and actual actions taken
against a target group need be established. Nor is the incitement of harm restricted
to physical violence. It also includes the incitement to discrimination and hatred.37
Moreover, s 10(1) targets the meaning behind the words, not simply the words.38.

Proceedings before the equality court
[63] In the affidavit supporting its complaint, Mr Roets identified the following
acts of alleged hate speech:
a. Mr Malema singing and chanting Dubula ibhunu at a EFF rally at the end of
2016.
b. Mr Malema leading the singing of Dubula ibhunu on 30 July 2017 at the
EFF’s fourth birthday celebrations in Durban.

33 Qwelane fn 26 para 97.
34 Ibid paras 96 and 99.
35 Ibid para 97.
36 Ibid para 176.
37 Ibid para 107
38 AfriForum v NMFT fn 28 132, cited in Qwelane fn 26 para 115.

26

c. Mr Malema leading the singing of Dubula ibhunu at the EFF’s Africa Day
celebration event in May 2018.
d. Mr Malema singing Dubula ibhunu and gesturing with a shooting motion at
the Vaal University of Technology on 29 October 2018.
e. Mr Malema leading and encouraging the singing of Dubula ibhunu at the
EFF Manifesto Launch in February 2019 in Soshanguve.
f. Mr Malema leading and encouraging the singing of Dubula ibhunu at the
kwaTsheka sports ground at eNseleni in April 2019.
g. Mr Malema leading members of the EFF singing Dubula ibhunu in Senekal
on 16 October 2020 during protests surrounding the death of the farm manager,
Brendin Horner, coupled with Dr Ndlozi chanting Shisa lamabhunu on the same
occasion.

[64] AfriForum sought, among others, the following relief:
‘54.3 A declaratory order that the words uttered by the Respondents and their members and
suppor[ter]s constitute hate speech as defined in section 10(1) of the Equality Act.
. . .
54.6 An order interdicting and restraining the Respondents from advocating hate speech as
defined in section 10(1) of the Equality Act.’

[65] It averred in its written complaint that the identified utterances of Dubula
ibhunu constitute hate speech in that they advocate hatred on the grounds of race
and ethnicity and constitute an incitement to cause harm. AfriForum did not
elaborate in any detail on these averments, relying on the oral evidence led at the
trial to spell out the nature of its case.

27

[66] As to Shisa lamabhunu, AfriForum alleged in its written complaint that the
singing of this song was an incitement to cause arson and damage to property.
AfriForum averred that after Dr Ndlozi had sung the song during protest action in
Senekal in October 2020, several farms in the Free State were set alight. This latter
averment was subsequently demonstrated to be incorrect. Facts brought to light in
Mr Malema’s answering affidavit , and confirmed in the evidence led at the trial,
revealed that while there were fires on agricultural land, the land in question was
not in or near the Senekal district. There was no link between these fires and what
had occurred at the Senekal protests.

[67] Mr Roets was the main witness for AfriForum. It described him as an expert
witness, although the equality court rejected his status as an expert. AfriForum took
issue with this finding in its grounds of appeal, but nothing turns on the point.

[68] Mr Roets’ evidence was based on his book ‘Kill the Boer’ . He described it
as a current affairs book about t he phenomenon of farm attacks. Relying on
excerpts from the book, Mr Roets opined that there is a political climate in South
Africa in which violence towards white people in general and white Afrikaans
farmers in particular has been romanticised and encouraged by po liticians for
several decades. He gave lengthy evidence on the prevalence of farm attacks and
their often violent nature. In his view, Dubula ibhunu, with its words and Mr
Malema’s accompanying gestures, mimicking the shooting of a firearm, contribute
to the phenomenon in which violence of this type is normalised.

[69] Mr Human, a pastor who counsels victims of farm attacks, gave evidence
about the traumatic effects for victims. Two victims of separate farm attacks, Ms
Muller and Mr Prinsloo, also gave evidence of what had happened to them and
what they personally had experienced in the aftermath of the attacks. Finally, Mr

28

Crouse, a reporter and employee of the Institute of Race Relations testified. He was
present in Senekal when Dr Ndlozi sang Shisa lamabhunu. He testified as to what
he had witnessed when members of, among other groups, AfriForum and the EFF
were involved in a stand-off during protest action stemming from the murder of a
young farm manager, Brendan Horner, in the Senekal district.

[70] Mr Malema testified on his own behalf and on behalf of the EFF. According
to Mr Malema, he had been taught Dubula ibhunu as a yo ung activist during
apartheid. He was taught that struggle songs like this one should not be understood
literally. Instead they were directed at the system of oppression and anything that
represented it at the time. He emphasised that the EFF is committed to overcoming
economic apartheid represented by what he referred to as ‘white monopoly capital’.

[71] According to Mr Malema, democracy has not had the effect of getting rid of
economic apartheid. Nor has it succeeded in the restoration of land to black South
Africans. Thus, the EFF had adopted these as two of its key objectives. Mr Malema
explained that when he leads the singing of Dubula ibhunu, it is directed at this
system of economic and land apartheid. Similarly, the shooting gesture sometimes
accompanying the chant signifies shooting at the system. Under cross-examination
Mr Malema confirmed his view that white farmers were part of and had benefited
from the prevailing system of inequality in re spect of land and the economy. He
said that in the song the Dubula ibhunu, the ibhunu, or farmer, is symbolic of the
system against which the EFF campaigns.

[72] It bears repetition that Mr Malema’s evidence of his subjective intention in
singing the song is not the basis on which to assess whether his conduct amounted
to hate speech. However, his evidence about the EFF’s political objectives is

29

relevant contextual material. In any event, the EFF’s policies and objectives are
public information.

[73] The respondents also relied on the expert evidence of Prof Gunner, who is
an authority on the role of political song in the public life of the state, particularly
African states. She has also written an article on Mr Malema’s use of Dubula
ibhunu. Prof Gunner explained the history of the song, which she said goes back
many years, and its use in political discourse. In her view, the song should be seen
in the context of the contestation for power through the expression of the ideas and
policies of the user. Suffice to say that Prof Gunner’s opinion, which is not binding
on the court, was that properly understood as a political song with a known history,
Dubula ibhunu should not be regarded as hate speech. However, her evidence about
the history of the song, and the genre of liberation songs more generally, is useful
contextual evidence.

[74] The equality court dismissed AfriForum’s complaint. On the first leg of the
s 10(1) inquiry, without providing reasons, it was found that AfriForum had failed
to show that the lyrics of the impugned songs are based on any of the prohibite d
grounds.39

[75] As to the second stage of the inquiry, the equality court concluded:
‘As [I] understand the impugned song in its political and cultural context it has traversed time in
the history of South African politics and projects the political vision of [the] EFF in a new
dimension of a strategy of achieving radical economic transformation of the society. It is in the
current political situation a song directed at articulating the failure of the current government in
addressing the issues of economic power, land reform and distribution. If anything, this calls for
a generous delineation of t he bounds of the constitutional guara ntee of freedom of expression.

39 AfriForum v EFF (2022) fn 1 para 101.

30

Thus, in my view, declaring the impugned song to be hate speech would significantly alter or
curtail freedom of expression. However, it may well be that under a different inquiry, it may be
found that the song is offensive, and undermining of the political establishment. It may be heard
as a song that fails to celebrate the achievements made by democracy and the need for unity in
the country. In that respect, it would be expressing a view different to those who belief (sic) that
the image of democracy need not be tainted by what they regard as an offensive song.
As matters stand, in my view, the singing of the impugned song and its lyrics should be left to
the political contestations and eng agement on its message by the political role players.
Accordingly, a reasonable listener, would conclude that the song does not constitute hate speech
but rather that it deserves to be protected under the rubric of freedom of speech.’40

In this Court
[76] Before this Court, AfriForum took the view that the overwhelming bulk of
the evidence led in the equality court was irrelevant to the appeal. The only parts
of its own evidence that AfriForum maintained were relevant were Mr Roets’
testimony, and that of Mr Prinsloo and Ms Human, and only to the extent that this
evidence affirmed the social milieu in which the words were used and their impact.

[77] Attached to AfriForum’s heads of argument was a new draft order in the
event of its appeal being upheld. In the substituted draft order, AfriForum sought
the following relief, in relevant part:
‘1. The words and translations of words, phrases and songs set out below constitute hate
speech:
awudubula ibhunu
dubula ibhunu baya rayapha
shoot to kill, Kill/Kiss the Boer – the farmer
Shisa lamabhunu
EFF Ingen’endaweni

40 Ibid paras 111-112.

31

2. The respondents are interdicted and restrained from any public use, singing or chanting
of the words, phrases or songs set out in paragraph 1.’

[78] The relief in the new draft order was wider than the one sought in paragraph
54.3 of AfriForum’s original claim. It did not restrict the declaration of hate speech
to ‘words uttered by the Respondents ’ as was t he case in the original claim. The
new draft order expanded AfriForum’s case on appeal . It effectively called for a
declaration of the relevant parts of Dubula ibhunu and Shisa lamabunu as hate
speech in toto, regardless of who uses them or in what circumstances. This was not
the case made out by AfriForum in the equality court . There , the hate speech
averment was restricted to the singing of the songs by Mr Malema and Dr Ndlozi
on particular occasions.

[79] At the hearing of the appeal, c ounsel for AfriForum accepted that the
amended relief was too wide, and that if the appeal was to succeed, any declaration
that the songs constituted hate speech would have to be expressly limited . He
suggested that the relief sought be amended by the insertion of the phrase ‘on the
occasions set out in the complaint’ in prayer 1. He also accepted, correctly, in our
view, that the same songs could be sung by a range of persons in different
circumstances without this constituting hate speech.

[80] In light of the concession, it is important to appreciate that this appeal is not
about an outright ban on Dubula ibhunu as hate speech per se. The question is
narrower than this. It is whether, when Mr Malema sang or led the singing of the
song on the occasions identified by AfriForum in its complaint, this constituted a
form of hate speech as framed by AfriForum in its complaint . Similarly, Dr
Ndlozi’s singing of Shisa lamabunu in Senekal is the focus of the inquiry.

32

[81] AfriForum submits that the equality court erred in finding that it had failed
to establish that the impugned words were based on a prohibited ground. It accepts
that the Equality Act d oes not protect farmers as a group. However, according to
AfriForum, the question of what is understood by the term ‘boer’ should be
approached grammatically, as had been accepted by the equality court in
AfriForum v Malema I. AfriForum contends that it is a truism, reflected in history
books and dictionaries, that the term ‘boer’ is a reference to an ethnic group, being
South Africans who are Afrikaans-speaking or of Afrikaner descent. They say that
the words of the songs are therefore based in material part on a prohibited ground,
and fall within the ambit of s 10.

[82] As to the question of whether the songs also demonstrate an intent to incite
harm or propagate hatred, AfriForum submits that the equality court erred in the
application of the objective test to be applied. The court had impermissibly
accepted Mr Malema’s evidence of his subjective intention and his understanding
of the song. It had also accepted Professor Gunn er’s subjective view of what the
words mean.

[83] AfriForum places reliance again on AfriForum v Malema I, in which it was
found sufficient that ‘a variety of members of society who act for large
constituencies and . . . say that their constituencies are affected in that they perceive
the song to be harmful and/or hurtful towards them’.41 It relies also on the decision
of this Court in Hotz v University of Cape Town 42 (Hotz). That case involved a
person wearing a t-shirt with the words ‘sKILL ALL WHITES’ painted on it. The
letter ‘s’ before the first letter ‘K’ was much smaller than the remainder of the

41 AfriForum v Malema I fn 20 para 93.
42 Hotz v University of Cape Town [2016] ZASCA 159; 2017 (2) SA 485 (SCA); [2016] 4 All SA 723 (SCA).

33

message. This Court rejected the submission that the message was ‘skill all whites’
rather than ‘kill all whites’, finding that it would be understood by people who saw
the message, with its imperceptible ‘s’ as an incitement to violence against white
people.43

[84] Afriforum’s submission is that , as in Hotz, people who hear Mr Malema
singing the words of Dubula ibhunu stand to react to it as an incitement to violence
against ‘boers’. In other words, it could be understood as a call to kill ethnic white
South Africans of Afrikaans descent. According to AfriForum, this is exacerbated
by Mr Malema's hand gestures when he was singing. On a broader level, there is
also the potential harm that the song causes to wider society in risking inter-racial
hostility.

[85] AfriForum accepts that Dubula ibhunu has an historical pedigree with an
attendant meaning, and that one reasonable person may not understand the song in
the same way as another reasonable person. However, AfriForum’s submission is
that provided it is capable of being understood by some as intending to demonstrate
an intent to incite harm or propagate hate that is sufficient to meet the test.

[86] The respondents submit that the equality court was correct in finding that
AfriForum had failed to establish that the songs were based on prohibited grounds.
When Mr Malema sang Dubula ibhunu he was engaging in a form of political
speech in which the song addressed his party’s dissatisfaction with land and
economic injustice. In the particular context in which the songs had been sung, the
reasonable person would understand th e words as being metaphorical and not a
literal exhortation to incite harm or violence against farmers or white South

43 Hotz para 68.

34

Africans of Afrikaner descent, as AfriForum had sought to argue. Consequently,
the songs were not hate speech, but were a form of political speech protected under
s 16 of the Constitution.

[87] The respondents dispute that it is open to AfriForum in the appeal to simply
eschew reliance on the record of its evidence before the equality court . That
evidence is relevant in that it formed the basis of AfriForum’s c omplaint to the
equality court. The complaint was squarely based on farm attacks and the alleged
link between that phenom enon and the message AfriForum contended that Mr
Malema sent when he sang the song. The respondents submit that it was this case
that AfriForum had failed to establish before the equality court, which had correctly
rejected its complaint.

[88] The amicus curiae supports AfriForum’s appeal. It alig ns itself with
AfriForum’s contention that the term ‘boer’ has a discernable meaning, being a
reference to white Afrikaners. Consequently, according to the amicus curiae, there
is a racial element in the songs.

[89] The amicus curiae refers to Mr Malema’s leadership position as a politician.
It submits that the equality court ought to have directed a high level of scrutiny at
his speech, rather than exempting Mr Malema because of his political status. In this
regard, the amicus cite s Economic Freedom Fighters and Another v Minister of
Justice and Correctional Services and Another44 in which the Constitutional Court
stated that in securing the enjoyment of rights, ‘a greater sense of responsibility is
demanded particularly of those who are thought-leaders whose utterances could be

44 Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another [2020]
ZACC 25; 2021 (2) BCLR 118 (CC); 2021 (2) SA 1 (CC); 2021 (1) SACR 387 (CC) para 3.

35

acted upon without much reflection, by reason of the esteem in which they are held
and the influence they command’. The amicus curiae agrees with AfriForum that
the equality court erred in dismissing the hate speech complaint.

Discussion
[90] As regards the first stage of the s 10 inquiry, both AfriForum and the amicus
curiae advance the view that Mr Malema’s singing of Dubula ibhunu is based on
a prohibited ground because of the term ‘bhunu’. This word, according to their
arguments, has a n establishe d meaning . They say that d ictionaries and other
reference books confirm that it means white South Africans of Afrikaner descent.

[91] In our view, this is not the correct approach. The question of whether Dubula
ibhunu, and for that matter Shisa lamabunu, is based on a prohibited ground within
the meaning of s 10 of the Equality Act is more complicated than AfriForum and
the amicus curiae suggest. It is not a question that a simple reference to a dictionary
can answer . This is because the word ‘bhunu’ is part of a verse in a song. Its
meaning must be determined with reference to that verse as a whole. The meaning
of the verse, in turn, must be assessed in its broader context, including, but not
limited to, the circumstances in which the verses were sung on the particular
occasions identified.

[92] Put simply, ‘bhunu’ may have different meanings in different contexts. As
the Constitutional Court confirmed in Masuku, ‘words cannot always be taken for
their plain meaning’. 45 This is not to say that colloquial understandings or
dictionary definitions may not be of some assistance, but they are not determinative
of whether the impugned songs, sung by Mr Malema and Dr Ndlozi, are based on

45 Masuku fn 3 para 154.

36

a prohibited ground. Nor can this be determined from the single word, ‘ibhunu’,
extracted from the remainder of the context . There is thus a necessary overlap in
this case between the assessment at the first stage of the s 10 test and that in the
second stage.

[93] What c haracterises the inquiry in this case is that the Dubula ibhunu
complaints are directed at the singing of a known, pre-existing song, with its own
history. It is u nlike, for example, Qwelane, Masuku, Hotz and Khumalo, which
were all cases in which the respondent s were the authors of the impugned words.
It is notable that in Hotz, this Court found, on the facts of that case, that:
‘There was no context to ameliorate that message. It was advocacy of hatred based on race alone
and it constituted incitement to harm whites. It was not speech protected by s 16 (1) of the
Constitution.’46 (Emphasis added.)

[94] Hotz illustrates the importance of context in the hate speech inquiry. In that
case, the words ‘kill all whites’ could be interpreted literally because there was no
context to provide a different, or more nuanced meaning. Anyone seeing the t-shirt
would understand the plain and very direct message painted on it. In contrast, in a
case like the present, context is everything. This requires a consideration of who
the singer is, the context in which the songs were sung and their likely impact.47

[95] All but one of t he impugned occasions when Mr Malema sang Dubula
ibhunu, with accompanying hand gestures, were at EFF events. They were public,
celebratory occasions most of which were organised by, and for, the EFF. It was at
these events that Mr Malema led the singing. There is no suggestions that the events
were closed to all but EFF members, and in all likelihood there would have been

46 Hotz fn 42 para 68.
47 Qwelane fn 26 para 176.

37

some reporting on what occurre d. In this context, t he reasonably well-informed
person could and would understand that Dubula ibhunu was sung on these
occasions as an expression of the EFF’s political identity.

[96] The reasonabl y informed person would also know that the EFF is a
registered political party that competes for seats at all levels of government. The
EFF is a very active political party, and its manifesto and pillars of the EFF’s
political ideology are no secret to the general public. The reasonably well-informed
person would know that the EFF is a leftist-aligned party, with a particular concern
for the struggle to overcome economic and land injustice in South Africa. He or
she would know that the party, and its leader, Mr Malema, are very outspoken on
these issues . They would know that Mr Malema is often labelled as a populist
politician and that he is known not to mince his words.

[97] Masuku48 confirms that although the determination of whether the
impugned words are likely to be harmful falls within the exclusive aegis of a court,
evidence, including expert evidence, may be instrumental in assisting the court in
this exercise. As noted earlier, Professor Gunner testified as an expert on song,
oratory, and the history of African political forms, such as the political use of songs.
She explained that the song fits within the long historical tradition of using public
songs to voice opinions and comment on political issues. In this tradition, songs
can be used as a call to change. In South Africa, songs have been used in this way
for the last century, and even before. Dubula ibhunu itself has a very long history
in the canon of South African liberation songs.


48 Ibid fn 3 paras 135 and 144.

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[98] There is no reason to reject Professor Gunner’s evidence on this score: as
South Africans we daily observe members of organisations and ordinary citizens
singing and performing in public as a form of protest and a quest for change.
Similarly, we can accept Professor Gunner’s further evidence that the performance
is part and parcel of the political song within the genre. The mimicking of shooting
by a singer is part of the call for change. Neither the words nor the gestures forming
part of the performance are meant literally.

[99] We accept that t he reasona bly well -informed person would have some
understanding of Dubula ibhuna’s history in South Africa as a protest song linked
to the liberation struggle. They would certainly understand that when protest songs
are sung, even by politicians, the words are not meant to be understood literally ,
nor is the gesture of shooting to be understood as a call to arms or violence. It is
plain from this that the singing of Dubula ibhunu cannot, in our view, be equated
with wearing a t-shirt bearing a painted message to ‘kill all whites’.

[100] The complaint by Afriforum as advanced in the case it presented at the trial
before the equality court was that Mr Malema’s singing of Dubula ibhunu could be
understood by the reasonable person as intending to send the message that the
perpetration of violence against white South Africans of Afrikaner descent was
acceptable. Moreover, that this was particularly so when the people in question
were farmers , because the se people historically had stolen the land from black
South Africans.

[101] We cannot accept this submission. It relies on an interpretation of ‘ibhunu’
excised from its immediate context, and on an interpretation of the remainder of
the impugned part of the song abstracted from its broader historical , and current
political, context. AfriForum’s complaint relies substantially on a literal

39

interpretation of the words , namely that they are intended to be understood as a
direct invocation to exact violence against white South Africans of Afrikaner
descent, or at least to regard such violence as normalised.

[102] In its full context , this is not what the reasonably well -informed person
would understand to be Mr Malema’s intent in singing the song. They would
understand it to be serving the purpose of garnering support for the party and for
its political objectives. They would know Mr Malema to be a populist leader who
expresses controversial views. They would appreciate that this is part of his
political persona.

[103] The reasonably well -informed person would appreciate that when Mr
Malema sang Dubula ibhunu on the first six impugned occasions, he was not
actually calling for farmers, or white South Africans of Afrikaans descent to be
shot, nor was he romanticising the violence exacted against them in farm attacks .
They would understand that he was using an historic struggle song, with the
performance gestures that go with it, as a provocative means of advancing his
party’s political agenda.

[104] His performances of the song follows in the established tradition of Dubula
ibhunu as a call to act for change. In the case of the EFF, their public call is for an
end to land and economic injustice in South Africa . Whether one agrees with the
EFF’s agenda and Mr Malema’s chosen method of conveyance or not, the intent
behind the song on the occasions when he sang it is objectively linked to the party’s
stated political objectives. It is a form of political speech . Even if Mr Malema’s
performance of Dubula ibhunu at the events identified in the complaint may be
regarded by some as shock ing or even disturbing, Qwelane underlines the
importance in our democracy of tolerance for all views. This is particularly so in

40

the context of speech or, in this case, song, by a registered political party, at public
events hosted or supported by it. To find that Mr Malema’s singing of Dubula
ibhunu on the first six occasions identified in the complaint is hate speech would
impermissibly limit the rights protected under s 19 of the Constitution.

[105] AfriForum laid much emphasis on the test under s 10(1) being whether the
impugned words ‘could’ not ‘would’ be understood as being intended to incite
harm or propagate hatred. In our view, this submission takes the matter no further.
There may be people who might understand Mr Malema’s singing of Dubula
ibhunu as an exhortation to call for, or to support the normalisation of violence and
hatred against white Afrikaans -speaking South Africans . Clearly, Mr Roets
understands it this way. But we know that the subjective view of the target group
is not the test. Seen in its full and proper context, Mr Malema’s singing of the song
could not reasonably be understood in the manner advanced by AfriForum.

[106] For these reasons, in respect of the first six occasions when Mr Malema sang
Dubula ibhunu we find that high court correctly found that AfriForum had failed
to establish that this constituted hate speech under s 10(1). Mr Malema was doing
no more than exercising his right to freedom of expression , which is protected
under s 16 of the Constitution, in the course of participating in the activities of, and
campaigning for the political party of which he is leader, which rights are protected
under s 19(1)(a) of the Constitution.

[107] The last complaint concerns Mr Malema leading the singing of Dubula
ibhunu in Senekal and Dr Ndlozi singing Shisa lamabuna on the same occasion.
As noted earlier, the original complaint about the latter song was that it was a call
to arson. The evidence established that this averment was wrong. Not much further
attention was paid to Shisa lamabunu at the trial. In our view, it falls to be treated

41

as another form of protest song sung by Dr Ndlozi along the same lines as Dubula
ibhunu. There is no reason why it, too, would not be understood by the reasonable
person in this light.

[108] Both songs were sung in Senekal during the course of what appears to have
been a highly charged gathering of different political groupings following the
violent murder of a farm manager. These included, but were not limited to, the EFF
and AfriForum. There was even a suggestion that agent provocateurs were
involved. In our view, there is no reason to assess the singing of Dubula ibhunu on
this occasion any differently to his singing of it on the previous occasions. It would
be understood as a means of asserting his party’s identity and agenda within the
context of the competing ideological groupings present at the protest. For these
reasons, the complaint regarding the Senekal incidents should also be dismissed.

[109] In the result, the following order is made:
1. The application for the recusal of Keightley AJA from the adjudication of or
further participation in the determination of this appeal is dismissed with costs,
such costs to include those of two counsel where so employed.
2. The appeal is dismissed with costs, such costs to include those of two counsel
where so employed.


_________________________
H K SALDULKER
JUDGE OF APPEAL

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_________________________
K E MATOJANE
JUDGE OF APPEAL




_________________________
D S MOLEFE
JUDGE OF APPEAL




_________________________
Z NHLANGULELA
ACTING JUDGE OF APPEAL




_________________________
R M KEIGHTLEY
ACTING JUDGE OF APPEAL

43

Appearances:

For appellant: J Gauntlett SC KC
M Tsele
C Burke
Instructed by: Hunter Spies Inc, Centurion
Hendre Conradie Inc, Bloemfontein

For respondent: T Ngcukaitobi SC
M Ka-Siboto
Instructed by: Ian Levitt Attorneys, Johannesburg
Lovius Block Attorneys, Bloemfontein

For amicus curiae: M Oppenheimer

Instructed by: Kriek Wassenaar & Venter Inc, Pretoria
Rosendorff Reitz Barry Attorneys, Bloemfontein