Brief Summary

Hate Speech — Allegations of hate speech — Complainants, Afri-Forum and TAU SA, alleged that the first respondent, Julius Malema, made statements constituting hate speech against the Afrikaner community — The court examined the historical context of social conflict in South Africa and the implications of the Constitution in addressing hate speech — The court held that the statements made by Malema did not constitute hate speech as defined under the Promotion of Equality and Prevention of Unfair Discrimination Act, emphasizing the need for context in interpreting such statements within the framework of a transformed society.

Comprehensive Summary

Summary of Judgment

Introduction

The proceedings were brought in the Equality Court, Johannesburg in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Equality Act”). The matter concerned an alleged instance of hate speech arising from the public singing (and associated chanting and gestures) of a struggle song commonly known as “Dubul’ibhunu”.

The complainants were Afri-Forum (first complainant) and TAU SA (second complainant). The respondents were Julius Sello Malema (first respondent) and the African National Congress (second respondent). The Vereniging van Regslui vir Afrikaans participated as amicus curiae.

Procedurally, the dispute followed public controversy and media reporting after Malema sang the song at multiple public events during March 2010. The judgment records that there had been significant litigation management (including directives to isolate issues), that multiple parties sought and obtained leave to intervene in earlier proceedings, and that the trial proceedings were broadcast live (with safeguards). The judgment also refers to an interdict granted by Halgryn AJ after the Rustenburg event, although the Equality Court inquiry proceeded to determine whether the words constituted hate speech and what relief was appropriate under the Equality Act.

The general subject-matter was the legal characterisation, in the post-constitutional context, of politically charged speech—specifically a liberation song with contested meaning—within the statutory prohibition on hate speech, and the reconciliation of freedom of expression with dignity, equality, and protection from harm.

Material Facts

It was common cause that, on different occasions and at public meetings convened on behalf of the ANC Youth League, Malema sang words drawn from the song widely referred to as “Dubul’ibhunu”. The complainants identified three objectionable utterances, which included the phrases rendered (in translation) as “shoot the Boer/farmer” and accompanying derogatory descriptors (including references to rape and robbery). Malema admitted singing the words in the original language, though the pleadings attempted to confine the admission to the original-language wording rather than the translated meaning; the court allowed the matter to proceed on the footing that the song’s content and its ordinary translation were effectively in issue.

The singing occurred on or about 3 March 2010 (Polokwane, Malema’s birthday event), 9 March 2010 (University of Johannesburg), 22 March 2010 (Mafikeng, Human Rights Day event), and 26 March 2010 (Rustenburg). The court treated these as political or quasi-political events at which the presence and reporting of the media were foreseeable, and indeed invited. The court accepted that the song was repeatedly publicised by the media, and that the public controversy escalated after publication, with the song being widely translated and circulated as meaning “shoot the Boer/farmer”.

A material part of the factual matrix, as relied upon by the court, was that Malema’s performances were not confined to words alone. Video footage showed him engaging in rhythmic “gun” gestures (an outstretched arm and hand shaped as a firearm) while leading call-and-response chanting in a staccato style. The court treated these gestures as part of the context relevant to meaning, even though not expressly pleaded as a standalone cause of complaint.

The court regarded the media dissemination and the public reaction as probative of how the song was reasonably understood in contemporary society. It found that the song had historically been sung for many years without generating comparable complaint, and that, after Malema’s prominent and repeated performances (together with translation and broadcast), the song acquired a renewed and acute public salience, including among the group asserted to be targeted (white Afrikaners and Afrikaans-speaking farmers). The court recorded that there was no evidence of any person having been physically injured as a consequence of the singing, but accepted evidence of fear, outrage, and perceived threat within parts of the targeted community.

The judgment explicitly identified certain facts as disputed but not relied upon. In particular, events at Luthuli House during a protest were said to be disputed on material aspects and were not used as a factual foundation for the determination.

Legal Issues

The central legal questions were whether the words sung and communicated by Malema (in their relevant context) amounted to hate speech as defined in section 10 of the Equality Act, and, if so, what orders were competent and appropriate under section 21 of the Act.

Within that core inquiry, the court identified and addressed interrelated questions concerning meaning and audience. These included what meaning the words conveyed in their proper context and to their relevant audience; whether it mattered that the physical audience at the rallies differed from the broader audience reached through publication; whether it mattered that different sectors of society might decode the song differently; and whether the song’s asserted status as part of cultural and struggle heritage could operate as a justification to continue singing it notwithstanding its effects.

The dispute involved a combination of legal interpretation (the proper construction and application of section 10), application of law to facts (whether the established publication and context satisfied the statutory elements), and an evaluative judgment directed by the statute’s objective test (whether the words could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or incite harm, or promote or propagate hatred). The court treated the speaker’s subjective intention as legally irrelevant to the section 10 inquiry, focusing instead on meaning as reasonably construed.

Court’s Reasoning

The court situated the inquiry within the constitutional settlement and its values, emphasising that South African constitutionalism does not treat freedom of expression as a right that automatically overrides dignity and equality. It referred to constitutional provisions on equality (section 9), freedom of expression (section 16, including the exclusion for advocacy of hatred that constitutes incitement to cause harm), and freedom and security of the person (section 12(1)(c)), and placed the Equality Act within the constitutional mandate to prevent or prohibit unfair discrimination and to address hate speech.

In interpreting section 10 of the Equality Act, the court treated the statutory test as an objective one. It reasoned that the inquiry required determining what the words mean, assessed by how a reasonable listener (within the relevant audience, equipped with common knowledge) would understand them in context. The court borrowed interpretive guidance from defamation jurisprudence for determining meaning, including attention to implication and context, while emphasising that section 10 is concerned with how words are reasonably construed rather than what the speaker says he intended.

A central feature of the reasoning was the court’s approach to audience. It held that words spoken or sung at political rallies must be treated as published not only to those physically present but to the nation at large, especially where the media are present and republication is foreseeable. The court therefore treated the public at large, including the asserted target group of white Afrikaners and Afrikaans-speaking farmers, as part of the relevant audience even if not physically present at the events. In the court’s analysis, this significantly undermined the defence that the song was being sung within a closed community of insiders who would understand it only as symbolic.

On meaning, the court accepted that the song historically functioned as a struggle or “soldiers’” song directed at overthrowing the apartheid regime and that it carried, in that historical setting, an emphasis on “destroy the regime.” However, it found that the lyrics simultaneously carried a literal meaning—“shoot the Boer/farmer”—and that the author likely intended a double entendre. The court considered that the derogatory lines (including references to “dogs” and rape) were dehumanising and hurtful, and that the exhortation embedded in the verb “shoot” inherently conveyed violence. The court treated Malema’s gun gestures as narrowing and intensifying the violent connotation by importing a firearm as the means of “destruction,” thereby reinforcing the “shoot” meaning within the contemporary context.

A key step in the court’s reasoning was that, once the song had been publicly translated, circulated, and understood widely as “shoot the Boer,” Malema’s continued public singing—knowing the song would be so reported and received—contributed to the contemporary meaning reasonably attributed to his performances. The court found that the song’s post-1994 repetition created a contextual problem for the defence: the apartheid regime (as a political order) no longer existed, and the attempt to reframe the “regime” as persisting through the beneficiaries of apartheid tended, on the court’s analysis, to point toward a present-day identifiable group, broadly described as white Afrikaans-speaking persons, including farmers.

Applying section 10, the court concluded that the words were based on prohibited grounds (in particular, race, ethnic or social origin, culture, and language as implicated by the targeting of white Afrikaans-speaking communities), and that they could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or to incite harm, and to promote or propagate hatred against the targeted group. It rejected the notion that the song’s asserted heritage status could provide a justification once the words met the statutory definition of hate speech, and it treated section 15 of the Equality Act as excluding a fairness enquiry in hate speech matters.

On costs, the court applied constitutional-litigation principles that costs awards should not unduly chill access to courts, while recognising that a party’s blameworthy conduct may justify an adverse costs order. It considered Malema’s repeated public singing, despite public knowledge of the translated meaning and its impact, as warranting a costs order against him. At the same time, it treated the ANC’s participation differently, characterising it as an attempt to place constituency perspective and historical-cultural context before the court, and considered that this did not justify an adverse costs order against the ANC. The court also reduced the scope of recoverable costs against Malema because the litigation was conducted at length and with extensive evidence, much of which the court considered unnecessary to the outcome.

Outcome and Relief

The court held that specified words sung by Malema constituted hate speech on the occasions when he sang them. It granted declaratory and interdictory relief, including a declaration that the words and the song constitute hate speech and an interdict restraining Malema and the ANC from singing the song “Dubula Ibhunu” at any public or private meeting held by or conducted by them.

The court further expressed, in the form of its order, that the “morality of society” dictates that persons should refrain from using the words and singing the song.

As to costs, the court ordered that Malema pay the costs of the first and second complainants as if the trial had run for three days and no experts had been called, and otherwise directed that each party bear its own costs.

Cases Cited

Dutoit v Minister of Safety and Security 2010 (1) SACR 1.

Azapo v President of the RSA [1996] ZACC 16.

S v Mamabolo (ETV and Others Intervening) [2001] ZACC 17; 2001 (3) SA 409 (CC).

Walter Chaplinsky v State of New Hampshire 315 US 568-574.

Minister of Home Affairs and Another v Fourie and Another (Doctors for Life International and Others Amicus Curiae; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others) [2005] ZACC 19; 2006 (1) SA 524 (CC).

Prince v President Cape Law Society and Others [2000] ZACC 28; 2001 (2) SA 388 (CC).

Bel Porto School Governing Body and Others v Premier Western Cape and Another [2002] ZACC 2; 2002 (3) SA 265 (CC).

National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1999 (1) SA 6 (CC).

Pretoria City Council v Walker [1998] ZACC 1; 1998 (2) SA 363 (CC).

Freedom Front v South African Human Rights Commission 2000 (11) BCLR 1283 (SAHRC).

In re: “The School Education Bill 1995 (Gauteng)” [1996] ZACC 4; 1996 (4) BCLR 537 (CC).

S v Makwanyane and Another 1995 (3) SA 191 (CC).

Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 517 (CC).

Dikoko v Mokhatla 2006 (6) SA 235 (CC).

Masethla v President of RSA [2007] ZACC 20; 2008 (1) SA 566 (CC).

Union of Refugee Women v Private Security Industry Regulatory Authority 2007 (4) SA 395 (CC).

Hoffmann v South African Airways 2001 (1) SA 1 (CC).

Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC).

Bhe and Others v Magistrate Khayelitsha and Others [2004] ZACC 17; 2005 (1) SA 580 (CC).

Phillips v Director of Public Prosecutions 2002 (5) SA 555 (W).

Botha Eiendomme (Edms) Bpk v Ekple-Epoh 2000 (4) SA 466.

S v Seeshama [1991] ZASCA 45; 1991 (2) SA 860 (SCA).

Argus Printing and Publishing Co Ltd v Esselen’s Estate 1994 (2) SA 1 (A).

Selemela and Others v Independent Newspaper Group Ltd and Others 2001 (4) SA 1001.

NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae) [2007] ZACC 6; 2007 (5) SA 250 (CC).

Gory and Colver NO and Others (Stark and Others Intervening) 2007 (4) SA 97 (CC).

Le Roux and Others v Dey 2010 (4) SA 210 (SCA).

Mohamed and Another v Jassiem [1995] ZASCA 115; 1996 (1) SA 673 (A).

Tsedu and Others v Lekota and Another 2009 (4) SA 377.

Laugh it off Promotions CC v SAB International (Finance) BV [2005] ZACC 7; 2006 (1) SA 144 (CC).

Manong and Associates v City of Cape Town 2011 (2) SA 90.

Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232.

Legislation Cited

Constitution of the Republic of South Africa, 1996.

Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution).

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

Rules of Court Cited

The High Court Rules (as applied to Equality Court procedure in this matter, as recorded in the judgment).

The regulations under the Equality Act relating to Equality Court procedure (referred to generally in the judgment).

The Practice Direction in the Supreme Court of Appeal concerning cameras in court (referred to as informing the broadcast ruling).

Held

The court found that the specified lyrics sung by Malema, in context and as reasonably construed by the relevant audience (including the broader public reached through media publication), constituted hate speech under section 10(1) of the Equality Act. It held that the song carried, at minimum, a reasonably understood meaning of “shoot the Boer/farmer” together with dehumanising and derogatory descriptors, and that accompanying gestures and the public context reinforced the violent and hateful connotation.

The court held that neither the speaker’s asserted intention nor the song’s historical or cultural status provided a defence once the statutory requirements of section 10 were satisfied. It held that publication at political rallies extends beyond the immediate audience to the broader public, and that the post-publication context (including widespread translation and controversy) was part of the matrix for determining how the words were reasonably construed.

The court therefore declared the words and the song to constitute hate speech, interdicted Malema and the ANC from singing the song at meetings held or conducted by them, and made a limited adverse costs order against Malema.

LEGAL PRINCIPLES

The judgment applied the principle that the prohibition of hate speech under section 10 of the Equality Act turns on an objective construction: whether the published, propagated, advocated, or communicated words could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or to incite harm, or to promote or propagate hatred on prohibited grounds. The court treated this as an inquiry focused on meaning as received by a reasonable listener in context, rather than the speaker’s subjective intention.

The court applied the principle that context is integral to meaning, including not only the lyrics but also the manner of delivery, the nature of the event, call-and-response crowd interaction, and accompanying gestures. It treated gestures as part of the communicative act capable of sharpening or confirming the violent connotation of words.

The judgment applied the principle that political speech at public rallies is effectively published to the broader public, particularly where media presence and republication are foreseeable, and that the relevant audience is not confined to the physically present listeners. It further accepted that different sectors of society may decode words differently, and held that such plurality of decoding does not avoid liability where a hate-speech meaning is reasonably attributable for the relevant target group.

The court applied the principle that, in hate speech matters, fairness balancing under section 14 of the Equality Act is excluded by section 15, and that heritage-based or historical justifications do not negate the character of words that meet the statutory hate speech definition. The judgment further reflected the constitutional premise (supported by the authorities it cited) that freedom of expression in South Africa does not enjoy automatic priority over dignity and equality, and must be understood within the constitutional constellation of foundational values.

On costs, the court applied the constitutional-litigation principle that costs should not deter access to justice, but that blameworthy conduct in persisting with harmful speech may justify an adverse costs order. It exercised its discretion by limiting the recoverable costs against Malema to a notional shorter hearing and excluding expert-related costs, while declining to award costs against the ANC.

Afri-Forum and Another v Malema and Others (20968/2010) [2011] ZAEQC 2; 2011 (6) SA 240 (EqC); [2011] 4 All SA 293 (EqC); 2011 (12) BCLR 1289 (EqC) (12 September 2011)