Afri-Forum v Malema

The Equality Court held that the public singing of the struggle song containing the words 'dubul' ibhunu' (shoot the boer) constituted hate speech under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). The court found that in the contemporary democratic context, the lyrics demonstrated a clear intention to be hurtful, harmful, and to incite harm against the Afrikaner community, and granted an interdict restraining their publication.

The respondent, Julius Malema, and the ANC Youth League publicly sang a struggle song containing the lyrics 'dubul' ibhunu' (shoot the boer/farmer) at various political gatherings. Afri-Forum and others approached the Equality Court alleging that the singing of these lyrics constituted hate speech and unfair discrimination under PEPUDA, particularly in the context of ongoing farm attacks and violence against the Afrikaner farming community.

Whether the public singing of the lyrics 'dubul' ibhunu' constituted hate speech under section 10(1) of PEPUDA and whether such speech could be prohibited notwithstanding freedom of expression protections.

The Equality Court held that the singing of the lyrics constituted hate speech as defined in section 10(1) of PEPUDA. An interdict was granted restraining the respondents from singing, chanting, or in any manner communicating the words complained of, as they were hurtful, harmful, and demonstrated a clear intention to incite harm against the Afrikaner community.

Historical struggle songs may lose constitutional protection and constitute hate speech when their continued use in a democratic society demonstrates intent to be hurtful, harmful, or to incite harm against an identifiable group, assessed objectively in contemporary context.

The court applied the test in section 10(1) of PEPUDA, finding that while the song had historical liberation struggle origins, its contemporary use had transformed meaning. The court considered contextual factors including the climate of farm attacks, the changed political dispensation, and the objectively determined harmful impact on the targeted community. The limitation on freedom of expression was justified under section 16(2) of the Constitution as the speech constituted advocacy of hatred based on race that constituted incitement to cause harm.

The court acknowledged the historical importance of struggle songs in the liberation movement but emphasized that the constitutional transition required reassessment of their continued appropriateness in a democratic society founded on equality and dignity.

This case is a leading authority on the application of PEPUDA's hate speech provisions and demonstrates how courts balance freedom of expression against equality and dignity rights. It illustrates the contextual approach to hate speech analysis and how historical meaning can transform in changed political circumstances, making it essential for teaching constitutional limitations on expression.

Afri-Forum v Malema 2011 (6) SA 240 (EqC) [2011] ZAEQC 2