JOHANESBURG – The ban on the singing of ‘shoot the boer’ would remain in force until the first day the High Court in Johannesburg hears AfriForum’s hate speech complaint against ANC Youth League president Julius Malema, the Equality Court ruled yesterday.
Earlier, Equality Court magistrate Alvin Chaitram listened to argument from the six parties now involved in the matter and although he was disheartened to have to refer it, he said: ‘I think we can safely accept that the High Court wields the bigger stick… I accept that.’With 16 legal representatives squeezed around the tables in the small court room, the application for referral was not attended by Malema, nor his usual entourage of vociferous supporters.’He does not need to be here at the moment,’ his attorney Tumi Mokwena told Sapa, as members of the public and court cleaners strolled down the corridors nonchalantly in the hopes of catching a glimpse of Malema.The youth leader was recently ordered to attend political school and anger management classes by the mother party as well as apologise to President Jacob Zuma. The league said it would hold a whip round to pay the R10,000 he was fined.Chaitram painstakingly invited and listened to submissions from the six parties involved in the matter on their concerns over whether the Equality Court, which runs according to magistrate’s court rules, could adjudicate on Malema singing ‘dubula ibhunu’ or ‘shoot the boer’ anywhere outside of that court’s geographic jurisdiction.The parties submitted that if the case was concluded in a High Court sitting as an Equality Court it would help eliminate a step in the proceedings if there was an appeal.Since Malema first sang ‘shoot the boer’ at the University of Johannesburg earlier this year, he has repeated it elsewhere – in Rustenburg, Polokwane and in Zimbabwe.Initially launched by AfriForum, the African National Congress, the Freedom of Expression Institute (FXI), the Freedom Front Plus and the Vereeniging van Regslyf vir Afrikaans (VRA) had since joined in.AfriForum lodged the complaint in response to fear that the lyrics could incite the murder of Afrikaners or farmers, many of whom feel under siege and who quote farm murder statistics to support their view.The murder of Afrikaner Weerstandsbeweging leader Eugene Terre’Blanche on his farm on April 3 heightened hysteria over the lyrics.Co-respondents, the ANC, believed the song, ‘Ayesaba Amagwala’ [the cowards are scared] whose lyrics have evolved from ‘shoot the cowards’ to ‘shoot the boers’, is part of their cultural and political history.The lyrics were also the subject of two other rulings. In March Acting Judge Leon Halgryn in the High Court in Johannesburg ruled in favour of Delmas businessman Willem Harmse, that the words were unlawful and unconstitutional. The ANC complained that it had not been part of the application, and would appeal as it argued the ruling banned the song irrespective of context or where it was sung.That application was in response to Mahomed Vawda, a spokesman for the Society for the Protection of our Constitution’s intention to put the lyrics on a banner at an anti-crime march in Delmas, arguing that they actually mean ‘kill apartheid’.On April 1, Judge Eberhard Bertelsmann issued an interim order in favour of AfriForum and farmers’ union Tau-SA that the lyrics should not be sung until the first day of the Equality Court matter.The parties yesterday agreed that this order would apply until the first day of proceedings in the High Court and when papers were filed.’We are agreed,’ they said.Before making his ruling, Chaitram chastised the parties for wasting time and money by not initially applying to the High Court.However, AfriForum lawyer Willie Spies said outside the court that the High Court does not have an Equality Court clerk, so the Magistrate’s Court was the only point of entry.Spies said it might take until the end of the year to put the matter on the court roll while the ANC’s counsel Gilbert Marcus quipped during the hearing that it could well end up in the Constitutional Court.The VRA and FXI would apply to become friends of the court at a later date as it was argued that it was too soon for them to say they could add something new.Spies said they were happy with the ruling as they wanted clarity on what they believe Malema has branded as ‘the song of the so-called new oppressed’.Meanwhile, Mokwena said that anyone singing the lyrics could be guilty of contempt of court.- Nampa-Sapa
