The Constitutional Court has denied the ANC and its youth league president, Julius Malema, leave to appeal the equality court’s hate speech judgement on the struggle song Dubula iBhunu, which contains the words ‘shoot the boer’.
Constitutional law expert Pierre De Vos explained, “It was a dismissal on procedural grounds, without any order being made in respect of costs – the court’s judges felt that the matter should first be heard in the Supreme Court of Appeal. The Constitutional Court will still be open to Malema should he not succeed in the Supreme Court.”
In September, High Court judge Colin Lamont found Malema guilty of hate speech for singing the song at several public events.
ANC youth league (ANCYL) spokesperson Floyd Shivambu said the judgement was appealed because, “for starters, how do you stop an organisation from singing a song – an organisation does not sing a song. “Secondly it does not take context into account. If Umkhonto we Sizwe (MK) veterans, for whom the song has great resonance in terms of the struggle they dedicated their lives to, decide to sing the song among themselves at their jubilee in December, it could be that they are arrested. This is ridiculous.”
Shivambu said that the ANCYL would appeal the Lamont ruling in the Supreme Court. Farmers’ union TAU joined Afriforum in first bringing a legal complaint against Malema for his singing of Dubula iBhunu. Vice president Louis Meintjies said the union is pleased with the Constitutional Court’s decision: “We feel that the ANC will lose in the Supreme Court of Appeal, just as it lost in the High Court.” – Sean Christie