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)

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)

The court found that the words sung by Julius Malema, specifically 'awudubula ibhunu' and 'dubula amabhunu baya raypha,' when translated and considered in context, constitute hate speech under section 10 of the Equality Act. The meaning ascribed by a reasonable listener, including the target group and the broader public, is that the words incite harm and promote hatred against the white Afrikaans-speaking community, including farmers. The gestures accompanying the song reinforced the violent message. The historical context and symbolic meaning claimed by the respondents do not justify the continued public performance of the song, as the Equality Act provides no defence based on fairness...

Citation
[2011] ZAEQC 2
Parties
Applicant: Afri-Forum; Applicant: TAU SA; Respondent: Julius Sello Malema; Respondent: African National Congress; Amicus Curiae: Vereniging van Regslui vir Afrikaans
Court
Equality Court
Jurisdiction
South Africa
Judgment Date
12 September 2011
Case Number
20968/2010
Procedural Posture
Civil Application / Final Judgment
Outcome
The application succeeded. The words and song constitute hate speech. The first and second respondents are interdicted and restrained from singing the song at any public or private meeting. Costs are awarded against the first respondent, limited to three days of hearing.
Judges
C.G. Lamont
Legal Topics
Hate Speech, Equality, Freedom of Expression, Promotion of Equality and Prevention of Unfair Discrimination Act, Bill of Rights Limitation
Constitutional Law Civil Procedure Hate Speech Equality Freedom of Expression Promotion of Equality and Prevention of Unfair Discrimination Act Bill of Rights Limitation

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Parties

Afri-Forum

Applicant

TAU SA

Applicant

Julius Sello Malema

Respondent

African National Congress

Respondent

Vereniging van Regslui vir Afrikaans

Amicus Curiae

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the singing of the song 'Dubul’ibhunu' by the first respondent constitutes hate speech under South African law.
  2. 2 Whether the words and gestures used by the respondent are prohibited by the Promotion of Equality and Prevention of Unfair Discrimination Act.
  3. 3 Whether the historical and cultural context of the song provides a defence or justification for its continued public performance.

Ratio Decidendi

The court found that the words sung by Julius Malema, specifically 'awudubula ibhunu' and 'dubula amabhunu baya raypha,' when translated and considered in context, constitute hate speech under section 10 of the Equality Act. The meaning ascribed by a reasonable listener, including the target group and the broader public, is that the words incite harm and promote hatred against the white Afrikaans-speaking community, including farmers. The gestures accompanying the song reinforced the violent message. The historical context and symbolic meaning claimed by the respondents do not justify the continued public performance of the song, as the Equality Act provides no defence based on fairness...

Court Disposition

The application succeeded. The words and song constitute hate speech. The first and second respondents are interdicted and restrained from singing the song at any public or private meeting. Costs are awarded against the first respondent, limited to three days of hearing.

Orders

  • The words 'awudubula ibhunu' and 'dubula amabhunu baya raypha' constitute hate speech on the occasions sung by the first respondent.
  • The first and second respondents are interdicted and restrained from singing the song known as 'Dubula Ibhunu' at any public or private meeting held by or conducted by them.