Afriforum and Another v Malema (18172/2010) [2010] ZAGPPHC 39 (1 April 2010)

Afriforum and Another v Malema (18172/2010) [2010] ZAGPPHC 39 (1 April 2010)

The court found that the words 'shoot the farmer' in the song 'Avudubele Ibulu' constitute prima facie hate speech under South African law, as they advocate violence against a specific population group and cause harm and distress to the applicants and others. The respondent's constitutional right to freedom of expression does not protect speech that incites violence or propagates hatred. Although the respondent was brought to court on short notice and has not yet presented evidence, the urgency and seriousness of the threat to the applicants' rights justify the granting of a provisional interdict. The matter is referred to the Equality Court for final adjudication, and the interim order...

Citation
[2010] ZAGPPHC 39
Parties
Applicant: Afriforum; Applicant: Transvaal Agricultural Union of South Africa; Respondent: Julius Sello Malema
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 April 2010
Case Number
18172/2010
Procedural Posture
Urgent Application / Interim Interdict Pending Transfer to Equality Court
Outcome
Interim interdict granted; matter referred to the Equality Court; costs reserved.
Judges
Bertelsmann
Legal Topics
Hate Speech, Freedom of Expression, Interim Interdict, Equality Court Jurisdiction
Constitutional Law Civil Procedure Hate Speech Freedom of Expression Interim Interdict Equality Court Jurisdiction

Case Brief

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Parties

Afriforum

Applicant

Transvaal Agricultural Union of South Africa

Applicant

Julius Sello Malema

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Transfer to Equality Court

Legal Issues

  1. 1 Whether the words and song 'Avudubele Ibulu' constitute hate speech under South African law.
  2. 2 Whether an interim interdict should be granted restraining the respondent from singing or uttering the song pending Equality Court proceedings.
  3. 3 Whether the respondent's constitutional rights to freedom of expression are outweighed by the applicants' rights to dignity and security.

Ratio Decidendi

The court found that the words 'shoot the farmer' in the song 'Avudubele Ibulu' constitute prima facie hate speech under South African law, as they advocate violence against a specific population group and cause harm and distress to the applicants and others. The respondent's constitutional right to freedom of expression does not protect speech that incites violence or propagates hatred. Although the respondent was brought to court on short notice and has not yet presented evidence, the urgency and seriousness of the threat to the applicants' rights justify the granting of a provisional interdict. The matter is referred to the Equality Court for final adjudication, and the interim order...

Court Disposition

Interim interdict granted; matter referred to the Equality Court; costs reserved.

Orders

  • The matter is regarded as urgent.
  • The matter is referred to the Equality Court.