BALDWIN NDABA
ANC Youth League leader Julius Malema and the ANC yesterday lodged their appeal against a Johannesburg High Court ruling that effectively banned the singing of the Dubul’ Ibhunu(Shoot the Boer).
Malema argued that the verdict had impeded his constitutional right of freedom of expression and that of other ANC members wishing to sing the song.
“The judge erred in finding that the morality of society dictates that persons should refrain from using the words and singing the song. The order sought is unenforceable,” Malema argued.
Lawyers acting for Malema and the ANC served Judge Colin Lamont – who ruled against the singing of the song in private and public gatherings – AfriForum and the Transvaal Agricultural Union (TAU) with papers indicating their intention to appeal.
Malema and the ANC are challenging Judge Lamont’s decision last week that the singing of the song was “hurtful and incited murder”.
The appeal is set down for next Thursday.
Malema and the ANC are asking Judge Lamont to grant them permission to appeal his verdict directly to the Constitutional Court.
If this fails, the judge would hear the appeal first.
Malema and the ANC argue that Judge Lamont made a mistake in issuing “absolute prohibition on the song”, saying his banning did not form part of AfriForum’s initial hate speech application against Malema.
They further argued that AfriForum’s application was particularly made against Malema after he sang the song on five different occasions.
They said Judge Lamont was wrong in concluding that the singing of the song constituted hate speech, arguing that he ignored any other supporting evidence before him, including ANC secretary-general Gwede Mantashe and ANC NEC member Derek Hanekom’s testimony.
The two testified about the importance of the liberation song.
Malema and the ANC argue that “the song is indeed a liberation song sung by ANC members and the historically oppressed people in general. The song is indeed a song and not a chant. The utterances are contained in a liberation song and the complaint seeks to take them out of context.”
Court papers said: “The statistics provided by TAU could not show that farm killings could either be linked to the singing of the said song, or that they constituted a relevant context of the dispute as contemplated by section 3 of the Equality Act, or that the singing of the said words or song could be likened to a context of genocide.”