Dave Steward & Adv Jacques du Preez from the FW de Klerk Foundation give their view:
The reaction to Justice Colin Lamont’s judgment on 12 September regarding the ‘Shoot the boer’ song reveals the depth of the divisions that continue to exist between black and white South Africans. Most white South Africans regard the judgment as vindication of their view that the song does, indeed, constitute hate speech. Black South Africans, on the other hand, vehemently reject the judgment as an insidious attack against a core element of their struggle heritage.
Although the reaction to the judgment from the ANC, the ANCYL and other factions was predictable, comments that ANC NEC member Jessie Duarte made last week during an E-TV interview warrant constitutional scrutiny.
In the interview she told E-TV News that “the ANC was concerned about the abuse of the Equality Court” and asked whether “a complaint by an interest group as small as AfriForum” should be taken seriously. She also asked what Afrikaners would feel “if we criticized the very atrocious Voortrekker Monument” which is “is very derogatory to black South Africans”. She also said “the ruling would be impossible to implement, that Afriforum is undoing nation-building and the song has its place in history and must be respected as such”.
In fact, AfriForum has 30 000 paid-up members – which probably makes it one of the best-supported NGOs in the country. It is also one of the best known and most active organizations promoting the interests of Afrikaans-speaking South Africans. Surely Ms Duarte did not mean that as a South African one’s voice is important only and if one is a member of the majority or a of a dominant political party? Clearly Judge Lamont does not agree with her. He points out in his judgment that “minority groups are particularly vulnerable. It is precisely the individuals who are members of such minorities who are vulnerable to discriminatory treatment and who in a very special sense must look to the Bill of Rights for protection. The Court has a clear duty to come to the assistance of such affected people”.
Even if AfriForum were one of the smallest organizations in South Africa, even if it had no cultural affiliations and represented only a single individual it would still have an unequivocal right in terms of Section 34 of the constitution to access to our Courts. The notion that AfriForum “abused” the Equality Court by bringing its case before it is equally spurious. The Equality Court was established to deal with exactly this kind of issue. In Terms of the Promotion of Equality and the Prevention of Discrimination Act, Equality Courts were established precisely to “hold an inquiry in the prescribed manner and determine whether unfair discrimination, hate speech or harassment, as the case may be, has taken place, as alleged.”
The ANC quite rightly supports applications to the court whenever hate speech is used against black South Africans. On what grounds then does it oppose the right of other groups to do the same when they feel that their rights have been abused? The Court’s findings confirmed that AfriForum was quite justified in taking the “Shoot the boer” song seriously and in approaching the Court for redress.
There can be no problem with Ms Duarte’s insistence that struggle songs have a place in the ANC’s history. However, it is one thing to preserve this heritage in the organisation’s archives: it is quite another to sing songs at emotionally charged public rallies that urge people to “Shoot, shoot, shoot them with a gun! Mother let me shoot the farmer. Shoot, shoot, shoot them with a gun! These dogs rape us!”
There is no comparison between this and the Voortrekker Monument which Duarte describes as being ‘very atrocious and as being very derogatory to blacks’. The Voortrekker Monument does indeed include scenes of battles against black South Africans that are part of the voortrekkers’ turbulent history. However, no-one at the Monument would now dream of singing songs urging whites to kill blacks or to harm them in any other way. On the contrary, the Heritage Foundation, which is run from the Monument, has the greatest respect for all the other cultures in our country and is fully committed to reconciliation and the promotion of positive relations with all communities. The Foundation has now invited Duarte visit the Voortrekker Monument and to see for herself whether it is ‘derogatory to blacks’.
It is also difficult to see how AfriForum’s application to the Equality Court can possibly be seen to be “undoing nation building” – as Duarte charges. An organization does not undermine nation-buildiing if it makes use of the courts to defend its constitutional rights. Organisations undermine nation-building when they ignore the constitution’s injunction “to heal the divisions of the past” and when they make themselves guilty in terms of the Equality Act of using language “against any person that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or to incite violence or that could promote and propagate hatred.” The judgment declared the song to be hate-speech and hate speech in any form in a post-apartheid South Africa, especially based on race, is divisive and has a corrosive impact on conciliation and nation building.
Finally, Ms Duarte says that “the ruling would be impossible to implement”. Although the ANC has the fullest right to appeal against the judgment, it must be aware that “an order or decision issued by a court binds all persons to whom, and organs of state to which it applies.” In its initial response to the judgment the ANC said that it would respect the decision of the court while investigating options of dealing with this judgment. After its NEC meeting on 17 September the ANC confirmed that it would appeal against the hate speech judgment. It also said that “discourse must be encouraged in society to ensure that we emerge an agreement on common heritage.” One of the applicants’ central requests in the hate speech case was for the initiation of such a discourse. We agree. If Justice Lamont’s judgment helps to initiate a serious dialogue on these issues such as these it might help us to bridge the growing divisions between our communities.