On the curious case of "shooting the boer."

It's tempting to be disgusted by the lack of sensitivity to farmers shown by Pierre de Vos in this post from Constitutionally Speaking. But the legal issues he highlighted about the ruling regarding the phrase "kill the boer" are worth paying attention to. We've observed the slip in the judicial system over the years since apartheid ended, with politicians walking free from serious crimes with barely a slap on the wrist. But the farm murders is an issue that's very close our hearts as white South Africans, and if it isn't then it certainly should be. The incitement of violence by politicians needs to stop!

News that the South Gautenteng High Court Acting Judge Leon Halgryn ruled on Friday that use of the words “dubula ibhunu (shoot the boer)” was unconstitutional and unlawful is odd, to say the least. Unfortunately this was an urgent application so the judge did not seem to have given reasons for his judgment. Nevertheless, if the media reports are correct, the judgment does not seem to make much sense.

I am not sure on what basis the “publication” and the “utterance” of the words can be declared unconstitutional. It is true that section 16 of the Bill of Rights states that the right to freedom of expression does not extend to incitement of immenent violence or advocacy of hatred that is based on race, ethinity, gender or religion and that constitutes incitement to cause harm. However, section 16 itself does not ban such words, but merely states that the utterance of such words are not protected speech.

This would mean such speech could be regulated or banned by the legislature and such a ban could not be challenged on the basis that it infiringed on the section 16 protection of freedom of expression. It decidedly does not mean that in the absence of such regulation by the legislature the words are “unconstitutional”. How a particular phrase could ever be declared unconstitutional is beside me. There is no provision in the Bill of Rights that prohibits any particular phrase. If the judge was quoted correctly, he was obviously talking nonsense.

Another question is whether a particular phrase could be declared unlawful by a court. I suspect not. The utterance or publication of some words in certain context could amount to defamation or it could fall foul of section 10 of the Equality Act but that could only be done with reference to the specific context and the facts of a particular case.

Maybe the Acting Judge was relying on the criminal law principle in common law and in terms of the Riotous Assemblies Act which prohibits the incitement of a crime. But then it would have to be shown that an accused “sought to influence the mind of another person towards the commission of a crime” and that would depend on the facts of a particular case and could not be decided in the abstract.

It seems to me bizarre that a court could decide in the abstract in an urgent application that a particular phrase was unconstitutional and unlawful. Surely one will have to decide on a case by case basis whether the utterances of words defamed someone or falls foul of the Equality Act or constitutes incitement to commit a crime.

To hold otherwise would be dangerous, nonsensical and would lead to absurd consequences. What would happen if I write a short story and one of the characters sings “Shoot the Boer”. Would this mean my story when published would be declared “unconstitutional” and “unlawful”?
At the very least it would be good for the judge to present written reasons for this judgment. Based on the available evidence it makes absolutely no sense.

Malema under fire after controversial comments

Mail & Guardian, 10 March 2010

The African National Congress has not yet decided whether to meet its youth league president, Julius Malema, over racially charged comments he made at a student rally.

Spokesperson Ishmael Mnisi on Wednesday said the party was always in touch with the league, but had not decided whether to talk to him about this particular matter.

"We are always in contact with the youth league, we will continue talking to them ... even in this instance we would engage with them," he said.

However, he emphasised there was "no decision that the ANC has taken on this particular matter".

Malema, according to the Sowetan, led students at the University of Johannesburg in a song saying: "Shoot the boere [farmers], they are rapists."

He told students that former president Nelson Mandela had convinced black people to forgive, but they should never forget what was done to them.

Hate-speech complaint
Freedom Front Plus leader and Deputy Agriculture Minister Pieter Mulder will on Wednesday lodge a hate-speech complaint against Malema at the Brooklyn police station in Pretoria.

Mulder said the use of the slogan was a contravention of section 16 of the Constitution.

"Freedom of speech does not include the advocacy of hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm, and has in any case been declared as hate speech by the courts."

AfriForum Youth national chairperson Ernst Roets said the organisation would submit a complaint to the Equality Court in Johannesburg.

Roets said it was not the first time Malema sang the song reminiscent of the late Peter Mokaba.

He sang it at his birthday celebrations in Polokwane last week, in a province where six farmers were murdered in the past month, Roets said.

"Julius Malema has become the biggest embarrassment of not only the youth, but also of the country."

"There is no way in which you can dismiss the song as something that simply has to be viewed in a political context and that doesn't have any real consequences," he said.

The Afrikanerbond lodged a complaint with the South African Human Rights Commission.

"It is clear that neither the ANCYL or the ANC have the political will or power to reign in Mr Malema and his daily tirades against everything we hold dear in South Africa," it said in a statement.

"We trust that the Human Rights Commission will act in a manner which will restore our faith in this institution as well as in the promotion of human rights."

Mnisi said the ANC did not promote racist utterances.

"We wouldn't appreciate any statements against any member of our society, including white people ... they are also South Africans," he said, adding that the Freedom Charter said South Africa belonged to all who live in it.

'We have come to expect these kinds of insults'
Malema also lashed out at Democratic Alliance leader Helen Zille for demolishing churches in the Western Cape.

"Helen Zille, who is suffering from Satanism, has gone all out to demolish the churches in the Western Cape. She is exposing herself ... people there will know they voted for a monster."

Independent Democrats (ID) leader Patricia de Lille was not spared either.

"This Patricia, who goes around saying I owe Sars [South African Revenue Service], she must get her facts properly.

"She must go and build her own family and be concerned about the taxes of her husband. If she has got a husband. Patricia doesn't look like a married woman. There's no normal man who can marry Patricia. If Patricia has got a husband, that husband must divorce Patricia and come and look for well-mannered and beautiful women in the ANC."

The ID, meanwhile, hit back at Malema on Wednesday for his "juvenile" attacks on De Lille.

"Behind the veneer of intoxication and madness lurks not a young lion," said Young Independent Democrats leader Xanthea Limberg.

Malema's personal attack on De Lille came as he failed "hopelessly to answer the tough questions about whether he is indeed stealing from the poor", she said.

"The Young Independent Democrats is shocked that a young man of Julius Malema's age would find it in himself to be so disrespectful to someone who has devoted more than three decades of her life to marginalised and ordinary South Africans," Limberg said.

"Although we have come to expect these kinds of insults from Malema, it is no less shocking when he shows that he has no respect for elders that truly care for the poor."

Disapproval
Mnisi said opposition parties should not be on the receiving end of derogatory statements.

"All that we are saying is that any derogatory, undermining statement, whether to opposition parties or our own people, we disapprove of them," he said.

Malema also targeted mining tycoon Nicky Oppenheimer, who supported government's stance that opposed the ANCYL's desire to see the country's mines nationalised.

He said Oppenheimer was only looking after the interests of his family, adding: "... We must take from Nicky Oppenheimer's family and give to the people of South Africa."

Malema pronounced on the ANC's 2012 succession race, saying President Jacob Zuma was guaranteed to return in his position when the party elects new leadership.

Last year, at a Congress of South African Trade Unions conference, Zuma urged ANC and alliance members to refrain from pronouncing on the 2012 elective conference.

Mnisi echoed this. He said it was "premature" for any ANC leader to discuss succession now.

"... We reiterate what we said before, we will encourage succession debate at the appropriate time ... we continue to remind and plead with comrades that it's not yet time to talk about the succession debate." -- Sapa

'Kill the f***ing whites now!!!'

Oh this is nice! It clearly illustrates the difference between a South African blog like ours, which is considered extreme right and the extreme left. As much as we like to insult the blacks and call them kaffirs when we get pissed off with them, you would be hard pressed to find anything on this blog that is as vile as the things mentioned in the following article that could lead to murder:

By Carien du Plessis and Murray Williams

The PAC has come under fire after messages urging the killing of whites were posted on its Facebook site.

The party says it will not remove the offending posts.

The messages, which said an army of about 3 000 people was standing by, ready to kill white people within 24 hours if requested to do so, were still on the site after a Facebook user alerted the administrator to the messages.

Constitutional law expert Pierre de Vos yesterday said the messages were a "clear-cut" example of hate speech and that the Facebook posters, as well as the administrator of the site, could be taken to the equality court if they refused to remove the messages.

Independent media analyst and Facebook user Martin Slabbert said he had asked the posters and site administrator Anwar Adams, who is the PAC's provincial interim chairman, to remove the messages.

"I did a similar thing during the election campaign when a group was started named 'Let's assassinate (DA leader) Helen Zille', and the group was removed," Slabbert said.

Adams posted a message on the site yesterday thanking posters, but urged them not to stoop to the level of whites in their debate "for we are a better people".

"We are the soldiers that must prevent the previous (sic) advantaged individuals (whites - I hate calling them that for they are not white) from ever raping our dignity and land," he said in his post.

Adams told the Cape Argus today: "I don't know the people (who posted the comments) personally. But I'm not going to ban them.

"We believe that there's only one race, and that's the human race. We don't go according to colour. It's got nothing to do with your pigmentation. If you're born in Africa, then you're African."

But Adams said that even though the PAC disagreed with the comments along racial lines, he believed it was important to allow people to express their feelings.

"If we want to heal as a country, we need to understand what each other feel, and that requires that we hear each other's feelings" he said.

It was in this spirit that he refused to "ban" the comments.

The messages posted above a You Tube video clip showing Nelson Mandela with a group of people allegedly singing songs about "killing white people".

A Facebook poster called Ahmed El Saud said in his post:

"Kill the f***ing whites now!!! If you afraid of them, let's do it for you. In return, you can pay us after the job has been done... text us... we are not afraid for the whites like your own people... it's a disgrace ... he asked you and you don't want to... we will do it, Mandela!"

In another posting he said: "Mandela asked so nice, start at home with food poison, gas leaks, cut the phone lines, kill the babies in the pool, be creative or if you have no nerve, call me and my team ... we have 3 000 on standby and can be ready with in 24 hours... think about it now or good luck."