Umm Muhammed Umar

The Equality Court in Johannesburg this week ruled that the singing of ‘Kill the Boer, Kill the farmer’ is not hate speech. Judge Edwin Molahlehi ruled on Thursday in a case brought by Afriforum against the EFF and its leader Julius Malema. The party’s supporters chanted the slogan outside a court in Senekal in October 2020, where the accused in the murder of a farm manager were appearing. The judge also ordered Afriforum to pay the EFF costs. Radio Islam spoke to Wits Journalism professor, the Executive Director of the Campaign for Free Expression, Professor Anton Harber.

Professor Harber said that the debates around rulings on hate are important to the issue of free speech. However, free speech doesn’t allow for hate speech. He said that the South African Constitution makes an exception on the free speech rule for hate speech. The Professor said, “it is some surprise, I think, that the judge found that a statement as straightforward as ‘kill the Boer’ is not hate speech.” He added, however, “But let me just caution……what he said was that context matters – in this context, he had not shown it as hate speech- in another context, it could be hate.” Prof Harber emphasized that the Constitutional Court has repeatedly said that the same thing said in different contexts, can have different weights and meaning, and that the judge was quite explicit that in another context, it could be construed as hate speech.

Many have claimed that the chant, Kill the Boer, Kill the farmer’ part of the country’s struggle history. Professor Harber said that while one wants to allow as much free expression as possible, hate speech that has the threat of violence can be dangerous, and should be restricted, “and we accept that even though we’re free expression campaigners.” Regarding whether struggle songs were still relevant today, in the South African context, Professor Harber said, “the judge also dismissed the argument that the singing of the song (‘Kill the Boer, Kill the farmer’) can be linked directly to farm attacks.” This was, in fact, one of the arguments tabled by Afriforum in this particular case. However, Professor Harber said, “I think it’s extremely hard to link it to the actual crime. It would really be an extraordinary situation where you could link it directly.” He added, “But you know, the law says that you may not threatened violence. In particular, against particular groups defined by language or race or gender, etc. It doesn’t have to be linked directly to a crime in order for that to be deemed hate speech by the court.”