‘Kill the Boer’ sanction could influence antisemitism cases

South Africa’s Constitutional Court refused leave to appeal against the judgment that allowed the Economic Freedom Fighters (EFF) to sing “Kill the Boer”, ruling that it wasn’t considered hate speech. The SA Jewish Report spoke to advocate Mark Oppenheimer about this case that was finalised on 27 March.

What does the Constitutional Court’s ruling mean?

The Equality Court, where I ran the trial proceedings, found that the song didn’t constitute hate speech. It interpreted the song as criticism directed at the African National Congress government’s failure to reform land. This surprised both AfriForum and the EFF, as neither had argued for this position. Julius Malema testified that when he heard “Boer” he thought of a white person, yet the high court seemed unclear about the word’s meaning despite his testimony.

In one incident, the words, “Kill the Boer” were written in blood above the bodies of a murdered mother and daughter who had been so brutalised by broken bottles, it was unclear whether they had also been raped.

When asked if he would be motivated to stop singing the song by evidence of a witness who testified that when he heard it, it brought back the memory of the day his wife was murdered and he was paralysed, Malema replied, “I am not moved. Let me repeat five times, I am not moved by that case you brought here. I am not moved. And if that will make me lose a case, let me lose it. I am not moved.”

Malema attributes genocide, wars of dispossession, and the killing of children in 1976 to “white people”. He stated that all white people were criminals and ought to be treated as such. The white people of today, he said, were the same as those that arrived in South Africa 350 years ago, and they remained land thieves. He holds white people as a group liable for the sins of their fathers.

When asked what it would mean to get rid of white people, he responded, “So if we go into a conference and we go into Parliament and make a constitutional amendment that all whites must be driven to the sea and any white who remains here is going to be killed. Then we engage in that type of programme to drive all whites to the sea. It’s an institutionalised decision and it arises out of a particular collective decision.” When asked to pledge that he would never call for the slaughter of white people, he said, “I will not do it.”

Malema also testified that he wasn’t “scared of killing”, saying, “A revolutionary is a walking killing machine, not scared of death. If that need arises I will kill.”

The Supreme Court of Appeal also ruled that the song wasn’t hate speech, stating that no reasonable person would interpret the words literally since Malema is a politician. What’s troubling is that the Constitutional Court previously emphasised that context and the speaker’s position are crucial in interpreting speech, and powerful politicians bear greater responsibility due to their influence. Yet, in practice, politicians charged with hate speech often get exonerated, whereas individuals like Penny Sparrow and other unknown real estate agents have faced severe public condemnation from the courts.

The Constitutional Court’s decision not to hear this appeal raises serious concerns within the legal community about potential political bias. People generally view the court as the last bastion of protection amid widespread dysfunction in South Africa.

What’s the broader impact of this case on South Africa?

One impact is that Afrikaners are increasingly feeling like second-class citizens, undeserving of equal protection. Jews may also feel vulnerable, recalling that when the old South African flag was deemed hate speech, the Israeli flag was targeted next. Several hate speech cases focusing on anti-Zionist and antisemitic speech are being adjudicated in our court. Some wonder if there will be an unfair double standard applied to these cases.

How would you define hate speech?

The Equality Act broadly defines hate speech as advocacy of hatred against a protected group, such as race, gender, ethnicity, or religion, coupled with incitement to harm or causing harm itself. “Harmful” is set as a higher standard than “hurtful”. “Incitement” means encouraging others to harm the targeted group physically or through discrimination.

Is there any scenario where chanting about killing a group based on race, religion, gender, or ethnicity wouldn’t be hate speech?

I can’t think of any other example. However, there’s a danger that our courts are creating different rules for disfavoured minorities like Afrikaners. Substituting other favoured groups into that chant would likely lead to sanction.

What arguments were used to dismiss this as hate speech?

Initially, the EFF claimed that it sang “Kiss the Boer” not “Kill the Boer”, saying it was a provocation against racists unwilling to kiss a black person. This claim became untenable when EFF protesters blockading the court singing “Kill the Boer”, captured on video. The EFF then argued the chant was symbolic, yet Malema admitted it was an instruction to soldiers to kill. On the message of the words, “Shoot to kill. Kill a man,” he testified, “When we say shoot to kill nyamazane, we are commanding nyamazane to shoot and kill.” He said uMkhonto weSizwe guerrillas were called nyamazane. “The message in the chant is very clear. Shoot to kill, kill nyamazane, shoot to kill the enemy forces who are standing between us and our freedom.”

How might this case affect Jews?

Once certain groups are deemed undeserving of legal protection, the courts may distort laws for political reasons, making it harder for Jews to defend themselves. Contextual arguments might portray accusations against Jews as legitimate critiques of Israel or Zionism, paving the way for more tolerance of antisemitic speech.

What’s the international view of this ruling, particularly in America and Europe?

Americans strongly protect free speech but prohibit incitement to imminent lawless action. Secretary of State Marco Rubio publicly denounced Malema’s singing of “Kill the Boer” on Human Rights Day. The Trump administration’s executive order relating to South Africa relays concerns about inadequate protections for minority groups. In Europe, regulations on such speech are stricter. Similar statements would likely result in prosecution.

Is there any further recourse, or is this matter closed?

A complaint could be filed at the International Court of Justice against South Africa by another state for not prohibiting genocidal speech under the Genocide Convention. The United Nations Committee on the Elimination of Racial Discrimination could also be approached. If a similar matter was heard by a different set of judges, it is possible that a different decision would be reached.