Racially inflammatory statements have no place in our society, regardless of their origin or the intention of the user. This should have been the ruling of the Equality Court when asked whether the struggle song “Kiss the Boer” is hate speech. Yet, it instead ruled in stark opposition to the foundational premise in our Constitution- South Africa is a united democratic state founded on human dignity, equality and non-racialism. The ruling, which went against the Court’s previous judgment in AfriForum v Malema (12 September 2011) and similar rulings by the SAHRC, instead found “a reasonable listener, would conclude that the song does not constitute hate speech but rather that it deserves to be protected under the rubric [of] freedom of speech.”

Although on the evidence before the court, a causal connection between the song and the incitement of violence was not established, it seems absurd that in a country still reeling from the racial conflict of an unjust past, we can condone the chanting of a discriminatory and divisive song.

However, this position is not new. In 2018, the SAHRC found comments made by Mr Julius Malema that “[the EFF] are not calling for the slaughtering of white people, at least for now”, were similarly not hate speech as incitement was not ‘imminent’. The SAHRC brushed aside the truly chilling implication that Malema might call for the slaughter of people on the basis of their race at some later stage.

The very notion that the leader of a major political party in a multi-racial country can say that he is not calling for the slaughter of another ethnic group – “at least for now” -constitutes not only hate speech but verges on advocacy of genocide at some future date. So too does the chanting of “Kill the Boer” (oh sorry, “Kiss the Boer”).

In his 2011 judgment, Lamont J emphasised there is “no justification on the basis of fairness for historic practices which are hurtful to the target group but loved by the other group…such practices may not continue to be practised when it comes to hate speech.” He went on further to note the “special responsibility” courts have to protect minorities, which are “particularly vulnerable…to discriminatory treatment”. Thus, a “Court which hears a matter must, while balancing the rights in question take into account in the construction of what hate speech is the fact that it is directed at a minority.”

As aptly put by DA National Spokesperson Solly Malatsi: “Racially divisive and inflammatory statements like the lyrics of [this] song stand in the way of our country’s pursuit of reconciliation. The wounds inflicted on many South Africans as a direct result of our history of racial division can only be healed by combined efforts to protect the rights of all South Africans.”