South Africa is a constitutional democracy that came into being, with the rapturous acclaim of the whole world, as epitomizing the ultimate triumph of good over evil. In 1994 Nelson Rolihlahla Mandela stood astride an adoring world; a moral giant in his embodiment of everything that was truly good about the human spirit.
Thereafter South Africa adopted a constitution, that it has touted as being the best in the world, so as to ensure that these perceptions were not just an illusion, but a reality for all of its people.
Today, 17 years later, the nation is as divided as ever. Our Black dominated government leads the Black majority in emotional rhetoric that rejects, condemns and demeans a judgment of its own court of justice. At the very heart of this angry discontent is the fact that the court has, in a judgment, sought to protect the rights and interests of a White minority. For this the Black majority is being encouraged to be deeply offended and/or angered.
The exhaustively reasoned judgment of a High Court Judge, (sitting in the Equality Court) arrived at after some five months of consideration, is dismissed out of hand. He is wrong, he is wrong and is seeking to expunge Black struggle history is the resounding refrain bugled right from the top.
The facts are simple. Julius Malema, controversial African National Congress Youth President, repeatedly sang a struggle song, the impact line of which is "dubula ibhunu", which literally translated means “Shoot the Boer”. The term Boer has always referred to White Afrikaner farmers. AfriForum, a zealously driven White Afrikaner dominated interest group, took the issue to the Equality Court, arguing that the singing of the song constituted hate speech as it could reasonable induce endangerment, dislike/antipathy for and/or a demeaning of its members.
a) There was no dispute that the ordinary meaning of the words, “Shoot the Boer”, in the song, constitutes hate speech.
b) Julius Malema, and the ANC, argued that the ordinary meaning of the words should not be applied, as when the song was conceived and sung, during the struggle, it referred to “destroying the evil apartheid system” and not to the killing of White farmers.
c) It was therefore in this “historical context” that the song was still being sung, and since no mischief was intended, its singing was not hate speech.
The Court agreed with AfriForum that the words constituted hate speech and banned the singing of the song in public or in private, ruling that it had no longer has a place in our constitutional democracy, with its legislated imperatives of nation building.
The universal response to this ruling at leadership level has been one of deep offense and anger. This nation is in trouble. It is in trouble because it is blindingly obvious that there is a complete lack of understanding of the imperatives of our constitutional democracy, particularly the most precious commodity of equality before the law. It is therefore necessary to set out with the simplicity that characterizes truth an explanation of the reality of our situation. Judge Colin Lamont has already set out, with commendable exhaustiveness, a jurisprudential version of this. This is for our leaders and all of us ordinary folk.
1. When our constitution was adopted everything changed forever!
2. Hostilities ended, races were reconciled and all citizens were rendered equal before the law.
3. In such a situation there can be no room for any person calling for the shooting (killing) of any other person, whatever the reason.
4. The fact that the words used have a particular meaning that was ascribed and applied in struggle history changes nothing as, by law, Judge Lamont was constrained to apply the “ordinary meaning” of the words.
5. In doing so Judge Lamont is upholding his sworn duty under our Constitution to apply the law “without fear, favour or prejudice”. He has no option. His hands are tied.
6. In any event, common sense tells us that, 17 years after the fact of the struggle there are likely to be more, not less, human beings who are totally unaware of the particular meaning that the ANC ascribes to the words. Farmers are already being killed at significant levels by criminal elements. The exhortation in the song can only make things worse.
7. In giving this judgment the court has in no way “expunged ANC history”, as emotively claimed by just about all leaders of the ANC. History can never be expunged. That is a simple fact. History is just that – history. By its very nature history remains in the past. It does not exist in the present. Expunging ANC history was, and remains, an impossibility.
8. In effect, the judge has ruled that the ANC cannot dredge up historical behaviour and culture so as to endanger, threaten or demean citizens to-day.
9. There is nothing new about the fact that practices, behaviour, and culture that had a strong place in history are discarded, even criminalized. No one can deny that the inequality of women generally was once entrenched. Today the Constitution forbids it. One twin was killed at birth. Today that would constitute infanticide. In isiNdebele culture a baby would be killed (as a wizard/witch) if its top teeth appeared first. That too is now classified as murder. There are many other examples.
10. Conversely White Afrikaners are debarred from preaching that Blacks were Biblically ordained to be “hewers of wood and drawers of water” which was their culture, used to underpin the evil apartheid system. Preaching that now would undoubtedly be classified as hate speech.
11. Like the song in question all these historical practices are now part of history. Whether they can or cannot be invoked is a matter of law as applied under our “World beating” Constitution, however much we may be emotionally or romantically attached to that historical practice.
It is as simple as that. Hence the tragedy of rampant misunderstanding at leadership level. A Court of Justice is now being portrayed as traitorous. One revered political commentator even adverted to the fact that Judge Lamont was of apartheid vintage. Such talk and posturing is highly irresponsible and dangerous.
The nation is in trouble. If our leaders do not understand the realities of a constitutional democracy we are in serious trouble. The danger is of new tyrannies becoming manifest on account of a culture of “might is right”. The extent to which minorities are protected is a sure indicator of the extent to which a country is strong or weak on social justice and human rights. History has repeatedly shown that the majority is often wrong. That is why we have courts to ensure protection of all, and equality under the law. The seeming contempt with which a carefully considered judgment of a court of justice is being rejected undermines the very essence of our constitutional democracy. The courts are being brought into disrepute and the rule of law subverted.
Will everyone please take a step back, take a deep breath and quietly and soberly reflect on these realities.