Judgment was reserved in an application by the ANC for leave to appeal an order that the lyric “shoot the boer” was incitement to crime after an unusual day in the High Court in Johannesburg on Monday.
Proceedings began with Judge Leon Halgryn defending his order declaring that the words, prima facie, were incitement to crime.
He said the insertion of the words “Jew”, “faggot”, and the “K” word would still render the line unconstitutional.
“It has a place in the proud history of the ANC …but for goodness sake, is there still place for it today?” he said to advocate Gilbert Marcus, who was arguing for leave to appeal on behalf of an application by ANC deputy secretary general Thandi Modise.
Earlier this year ANC Youth League president Julius Malema sang the lyrics at a University of Johannesburg rally, sparking outrage, particularly among Afrikaners and farmers, who believed the song was directed at them.
A small protest outside the court, organised by the Pro Afrikaanse Aksie Groep (PRAAG), highlighted concerns over the song, saying that over 3000 farmers had been murdered in the country since 1994.
“The ruling party is trying to uphold its right for the killing of one ethnic group,” Praag’s Dan Roodt in the court corridor.
The group had had a number of t-shirts printed, one bearing a picture of Queen Elizabeth II, framed with the words “I love Afrikaner genocide”, another of former president FW de Klerk and US President Barack Obama with slogans: “I don’t care a damn” and “Yes, we can kill Afrikaners”.
Afrikaans singer Sunette Bridges was part of the group and her t-shirt had a picture of Malema and the words “genocidal juvenile delinquent”.
In March Mpumalanga farmer Willem Harmse successfully applied for an order that the words Malema sang be banned. He and a businessman in the area, Mohammed Vawda, belong to a group called The Society for the Protection of our Constitution and they had planned a protest march against crime and farm murders.
Speaking outside the court, their lawyer Zehir Omar explained that Vawda wanted to put the words on a poster because he interpreted them to mean “shoot apartheid”.
Harmse and Vawda argued about this, which led to Harmse taking it to the High Court in Johannesburg.
Omar said the two had since reconciled, and Vawda now believed that the words are divisive and they wanted Monday’s application to be dismissed.
The ANC applied for leave to appeal, feeling that Halgryn did not take into consideration the historic context of the song and that his order was too broad. It would, for example, ban academic discussion of the song, or prevent a group of anti-apartheid veterans from singing the song at a private gathering.
But Halgryn argued that the National Prosecuting Authority would decide on the circumstances of a complaint it received whether to prosecute a person for singing it.
“The oppressive regime doesn’t exist anymore, why should the song still be lawful?”.
During proceedings, Halygryn said it had struck him that he had not banned the words, just declared that they were prima facie incitement to crime. Then the court debated whether incitement was actually a crime, without a conclusion.
Marcus declined Halgryn’s repeated requests to explain the context of the song saying it was only appropriate to argue the leave to appeal application.
Halgryn said context would help him decide whether another court would come to a different decision to his own.
But Roelof du Plessis, lawyer for Afriforum, who want to be part of proceedings with the ANC, said another court had already made a decision on the matter.
The High Court in Pretoria had granted an interdict against Malema singing the lyric until the final outcome of an Equality Court that went against Malema and is due to go on appeal in April.
Du Plessis said that just as there was context when the ANC sang it during the apartheid years, there was new context now, and for that reason they wanted to be part of proceedings.
When it was Omar’s turn to present argument, the court sat bolt upright as he boomed a claim that Modise had no authorisation to take the case to court and that she was actually contradicting a statement on the subject by the president of the ANC, Jacob Zuma.
After the murder of Afrikaner Weerstandsbeweging leader Eugene Terre’Blanche, which some people linked to the song, Zuma asked people to refrain from singing songs that could be divisive.
Omar said that neither the ANC nor Afriforum had the right to be there because they were not original parties to the ruling and that the ANC had also not followed court procedure by first applying to be allowed to intervene.
He said that during apartheid the government had united Afrikaners by turning them against black people, and Malema’s lyrics had the potential to turn blacks against whites.
With ANC spokesman Jackson Mthembu in court, he said: “They gate-crashed to come before your lordship illegally”.
Halgryn appeared surprised that there had been no intervention application, and led Marcus to read one to him, prompting him on how to word it.
Omar banged his hands against head and when given another chance to speak said: ” It’s beyond irregular to make a substantial application during replies.”