But when Malema espouses and expresses the collective condition of these people the courts brand it “hate speech” fearing words could trigger genocide against those that perceivably deprive.
One commentator has pointed out that the white-dominated South African courts seem oblivious of the “hate economy” from which blacks are being excluded.
By Tichaona Zindoga
When South Africa's African National Congress Youth League leader Julius Malema averred that liberation struggle songs cannot contain “love” words, during his “hate speech” trial recently, it certainly meant that there could be more than one kind of love, and hate, in South Africa.
In fact, love can mean hate; and hate, love depending on which side one stands.
“All depends on the context,” says one editorial.
It is little doubt that Malema loves his country, people and the struggle that officially ended apartheid in 1994.
The goals of the liberation struggle in South Africa have not been achieved with many pointers saying clearly that the Rainbow Nation ideal is but elusive.
Malema has shown to love and identify with the majority blacks in a country in which they are the poorest, most illiterate, unhealthiest, the shortest-living, among other ill indexes.
His love for his people and country is what is generally called patriotism.
These people identify with the struggle which they know is yet to come to fruition.
They also identify with Malema.
But when Malema espouses and expresses the collective condition of these people the courts brand it “hate speech” fearing words could trigger genocide against those that perceivably deprive.
One commentator has pointed out that the white-dominated South African courts seem oblivious of the “hate economy” from which blacks are being excluded.
This is because, he insinuated, because the victims of this “hate economy” are blacks.
This week Congress of SA Trade Union's president Sdumo Dlamini was reported to have defied the ban on the liberation struggle song "shoot the boer".
He said the ban “meant nothing to those who had sacrificed their lives for the country's liberation.”
Addressing Cosatu’s second provincial shop stewards council meeting, Dlamini urged the workers to ignore the "clueless judge" and continue singing the banned song at their gatherings.
It follows that Judge Colin Lamont can only be “clueless” as to the ends of the country’s liberation struggle, according to Dlamini.
In this vein, having given the opponents of the struggle song more than what they expected, as Malema said, Lamont be construed as hating the black people’s struggle in South Africa.
An op-ed piece on the Independent Online headlined “All depends on the context” highlights that the “hate” judgement by Lamont is tricky.
“To many it is not the discriminatory, harmful song Lamont found it to be,” said the editorial.
“They view it as South African history, part of the narrative of the Struggle.
“They reject the judge’s view that there was no justification for singing it.
“The finding has had the perverse effect of popularising Dubul’ iBhunu.
“It is being sung now by people who carefully avoided becoming part of Malema’s choir, and have done so in recent days to assert their right to their past. They argue that it is metaphorical, ‘Boer’ meaning government, not Afrikaners as people.”
“Debate has now turned to the prospect of Umkhonto we Sizwe veterans singing Hambe Kahle Umkhonto at Nelson Mandela’s funeral one day, where they voice their determination to “kill these boers”.
Yet, to demonstrate the thin line threatens the exercise of love – whatever side one might be – there could be substance in what Lamont said.
The piece concluded with this: “…words are powerful weapons. All genocides, he argues on, start as simple exhortations. Agree or not, it is food for thought.”
This means that it must be admitted that the context could very well be a factor.
But what are the implications on the ongoing struggle over the struggle songs?
The ANC was appalled by the banning of “dubul ibhunu”.
It said the judgement is “an attempt to rewrite the South African history which is not desirable and unsustainable.”
“This ruling flies against the need to accept our past and to preserve our heritage as an organization and as a people,” it said.
There are “higher ideals” in Lamont’s judgement, argues Henrietta Klaasing Groblersdal in The Citizen.
One of these was “that members of society are enjoined to embrace all citizens as their brothers.”
Said Groblersdal: “Hence the Equality Act allows 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.”
“Does the Youth League’s arrogance in singing the same song immediately after the court adjourned show that they did not bother to listen to the finer points?
“Or maybe they are not at all interested in the high ideals mentioned by Lamont?”
This is a view that is perhaps recognizing that Lamont invoked the notion of “Ubuntu”, as one blogger, Pierre de Vos points out, which Chief Justice, Mogoeng Mogoeng has apparently been championing.
The protection of dignity and adherence to the values of ubuntu requires a radical limitation on the right to freedom of expression, says de Vos.
For his part, de Vos notes an important implication of Lamont’s judgement.
“Judge Lamont divided South Africa into the majority and a minority and suggested that minorities (defined as white South Africans or as white Afrikaners) are therefore in particular need of protection from words that could be construed as having the intention to be hurtful to that minority,” he said.
“This means that religious and sexual minorities, say, might be entitled to special protection in terms of this Act and that a court should take note of the sensibilities of such groups when they judge whether a reasonable homosexual or a reasonable Muslim would have viewed a specific communication as having the intention to be hurtful to them as Muslims or as homosexuals.
“Almost any cartoon that depicts the prophet Mohammed, say, might therefore constitute hate speech. Statements by a pastor that homosexuals are perverts that will burn in hell would also, most probably, constitute hate speech if this line of reasoning is followed.
“I am also fearful that if I were to call devout Christians ‘bigots’ because of their views on homosexuality, I might be found to have had the intention (judged by these religious fundamentalists) to be hurtful to them and hence that I am guilty of hate speech.”
He accused he judgement of “rather essentialistic and simplistic division of South Africans into different race groups” which could be problematic.
But there is another grave implication; that of a history ignored.
De Vos notes that the Equality Act – passed by the democratic Parliament – does not allow a court to take into account historical practices.
That the Equality Court ignored the historical case of Malema implies that the history of subjugation – and south Africans have suffered about 300 years of it – is well water under the bridge.
And with such might go efforts towards real equality in South Africa, economically, socially and politically.
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