ANALYSIS: South Africa at the crossroads after hate speech ruling

By Shabtai Gold Sep 13, 2011, 14:15 GMT

Johannesburg - A High Court ruling that banned a song dating from the struggle against apartheid, declaring it to be 'hate speech,' sparked widely differing opinions among South Africans.

For some, the verdict handed down on Monday was seen as a set back for those who fought against the racist regime, and an attempt to bury history. Others saw it as a sign that minorities will be properly protected in a democratic South Africa.

Several legal experts and journalists, meanwhile, expressed concern that freedom of speech was being stifled.

The ruling African National Congress (ANC) has threatened to appeal the verdict, while its partner in government, the powerful trade union umbrella organization Cosatu said it was 'seriously disturbed.'

'South Africa's struggle heritage and culture is part of our history. It is thus very dangerous and destructive for the courts to decide what songs South Africans can be allowed to sing and banning those they object to,' the trade union said after the ruling.

The Zulu language song, Dubul'ibhunu, translates loosely as 'Shoot the Boer,' using the Afrikaans word for farmer, which can also be a derogatory term for whites. The lyrics further make reference to the enemy as 'dogs.'

The ruling by Judge Collin Lamont looks at how the country can move forward while retaining links to its past.

The judge himself noted that some aspects of apartheid can never be fully undone. Even now, the poverty rampant among blacks can often be traced directly back to the racial policies of the former regime. Those same policies also helped many whites gain wealth.

Even Archbishop Desmond Tutu, who headed the country's celebrated Truth and Reconciliation Committees in the immediate years after the dawn of democracy, recently called for a once-off wealth tax on whites who benefited from apartheid, saying it would help create a more equal society.

In a similar vein, the ruling by Lamont, sitting as an Equality Court judge, also appeared to have been based on what he thought would help create a better country.

He relied not only on the South African Equality Act - which the ANC itself had pushed forward - but also on international treaties, including the UN convention on genocide.

'The morality of society dictates that persons should refrain from using the words (and) singing the song,' said Lamont, in a lengthy ruling that discussed the history of South Africa dating back to the colonial era. He warned that words could lead to regrettable actions.

The editor-in-chief of the weekly Mail and Guardian newspaper found flaws in the judgment and said he was concerned for those who now choose to open their mouths in a 'nasty' way.

'If the judgment stands it will open the door for attacks on all kinds of uncomfortable but democratically necessary speech including satire, cartoons and robust journalism,' said Nic Dawes, in an article on his newspaper's website.

The court case was brought by an Afrikaner civil rights organization, AfriForum, which said the song incites killing of white farmers.

The case came after Julius Malema, the feisty head of the ANC's Youth League, sang the song on several occasions, provoking strong reactions in the country.

While Malema and the ANC argued that no individual was targeted by the song and the word Boer symbolized a racist system of oppression, the judge found that the lyrics had harmful intent and 'dehumanized' white farmers.

AfriForum chief Kallie Kriel insisted after the verdict was read out that his group would staunchly defend free speech and that the ruling did not impede this basic right.

The effect on society, which can only be judged in the years to come, may be the true method of weighing the ruling, which touches on some of South Africa's most sensitive spots, not least the lingering racial tensions.