Judgment has been reserved in the leave to appeal application by AfriForum against the “Kill the Boer” ruling in favour of the EFF by the equality court a month ago.
Judge Edwin Molahlehi on Thursday heard arguments from advocates Mfesane Ka-Siboto for the EFF and Jeremy Gauntlett for AfriForum.
AfriForum argued that the lyrics of the struggle song could be reasonably construed as demonstrating an intention to harm Boers.
“These words demonstrate an intention to incite violence. [You must] look at the gestures and the target. What could it reasonably be construed as? Cunning words are used as nuances ... If you mention an act of violence like kill the Boer or burn the Boer, you are demonstrating an intention,” Gauntlett argued.
Ka-Siboto said the court cannot scrap the use of the song on that basis as the word farmer does not necessarily mean a Boer [other races farm too].
“There can’t be a ban of a song at all times, in all places for all purposes. The context is in the lyrics of the song itself.”
African literature expert Prof Elizabeth Gunner had in February testified the song should not be taken literally. AfriForum challenge of her evidence was disqualified as its witnesses were not experts on the expression of political song.
Ka-Siboto said: “It is incorrect to say experts have no place in such cases. [Experts are necessary] where there are nuances of language and meaning. The court is not equipped to make that meaning. A fundamental dispute is on the meaning of the word Boer. You [the court] must have the benefit of an expert. Farmer and Boer are not interchangeable.”
“There must be a clear intention to incite violence,” Ka-Siboto added.
Malema and Ndlozi allegedly sang the song outside the Senekal magistrate’s court during the bail hearing of those accused of murdering Free State farm manager Brendin Horner in October 2020.
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