Dubul’ Ibhunu

Apr 20, 11 Dubul’ Ibhunu

Advocate George Bizos, a renowned Senior Counsel at the Johannesburg bar, was once involved in a trial where he had an opportunity to cross-examine the late leader of the AWB, Eugene Terreblanche. Spurred by the North West’s heat, Terreblanche became thirsty while he was testifying. The Court Orderly had not placed water on the witness stand. Advocate Bizos SC was ably assisted by a young black attorney.  She took the glass which was being used by Advocate Bizos SC, with the intention of pouring water into the glass and giving it to Tereblanche.

Never the type to miss a golden opportunity such as this one, Bizos stopped her from using his glass and directed the young attorney to instead use her glass to quench the parched throat of the racist. Wedged between the necessity of lubricating his throat and his racist convictions, Terreblanche sat staring at the glass for a long while as he did not want to drink from the same cup as a black person.  Something had to give.  However, one can never undermine the lengths to which an extremist will go, to defend his principles.  Terreblanche was no exception. He eventually lifted the glass to his face and literally poured the water into his mouth without the glass even touching his lips.

And so, Bizos led Terreblanche to a personal cross-road. A cross-road that all South Africans need to arrive at and are being led to by none other than Julius Malema and the Afrikaans interest group, Afriforum. This is the point at which we test out ideals, somewhat like we did at CODESA, except this time with a common set of beliefs that we have agreed to as our yardstick.

The legalities of this matter are simple. The Constitution guarantees freedom of expression. However, this right to freedom of expression is limited by the hate speech clause, which expressly carves hate speech out of the constitutional guarantee of free expression. Hate speech is defined as “an incitement to violence against a defined group of people”. This makes sense. A democratic society must make room for everyone who lives in it, regardless of their race. Allowing hate speech in a society where we are trying to achieve this aim is illogical. With this in mind, I see no way that the song “dubul’ ibhunu” can survive the prohibition against hate speech, which is sad because I am quite partial to belting out a struggle song during a shower.

Shower singing aside though, there is one aspect of Afriforum’s argument that prevents me from supporting it, despite the apparent legal straightjacket. Afriforum insist on proving that there is a reasonable apprehension of imminent harm as a result of the singing of the song. The harm they have identified is farm murders.

Struggle songs commemorate the armed struggle and were an integral part of South Africa’s struggle to obtain democracy. These songs expressed a range of emotions and found relevance at the time as a rallying cry for people to fight the system. The manner of fighting the system included boycotts, riots, armed resistance and even passive resistance. Only under the most extreme circumstances, did songs like dubul’ ibhunu manifest literally in violence against white people. I say “manifest literally” because I can think of no example when a song of that nature was actually sung and because of the singing thereof, black people went on a killing spree. In truth, Apartheid machinery was successful in keeping white areas and white people largely insulated from violence.

So even when the vast majority of people in South Africa had every reason to take the song literally, they didn’t. In fact, even since then, the literal meaning of this song and others, has not materialised, despite Afriforum’s claim. There is no reason for the literal meaning of the song to be adopted now and there is no empirical evidence that it is being adopted.

And this is the problem with the introduction of causation. Farm murders are, like other murders, heinous crimes.  The fact that the victims of farm murders are predominantly white is a product of the fact that the majority of South Africa’s farmers and landowners are white. That alone does not show that there is a racial motivation for that criminal activity. A range of things motivate farm murders, from robbery to revenge by farm workers, but certainly not a song.

What of the argument is that songs like this contribute to farm murders by creating an atmosphere where people think it is okay to kill white people? These conditions existed during apartheid and did not materialise. Again, this was a time when the conditions were perfect for the situation which Afriforum now envisages. It did not happen then and will not happen now.

In short, the attempt to draw the link between a song being sung and criminal activity is mischievous. It suggests that crime is a purely black phenomenon, which is triggered by chanting.  I find this to be deeply racist and cannot support it. It also suggests that black people cannot differentiate between the figurative and literal meaning of a song. This is untrue.

This argument isolates the moderates, like myself, who could and would support Afriforum in this issue around the dinner table (and in showers), but cannot because doing so denigrates them. It reduces black people to robots who cannot simply sing a song without acting it out, even if there is no evidence to suggest that this happened in the past or is happening now.

Debate of this nature leads each and every South African to the cross-roads. The one path leads us to decline the water and remain obstinate in our views. The other path leads us to drink the water out of acceptance for one another’s differences. Afriforum’s formulation of its case does not help.

Image  by Vark1

  • Dubul’ Ibhunu — http://tiny.cc/9zhji — #HateSpeech #FreedomOfExpression #SouthAfrica #ANCYL @Malema_in_ANCYL

  • Dubul’ Ibhunu – Mabasa Sibanda on the Malema hate speech trial – http://goo.gl/90QxN Read it, it’s excellent.

  • RT @Sam_Kbam: Dubul’ Ibhunu – http://goo.gl/90QxN – Really good piece.

  • I agree wholeheartedly. But then we’d have to ask, what strategy should Afriforum have used? For a hate speech challenge, they need to show that there’s a clear intention to incite harm (I think). If they can convince us of the causative link between the song and killings, it could go some way to proving the intention bit (however illogical that may be). If Dubul’ Ibhunu is actually leading to deaths, then the fact that you may or may not have intended it to seems less important.

    Perhaps, as you hint at in your piece, a straightforward discrimination challenge would have been preferable.

  • Farai Gwaze

    A well structured argument Mr Sibanda. What needs to be seen now is whether Afriforum can validate their argument, however illogical,
    I believe the nature of this case is a landmark event in South African race relations.

    Looking forward to hearing more from you Mr Sibanda.

  • Anon

    What about section 16(2)(c) of the Constitution or section 10 of the Equality Act? It is not just “incitement to violence” that is not protected by the Constitution, and on which Afriforum’s case is based, but also incitement to cause harm. And the conception of harm extends beyond physical violence to include harm to human dignity as well as social and psychological harm. If this were not the case then the two restrictions would be conflated.

    One will never obtain empirical evidence on the direct cause of an individual farm killing, because it is exactly that – an individual act for which there may be many underlying causes, including perhaps a subconscious belief that physical harm to minorities is politically supported. But the fact that the “kill the boer” song will or will not result in an increase in farm killings is irrelevant if it causes harm to the dignity of a particular racial or ethnic group. That Afriforum has placed focus on farm killings is a misdirection, but I do not think that it will be fatal to their legal argument.

  • Anon

    On another point, one does not need to show causation to prove incitement given that, by its very nature, a prohibition of incitement is anticipatory. A case of incitement rests on looking broadly at the probable effects of the speech in the context in which it is made. The inquiry is made independently of historical data or, in fact, of evidence of any actual effects which flow from the speech. As I understand it, it is the speech itself and the speech’s scope for violence or harm, rather than the actual actions of a particular individual or audience, that should be the focus of the enquiry.

  • Mabasa Sibanda

    Anon, you misconstrue my argument. I am not saying that causation is necessary. In fact, I am saying quite the opposite.

    We agreement that the song constitutes hate speech. We also agree incitement is tested purely on the content of the speech in the context in which it is made.

    The Constitution limits freedom of expression by excluding incitement to imminent violence or the advocacy of hatred (in this case based on race) that constitutes incitement to cause harm. However, s16 does not find direct application here.

    Section 10 of PEPUDA, which finds direct application, prohibits speech which demonstrates a clear intention or could reasonably be construed to be hurtful; be harmful or incite harm; or promote or propogate hatred. These do not require causation.

    My argument,to which you concede, is that it is not necessary to prove causation. Yet Afriforum insists on doing so. At the very least the HRC’s interpretation in the Freedom Front case (borrowing from Canadian jurisprudence) provided a platform to argue that the harm which the song is intended cause is emotional harm or the self worth of the community which was the target of the speech. Alas, there is no such argument.

    Anon, you also make passing mention of a subconsciuos belief that harm to minorities is politically supported. I ackowledge that its in passing, but this suggests that perons who engage in criminal activity (harming others from minorities) might subconsciously believe that this has political support. This ignores the elephants in the room namely: poverty, a brutalised society, greed, hunger, poor education high disparity. To suggest a misaprehension of political support is simply ludicrous and again, unnecessary.

    If Afriforum wants to make Arguments that are devoid of any emprical assessment (when the causation they want to argue requires it) or arguments that rest on racist assumptions (which isolate the majority) then it is no better than the Youth League.

  • Dubul’ Ibhunu – Mabasa Sibanda on the Malema hate speech trial http://goo.gl/90QxN

  • Dubul’ Ibhunu | African Scene: http://bit.ly/eU1Ge8 via @addthis. I agree tactically Afriforum shouldn’t’ve linked farm murders directly.

  • RT @wheretheroad: Dubul’ Ibhunu – Mabasa Sibanda on the Malema hate speech trial – http://goo.gl/90QxN Read it, it’s excellent.

  • Really good article Mabasa although I think your final piece of the argument is somewhat flawed – the part about “It suggests that crime is a purely black phenomenon, which is triggered by chanting” – I think that’s reading too much into it altogether. Nobody is saying or implying that crime is purely black phenomenon.

    The issue is squarely whether or not the song incites violence and your argument in that respect is sound. Some emotional intelligence is required when singing the song in the current context though – clearly a lot of which is lacking within the ANCYL.

    As an aside, I think you’d enjoy this humorous take on the Malema hate speech trial posted on Wonkie cartoons recently – the poll about Julius and Shoot the Boer is quite telling considering the readership of the site is well over 80% black.