And it’s hugely fascinating. We’re now at the half-way point of this trial. We’ve finished with the case brought by AfriForum and the Transvaal Agricultural Union, and we’ve just started the response from Malema and the ANC. Certain themes are beginning to come through, the various elements of the case, the points of disagreement and how and why we interpret things so differently.

Let’s start with identity. The word “boer” matters in this case. And it’s obvious that there are two “boers” in this case. There’s AfriForum, the group that started this, who feel they’re standing up for their rights, and who want two things. For Malema to be told that singing the song in the way he did was wrong, and for him to be barred from singing it in the way he has been. Their advocate is Martin Brassey, well-known, tall, confident with that distinguished silver look that good lawyers get with experience. He sounds almost English sometimes, as he puts a point across, and is excellent at theatrics. On Friday before lunch, while cross-examining deputy science minister Derek Hanekom, he asked him, with a touch of drama, what would have happened if Nelson Mandela had sung these songs at the 1995 Rugby World Cup Final. “Would that have caused offence?” he wanted to know. And while Hanekom was ready to answer, he wouldn’t have it, he wanted to wait until after lunch. It was the mark of a man who knows implicitly that this case is being fought more in the court of public opinion that on the eighth floor of the South Gauteng High Court Building.

AfriForum’s case was simple and quick. Their youth leader Ernst Roets was there to talk about the impact of the song, why they laid the complaint and how he was verbally abused when he met with Malema and the Youth League  (the choice quotes being “If you march on my office what happened to the IFP in 1994 will happen to you” and “We beat apartheid and we’ll beat you”). Then they brought a music history expert, Anna-Marie Grey. Her evidence was to show this music is not a song, but a chant, and there is no record of it in liberation songs. In essence, she had to prove there is no history of this “music”, and thus the ANC cannot claim it as an integral part of it culture.

It’s important to remember AfriForum has never claimed that farmers have been killed because of the song, but only that Malema’s singing of it has “contributed to a climate of hostility”.

TAU is very different in attitude and in the country in which it exists. Its case is fronted by Roloef du Plessis, hectoring, lecturing, quite abrasive and possibly crossing that thin line between pushy and plain rude. He’s brought evidence from people claiming to be experts on “boers”, about their history, about how the word “boer” now has a heroic ring to it because of the fight against the English, rather than any tinge from apartheid. At one point it seemed one of his witnesses was about to make the claim that the Afrikaners really are that tribe that got a little lost in the wilderness. It was distinctly odd. Du Plessis went further, complaining that translators into “black languages tend to make a case harder, and it’s not a black thing”. Not hugely PC, to put it mildly.

In essence, there is clear blue water between the two organisations, despite the fact they want the same thing.

So many trials hang or fall on one aspect, the cross-examination of the person whose conduct is at issue. When Schabir Shaik was forced to take the stand in his corruption trial, you knew within an hour of the start of Billy Downer’s cross-examination, he was toast. When Jacob Zuma did the same in his rape trial (incidentally held in the same court building as this case) you knew, despite the “shower” tag that has hung around him, he was going to win. The cross-examination of the main suspect/defendant (this is not a criminal case, but rather an inquiry under the Equality Act, so it’s not fair to refer to Malema as either in this matter) is what determines the outcome. AfriForum knows this and is clearly one of the reasons they chose Brassey.

Because on Friday afternoon, with Hanekom on the stand, he was powerful. A man who has lived his life according to his morals since he was a teenager. A white Afrikaans farmer, who joined the ANC with his wife in 1980, after deciding to do so in 1976. A man who is inspirational, he embodies everything that is good about us. He was brought by the ANC to explain how, as a white Afrikaner, he sang those songs with a clean conscience.

Quite frankly, it might have been a mistake. Perhaps deputy sport minister Gert Oosthuizen  would have been better. Because Hanekom also chaired the ANC’s disciplinary hearing into Malema’s conduct last year. And this means Brassey can ask him about that hearing, because it was about Malema’s conduct. Which might have included the songs, and which gives him a legal reason to open that can of worms.

But Hanekom has already been forced to concede that he can’t remember when he first heard the song, and that it might well have been only in the 2000s. Which makes it difficult for the ANC to claim it’s a part of its heritage. Then there is the other question Brassey has returned to again and again, “Think of it like a grocer’s shop, you have so many songs you can sing to commemorate your history, and yet you pull this one off the shelf, despite the offence you know it causes, why this one?”

There was also a telling moment when Hanekom was provoked into giving a political speech, about how the ANC wants everyone to join together to fight poverty, discrimination, how they want all South Africans to get together to fight poverty. It was poetic. Until Brassey replied, “By singing kill the boer?” And as happens in court rooms, Brassey was able to tell Hanekom not to respond. Things got so tense at one point Hanekom snapped, “I don’t roll my eyes at you when you ask questions”. It was evidence Brassey had won. He pressed his advantage by asking time and time again what harm Malema had suffered by not being legally allowed to sing this song in the last year (a reference to the interim court order which stood until this case started). It’s an unanswerable question.

This case still has a long way to go. Malema is expected to take the stand this week, and he’ll be followed by ANC secretary-general Gwede Mantashe. They will talk about their histories, and their nationalism, about African nationalism (of which Malema’s political enemies on the left will claim he is something of an expert) and their class and how it has to still fight against the financially dominant class. There will no doubt be testimony about how it was the ANC that drafted the Equality Act in the first place and made sure Freedom of Expression was enshrined in the Constitution.

It’s too early to pre-judge this case. It seems unlikely to us a judge will ban just one person from singing just one song. And as we’ve mentioned before, the political impact of that would be momentous. It’s started a debate we thought would happen. People are already screaming themselves hoarse, and the sight of an inebriated man shouting in English “shoot the boer, shoot the farmer” outside the court is not a welcome one. Neither are Malema’s goons, all VIP bling and muscle and show and guns. Even if they are far more polite than the VIP Protection Unit.

It is a terrible sight for our democracy to see the big man swan into court with such a posse, for a posse is what it is. This case will do some real damage to our social fabric for a while, but eventually that will heal. As did those hoarse throats in the 1990s. DM

Grootes is an EWN reporter.

Photo: Armed private security guards gesture during the appearance of African National Congress (ANC) Youth League president Julius Malema at the Johannesburg court for a hate speech trial April 12, 2011. REUTERS/Siphiwe Sibeko