Dubula continua: ANC asks to appeal That Judgment

By Carien Du Plessis 21 September 2011

At the end of September there will be song again on the pavement outside the Johannesburg High Court where the ANC and its Youth League’s request to appeal the judgment against the singing of a certain song will be heard. CARIEN DU PLESSIS will be listening.

In the slipstream of a second defiant rendition of “Ayasab’ amagwala” (“the cowards are scared”) at a Cosatu provincial shopsteward’s meeting, led by the labour federation’s president S’dumo Dlamini, the lawyers for the ANC and Youth League leader Julius Malema have filed a five-page document asking for leave to appeal.

The ANC and Malema want the appeal to be heard by the Supreme Court of Appeal or a full bench of the High Court, and said they would take the matter to the Constitutional Court as well if the appeal should go against them. The matter was set down for September 29 in the Johannesburg High Court.

Judge Colin Lamont ruled last week in the Equality Court that Malema and the ANC should be interdicted from singing the song, while “the morality of society dictates that persons should refrain from using the words and singing the song”.

The ANC and Malema argue the court “erred in effectively imposing an absolute prohibition on the song”, because that was not what the plaintiff, AfriForum, had asked for in the first place. They also say that the court, in finding the song to constitute hate speech, didn’t take into consideration the evidence presented in defence of the song, which included that the song “is indeed a liberation song sung by ANC members and the historically oppressed people in general”; that it is a song and not a chant; that the complaint took the utterances (“dubul’ibhunu”) out of context of a “liberation song” and that these should be understood in context; that Afriforum and co-complainant TAU-SA did not provide evidence that the song, in fact constituted hate speech or “incitement of imminent harm”, or that it had caused farm killings in the past.

They also argue there is an “unlawful limitation” on the freedom of speech of Malema and ANC members if the song could not be sung.

The request for leave to appeal hardly came as a surprise. The ANC Youth League last week already said it would ask to appeal the judgment, while ANC secretary general Gwede Mantashe only on Monday said the party would follow the ANCYL’s lead. After a meeting of the ANC’s national executive committee over the weekend, Mantashe said the party wanted to “protect its heritage by appealing the court decision that bans our struggle song ‘ayeseba amagwala’”. He also said people should talk “to ensure that we emerge an agreement on common heritage”.

When asked what he thought about what Cosatu’s Dlamini was doing – urging unionists to sing the song in defiance, first in KwaZulu-Natal, then in Eastern Cape – Mantashe first tried to laugh it off, a little nervously.

Then he became serious and said the ANC couldn’t answer for what happened at Cosatu meetings and for what Cosatu leaders were saying.

When pressed to explain the difference between the just defiance of a court judgment and criticism thereof, he became even a bit more serious. “It is the consequence of a judgment that is unenforceable, particularly if you restrict Julius Malema and the ANC from singing the song, you are saying Cosatu and the SACP are free to sing this song, the PAC and Azapo are free to sing this song. Everybody else is free to sing the song except the ANC and Julius Malema. The only person who is mentioned by name is Julius Malema.”

He said if the song was sung at a Cosatu meeting, surely the labour federation was not in contempt of court.

It’s questionable whether he’s right, except that most Cosatu members are also ANC members, which surely must mean the judgment applies to them too.

Lawyers so far haven’t really been able to figure it out either, so life continues as usual and nobody has been charged with contempt of court – yet. Even AfriForum seemed a bit unclear about what the judgment actually means. Its lawyer, Willie Spies, reacted outside court soon after the judgment to the singing of the song by a group of young people. He said the interest group only wanted Malema to refrain from singing the song, while the group of young people singing it was leaderless.

And if the “morality of society” dictates that the words “dubul’ibhunu” not be used, where does it leave the authors and publishers of stories like this one?

Shall we just say, we’re all watching the appeal with keen interest. DM

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