The matter was instituted in the Equality Court (held at the South Gauteng High Court) by the Afri forum. The Afri forum was thus the complainant and Julius Malema (“Malema”), who at the time was the leader of the ANC youth league was the respondent. The Afri forum laid a complaint against Malema accusing him of hate speech, in that he sang a song publicly, that had utterances that constituted hate speech. In particular that that the song “Dubula ibhunu” bore the utterances “Dubula amabhunu baya raypha”, “They are scared the cowards you should “shoot the Boer” the farmer! They rob these dogs”. Loosely translated shoot the Boer, shoot the Boers they rape.

The Equality Court found against Malema, and held that the words as contested constituted hate speech on the occasions the first respondent sang them. The first and second respondents were interdicted and restrained from singing the song known as “Dubula Ibhunu” at any public or private meeting held by or conducted by them. Lamont J, stated that the morality of society dictates that persons should refrain from using the words and singing the song.

This particular judgement created much upheaval especially in the legal fraternity as it was seen to be vague and did not serve the purpose of clearly defining the parameters of hate speech, which was already thought to have a definition wide enough to possibly encompass anything and in itself was in some way contradictory to freedom of speech.

The ANC made a decision to take the matter on appeal in the Supreme Court of Appeal (the SCA) which then gave the FXI the opportunity to enter as amicus. Having made the necessary arrangements for our intervention as amicus together with freedom of expression organisation Section 16 we were to later learn that the matter was settled in October 2012, the parties signed a mediation agreement.

This case would have sought to challenge the wide scope of what constitutes hate speech.  As well as to address the vague order handed by the High Court.