FXI Law Clinic Cases

The FXI has contributed to the body of knowledge on freedom of expression in South Africa through cases undertaken by the FXI Law Clinic. The FXI Law Clinic has intervened in over 200 freedom of expression related matters since its inception. 

Brief history of the FXI Law Clinic

The Media Defence Trust was established in 1989 in response to the wave of state action against the media, such as the closure of newspapers and detention of journalists. In its six years of establishment the Media Defence Trust was the sole supporter and defender of independent media and journalists. The Media Defence Trust was incorporated into the FXI in 1994, at the request of its administrators, and became the Defence Fund of the FXI. The Defence Fund was re-launched as the Freedom of Expression Defence Fund in 1997 to reflect the broadening of its role to include all cases involving freedom of expression and access to information. The Freedom of Expression Institute Law Clinic was established in 2005 and is accredited by the Law Society of South Africa.

Afriforum and Julius Malema
Julius Malema, who at the time was the President of the African National Congress Youth League, led the singing/chanting of a former ANC "struggle song" entitled "Dubul'ibhunu" at various public events. Though there was some controversy as to the song's exact translation, its words were generally understood to mean "shoot the Boers/farmers, they are rapist/robbers!" Malema accompanied his singing with a gesture mimicking the shooting of a firearm. Afri-forum and Tau SA brought suit against him and the ANC, arguing that the song constituted hate speech under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Malema countered that the singing was within his right to freedom of expression under section 16(1) of the Constitution and that the allegedly offensive language alluded to destroying the apartheid regime, which his audiences would have understood.

Judge Lamont found for the complainants, banning Malema from singing "Dubul'ibhunu" thereafter in public or private. According to the court, the context in which the song was sung (at public events and political rallies with media presence), combined with the aggressive accompanying gesture, weighed in favor of a finding of hate speech. In his decision, J. Lamont also noted that the song likely had not comprised hate speech previously since the targeted group (Boers/Afrikaners) had not been aware of what the words meant; the subsequent translation and press coverage contributed to its "transformation" to hate speech. The reaction of the audience-in this case, the public at large-thus had significant ramifications for whether an expressive act constituted hate speech.
Open/View PDF (Afriforum-v-Julius-Malema.pdf)
September 12 2011 By Freedom Of Expression Institute
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