AfriForum’s application has since been dismissed with costs after the court ruled that the song did not constitute hate speech.
Delivering the ruling on Thursday, Judge Edwin Molahlehi that AfriForum failed to demonstrate that the EFF contravened the provisions if the Equality Act by singing the struggle song Dubul’ibhunu.
“They have also failed to show that the merits in this song could reasonable be construed to demostrate a clear intention to harm or incite harm and propagate hatred,” he said.
Disqualified as expert witness
During earlier the proceedings, Molahlehi said AfriForum’s head of policy and action, Ernst Roets did not qualify as an expert witness.
“If that were to be the case, the legislator would have expressly provided for that. It is clear even from the version of AfriForum that Mr Roets is disqualified to be an expert witness in this matter,” Molahlehi said.
“He is as indicated earlier that he is an employee of AfriForum, responsible for some of is strategic projects. He is responsible for coordinating its campaigns on farm attacks, a matter that is fundamental to this case.
“Mr Roets, on his evidence, is an advocate and activist on issues related to socio-political affairs of the AFrican communities a matter that is central also to the issues in this case,” he added.
The judge further concluded that Roets’ testimony was “based on hearsay evidence”, adding that AfriForum’s witness, Duncan Prinsloo’s evidence was “not of probative value”.
“There’s no evidence that at the time the song was sang it incited harm, promoted and propagated hatred against any specified group if as far as the evidence of Mr Prinsloo is concern,” he said.
Regarding Malema’s testimony, Molahlehi said he found no reason to reject the EFF leader’s evidence.
R500,000 in damages
AfriForum lodged a civil case against the EFF in 2020, after accusing the party and its leaders of committing hate speech over the singing of the struggle song Dubul’ibhunu.
The organisation has long argued that it was of the view that the song advocates hatred on the grounds of race and ethnicity, and constitutes an incitement to cause harm.
In their case, the lobby group had sought an order directing the EFF to pay R500,000 in damages and for the party to be directed to revise its policies and practices.
The Democratic Alliance (DA) previously also laid criminal charges against Ndlozi for incitement to arson after he allegedly sang “call the fire brigade, burn these Boers” in Senekal, Free State.