Since 1994, we have been assured that the Constitution entrenches a robust system of checks and balances — a protective “gospel” promising that when our rights are threatened, the courts will stand guard. Chief among these guardians are the Constitutional Court and the Supreme Court of Appeal (SCA), portrayed as impartial arbiters of justice.
That gospel was shattered in March this year. In a decision of extraordinary consequence, the Constitutional Court upheld the SCA’s finding — itself affirming the Gauteng High Court — that Julius Malema’s repeated chanting of “Dubula ibhunu” (Kill the Boer, kill the farmer) does not constitute hate speech. In the context of the present case these chants were made publicly, accompanied by firearm-mimicking gestures, on six occasions.
According to the courts, the “reasonable listener” would interpret the chants metaphorically — as symbolic calls to end land and economic inequality rooted in the armed struggle against apartheid, not literal incitement to violence.
But this conclusion defies both logic and evidence. All three courts flagrantly disregarded Malema’s own self-incriminating statements, choosing instead to treat his rhetoric as benign political metaphor. Had they taken his words seriously — as the Constitution requires — the outcome should have been the exact opposite: a finding that the chant was a literal call for extermination of white South Africans, especially Afrikaners and white farmers.
What unfolded was a triple-tiered travesty of justice — a legal failure not of nuance, but of will.
The courts’ non-judgment – Ignoring Malema’s own damning words
All three courts — the High Court, the SCA, and the Constitutional Court — committed the same fundamental error: they ignored the most crucial evidence in the case. That evidence came directly from Malema himself. In televised proceedings, under oath, Malema made it unmistakably clear that “Kill the Boer” was not a metaphor. It was a literal call for the mass slaughter of the country’s white inhabitants, especially Afrikaners and white farmers, held in abeyance until the EFF’s “commander-in-chief” gives the signal.
Malema testified that “all white people are criminals” and should be treated as such. Asked what it would mean to “get rid of white people,” he replied:
“If we go into a conference or into parliament and make a constitutional amendment that all whites must be driven to the sea, and any white who remains here is going to be killed . . . It is an institutionalised decision.”
In a public speech in Newcastle, he declared: “We are not calling for the slaughter of white people — at least for now.”
When pressed under oath, he refused to commit to renouncing such violence: “I will not do it,” Malema stated emphatically.
Asked whether he would embrace violence to “decolonise South Africa”, Malema responded:
“Colonisation is violent. It is like racism. And the only [way] to deal with violence you must be violent. Therefore, there is nothing wrong in engaging in a revolution and one to be suggesting that you cannot be engaged in violence. Revolution itself is violence.”
When asked whether he would endorse the use of violence for his revolutionary aims, Malema responded emphatically in the affirmative:
“M’Lord when the time comes and the conditions on the ground necessitate that arms must be taken, we will do so without hesitation.”
He continued:
“I am not scared of killing. A revolutionary is a walking-killing machine, not scared of death. If that need arises I will kill…”
Later he added: “We are very angry. We are ready to kill.”
When asked if chanting “Kill the Boer” might incite violence, and whether that concern would stop him from using it, he replied bluntly: “No.”
These statements were on the record, under oath, and nationally broadcast — yet the courts acted as though they were never uttered. The High Court ignored them. The SCA ignored them. The Constitutional Court, in turn, refused to even hear the appeal. Their silence was not mere oversight. It was a deliberate legal abdication.
Malema’s testimony left no room for ambiguity. His own words refuted the idea that “Kill the Boer” could be metaphorical. His violent rhetoric was not aimed at a system but at people — living, breathing citizens of South Africa.
By ignoring this, the courts fabricated a false context to justify their conclusion. They acted as though Malema’s most incriminating statements were irrelevant — or worse, invisible. That is why we call this a non-judgment. It was not an act of interpretation. It was an act of deliberate evasion and fabrication.
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The SCA’s perverse logic – A license to hate for populists
To the extent that the SCA offered a rationale, it was as illogical as it was dangerous.
The court relied not on legal principle but on characterisation — describing Malema as a “populist leader,” “outspoken,” someone who “does not mince his words.” As if that somehow immunised him from liability for hate speech.
Does populism broaden one’s freedom of expression? Does being “outspoken” or “controversial” grant a licence to incite violence? Would less demagogic individuals and parties be denied the same leniency? The court’s logic was not only bizarre — it was corrosive to the very idea of equality before the law and the very notion of the rule of law.
In reality, the approach to hate speech demands the opposite: that all public figures, especially those with a mass following, exercise restraint. That they do mince their words. That they do not glorify violence. Yet the SCA effectively declared that Malema’s inflammatory persona justified his inflammatory speech.
The court also relied on Malema’s political identity — his association with a radical left-wing ideology and the EFF’s campaign for “land justice” — as if ideology permits what the law forbids. It stated that a “well-informed” person would see “Dubula Ihunu” as merely a provocative political performance aligned with the EFF’s agenda. Even Malema’s mimed gunfire that always accompanies the chant was dismissed as theatrics.
A leader’s “political persona” is no defence for repugnant speech. In a civilised society, not all political identities are worthy of tolerance. Hitler’s persona included an open hatred of Jews; Stalin’s, a willingness to imprison, torture and kill millions. Their political personae – their distinctive branding – did not excuse their crimes. It deepened the moral indictment. Yet the SCA appears to believe that Malema’s political persona, defined by chants of “Kill the Boer,” somehow shields him from constitutional scrutiny. To treat a leader’s violently provocative persona as exculpatory is to accept a standard in which charisma excuses criminality and incitement masquerades as politics.
This is jurisprudential sleight of hand. To excuse incitement to murder because it fits a politician’s “persona” or party platform is to place ideology above law. Would the same reasoning apply to a far-right figure singing about the extermination of a minority? Of course not — nor should it. Hate speech is not exonerated by consistency with a particular (leftist) political branding.
The SCA also invoked history. It noted that “Dubula Ibhunu” originated as a liberation song during the struggle against white rule — implying that its continued use carries a symbolic, not literal, meaning. But this weak argument cannot withstand even cursory scrutiny.
In the struggle against white rule the target was a political regime. Today, the target is a vulnerable minority. The system is gone. Only the people remain. To chant “Kill the Boer” in 2024 is not resistance. It is incitement to racial violence.
The context has changed utterly, and the legal standard requires courts to assess speech in context. A chant that might once have had a symbolic dimension has, in Malema’s own words, become a literal threat. The court’s failure to grasp this — or its refusal to confront it — amounts to a sanctioning of incitement under the veil of nostalgia.
A constitutional nadir – When transformation trumps justice
This case marks not just a legal misstep, but a constitutional collapse. The Constitutional Court’s refusal to hear the appeal, following the SCA’s warped reasoning, signalled open tolerance for rhetoric that crosses the line into incitement. It told Malema and his supporters that chanting “Kill the Boer” is constitutionally protected — even when paired with firearm gestures, even when uttered by a man who has declared, under oath, his readiness to kill.
This is not free speech. It is licensed intimidation. It is a judicial green light for the expression of hate, masked as political expression.
Nor is this an isolated instance. The Constitutional Court has, in recent years, handed down a series of transformationist judgments — in Agri SA (endorsing the nationalisation of mineral rights), Barnard (affirmative action, specifically doctrinal representivity), Glenister III (historical interpretation in keeping with the beliefs of the ruling elite), the Pretoria street renaming case, and the Free State University language ruling. Each time, South Africa’s apex court has appeared more committed to ideological aims than to principled adjudication.
But “Kill the Boer” is different. It is not transformation in the name of justice. It is the judicial endorsement of proto-genocidal rhetoric. It enshrines the idea that calls for extermination are acceptable, so long as they come from the “right” political quarter.
The courts have effectively relieved the government — and the President — of their constitutional duty to ensure public peace and to protect minorities. They have allowed a chant with genocidal overtones to flourish under the cover of struggle nostalgia. In doing so, they have not only failed the Constitution. They have disgraced it.
This is why we say: beware. When a matter involves any aspect of transformationist ideology — whether land, race, or history or whatever else — do not count on judicial impartiality. Success is not impossible, but the risks are immense. The “Kill the Boer” saga shows us not merely what the courts have failed to do, but what they may now be unwilling to do: uphold the law when it cuts against the ruling oligarchy’s ideological grain.
Prof Malan is a constitutional jurist from Pretoria
Dr Gravett teaches law at Akademia.
