How AfriForum and the ANC settled out of court

2012-11-04 10:00
Charl du Plessis
It was the Supreme Court of Appeal (SCA) that made the ANC kiss the Boer instead of killing him.

City Press has learnt that the surprise 11th-hour settlement between the ANC, former ANC Youth League leader Julius Malema and AfriForum in the bitter feud over the struggle song Dubul’ Ibhunu (Shoot The Boer) was the result of a polite request by SCA judges.

The parties this week announced they had reached a settlement just a day before the matter was due to be heard in the country’s second-highest court.

City Press is in possession of a letter written by SCA registrar Bafana Mashini to the parties at the end of September.

In it, Mashini writes that “judges hearing the appeal wish to enquire from the parties whether they have considered settling the dispute through mediation or through any other suitable mechanism.

“If not, whether it would not be prudent to pursue this course before the appeal is heard.”

In what may be described as an offer the parties couldn’t refuse, Mashini writes they would “be required to report to the court, at the latest on the day of the hearing, on steps taken to settle the matter”.

The negotiations, at which ANC secretary-general Gwede Mantashe was present, took place on Tuesday and Wednesday.

City Press understands that Malema was present at the negotiations on Tuesday, but was writing exams on Wednesday.

He is registered with Unisa for a Bachelor of Arts degree, majoring in politics.

The court case was due to be heard on Thursday.

It took a mediator with 25 years of experience, who helped to broker the interim government in Zimbabwe, to assist the parties to find common ground.

Charles Nupen, who also worked on the National Peace Accord to address South African political violence in the early 1990s, said the negotiations were another case of South Africans “using dialogue to overcome seemingly intractable situations”.

Nupen said South African courts did not often order mediation but it was “a welcome development”.

According to the settlement, which has since been made an order of the SCA, the ANC concedes that certain struggle songs may be hurtful to minority communities.

The agreement states the ANC and Malema will “encourage”supporters to act with restraint to avoid such hurt.

AfriForum, meanwhile, conceded it was crucial to recognise and respect the rights of communities to celebrate and respect their cultural heritage.

The decision by the SCA to advise the parties to settle the dispute is likely to raise some eyebrows.

Several legal commentators this week said it was a pity the case had not been heard by the court as it would have set a valuable precedent on freedom of expression in terms of the Equality Act.

Judge Colin Lamont last year declared the song hate speech in an Equality Court judgment many criticised for being too broad.

The dramatic case saw large crowds of Malema and ANC supporters arrive at court to support the singing of the song.

AfriForum argued then that the singing of the song was offensive to whites, and to Afrikaners in particular.

Lamont found that although the ANC argued that “bhunu” referred to the overthrow of the apartheid regime, this regime consisted of people who were “alive and well” in South Africa today.

He said some of the song’s words were “derogatory, dehumanising and hurtful”, and interdicted the ANC and Malema from singing the song at public or private gatherings.