THE struggle song Dubuli'Bhunu will remain banned until the high court decides otherwise.
Equality court magistrate Alvin Chaitram referred the hate speech case, opened by AfriForum against ANC Youth League president Julius Malema, to the high court yesterday.
"I think we can safely accept that the high court wields the bigger stick ... I accept that," Chaitram said.
AfriForum opened the case after Malema sang the song before his address at the University of Johannesburg earlier this year. It complained to the high court that the song incited violence against Afrikaans speakers and farmers.
The song, which was popular during the struggle against apartheid, was temporarily declared illegal.
But Malema continued singing the song during his visit to Zimbabwe, where he was warmly received by the ruling party Zanu-PF and President Robert Mugabe.
The ANC had indicated its intention to appeal the ruling that the song was unconstitutional.
The ANC argues that declaring the song illegal was wrong because it imposed an absolute prohibition on the words, irrespective of time, place, manner and context.
Speaking after the ruling, AfriForum lawyer Willie Spies said the matter could take as long as to the end of the year to be heard again.
Spies explained that they had approached the equality court first because the high court does not have equality court clerks to get the matter going.
Malema was not present and his usual entourage of vociferous supporters had also opted not to attend.
His lawyer, Tumi Mokwena, said there was no need for Malema to be present at this stage of the proceedings.
Mokwena explained that in terms of the court order anyone singing the song before it went to the high court could be found in contempt of court.