The renewed hate speech legal battle between the EFF and AfriForum is set for an open trial before the Equality Court in Johannesburg over the refusal by the Red Berets to forego the use of anti-apartheid song Shoot the Boer at its gatherings.

AfriForum had in late 2020 approached the court in which it accused EFF leader Julius Malema, MP Mbuyiseni Ndlozi and party members of committing hate speech “by chanting songs and statements that advocate hatred on the grounds of race and ethnicity, and constitute an incitement to cause harm” since 2016.

While ANC Youth League president in 2010, Malema was found guilty of hate speech for singing the song after he was dragged to the same court by the organisation. After Malema appealed to the Supreme Court of Appeal (SCA) the two parties reached a settlement for mediation and smoked a peace pipe that would involve “dialogue among leaders and supporters” to promote understanding of their respective heritages.

In its current papers before the court, AfriForum is accusing Malema and the EFF of violating the 2010 court order by insisting on singing the song.

AfriForum head of policy Ernst Roets said while Malema could be heard to have changed the lyrics of the song from Kill the Boer, shoot the farmer to Kiss the Boer, kiss the farmer, he was still “gesturing with his hand the pointing and shooting of a firearm”.

Roets said Ndlozi had also sung a song in 2020 which called for the burning of Boers and AfriForum is seeking an order directing the EFF and respondents in the cases to pay R500,000 in damages and for the party to be directed to revise its policies and practices.

In his answering affidavit, Malema disputed that chanting the Kiss the Boer song constituted hate speech or that there was an order against the Kill the Boer song, saying the Equality Court order was “substituted by the SCA order which gave effect to the mediation agreement” and that this took away the force of the ruling.

Malema also rejected claims by AfriForum that he had failed to comply with the spirit of the SCA order of engaging with the organisation on the issue and encouraging “supporters” to act with restraint.

“First it is worth stating that I was a member of the ANC at the issuance of the SCA order. The order clearly intended to bind me to encouraging leadership and supporters of the ANC from so acting. It cannot have intended to refer to the EFF because the EFF did not exist at the time,” he said.