Law is not static—it bends with society’s pulse.

The “Kill the Boer” chant, a controversial anti-apartheid struggle song in South Africa, has been the subject of multiple legal challenges, primarily led by the Afrikaner civil rights group AfriForum against the Economic Freedom Fighters (EFF) and its leader, Julius Malema. The chant gained significant attention when Julius Malema, then president of the African National Congress Youth League (ANCYL), sang “Dubul’ ibhunu” (“Shoot the Boer”) at public gatherings in 2010. AfriForum argued that it incited violence against white farmers and constituted hate speech

Key stages of the legal procedures/outcomes

1. Stage 1: Initial Legal Challenge – Equality Court (2010-2011)

AfriForum brought a case to the South Gauteng High Court, sitting as an Equality Court, under the Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act). The case focused on whether the song violated Section 10 of the Act, which prohibits speech that could cause harm, incite violence, or promote hatred based on race. In September 2011, Judge Colin Lamont ruled that the phrase “shoot the Boer” amounted to hate speech and was not protected under free speech as outlined in Section 16 of the South African Constitution. Malema was ordered to stop singing the song in its original form. Following this, Malema adapted the lyrics to “Kiss the Boer,” though critics argued the intent remained provocative.

2. Stage 2: Renewed Controversy and Equality Court Case (2020-2022)

The issue resurfaced in October 2020 when EFF supporters, including Malema, sang “Kill the Boer” outside the Senekal Magistrate’s Court during a protest related to the murder of farm manager Brendin Horner. AfriForum again challenged the chant, claiming it incited violence amid rising farm attacks. AfriForum filed a new case in the Equality Court at the Gauteng High Court in Johannesburg, seeking to have the song declared hate speech and to interdict the EFF from singing it. The case examined whether the chant, in its modern context, violated the Equality Act or incited violence against farmers. AfriForum argued that the chant had a direct link to farm murders, citing its inflammatory nature. The EFF, supported by expert testimony from scholars like Professor Elizabeth Gunner, contended that the song was a symbolic expression of resistance against apartheid and systemic oppression, not a literal call to violence. Malema testified that the song targeted an oppressive system, not individuals. On August 25, 2022, Judge Edwin Molahlehi ruled that “Kill the Boer” did not constitute hate speech or incitement to violence. The court found no causal link between the chant and acts of violence, emphasizing its historical and political context. The judge noted that freedom of expression protected the song, and AfriForum failed to prove intent to harm. AfriForum was ordered to pay the EFF’s legal costs.

3. Stage 3: Appeal to the Supreme Court of Appeal (SCA) (2023-2024)

Dissatisfied with the Equality Court’s ruling, AfriForum appealed to the Supreme Court of Appeal (SCA) in Bloemfontein, seeking to overturn the 2022 decision.The appeal hearing took place in September 2023, with AfriForum arguing that the Equality Court misinterpreted the law and ignored the real-world impact of the chant on farmer safety. The EFF maintained that the song was a legitimate form of political expression rooted in the anti-apartheid struggle. In May 2024, the SCA dismissed AfriForum’s appeal, upholding the Equality Court’s ruling, and reiterated that the chant did not meet the legal threshold for hate speech under the Equality Act, as there was no evidence of a clear intention to incite violence or harm. The SCA emphasized the song’s symbolic nature and its protection under constitutional free speech rights (Section 16 of the South African Constitution). This decision was based on the context of the chant as a “metaphorical statement tied to historical struggles over land and economic emancipation”, rather than a literal incitement to violence..

4. Stage 4: Final Appeal to the Constitutional Court (2025)

AfriForum made a final attempt to challenge the chant by applying for leave to appeal to the Constitutional Court, South Africa’s highest court, arguing that the matter raised significant constitutional issues about free speech, safety, and racial harmony. AfriForum sought to have the SCA’s ruling reviewed, claiming that the chant endangered farmers and that prior courts adopted an overly ideological interpretation of the Constitution. The EFF did not formally oppose the application, confident in previous rulings. On March 27, 2025, the Constitutional Court dismissed AfriForum’s application in a brief ruling, stating that it “bears no reasonable prospects of success.” The court did not hold a hearing or consider written arguments, effectively ending the legal challenge. This upheld the SCA’s decision, cementing the legal stance that “Kill the Boer” is not hate speech and is protected as political expression.

Courtesy

@RenaldoGouws

Is Afriforum appeal dismissed?

Many White South Africans have rightfully expressed anger at the result of the Court proceedings. It is indeed important to mention that this legal journey reflects a tension between historical symbolism and contemporary interpretation in South Africa. Moreover, SA Courts have consistently prioritized the chant’s anti-apartheid roots and lack of proven violent intent over claims of racial provocation. However, as AfriForum stated, the Constitutional Court ruling ignores the lived experiences of farmers facing violence, and accuses judges of using personal ideologies to interpret the South African Constitution which in Afriforum CEO Kallie Kriel’s opinion is a sign of radicalisation in the interpretation of the Constitution. On the contrary, supporters, like the EFF, see it as a victory for free expression and historical memory.

Regarding future possibilities, the SCA has already ruled on this matter in the case AfriForum v Economic Freedom Fighters and Others (1105/2022) [2024] ZASCA 82. However, AfriForum sought to escalate the issue further by applying for leave to appeal to the Constitutional Court, South Africa’s highest court. On March 27, 2025, the Constitutional Court dismissed AfriForum’s application, stating it “bears no reasonable prospects of success.” This effectively closes the domestic judicial avenue for revisiting the chant’s legal status in the immediate future, as the Constitutional Court’s decision is final within South Africa’s court system.

However, tables are not turned yet because

• 1) the Court hasn’t dismissed the appeal; it stated there are no further steps in this matter and therefore judges won’t hear any arguments made before the Court by the appellant. It is the end of the judicial avenue for THIS litigation but;
• 2) more importantly, the nature of the LAW says it is not over – take for example Roe vs. Wade which was overturned by the current US Supreme court. So, Yes, Context matters. If today no further legal mechanisms exist to challenge the chant, new evidence or incidents could prompt a fresh case undoubtedly.

The courts have hinted that if the song’s use shifts—like if it’s chanted in a volatile setting, say, during a spike in farm attacks or racial unrest—it could be seen as “offensive and undermining” in a way that crosses the line. The 2022 Equality Court judge even noted this possibility, leaving the door cracked open. New evidence, like a direct link to violence or a change in how it’s wielded (think Julius Malema singing it at a riot instead of a rally), could flip the script. If public sentiment sours or political pressure mounts, a future court could reassess intent and impact differently. The song’s history shows this: it was banned as hate speech in 2011, then unbanned in 2022. Precedent’s strong, but it’s not ironclad when new facts scream for a second look. That’s the wild card—circumstances evolve, and so can the ruling.

Here are a few scenarios where the issue could theoretically return to the SCA:

1. New Context or Evidence: If the chant were used in a significantly different context—such as explicit incitement to violence with clear evidence linking it to specific acts—the matter could be brought before the courts again. The SCA itself noted in its 2024 ruling that its decision was context-specific, implying that a different situation might warrant re-examination. However, this would require a new legal challenge, likely starting at a lower court (e.g., the Equality Court or High Court) before reaching the SCA.
2. Legislative Changes: If South Africa’s Parliament were to amend laws related to hate speech—such as the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA)—to redefine or tighten the criteria, this could prompt fresh litigation that might eventually reach the SCA. However, no such legislative shift is currently indicated as of March 2025.
3. International Pressure or Forums: AfriForum has hinted at pursuing the matter internationally if domestic courts rule against them, as noted by CEO Kallie Kriel in 2023. While this wouldn’t involve the SCA directly, an international ruling (e.g., from the UN Human Rights Committee) could pressure South African courts to reconsider their stance, potentially leading to a new SCA case. This remains speculative and depends on AfriForum’s actions and international responses.

Conclusion

Given the Constitutional Court’s dismissal , the legal status of “Kill the Boer” as not being hate speech is settled for now under current law and context. Any future SCA case would likely require a distinct factual basis or legal framework. The song “Kill the Boer” could be brought to court again for hate speech in the future South African courts, like the Equality Court and Supreme Court of Appeal, because the nature of legal rulings and the context surrounding the song leave room for reinterpretation, but it hinges on unpredictable developments rather than an immediate likelihood.

In a country with around 80 murders a day, and a rape every three minutes, calling Malema’s favorite song a symbolic resistance anthem tied to the anti-apartheid struggle, protected under freedom of expression, is more than collective amnesia amongst the Constitutional Court judges. The song does not meet the definition of a “struggle song” since the lyrics do not reflect a struggle in post-apartheid South Africa. Judges stated they found no clear intent in the lyrics to incite harm or propagate hatred under the Equality Act.

This chant lyrics specifically target a minority – i.e the Boer, and by extension Afrikaners – and are intended to instill fear within the white minority and influence the black vote. Parliamentary leaders chant it at their political rallies, and the chant is used word-for-word by Malema in interviews where he emphasizes that his intention is to take the land, by force if necessary. In a democratic nation, it does NOT make any sense when political leaders are chanting “Kill the boer” instead of calling for unity of the South African nation, especially with a promising young generation of White South Africans completely alien to the apartheid era.

“Kill the Boer” emerged during the late apartheid era (1980s–1990s), a period of intense violence between the apartheid regime and liberation movements like the African National Congress (ANC) and its armed wing, Umkhonto we Sizwe (MK). The song’s core phrase, “Dubul’ ibhunu” (“Shoot the Boer”), was sung by activists in townships, at rallies, and during funerals. In that context, “Boer” referred to Afrikaners, and the lyrics, taken at face value, are undeniably violent: it is a direct call to arms, and during the anti-apartheid struggle, violence was a reality—MK carried out bombings, and clashes with security forces resulted in deaths on both sides. For some singers and listeners at the time, the song was a morale booster to encourage lethal action against those upholding apartheid.

After 1994, when apartheid ended, the song’s revival by figures like Julius Malema (first with the ANCYL and later the EFF) coincided with a rise in farm murders—over 1,500 recorded between 1994 and 2025, according to some estimates. Singing it in this post-apartheid context shifts its purpose from symbolic resistance to a call for racial violence against white farmers, whom “Boer” now represents in the public imagination. Afrikaner communities have testified in legal proceedings (e.g., the 2011 Equality Court case) that the song instills fear and implies a genocidal threat. They point to incidents like the 2020 Senekal protest, where EFF supporters chanted it amid tensions over a farmer’s murder, as evidence that it encourages hostility and potentially violent acts. The discrepancy between the reality on the ground and the Court’s ruling is paradigmatic of a South African nation that hasn’t resolved racial tensions within society: White South Africans see it as a dangerous incitement against farmers representing the white minority, while courts and defenders frame it as symbolic heritage.

Remember that harboring the old South African flag – a piece of cloth- isn’t inherently considered hate speech under South African law—private possession remains legally permissible – but displaying it publicly in a manner that demonstrates intent to hurt, harm, or promote racial hatred has been ruled hate speech since the 2019 Equality Court decision, upheld in 2021.

The ANC has been in power for 31 years. So I am asking President Cyril Ramaphosa and the Honorary Members of the South African Parliament: how on earth does it make sense TODAY to sing an apartheid era song at political rallies, a song clearly sung to encourage people to kill other people? Failing to condemn the “Kill the Boer” song and at the same time calling for unity and praising South Africa as a democracy that respects all its citizens is a huge political mistake and an ideologically-driven decision. Showing some respect to Boers and Afrikaners who’ve worked so hard to build this country is a cornerstone of cohesion and unity in society.

Afriforum has already stated its intentions to bring the matter before the International Court of Justice (ICJ) and the UN on a basic principle: the protection of minorities’ human rights and the prevention of a genocide. The South African courts have failed to rule on a principle: you don’t have to link the chant specifically to murders, you just have to prove that it is hurtful and hateful. And it is blatant enfringment of White South Africans’ dignity which is hurtful, with severe consequences .

Following Trump’s announced Executive Order implementing a Special Refugee Program for Afrikaners, many South Africans have decided to leave the country. But not all will leave their homeland, for various reasons, and therefore are vulnerable given the latest Constitutional Court ruling.

So here’s the kicker: those Court rulings hinge on specific circumstances, and the law’s a living beast.

To be continued.