OPINION | AfriForum can conduct affairs freely because of SA's democracy, freedom of expression

 The Constitutional Court has confirmed that the right to freedom of expression is not limited to moderate and inoffensive statements but also extends to those that offend, shock and disturb.

In Qwelane v SA Human Rights Commission and Another, the Constitutional Court said: “The historical stains of our colonial and apartheid past reinforce the point that freedom of expression has a particularly important role to play in our democracy.” Underlying SA’s constitutional democracy is a tolerance of all views and for people to be free to express those views.

On March 27, the Constitutional Court dismissed AfriForum’s application for leave to appeal the judgment of the Supreme Court of Appeal in the matter of Struggle song Dubul'iBhunu, chanted by EFF leader Julius Malema.

The chant has its origins in the Struggle against the repressive apartheid regime and was sung by ANC supporters and leaders, including Malema while a leader of the ANC Youth League. 

The decision of the ConCourt comes at a time when, owing to disinformation and misinformation on government policy on land expropriation and rural safety, the US government believes that confiscation of land and genocide of Afrikaners is taking place in SA. This, because of engagements between AfriForum and representatives of the US government.

The publication of this decision comes at a time when the diplomatic relations between Pretoria and Washington are strained. It is worth noting that the US government, as a superpower, has unmatched diplomatic and intelligence resources to check the veracity of information on SA, should it so choose.    

AfriForum is annoyed and offended by the chanting of Dubula iBhunu which the EFF sang at the March 21 commemoration of Human Rights Day in Sharpeville. AfriForum has even called on the president to denounce the continued singing of the chant and it intends to approach international forums to ventilate its complaint. 

AfriForum contends that the song is an incitement to hatred or harm against white Afrikaans farmers. This follows AfriForum’s concern about the killings of white farmers. The courts have ruled that this chant is not hate speech given the Struggle context in which it emerged and that it should not be taken literally. Context matters, as evidenced by the courts' finding unconstitutional the gratuitous display of the old Vierkleur apartheid flag.

It is reckless and, to some extent, mischievous for an organisation such as AfriForum, claiming to represent a minority group, to spread misinformation and disinformation on domestic policy aimed at redressing the injustices of the colonial and apartheid-era past.

Despite the spreading of misinformation and disinformation, AfriForum continues to conduct its affairs freely – something that would not have been tolerated pre-1994. This, AfriForum can do, precisely because of the constitutional democracy and respect for freedom of expression.

There is no doubt that the belief by the US that Afrikaner property is being confiscated willy-nilly, without compensation, has already had negative consequences for SA if the executive orders granting Afrikaners refugee status while cutting off HIV/Aids related aid are anything to go by.

This exercise of freedom of expression has offended and annoyed many to the point of AfriForum being accused of unpatriotic and treasonous behaviour. However, since it is not hate speech, it is protected under our constitution.

During apartheid, when the right to freedom of expression was not enshrined in our constitution, AfriForum’s opinions would most likely have led to it being banned or its activists would have been visited by the Vlakplaas unit, among others, with tragic consequences ... something worth appreciating.           

• Mokhine is the executive director at the Freedom of Expression Institute