Constitutional Hill

About “unknown unknowns” and hate speech

Donald Rumsfeld, the former American Secretary of Defence famously said: “[T]here are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know.” When a judge clearly does not know that he does not know the applicable law, his or her judgment usually makes for interesting but somewhat depressing reading.

I was reminded of this truism when I read the “judgment” of Judge LP Halgryn in the matter of African National Congress and Others v Harmse and Another. The “judgment” purports to deal with an application of the ANC to appeal a previous consent order granted by the judge to the effect that the singing of the song Dubula Ibhunu was “unconstitutional and unlawful”.

However, without having heard any evidence on the matter and without having considered the factual context within which the words were supposedly communicated, the “judgment” declares that the song is “unconstitutional” and that chanting it “prima facie satisfies the crime of incitement to commit murder”.

Acting judge Halgryn, dismissing the ANC’s application for leave to appeal, has now provided reasons for the original order. That order was, of course, a legal nonsense, but that has not prevented the acting judge from providing a set of rather incoherent and embarrassingly uninformed justifications for granting the order. He has also amended the original order without having received an application in terms of Rule 42(2) read with Rule 42(1)(b) of the Uniform Rules of Court for a rescission or variation of the order.

The acting judge seems unaware that the Constitution itself does not prohibit any speech – be it hate speech or any other kind of speech. He relies on section 16)(2) of the Constitution which defines certain forms of hate speech to which the protection of freedom of expression does not extend. Judge Halgryn then states that section 16(2) of the Constitution “prohibits” hate speech. It does nothing of the sort.

The chanting of Dubula Ibhunu can therefore not be unconstitutional and the original order is therefore legally embarrassing. Although the judge refers to the Islamic Unity Convention decision of the Constitutional Court where the meaning of section 16 is explained rather clearly, he has either not read the judgment he cites or he has not understood its meaning. In that case, then Deputy Chief Justice Pius Langa explained how one had to read section 16 of the Constitution.

Section 16 is in two parts. Subsection (1) is concerned with expression that is protected under the Constitution. It is clear that any limitation of this category of expression must satisfy the requirements of the limitations clause to be constitutionally valid. Subsection (2) deals with expression that is specifically excluded from the protection of the right. How is section 16(2) to be interpreted? The words “[t]he right in subsection (1) does not extend to . . .” imply that the categories of expression enumerated in section 16(2) are not to be regarded as constitutionally protected speech. Section 16(2) therefore defines the boundaries beyond which the right to freedom of expression does not extend. In that sense, the subsection is definitional…. There is accordingly no bar to the enactment of legislation that prohibits such expression. Any regulation of expression that falls within the categories enumerated in section 16(2) would not be a limitation of the right in section 16.

In other words, section 16(2) does not prohibit any speech, but it allows the legislature to pass legislation to prohibit or limit the speech defined in section 16(2). If a legislature passed legislation to limit such speech, that legislation could not be tested against the freedom of expression provision set out in section 16 because it would fall outside the scope of what constitutes protected speech.

The legislature did exactly that, passing section 10 (read with section 12) of the Equality Act, which does place limits on several kinds of speech. If one wishes to enquire whether the singing of a song constitutes hate speech which could legally be banned, one is therefore required to rely on this section – not on section 16(2) of the Constitution.

Because the judge wrongly relies on 16(2) to justify his order, the judge argues that the intention of the person uttering the aggrieved words “is wholly irrelevant”. Section 10 of the Equality Act famously defines hate speech as speech that could reasonably be construed as having the intention to hurt or harm someone based on their race or some other offensive ground. The learned judge claims that “it is not for the maker/ articulator of the expression/declaration under consideration, (nor is it for the Courts), to dictate how the beholder thereof should perceive” the words.

This is of course wrong. It is exactly for the Courts to decide whether a reasonable person would construe the words uttered by a specific person in a specific context as having had the intention to harm a group of persons based on their race or based on some other ground. Whether the beholder of the words perceives the words to be hurtful is not the relevant point that would clinch the deal. This is because the beholder of the words might not be a reasonable person. That beholder might – say – be Steve Hofmeyer or acting Judge Halgryn, in which case a court might well argue that the fact that the beholder has perceived the words as hateful is utterly irrelevant.

It is for the court, applying an objective test, to determine whether the person who uttered the words could reasonably be construed as having had the intention to hurt a group of people based on their race. That is why a judge cannot ban a song as judge Halgryn purported to do in this “judgment”. To decide whether the utterance constitutes hate speech in terms of section 10 of the Equality Act, one would have to look at the specific context to determine whether the intention of the person uttering the song could reasonably be construed as having the intention to hurt a group of people based on their race.

If I sing Dubula Ibhunu at a dinner party as part of an extended riff on the fact that I have a secret crush on Julius Malema and one of my guests takes me to court for hate speech, I am pretty sure I would be able to convince the court that I could not reasonably be construed as having had the intention to hurt white people. This rather obvious legal point which acting Judge Halgryn – in his seeming rush to ban a song that he finds objectionable – has failed to grasp.

The original order stated that chanting the impugned song “prima facie satisfies the crime of incitement”. There is, of course, no such crime as incitement in our law. This did not stop the acting judge from amending the order – without having been requested to do so in the legally required manner – to the effect that the song prima facie satisfies the crime of incitement to commit murder. Quite a novel approach to the law, which would have warmed the heart of Lindiwe Sisulu’s lawyer.

The fact that acting judge Halgryn so obviously did not know that he did not know the law regarding hate speech, makes this “judgment” one of the least plausible judgments I have ever read in my academic career.

  • Graham

    Pierre, your comment is, or certainly borders on, contempt of court. Your convoluted reasoning is almost beyond understanding. The problem, as I have stated before, reverts back to the ludicrous notion of having a so-called hate speech provision in the constitution when normal existing statutes covering crimen injuria, defamation, or whatever, would have sufficed.
    Now this has come back to bite the politically correct as it was predicted to do. Against good legal objections at the time, this provision was included in the constitution because they were scared that people would describe badly behaving people like Winnie Mandela as kaffir bitches for example. They were too dof or obtuse to foresee that “kill the boer, kill the farmer; shoot the boer, shoot the farmer”, or similar utterances would also qualify under this hate speech provision. Now that this has happened, the apologists and defenders of this grossly offensive language are now demanding a special dispensation to exempt such racist and provocative invective.
    So maybe the judge didn’t cross all the T’s in his wording, but you should be ashamed of yourself, not only for the insults you have levelled at him, but also, by extension, trying to justify this odious and insulting rhetoric directed at farmers, Afrikaners and whites.
    I wonder if the utterance “eff you”, qualifies as hate speech?

  • Maggs Naidu –

    May 17, 2011 at 19:10 pm

    Hey Graham

    “trying to justify this odious and insulting rhetoric directed at farmers”

    Pierre does that, the skelm that he is!

    On the subject of farmers, did you know that nearly half of the electricity that is stolen, is stolen by farmers?

    Maybe we should sing Dabula ielectricity thieves!

  • Maggs Naidu –
  • Pierre De Vos

    Graham, I am awaiting your legal analysis, setting out the most recent and acceptable definition of contempt of court as well as a clear analysis about why my criticism of the judgment is legally wrong. In its absence I can only conclude that YOU too suffers from a serious attack of not knowing that you do not know.

  • Nationalise the Minds

    This judgment reminds me of the ‘judgment’ of one Judge Roger Botha Cleaver of the Cape High Court who declared that Justin Nurse’s / Laugh it Off’s ‘Black Labour, White Guilt’ t-shirt “bordered on hate speech.”

  • izeze

    Uh, Graham: pithy comment! Ek laaik dit! (Sorry Prof)

  • Chris (not the right wing guy)

    Pierre de Vos has a secret crush on Julius Malema. That explains a lot!

    By the way, has sec 18(2)(b) of the Riotous Assemblies Act 17 of 1956 been repealed? It used to make incitement a crime in our law.

  • Andrea Muhrrteyn

    Interesting Double Standards Pierre.

    When I was three times convicted of using the word ‘Kaffir’; where I provided expert witness testimony from the leader of my culture (Radical Honesty) about my definitions for the word kaffir; everyone did not bother what my intentions were or what my definition was, or whether in the context used, the words accurately described the individuals in accordance to MY DEFINITION, not THEIR DEFINITION.

    Radical Honesty SA culture definitions for kaffir as submitted to Concourt (CCT 23-10; CCT 06-11), Equality Court: Afriforum v Malema; etc, are:

    [i] ‘Kaffir Behaviour’: Cultural Beliefs and Procreation Behaviour Definition: Individuals who either independently or as a result of their cultural value systems, are incapable of, or unwilling to, practice sexual restraint and procreation responsibility; who consequently breed cockroach-prolifically without personal financial or psychological responsibility to, or emotional concern for, their offspring; and/or who abuse women and children as sexual or economic slaves procreated for such purpose; and/or whose cultural ideal of manhood endorses non-consensual sex (rape) as their sexual slavery entitlement, etc.

    [ii] ‘Kaffir Etymology’: Original Etymological Definition for ‘Kaffir’: The word kāfir is the active participle of the Semitic root K-F-R “to cover”. As a pre-Islamic term it described farmers burying seeds in the ground, covering them with soil while planting; as they till the earth and “cover up” the seeds; which is why earth tillers are referred to as “Kuffar.” Thus, the word kāfir implies the meaning “a person who hides or covers”; To conceal, deny, hide or cover the truth.

    [iii] ‘Kaffir Legislation’ = Inalienable Right to Breed’ Poverty, Misery and War legislation; pretending it advocates for ‘peace’ and ‘human rights’. Kaffir Law/Legislation provides citizens with the Inalienable ‘Right to Breed’, but demands that Citizens need a Licence to Own a Gun, a Licence to Drive a Car, a Licence to Practice Law, a television licence, a credit licence, a licence to earn a living, a university exemption licence, a licence to fish, a licence to hunt, a liquor licence, a business licence, a marriage licence, etc, etc. Kaffir Legislation covers up that an ‘Inalienable Right to Breed/laissez-faire birth control policy + No Social Welfare policies or practices provides for an equilibrium carrying capacity; whereas Inalienable Right to Breed/laissez-faire birth control within a welfare state, results in Runaway Growth, and ultimately greater misery, poverty and war

    YOu had no problem with me spending a year in prison, or being found guilty of crimen injuria (which requires intention which I did not have); for ‘kaffir’.

    Are you a member of SA’s ‘Liberal White Guilt One-Meaning-Only-for-Kaffir Fascist Media Dictatorship’ (See: Radical Honesty SA to SAIRR: Who or what is a Kaffir; Do Kaffirs Exist?)

  • Andrea Muhrrteyn
  • Andrea Muhrrteyn

    Radical Honesty SA ‘Kaffir Lily Riddle’ Amicus to Afriforum v. Malema:

    Heads of Argument of Lara Johnstone, Radical Honesty Culture; ‘Boer/Settler’ descendant of Dutch, French Huguenot and British ‘Settlers’: Hermanus Bosman, Andreus Lutgerus Kolver; Jacques de Villiers and James Augustus Johnstone; In Support of ‘Political Necessity French Riddle of the Kaffir Lily Pond’ Application of the Radical Honesty Population Policy Common Sense Interpretation of ANC’s ‘TRC Social Contract Fraud’; Recommendation to Constitutional Court to Resolve ‘Kill Boer/Settler Hate Speech’ Descartian v. Ubuntu Conformist Cultural Friction by Implementing: (A) 23 April 1994 Accord on Afrikaner Self-Determination to provide Boers with a ‘Kaffir’ Free Speech Volkstaat; and/or (B) Jus Sanguinis Repatriation of ‘Settlers’ to European Progenitor Nations.

    TRC Fraud Genocide Charges filed to ICC against: Mandela, Tutu, de Klerk, Nobel Committee, SA media, etc :

    The Complainants Request the ICC: Prosecutor’s Office to:

    Initiate an investigation into the allegations that the respondents are to be held criminally culpable for their endorsement and concealment of TRC FRAUD, the consequences of which are genocide and crimes against humanity against white South Africans, and ethno-cultural legal and political persecution of Afrikaner/Boer and Radical Honesty cultures.

    Complainants allege the Defendants cover up and censorship of the ANC and Anti-Apartheid Movements (i) Frantz Fanon/Black Consciousness (‘liberation by violence on the rotting corpse of the settlers’) (ii) Black Liberation Theology (‘violent elimination of ‘whiteness’); and (iii) Houari Boumediene/Black Power Breeding War (“The wombs of our women will give us victory”) inspired TRUTH AND RECONCILIATION COMMISSION FRAUD (“TRC FRAUD”) perpetrated against citizens of South Africa, and predominantly against white Afrikaner/Boer/Settlers; is committed in the context of endorsing the ANC’s institutionalized regime of systematic oppression and domination by Africans over other racial groups, particularly Boer/Afrikaners and committed with the intention of maintaining the ANC regime.

  • Gwen

    Andrea, I couldn’t help myself, I looked at your website. I wish I’d never given you the traffic.

  • anton kleinschmidt

    I am a layman without any legal training who is quite happy to cut through all the convoluted legalistic folderol . It follows that I favour the viewpoint that any REASONABLE person in a REASONABLE society would construe words like “kill / shoot the XXXXX” as an incitement to murder.

  • luke

    Pierre, change your blog, they found you and it is impossible to get rid of them.

  • George Gildenhuys

    That judgment reads like a teacher marking an essay! Look at the footnote on page 10!

  • Nationalise the Minds

    I have now read the ‘judgment’. Me thinks that the only reason that Mr Halgryn is an Acting Judge is for the money – which I hope will not go to his head.

  • Maggs Naidu –

    Nationalise the Minds
    May 17, 2011 at 23:22 pm

    Hey N-t-M,

    “I hope will not go to his head.”

    You got your wish – it has gone over his head.

    See George Gildenhuys – May 17, 2011 at 21:56 pm

  • Andrea Muhrrteyn


    Unlike people interested in traffic from simple minds; that is not the intention of my blog. So being well aware of how many of the worlds citiens suffer from Dunning and Kruger effect cognitive biases; whereby they are incapable of making fully informed enquires before coming to their conclusions; I set my blog up in a way to chase away such simplistic persons. One day when you learn to deal with your cognitive biases, you are welcome to return. Till then please don’t come back; I don’t need to impress any assholes with traffic from imbeciles. I’d rather have one visit a day, from one intelligent reader searching for quality scientific journalism information, than 20 million moron imbeciles suffering from the Primacy Effect.

  • Maggs Naidu –

    May 17, 2011 at 21:11 pm

    “Andrea, I couldn’t help myself, I looked at your website. I wish I’d never given you the traffic.”

    The saying is curiosity killed the cat. 😛

    This time it seems that your curiosity flew into the cuckoos’ nest!

    Have fun escaping.

  • etienne marais


    Just a couple of points:

    a) Seems to me that Halgryn AJ (in his denial of appeal) relies heavily on his contention that his initial judgment was (merely) an affirmation of the draft agreement between the parties, which he then confirmed as an Order of Court – to what extent would this, if relevant at all, affect the “force” of his the initial order ?

    b) When reading section 16(2), in conjunction with the full text of the Langa J “How is section 16(2) to be interpreted?” exploration (btw, your article omits a number of relevant sentences in [30], and then skips straight to [31]), it seems to me that 16(2) provides its exclusions without insisting that they must be calibrated against “enacted legislation”. So, 16(2) is “definitional” only in the sense that it “defines the boundary”, and not in the sense that it positively requires “enacted legislation” to be given effect to. Also, nowhere in PEPUDA can I find reference to 16(2) being subordinate to testing against PEPUDA(10). Perhaps it is just that 16(2) provides for the general case, and that PEPUDA(10) provides for specifics, e.g. limiting 16(2) in relation to the objectives of 36(1) ?

  • Pierre De Vos

    Etienne Marias, you miss the point. When the Constitution states that some speech is not CONSTITUTIONALLY PROTECTED – as it does – it defines the exact scope and content of freedom of expression. This means that if one wants to test legislation against section 16 one will first have to show that the legislation falls within the definition as set out in 16(1) and 16(2). If it does, then one moves on to the limitation clause. If it does not, then the legislation cannot be declared invalid because it does not infringe on freedom of expression as defined in section 16. But section 16 itself does not “ban” any speech. It merely states what speech may be banned by the legislature without having to worry that it limits freedom of expression AS DEFINED BY THE CONSTITUTION.

    Example: if the Constitution states that everyone has a right to join a trade union but then goes on to say that this right does not extend to police officers, then the COnstitution does not ban police officers from joining a trade union. It merely states that if the legislature wishes to ban police officers from joining a trade union it could do so and that po;lice officers will then not be able to invoke the right to join a trade union in challenging the impugned provision.

    Because we adhere to the Rule of Law, a court can only ban certain acts if it is legally empowered to do so by legislation. In the context of hate speech that legislation is PEPUDA. One must therefore rely on PEPUDA if one wishes to make any order banning any speech. Whether PEPUDA refers to section 16(2) or not is therefore utterly irrelevant to the legal point. In this way section 16 is different from section 33, for example, which guarantees the right to a fair administrative action. PAJA gives effect to section 33 to PROTECT the rights in section 33. PEPUDA does not give effect to section 16 as section 16 does not REQUIRE the legislature to enact any legislation.

  • Sibusiso Radebe

    I agree with your article Professor. The ‘judgment’ in question reminds me of how ‘The white mans’ justice’ mentality is still with us, 17 years into democracy. THe system of appointing acting judges needs some serious scrutiny in light of ‘judgments’ of this kind.

  • http://facebook Dave Muir

    The rapture is on Saturday, apparently. I’m sure that Andrea Muhrrteyn will one of those caught up to Heaven. Thank goodness.

  • Michael Osborne

    @ Pierre

    1. You analysis is good. The press, in reporting the decision, does not grasp that s. 16 cannot itself restrict speech, only open the way open for a legislature to do so. But in saying that a “court can . . . ban certain acts …,” you risk adding to the popular confusion. The court does not “ban” anything. It rather adjudicates, first whether the legislature acted within the bounds of the Constitution in prohibiting certain forms of conduct, and second, whether a particular act fits within the scope of this legitimate statutory definition.

    2. In the past, you have rightly upbraided those who hurl personal insults at the bench, rather than criticising their reasoning. So, I think it is a pity that you added a description of the judge as “mad” to your insightful critique here.

  • Mikhail Dworkin Fassbinder

    @ Andrea

    “… 20 million moron imbeciles suffering from the Primacy Effect.”

    Thanks very much for your RADICAL HONESTY!

    But let me ask you one serious question: Would it be fair to say that both Maggs and Brett are moron imbeciles suffering from the Primacy Effect?

  • vuyani ngalwana

    Since I am not involved in this case I feel free to comment. And I shall NOT attack the judge. He is my senior and so I respect him. It is the judgment that cries out for attack. It is so bad I don’t know where to start. My commisserations go out to counsel who has the unenviable task of picking through this judgment and fashion grounds of appeal. It won’t be an easy task to keep one’s focus because almost every finding, reasoning and comment in this judgment is bad in law (not to mention some obiter remarks the relevance of which only the judge will know). They may end up with a notice of appeal that is as long as the judgment itself. Perhaps the Full Bench or SCA (wherever the ANC may choose to appeal) should make an exception by allowing a notice of appeal that simply says “we appeal against the entire judgment and order, and the judgment itself constitutes our grounds of appeal”, so that they are not required to go through the tedious exercise of extracting precise grounds of appeal from this morass as is the norm.

    Like Pierre, I cannot remember the last time I read a judgment so clearly wrong, incomprehensible and lacking in the rudimentary precepts of legal (not to mention constitutional) interpretation. The Constitutional Court has said on numerous occasions (as have academic commentators in this field) that it is impermissible to rely directly on a provision of the Constitution in order to assert or protect a right, when there exists legislation that has been passed to give content or effect to that right. Thus, s16(2) of the Constitution is not the measure by which one should judge the permissibility or otherwise of the impugned words. Section 10, read together with the proviso to s12 of the Equality Act, is.

    Moreover, the suggestion that context is irrelevant when considering whether or not the impugned words are premissible, is shocking. It first saw the light of day (in this context) in a short judgment handed down by Bertelsmann J when the Learned Judge gave an interim order against Malema shortly before his Zimbabwe visit. But the Constitutional Court, again, has said on numerous occasions that context is everything, and that one cannot arrive at a true meaning and intention of words without considering the context in which they are uttered. Quite apart from legal and constitutional considerations, I would have thought this is common sense. This judgment ignores numerous Constitutional Court decisions in this regard.

    This judgment reveals something else that possibly lurks behind its contents. It is not for me to say what it is because I do not know. All I can say is that when a judgment ignores clear and unambiguous interpretative precepts that have been applied by the highest court in the country, that is worrying trend.

  • vuyani ngalwana

    … Besides, an order such as has been made in this judgment is what lawyers term a “brutum fulmen”. It is impossible to enforce. Is General Cele now to busy himself with policing people at political rallies, waiting to instruct his men (who are already thinly spread in dealing with violent crime) to pounce should anyone of 100 000 people at FNB stadium “chant” the words?

  • vuyani ngalwana

    Pierre is quite right, to a degree, about s16 of the Constitution not providing for the passing of legislation to give effect to an expression right. But section must be read together with the equality clause in specifically s9(1) and (4). That done, one will see that s10 of the the Equality Act gives content not only to s9 of the Constitution but also to s16 thereof inasmuch as the right to freedom of expression is a form of the manifestation of an equality right if one considers the history of banishments and censorship under Apartheid. Besides, s2(b)(v) of the Equality Act expressly says the object of the Equality Act to give effect in particular to the right to freedom of expression.

  • Henri

    As much as I agree that “dubula ibhunu” prima facie constitutes incitement to murder, I still must agree that the ACTING judge made a hash.

    But actually, the whole application should have been turned down at the first day. What practitioner brings an urgent declaratory application in such wide terms? It’s an absolutely amateurish notice of motion. And only an acting judge with probably somewhat less High Court experience could have granted it. Or he was only trying to get some attention or fame.

    It should have been brought as an urgent interdict to restrain the respondent AND that “Protection of our constitution society” from chanting those words. Then the whole application should have been argued within the law and requirements for an interim or final interdict [ ie clear right / prima facie right, etc]. And then orders binding only those parties to the dispute would have been issued!
    This now seems to be a declaratory order – in itself restraining nobody from doing anything. Just declaring out of the blue sky that those words are unconstitutional – anyway, binding only within the jurisdiction of South Gauteng High Court. In the rest of the country its still not unconstitutional. But still it is a misuse of the law.

    The whole application is a farce and those orders would not ever, ever, ever have been given by an acting judge with more experience and foresight. A senior judge would have turned the application DOWN – AND would have refused to make that consent order an order of court.
    In the Division in which I practice I cannot think of ONE Judge who would have granted those orders. If I would have received instructions to seek such an order, I as advocate would have expected a thorough dressing down from the judge.

    But this is what is to be expected from the lowering of standards required for appointments to the Bench.
    Point is: If you appoint unsuitably experienced pilots, expect some planes to fall [in the name of “transformation”]. If you appoint inexperienced acting surgeons, expect some patients to die [in the name of “transformation”].

    The ANC should now petition the SCA for leave to appeal, which surely would be granted. But I wonder whether simply a review application is not more apposite?.

  • Brett Nortje

    Pierre, ek het jou gese jy kan Suid Afrika se Pim Fortuyn word.

    Daar red jy nou Afriforum van ‘n nog groter debakel more.


  • Brett Nortje

    P.s. Jou crush op Julius Malema is nie ‘n yslike secret nie!

  • vuyani ngalwana

    Aaaah, now Henri, you digress a bit in reference to “transformation”. I do not think Hargryn would be impressed in being labelled a “transformation” acting appointment. He hardly fits the description.

    Besides, you will know as an experienced member of the Bar that judges seek guidance from their more senior and experienced colleagues when considering matters before them – as is the practice at the Bar. So the falling planes and dying patients (“in the name of transformation”) hardly make for a felicitous metaphor.

    I have acted on numerous occasions. I have had some of my judgments appealed. I have yet to be set aside on appeal. I have had the good sense of checking with senior Judges before releasing my judgments and taken some of their suggestions. No plane has fallen off the sky or patient died – yet. For as long as a Judge applies himself and seeks the advice of more experienced colleagues, no plane need fall or patient die.

    Thus, transformation is not “lowering of standards”. C’mon now, Henri. I know you mean no malice.

  • Gwebecimele

    @ Henri

    What is “unsuitably experienced” ?

  • Henri

    @ Colleague Ngalwana,
    I see on your blog you have “many years” of experience – as an advocate. Thus practicing at High Court standards.
    And I take it for granted that you never, NEVER while acting, would have granted such a declaratory order.
    C’mon, colleague, admit it – you would not even have drafted such a notice of motion. And you would not even have accepted instructions to try to seek such an order.
    Why not?
    Your answer would also answer Gwebecimele.

    PS: If you’re not an affirmative action job, why are you so sensitive about the topic.

    Would you like to be on a plane where the affirmative pilot now and then radio’s a friend to ask what to do next? Or being operated upon by an affirmative surgeon who now and then phones his friend to hear what to do next? Or being tried for murder by an affirmative judge who got the post, not by experience, but by skin – colour?.

    Is Zuma being flown around by affirmative action just- the- right- hue- of- skin-pilots or by suitably qualified AND experienced pilots?
    If the latter – why?? Why on this earth?

  • Pierre De Vos

    Michael, my choice of words might have been better, I agree. I did not mean to suggest the judge is mad. I meant to suggest that his judgment seems to be animated by strong and urgent feelings about the need to ban the song which is not supported by the law. I will amend the wording to make it clear.

  • vuyani ngalwana

    @ Henri:

    On affirmative action, I wish I could send you my heads as amicus in a recent Labour Appeal Court case on the proper implementation of affirmative action. Let me rather refer you to the following judgments of the Constitutional Court which I cite in my heads. They deal in principle with how one should interprete remedial measures intended to redress past inequalities (of which AA is one measure). You will see from that analysis that “affirmative” does not mean “incompetence”.

    Here are those cases:

    Bato Star Fishing (Pty) Ltd v Min of Environmental Affairs and Others 2004 (4) SA 490 (CC), esp pars 72 et seq
    National Coalition for Gay and Lesbian Equality and Another v Min of Justice and Others 1999 (1) SA 6 (CC)
    Bel Porto School Governing Body and Others v Premier, Western Cape and Another 2002 (3) SA 265 (CC).

    I hope that’ll help you understand that affirmative action is a constitutional imperative to which all parties in the Constitutional Assembly agreed and which was certified by the Constitutional Court in 1997 as being in compliance with the 34 constitutional principles required to pass constitutional muster.

    Transformation (read affirmative action) is not the culprit. I think lack of understanding (perhaps brought about by the increasing disinclination in this country to read before commenting) is the problem.

    By the way, I DO consider myself an affirmative action product. I did a piece on this some years ago in the Mail and Guardian. I could reproduce it in my blog if you wish so you can understand why I hold the views i hold about affirmative action.

  • vuyani ngalwana

    … and I shall not engage further on affirmative action in this space. This space is about Halrgryn AJ’s hate speech judgment.

  • jww

    Pierre, I often like your logic. Your writings are very eloquent, often very progressive and give me much insight into aspects I’ve not thought of often. But sometimes you also remind me of someone caught in mindless liberal acts, where jumping on a bandwagon is more stylish than the more difficult path of thoughtful progressiveness.
    Section 16(2)(c) of the CONSTITUTION is very clear that the right to FREEDOM OF SPEECH does not extend to
    (1) advocacy of hatred that is based on race, ethnicity, gender or religion, and
    (2) that constitutes incitement to cause harm.
    I will let readers decide for themselves whether “shoot the boer” expression satisfy the two stringent constitutional tests for hate speech or free speech.

  • Pierre De Vos

    Jww, same lack of sense and logic as Halgryn, I am afraid. Read the Constitutional Court judgment in the Islamic Unity Convention case. Maybe that will help. I will bet you one year of my salary that the CC will agree with me and not with you or Halgryn. In fact, there is nothing to debate. Unlike in many other aspects of the law, this issue here is clear. The fact that some people can think that it is not, is beyond my comprehension.

  • izeze

    “The fact that some people can think that it is not, is beyond my comprehension”

    In that case, Prof, it is probably also beyond your comprehension that there can be people who think, and feel, differently from others, regardless of what “the law” says; and that there must be something seriously wrong with people who do not share your opinion one hundred percent. Maybe you should get out of your ivory tower more often?

  • Maggs Naidu –

    May 18, 2011 at 11:43 am

    Hey Henri,

    “If you appoint unsuitably experienced pilots, expect some planes to fall [in the name of ‘transformation’]. If you appoint inexperienced acting surgeons, expect some patients to die [in the name of ‘transformation’].”

    That’s an interesting observation. And very useful too, if it had a point that is.

    I suspect that the airlines will take note of this and not appoint ‘unsuitably experienced pilots’ (in the name of transformation that is). And the hospital authorities will not appoint ‘acting surgeons’ (in the name of transformation that is).

    But more to the point, it seems to me that you are pissed off that Black people are appointed to positions which were previously reserved for whites.

  • zoo keeper

    Nothing an appeal can’t sort out here.

    I have no doubt the ANC will petition an appeal and the saga will roll on.

    But – I understood the original order to have been made by consent – is this correct?

    If this was an agreement made an order of court where does the ANC come in? Surely his judgement would be solely concerned with the procedural aspects of a third party appealling an order made by consent? No need to go any further.

    Why is the ANC so concerned about this song when its PAC anyway? As recently as 2002-odd Motlanthe et al were saying in print how it was not part of the ANC at all…

    What a circus!

  • Mikhail Dworkin Fassbinder

    @ Maggs

    “I suspect that the airlines will take note of this and not appoint ‘unsuitably experienced pilots’ (in the name of transformation that is). ”

    Maggs, with respect, your analogy misses the point.

    Controlling a giant aluminum tube at 45,000 metres is a highly technical skill that takes hours of practice. Being a judge is a different kettle of beans altogether. It is not propulsion science. It takes is a finely attuned sense of justice and a grasp of the foundational values of our text.


  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    May 18, 2011 at 23:39 pm

    Hey Dworky,

    “Maggs, with respect, your analogy misses the point.”

    I was having a dig at Henri’s resistance at transformation.

    “Being a judge is a … finely attuned sense of justice and a grasp of the foundational values of our text.”

    It ought to be (but not always is, maybe sometimes is, erm occasionally) – not sure though how that relates to Henri’s reservations over transformation.

  • Mikhail Dworkin Fassbinder

    it takes is = all it takes


  • Mikhail Dworkin Fassbinder

    Maggs, in that case I demand that Henri withdraw his misguided analogies. I also demand that the ANC stop briefing white silks to argue its cases!

  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    May 19, 2011 at 0:14 am

    Hey Dworky,

    “I also demand that the ANC stop briefing white silks to argue its cases!”


    p.s. The ANC is committed to non-racialism.

  • Maggs Naidu –

    p.s. Henri is talking nonsense.

  • John Roberts

    Pierre you are correct.

    Just like “kill the cockroaches” was not hate speech in Rwanda.

    Ask yourself this Pierre…. what you gonna do when they come to shoot you in the night, boertjie ?

    This country is far better off with this judgement as it stands.

  • Maggs Naidu –

    John Roberts
    May 19, 2011 at 0:20 am

    Hey JR,

    “Ask yourself this Pierre…. what you gonna do when they come to shoot you in the night, boertjie ?”

    Who’s gonna shoot Pierre in the night?

    p.s. Can Pierre also come with me and Dworky to stay with you in Oz? (he can share with Dworky – I’ll sleep in a tent outside).

  • Andrea Muhrrteyn

    @ Mikhail Dworkin Fassbinder

    “… 20 million moron imbeciles suffering from the Primacy Effect.”

    “But let me ask you one serious question: Would it be fair to say that both Maggs and Brett are moron imbeciles suffering from the Primacy Effect?”

    Mikhail; I don’t make such conclusions about any individual person, until I have made a full impartial enquiry and heard all evidence. I am well aware of media and advertising who rely on cognitive biases; to shape their messages. Many people suffer from Primacy Effect; whereby their decision making is based on ‘first impressions’; so, media and advertisers will withhold any negative information to the end; or entirely. Primacy Effect individuals will already have made up their minds upon simply a quick superficial enquiry.

    Such people irritate me, and I don’t want them to come to my blog; so I deliberately give them titbits to play to their anti-right-wing or whatever prejudices, and they stay a few seconds and they are gone! Good riddance! They don’t waste my time.

    I have allthe time in the world to debate with anyone who is willing to make an impartial enquiry into any issue whatsoever. I don’t discriminate against anyone for their beliefs; not even a Nazi, a commie, black power, whatever. To me it is far more important how a person holds their beliefs or ideologies; than what their ideology or beliefs are.

    By how I mean; if for example their belief is sincere; based upon their actual life experience; it may be ‘extreme’ to me; simply because I have a totally different life experience. If they hold their belief sincerely, it means they are willing to listen to new inforamtion with an open mind, and to seriously consider it; and if it proves to be of a higher quality of information their prior information is founded upon, to change their conclusions.

    People who BELIEVE THEY ARE RIGHT; are fundamentalists fascists. They are welcome to their beliefs they are right; but their beliefs about being right; are I have found, more about psychological insecurity complexes and their sense of identity to want to believe they are right; than about having actually made an impartial serious enquiry into their own beliefs.

    So, I love sincere commies, sincere right wingers, sinsere nazi’s, sincere liberals, sincere christians, sincere muslims, etc.

    I cannot stand fake fundamentalist psychologically insecre commies, right wingers, nazi’s, liberals, christians, muslims etc.

    It is not the ideology I can’t stand; but how the persons holds their beliefs.

    So, sorry for that long description. I ain’t made an impartial enquiry into whether Maggs and Brett suffer from the Primacy Effect; or not.

    If you find the ‘how’ people hold their beliefs interesting; Dr. Gedaliah Braun’s definition of ‘racism’ helped me to clarify this process for me as he says ‘making philosophy practical’. 😉

  • ewald

    @ Andrea..perhaps you can explain how you yourself Andrea Muhrrteyn “hold your belief”..that will clarify everything for me.

  • Mikhail Dworkin Fassbinder

    Andrea, as one who is unswervingly committed to RADICAL HONESTY myself, I am somewhat disappointed by your hesitance to diagnose both Maggs and Brett as moronic imbeciles in the grip of the Primacy Effect. There is no need for the individualised “full enquiry” of which you speak. Just read their postings, which manifest that their Primary Effect is to turn this forum into a moronic circus of sheer imbecilism.


  • Brett Nortje

    Instead of taking this opportunity to exercise your wit (although, Lord knows. it needs exercise) why is nobody asking how it is possible that Lara could be locked up for a year for crimen iniuria?

  • Maggs Naidu –

    Brett Nortje
    May 19, 2011 at 7:54 am

    Hey Brett,

    “why is nobody asking how it is possible that Lara could be locked up for a year for crimen iniuria?”

    Comradely speaking as one moronic imbecile in the grip of the Primacy Effect to another tell me why do you think Lara should have been locked up forever?

  • Mikhail Dworkin Fassbinder

    Maggs, with respect, it is a disgraceful sign of RACISM for ANC to brief Gilbert Marcus in the so called hate speech matter for the same reason that it is RACIST for white attorneys to continue to brief white counsel in everyday commercial matters!

  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    May 19, 2011 at 9:30 am


    “Maggs, with respect, it is a disgraceful sign of RACISM for ANC to brief Gilbert Marcus”

    I am not clear how the ANC briefing Gilbert Marcus equates to racism – it seems to me that it’s the opposite.

    Maybe your suggestion is that for non-racialism white people must continue only briefing white attorneys and the ANC must not.

    Clarify for me – my brain is still in trapeze mode.

  • Andrea Muhrrteyn


    “@ Andrea..perhaps you can explain how you yourself Andrea Muhrrteyn “hold your belief”..that will clarify everything for me.”

    Not a problem. It would depend which belief are you referring to; although I use the word belief very loosely; I don’t actually ‘believe’ any abstract theory (ideology) with 100% conviction (which is what belief generally implies to many).

    My ‘beliefs’ are better described as a ‘working hypothesis’; which fits into how I hold them. My working hypothesis is based upon (a) what I have read about the matter; with what level of scientific evidence such reading material included; (b) my personal experiences; how I have applied my intellectual knowledge in the guts of the living, by testing it to see if it is true. So a kinesthetic, audio and visual learning experience.

    From all that I have a working hypothesis conclusion (a temporary belief about reality about that issue), in the absence of new evidence showing some of it incorrect.

    If, or when someone provides me with new intellectual or experiential information and evidence that any evidence which contributed to my working hypothesis is incorrect; then I change it; and if required change the conclusion; so that I have a new working hypothesis based on more accurate information.

    It is important for me that my working hypothesis/beliefs conclusions must be founded on the best and most accurate (not most politically correct – ie earth is flat ideas of the masses) facts and evidence for me to live in the real world, based on the closest knowledge I have of reality; not on politically correct illusions.

    Contrast to Beliefs which are the Foundation of Identity
    Now if my beliefs/working hypothesis are not founded on intellectual and experiential evidence; but becuase I have a fragile ego, am psychologically or intellectuall insecure; I hold them not from a rational intellectual and experiential enquiry; but because they allow me to join a particular ideological tribe, whether it is the commiee/right wing/nazi/christian/islam etc tribe; so that such a person has a sense of belonging.

    Their ideology is a substitute for their identitity. They are not a person, who can change ideologies, with new evidence; because their identity is: I am a nazi; I am a commiee; I am a Christian, Muslim, etc.

    Hence if such a person whose ideology is their identity comes across any evidence that contradicts their ideology/identity; they must shut the person up; becuase it is a direct attack on the foundation of their identity. So they must do all to avoid giving the information which contradicts their sense of identity a serious enquiry. It is too threatening to their identity/sense of self.

    So then instead of addressing the actual argument of the person; they will try and smear the person with labels of ‘racist’ or ‘nazi’ or ‘commie’ or ‘insane’ and so on. Whatever they are not. The nazi will label the commiee, the commie will label the nazi.. and so they both avoid having a conversation about the actual evidence in that particular matter, so they can upgrade their beliefs about their ideology; if provided sufficient evidence. Its a form of ideological intellectual stunting.

    Anything to avoid dealing with the evidence which confronts not their belief; which is a fake belief, becuase it is not a belief founded on evidence; but a belief to subsitute their psychological insecurity; hence their belief is an aspect, or the aspect of their identity.

    Now, as to how I hold any particular belief. What are the intellectuall and experiential foundation of that working hypothesis. Which working hypothesis are you referring to? then I can provide you with a brief overview of its foundation.

    Are you referring to Radical Honesty working hypothesis definitions for ‘kaffir’?

  • Maggs Naidu –

    @ Michael Osborne,

    Hey MO – methinks you did not believe the expression “be careful what you wish for, it may just come true”.


  • Mikhail Dworkin Fassbinder

    @ Maggs

    Maggs, in a radical spirit of RADICAL HONESTY, I have long demanded that white people must brief black lawyers in order to achieve TRANSFORMATION. By the very same token, black people must likewise brief black lawyers. For too long, people have used the excuse that white counsel have more so-called “experience.” That is why I am so furious when people like Zuma, Selebi and Hlophe brief white counsel!

  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    May 19, 2011 at 10:59 am

    Hey Dworky,

    In the spirit of Henri’s RATIONAL THINKING, if Al Q did not apply affirmative action in selecting its pilots, would the Twin Towers still be standing?

    On that subject, their planning was also done by affirmative action incumbents – note that they did not use VIRGIN airlines. Nevermind, it’s rumoured that VIRGIN submarines are planned, so bullet head will get his way finally.

  • Piet

    If Malema is truly trying to kill apartheid, he in fact want all institutions that are based on grouping people or allowing people that are of the same race and preventing others from joining based on their race.

    There are lots of Black forums, that prevent all other races from attending their meetings. these are the new apartheid.

    Then Malema is singing to have Quotas removed from employment figures, sports representation as these are the new forms of apartheid, as they are by race and not by skill.

    This truly shows that Malema is (as you so well put it) “not be a reasonable person”, so how can he then proof that he did not intend to persuade by means of this song that others must kill the boer?

  • Chris

    Mikhail Dworkin Fassbinder says:
    May 19, 2011 at 10:59 am

    Well I see in the this case Harmse used the one and only Mr Zehir Omar (who stays humble, despite being the best known attorney in Gauteng, Kwazulu-Natal, Bloemfontein and perhaps also the rest of the country). It only goes to show, Harmse is all for transformation.

  • Chris (not the right wing guy!)

    I just forgot to add this to my post here above.

  • Jonathan

    May we all please stop engaging Andrea Muhrrteyn in further discussion about his ranting. It detracts from the actual topic under discussion in this blog. And, it feeds his wayward ego.

  • Johan Smit

    Beste Pierre

    Ek verstaan en geniet jou uiteensetting en die onderskeid wat getref moet word interme van art16(2). Jou argumentering is suiwer. Die tekortkoming en dilemma is egter dat die wetgewer nie wetgewing in plek het om die gebruik van diesulke haatspraak doeltreffend aan te spreek nie.

    Dit daar gelaat.
    Konteks is alles, maar verstaan die aanhoorder die konteks waarin die uitspraak of chant gemaak is. Iets sal moet gedoen word om die gapings te vul. Gestel “bigots” begin ‘n chant met “kill the gays”. Dit kan ‘n afgryslike wees.
    ‘n Appel uitspraak oor Halgryn se siening sal baie insiggewend wees.


  • Mikhail Dworkin Fassbinder

    @ Jonathan

    “May we all please stop engaging Andrea Muhrrteyn in further discussion about his ranting”

    Jonathan I must agree that Muhrrteyn’s contributions have not assisted our discussion. If anything, she has injected a note of RADICAL DISHONESTY, by refusing to indict Maggs and Brett.

    Andrea: While I have always respected your work, I demand that you abandon you desist from DECEIT, recover your INTEGRITY, and eschew pussy-footing POLITICAL CORRECTNESS!

  • deblaar

    Asb prof, spaar ons asseblief die verleentheid om Andrea se ongevraagde bydrae te lees wat nie tuishoort by die onderwerp ter sprake. To those that wish to engage her on her views can visit her site and increase her traffic.I do not believe you were too strong in your criticism of the judgement as it deserves the comments.

  • Maggs Naidu –

    Johan Smit
    May 19, 2011 at 13:04 pm
    Hey Johan,

    “Gestel ‘bigots’ begin ‘n chant met ‘kill the gays’”.

    JR is on top of that already. he’s threatened to shoot Pierre in the night.

    Ok, not himself – he knows people who are going to do that.

    Sort of – maybe he knows people who are thinking of shooting Pierre.

    Perhaps he thinks there are people who would like to.

    He hasn’t been quite clear yet.

    Later he will tell us – particularly why Pierre is the target and, more interestingly, why during the night.

  • Brett Nortje

    Deurdieblare, die onderwerp is mos haatspraak en vryheid van spraak???

    Ek wil graag weet hoe dit is dit Lara ‘n jaar gesit het vir crimen iniuria? Wat kan meer relevant wees tot ‘n bespreking van vryheid van spraak?

  • Mikhail Dworkin Fassbinder

    @ Johan

    “Gestel ‘bigots’ begin ‘n chant met ‘kill the gays’”.

    So what? Say Catholics took to the street chanting “burn the Protestants!” Surely that would be quite OK — provided the Pope explained that this was not intended to incite the actual burning of actual Protestants, but rather to celebrate the Catholic church’s prior HISTORY of so doing!

  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    May 19, 2011 at 15:28 pm


    So what? Say Catholics took to the street chanting “burn the Protestants!”

    When Obama said “We will kill bin Laden” he did not actually mean kill.

    Ask Brett, guns don’t kill people.

    BTW apparently there’s a recent sign at the compound “Gone fishing”.

  • Maggs Naidu –

    oops “So what? Say Catholics took to the street chanting ‘burn the Protestants!’”

  • Brett Nortje

    Tell them Nehru is sending the Indian Navy to shell the Vatican?

  • Brett Nortje

    What if US taxpayers took to the street chanting the IZE is burning up half their tax-dollars?

  • Maggs Naidu –

    Brett Nortje
    May 19, 2011 at 15:42 pm

    Hey Goofy,

    “Tell them Nehru is sending the Indian Navy to shell the Vatican?”

    Nehru is long dead.

    Anyway I think he would have had a problem cos as you know lots of “missionaries” led the way to the colonisation of India (and elsewhere).

    The saying is “a bible in one hand and a gun in the other”.

  • deblaar

    Brett: n jaar gesit vir crimen injuria?in haar drome!net iemand deur die blare, wat niks weet van ons strafreg, sal dit glo!haar gesanik alhier raak ongelukkig nie die sinvolle debat, hier gevoer, ten opsigte van vryheid van spraak.

  • Radical Muslim

    Time for the Pierre de Vosses to start living in the real world.

    Tell the savages that murdered a 2 year old child on a farm about your irrelevant “constitutionial” kak. See if they care about “rule of law” The “constitution” is not worth the paper it is written on simply because the savages that now rule the country are interested in pillaging, corruption, rape and other form of violence, as well as wiping out the white man.
    Absolute stupid idiot.

  • Brett Nortje
  • vuyani ngalwana

    Radical Muslim clearly has problems. A shrink is your bet.

  • S M Ngwane

    I respect your very insightful blog Pierre and the object thereof. I further respect the fact that it is open to any party with “relevant, constructive and progressive concerns and/or comment to add”. It is however, disheartening to notice how some will always manage to clog it up with superfluous and gratuitous emotional rhetoric that clearly misses the point.

    The issue at hand pertains to the rule of law, and this concept couldn’t have been put in better terms… Language does evolve, and maybe were await a new concept “the rule of emotions” where issues are interpreted purely or at least largely on emotions… but it does not exist with respect to the interpretation and application of the rule of law, except insofar as public policy and community mores is concerned.

    I must unequivocally agree with your interpretation of the judgment and the implications thereof, and I couldn’t agree more with Vuyani in saying “an order such as has been made in this judgment is what lawyers term a “brutum fulmen”. It is impossible to enforce.”
    The judge could have considered the settlement agreement or the notice of motion and directed the parties to couch it in more practical terms, as in the terms that it is, it is as good as non-existent, save for the controvercy it provokes.

    It leaves much to be desired insofar as the quality of SOME of our prospective judges. This however, is by no means meant to cast aspersions on the credibility of our transformation policies and object thereof. We simply have to develop a culture of encouraged consultation where one is faced with an unfamiliar issue especially one with such far reaching ramifications as the present.

  • Maggs Naidu –

    Brett Nortje
    May 19, 2011 at 15:42 pm

    Hey Goofy,

    “Tell them Nehru is sending the Indian Navy to shell the Vatican?”

    The British, as it was then, seems to have had a better plan – talk about unknowns and hate speech.


    Lord Macaulay said the following about India in 1835 in British Parliament.

    “I have traveled across the length and breadth of India and I have not seen one person who is a beggar, who is a thief. Such wealth I have seen in this country, such high moral values, people of such calibre, that I do not think we would ever conquer this country, unless we break the very backbone of this nation, which is her spiritual and cultural heritage, and, therefore, I propose that we replace her old and ancient education system, her culture, for if the Indians think that all that is foreign and English is good and greater than their own, they will lose their self-esteem, their native self-culture and they will become what we want them, a truly dominated nation.”

  • Leon

    Pierre de Vos obviously fails in his interpretation of the law and court rules.

    How could the ANC appeal against a judgment if they were not a party to the case. The ANC did not apply to the High Court to be added as a party to the case.

    The ANC for all practical reasons were not in court before Judge Halgryn and they argued an appeal for which they were not a party to the case.
    Advocate Marcus (SC) should have known better and should have argued the case to become a party to the case before he attempted to appeal.

    The Honorable Judge Halgryn’s ruling will stand.
    It amazes me that Pierre De Vos does not have any insight into the elements of the crime of incitement to commit genocide and he does not even refer to act 27 of 2002.

    I believe De Vos’s attack on Halgryn is an attempt to impress the ruling party and nothing else.

  • Snowman

    Dear Leon,

    I am wondering if you are in fact Advocate Acting Judge Leon Halgryn SC?

    The reason I am asking you is that “Leon” here uses ‘confusingly similar’ turns of phrase and the same grammatical structure that Acting Judge Leon Halgryn used in the judgment?

  • vuyani ngalwana

    @ Leon:
    Rubbish. Pierre criticises the judgment and is not attacking the judge. He did acknowledge that his initial choice of words, in places, may have been a tad ad hominem but that was not the intention.
    I also believe the judgment on its merits is bad in law, and I intend impressing no-one thereby, least of all the ruling party.
    I’d suggest you read some of the Constitutional Court judgments touching on the proper approach to constitutional interpretation, then read Halgryn J’s judgment again (this time objectively and having regard to the trite principles of constitutional interpretation adumbrated by the CC) and then see if you will still hold the same view.

  • Pierre De Vos

    Leon, emotion is not analysis. Your statement is based on emotion, not the law. Given the fact that the Equality Act states explicitly that the aim of the Equality Act inter alia is to deal with: “The prohibition of advocacy of hatred, based on race, ethnicity, gender or religion, that constitutes incitement to cause harm as contemplated in section 16 (2) (c) of the Constitution and section 12 of this Act”, Halgryn’s claim that the Act need not be relied upon as it does not give effect to section 16 is rather perplexing. Remember that the CC has stated that where an Act gives effect to provisions of the Constitution that Act – and not the Constitution – must be relied upon. Over and above the obvious fact that s 16(2) does not actually ban any speech, this means that a order that the song is “unconstitutional” and that the Constitution “prohibits” the song, is just plain embarrassing. How any judge can make findings of fact without hearing any evidence is also rather preposterous. The learned judge seemed to have taken judicial notice of his own feelings and beliefs – instead of facts placed before him – and based his judgment on those feelings and beliefs.

  • vuyani ngalwana

    @ Pierre:
    Leon raises another point, though. Having not applied first to be joined or to intervene as a party in the proceedings, is it permissible for a party to seek leave to appeal a judgment in proceedings to which it was not party?
    I was recently confronted with this problem. A judgment was handed down in which my client was vilified by the judge and adverse credibility findings made against it. My client was not party to those proceedings and was not given the opportunity to defend itself. Neither of the parties saw fit to join it. It did not know about the proceedings until a journalist called its chief executive and asked for his comment on judgment that has been given in which his integrity and that of his company had been sullied. “What judgment?”, said he incredulously. And that was the first time he found out that the company had been slated and villified to no end – to a large extent based on inaccurate facts. What now? I think I found an answer but I need not bore you with that here.

    In the ANC case, if the losing party decides not to appeal, I doubt the ANC will have standing to “intervene” on appeal because there will be no appeal in which to intervene. If the losing party does appeal, then intervention by the ANC may in my view be permissible on appeal. Of course it will have to establish its standing (eg, the song that has been “banned” is its song and it should have been heard before the song was banned, or the words in question are widely chanted and sung at ANC political functions more than on any other occasion in the country and so the ANC had a direct and substantial interest in the outcome of the case and so should have been joined mero motu by the judge).

    If the losing party does not appeal, I suspect the ANC’s only hope may be to have the judgment set aside on review on the ground that it was granted in error in the absence of an interested party.

    Besides, how do you ascertain the effect of words on people (since the judge says the intention of the people who chant the words is irrelevant) in motion proceedings. Surely the matter should have been referred to trial and witnesses called to show that the words have the effect on them for which Afriforum contended – harm, hurt, violence, etc. That could be another ground.

    The ANC, it seems to me, has some serious thinking to do.

  • Pierre De Vos

    Vuyani, yep agreed. That is why I refrained from commenting on the question of whether ANC had standing to appeal the order in a case to which they were not a party. To a newspaper I admitted that there are complex technical issues in this case. Not sure Marcus dealt with these in a plausible manner as I have not seen the papers and did not listen to the arguments.

  • Brett Nortje

    vuyani ngalwana says:
    May 21, 2011 at 12:32 pm

    Not to be contrarian, but this argument does little to illuminate the dispute.
    The ANC did not assert its locus standi from the beginning because any political party across the world should be embarrassed to defend such base, indefensible, atavistic emotions in the 2nd decade of the 21st century. The basis of the defence in both cases its leader is involved in resting on similar facts is that the ANC should NOT be taken at its viva voce, that it has no credibility.

    I wonder if Judge Lamont in all his years in the legal profession has had a defendant argue that his defence is that anything he says ought to have no credibility whatsoever?


    Really, Juju is the Munchausen of modern politics!

  • vuyani ngalwana

    @ Pierre

    I’ll talk to him.

    Of course, the other complication is that the order in the main case (barring the utterly impermissible mero motu amendment by the judge as regards incitement to “murder”) appears to have been obtained by consent between the parties. It is not customary (much less wise) for a party to appeal an order to which he consented.

    But of greater intrigue, why a judgment in an application for leave to appeal (which is usually either simply granted without more, or refused with short crisp reasons as to why the judge does not believe another court could arrive at a different conclusion) should run into 49 pages, effectively giving reasons for an order that was obtained by consent, is beyond me.

    It seems to me the idea may have been to make a public pronouncement on the issue (on the eve of argument in the Malema hate speech case) thereby hoping to shape the thinking of the bench in this latter case. Of course, these things often have the opposite effect. No judge likes being unsubtly influenced.

    A simple order granted by consent between the parties (shorn of any judicial musings about an ostensible philosophy on hate speech) would have simply crumpled up in the court administration office and the media would have had no interest in its bland contents. Not so a short thesis on the evils of 2 Nguni words given meaning by persons who neither speak nor understand the language, the context of the words in the song, and had not the “beastliness of forethought” to ask the people who may have some idea – the ANC.

  • Brett Nortje

    Now there is a novel thought: There is a dispute of fact over the meaning of the vernacular that is at the heart of the complaint of hate speech so we do not go to dictionaries to ascertain the true meaning of the words, we do not get expert opinion to resolve what has become a matter for proof – we go to the accused for the meaning….You know, the person who uttered the speech, who brought his left foot down and his right hand up in the shape of a gun and yelled”TA!”

    At which the crowd roared back “TA TA!”

    The ANC was symbolically killing the white system, not the white people, you know….

    Judge Lamont, are you listening?

  • Brett Nortje

    For sheer inanity this takes the cake:

    “When does the intimidation start?” Vincent Maleka asked the South Gauteng High Court, sitting as the Equality Court.

    “When the song was sung during the struggle no one had a problem with it.”

    I’m sure every member of the security police present started chuckling when detainees chanted this to them, huh, Vincent?

  • vuyani ngalwana

    @ Brett

    Jeepers, one tries very hard to keep one’s cool but, hell, Brett makes it very difficult indeed. The ANC was not “the accused” in the case decided by Halgryn J. One guy dared another guy to utter certain Nguni words. The other guy did, and the first guy went to court claiming the words constituted hate speech. The ANC sought to mount the mare after it had already bolted. Stick to the facts, will you.

    Neither guy in this comedy speaks Nguni. None of the lawyers speak Nguni either. Neither does the judge.

    The words come from numerous songs historically sung during the struggle both inside SA and outside. They have come to occupy a special place in the hearts and minds of those who sang them. And so it is that whenever they get together they sing these songs (amagwijo) among themselves.

    Enter a judge and lawyers. None of them speak the language. None of them have any idea of the history, significance and evolution of these songs (except perhaps what they have read in academic journals penned by persons who themselves have no personal experience of these things and, by all accounts, haven’t the foggiest idea what they are talking about because the history and experience of our people and of these songs is largely unrecorded in writing). No evidence is sought from the people who speak the language and have had personal engagement with these songs and have lived through numerous versions thereof.

    Yet 2 or so words are yanked out of a version of the song. It is, unceremoniously, and incorrectly relegated to being called a “chant”. Igwijo is certainly not a chant, but they don’t care because “chant” sounds more like a “war cry” than would a song, and so “chant” will do just fine for their purpose.

    Then, in their absence, the people who grew up on these songs, who understand where they come from, who understand the meaning of these songs and the words used to convey that meaning, are told by people who haven’t the foggiest idea about the idiom of the language that they can no longer sing because those who have no idea what the untranslated words mean in their vernacular are intimidated by 2 words in the song.

    Isn’t that the very height of arrogance born of being accustomed to telling people what they can or cannot do, where they or cannot sit, who they can or cannot f**k – even though s19(1)(b) of the Constitution affords them the right to participate in the activities of their party – like singing a song?

  • Pierre De Vos

    Vuyani, thanks for your thoughtful comments. Personally I vacillate between wanting to respond to all the wrongheaded things written on this Blog and knowing that sometimes not responding is the best option. (My policy is not to censor even the most obnoxious comments – unless the comments are clearly unlawful. Freedom of expression is the one part of the Constitution where I am decidedly libertarian in my approach.) You have put your finger on something, I think. When I read this judgment, the tone and the arguments infuriated me. But I read many other judgments that are also legally misguided and it seldom upsets me to the same degree. Your post suggests why the judgment is so deeply objectionable beyond the wrong legal arguments. Nice Blog, by the way. I am adding a link from my Blog.

  • Brett Nortje

    vuyani ngalwana says:
    May 21, 2011 at 17:04 pm

    Lay back on this couch and tell us why you think you have problems keeping your cool…

    For the sake of this argument I was conflating the 2 hate-speech cases because the subject matter is so similar. So were the arguments.

    There are two ways of looking at the facts about standing in the first case. The original parties might be everyman who bring (OK, stage) cases of public interest in their own inimitable incredibly obtuse way – amici with 80 IQs, iow – and they should have been slapped with a punitive costs order and told to shut up and sit down; or

    The next explanation closely related to the first is that these are vexatious litigants who should have been slapped with a punitive costs order and told to shut up and sit down.

    OK, 3 – no matter what their motivation even stupid people have a right to an opinion, to participate in debate over public-interest matters and access to our courts! (See, I care about U2, Maggs…)

    It is pointless denying that Juju’s own similarly obtuse presence hung over that case even though he was not present.

    Either way, my submission that those words are capable of an objective meaning is not close to being controverted and your attempts (logical gymnastics, really) to sell us on the idea that the answer to this dispute lies in competing highly subjective interpretations has solely amusement value.

    P.s. Pierre is no libertarian – he is a PROGRESSIVE! He seeks to erode all our liberties incrementally…

    Thank you.

  • Michael Osborne

    Vuyani, your points are well taken.

    The debate over KTB song is ironic. During the debates leading about the Bill of Rights, many (including the ANC), argued strongly in favour of a hate speech exception. Liberals who opposed such an exception then are in a position now to say – “I told you so.”

    In fact, Mokgoro J noted, in the context of pornography, that restrictions on freedom of speech have a way of coming back to bite their proponents. In CASE AND ANOTHER v MINISTER OF SAFETY AND SECURITY AND OTHERS 1996 (3) SA 617 (CC), note 83, she cited Joanne Fedler as observing that the Feminist Anti-Censorship task force opposed a MacKinnon-drafted anti-pornography ordinance in Indianapolis, asserting that the ordinance would erode women’s autonomy and privacy, because the ordinance would place powers ‘to censor and therefore to control culture . . . in the hands of the self-same gendered state officials’.

    Also, one of the first items “banned” under a subsequent Canadian anti porn law was a publication by Andrea Dworkin — who, with McKinnon, had helped to inspire that statute too.

  • Maggs Naidu –

    Brett Nortje
    May 21, 2011 at 18:22 pm

    Hey Goofy,


    Never mind Vuyani will soon discover that you are retarded and that he should not get annoyed at the rubbish that you write.

    But well done on enticing him into a serious exchange.

    @ Vuyani – go easy on Brett, he is in the words of Blade Nzimande ‘not right upstairs’.

  • Brett Nortje

    Hey, when are you going to acknowledge that I change-agented your change-agenting self into not voting?

  • Maggs Naidu –

    vuyani ngalwana
    May 21, 2011 at 17:04 pm

    Hey VN

    “Enter a judge and lawyers. None of them speak the language. None of them have any idea of the history, significance and evolution of these songs (except perhaps what they have read in academic journals penned by persons who themselves have no personal experience of these things and, by all accounts, haven’t the foggiest idea what they are talking about because the history and experience of our people and of these songs is largely unrecorded in writing). No evidence is sought from the people who speak the language and have had personal engagement with these songs and have lived through numerous versions thereof.”

    Are you suggesting that if the judge and lawyers spoke the language, had an idea of the history etc., then a similar judgement would have been acceptable?

    Or would a judge in that instance have arrived at an entirely opposite conclusion?

  • vuyani ngalwana

    @ Naidu
    No. I’m saying the judge should have called for viva voce evidence of people who speak the language, understand the origin of these songs and have some idea what the context is in which they are sung. Lamont J has done just that and so will be in a better position to decide the Malema hate speech case. Not so, Halgryn. He heard no evidence and so has no idea of the context – which he has dismissed (strangely) as being irrelevant.

  • Maggs Naidu –

    vuyani ngalwana
    May 21, 2011 at 19:03 pm


    “Not so, Halgryn. He heard no evidence and so has no idea of the context – which he has dismissed (strangely) as being irrelevant.”

    Nicholson, if I recall correctly, heard evidence and understood context, then decided based largely on media reports. He was hailed by many as an ‘activist judge’ (and roasted by others).

    That aside – should the singing of any song, even if that incites violence, brutality or murder, targeting vulnerable groups (or anyone else), be banned?

    If so the portions of ‘Die Stem’ should never have been incorporated into our national anthem – that was the clarion call to among the worst human rights abuses in history.

  • vuyani ngalwana

    @ Pierre
    Many thanks, Pierre. Looking forward to some mild, good-natured banter “by” you in the coming months on these matters. You know your nemesis is going to the Constitutional Court soon, and both the media and commentators will be going gaga. Just reign in Hoffman SC a tad.

  • Mikhail Dworkin Fassbinder

    It pains me to heard Maggs instructing Vuyani that Brett is “retarded.”

    VUYANI: Please understand that both Brett and Maggs are tragic victims of the PRIMACY EFFECT. One of the symptoms of their joint affliction is an inability to focus on the serious debates to which Pierre has dedicated this blog. Instead, poor moronic imbeciles that they are, they must ceaselessly indulge in mutual insult, unfunny put-downs, and verbal pranks more befitting the sawdust floor of a circus ring than the august precincts of this digital forum.


  • Mikhail Dworkin Fassbinder

    Heard = hear

  • vuyani ngalwana

    @ Naidu

    3 things – well, 4.
    First, I don’t follow your logic as regards the hearing of evidence by a judge leading ineluctably to the label of “activist judge”. Perhaps I misconstrue your meaning entirely, which will not surprise me since the case to which you refer is wholly inapposite to the present debate.
    Second, the question you pose is precisely what needs to be ascertained with reference to admissible oral evidence. One can’t assume the song “incites violence”, etc, and then seek to justify that assumption by reference to one’s own philosophical outlook on life. That’s not how cases are decided.
    Third, I disagree with you on “Die Stem”. Again, in today’s context the song is hardly objectionable in my view. In fact I much prefer Die Stem to this doughy mangled mash we now call the anthem. It is certainly more poetic and doughtier than what we have.
    Fourth, I have work to do and so forgive me if I don’t respond to a surrejoinder.

  • Maggs Naidu –

    vuyani ngalwana
    May 22, 2011 at 10:10 am

    Hey VM,

    The Nicholson thingy was an aside.

    Anyway, even if it was proven that the song actually incited violence (and there’s no evidence to suggest that it did), I reckon that banning someone from singing it (even to incite further violence) is not on. There surely are other ways to deal with people who incite violence.

    Even if the judgement was technically sound, such a ban would, in my view, be wrong.

    People should be free to sing Die Stem, Dabula Ibhunu or whatever else they choose. People should not be free to incite violence. Engagement, politically and other ways, ought to be the route.

    Otherwise POWA may have a case to ask for banning of the Beetles’ “Run for Your Life” or Guns n’ Roses’ “Used to love her”.

  • Leon

    @Pierre De Vos;

    Pierre, In his closing arguments, Advocate Brassey (SC) argued that inflammatory speech legislation is underdeveloped in South Africa and he is 100% correct.

    It seems you Pierre de Vos do not have any emotion and only intellect. The problem with some intellectuals is that they have lost the ability to feel for people and in your case you very conveniently forget the thousands of innocent farmers who have lost their lives in these barbaric and cruel farm attacks committed by mostly black youth (as in ANCYL).

    De Vos you definitely have a hidden agenda and i have no doubt you as a white man might be aiming for the Constitutional Court. If this is the case, you are a cruel and inhumane person.

    You very conveniently ignore international law on incitement and you did not ever in any of your arguments refer to Act 27 of 2002. Why? Because you want to attack the Hon Judge Halgryn and for own personal gain and to impress the ruling party through the media.

    If you argue the above not to be true, i challenge you to argue and justify the murder of thousands of innocent farmers being slaughtered on our farms, brutally raped, tortured and gruesomely murdered by Black criminal savages incited by Julius Malema.

    Halgryn as far as i am concerned might have known that his Judgment will be overturned in future, but by keeping his ban might saved many innocent White farmers from being murdered. Now that is proper emotion and that is justice. If Halgryn saved one White farmer from being murdered, he has done his job even if his judment was not constitutionally correct.

    But this ANC communist regime will soon set itself alight and the demise of the Afrikaner is not a given. They will not take the farm land like they did in Zimbabwe. We the Afrikaners are to brave and proud and we are a warring nation. We will again conquer and rule. That is a given and a promise from the Triune God. Watch my words.

    The Afrikaner during the 2nd Anglo Boer war very effectively fought against the British Empire which at the time was one of the most powerful empires in the history of mankind ever and comparatively stronger than the USA at it’s prime. The British had to commit Genocide and kill 26 000 woman and children to beat the Boer’s.

    My answer to you is full of emotion for the thousands of innocent farmers slaughtered by the regime you defend. Thank God Halgryn has emotion and thank God some people are not full of intellectual pride.

    Their will come a time in our history when the Afrikaner will again stand together and fight this communist regime, like we did before and we will conquer and we will rule ourselves.

    And the liberals we hate the Afrikaners, we will put on trial and we will charge you for crimes against humanity and we will condemn most of these liberals justifying the Genocidal Hate Speech of Malema and the killing of the Boers to death and we will like before hang them by their necks.

    My question to you De Vos is: Do you legally, intellectually and emotionally justify the gruesome murders of the Afrikaner farmers?
    If you are a man answer my questions!!!

    I suggest you do some reading (below) before you attempt to grossly and unfairly attack a Judge who is attempting to save the lives of innocent people. As far as i am concerned you are a disgraceful intellectual because you could not grasp the attempt by the Hon Judge Halgryn to save people from being murdered.

    Incitement to commit genocide represents the act of encouraging a person or persons to commit the crime of genocide. The Rwanda Tribunal (ICTR) defined incitement (in the Akayesu Judgement) as:

    Directly provoking the perpetrator(s) to commit genocide, whether through speeches, shouting or threats uttered in public places or at public gatherings, or through the sale or dissemination, offer for sale or display of written material or printed matter in public places or at public gatherings, or through the public display of placards or posters, or through any other means of audiovisual communication.

    The person doing the inciting, must also themselves have the intent to commit genocide (to attempt to destroy in whole or in part a national, ethnic, racial, or religious group as such). Given the appropriate context, incitement can certainly act as a trigger for the commission of genocide.

    Incitement to commit genocide was essentially first prosecuted in the case of Julius Streicher at the Nuremberg Tribunal. Streicher was a German newspaper editor during the Nazi regime who often wrote (or published) virulent anti-Semitic diatribes. Incitement to commit genocide did not exist as a crime at this time so Streicher was tried for crimes against humanity. He was found guilty and executed. The most important aspect of the Streicher case was that the court recognised that words can kill – that incitement is a crucial ingredient in gross human rights violations.

    International criminal law prohibits “direct and public” incitement to commit genocide in Article 3 of the Genocide Convention, Article 25 (3) (e) of the Rome Statute of the International Criminal Court (ICC), Article 3 (e) of the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY), and article 3 (c) of the Statute of the International Criminal Tribunal for Rwanda (ICTR). The development of the two ad hoc tribunals and subsequently, the International Criminal Court has allowed the crime of incitement to commit genocide to be prosecuted for the first time. There have been many prominent trials and convictions for incitement at the ICTR, including cases where leaders have been tried for inciting genocide in speeches, media personalities and publishers for incitement in the media, and even a pop singer for including genocidal messages in his songs. Incitement is also forbidden by many international human rights treaties. There must be a sort of careful equilibrium between the need to restrict incitement and the need to preserve freedom of expression.

  • S M Ngwane

    @ Leon, are you for real? What a preposterous dream, inapposite and baseless criticism.

  • vuyani ngalwana

    @ Leon:
    Unbelievable!!! I give up. You and your kind are absolutely incorrigible, Leon. no level of intellectual (nay, common-sense) engagement will move you. So there is really no point in it all.
    I hope you’re not a lawyer otherwise God help us!!!

  • Mikhail Dworkin Fassbinder

    @ Leon

    “even a pop singer [may not] includ[e] genocidal messages in his songs.”

    Then tell me, Leon, why do we have to put up with the hate-inducing lyrics of Eminem and Snoop-Dog? Even here in South Africa, musicological GENOCIDE is carried out every time RSG plays Sunette Bridges!


  • Leon

    @vuyani ngalwana
    @ S M Ngwane

    Gentleman, you may believe my arguments to be inveterate, baseless and preposterous, but so did the ZULUS at The Battle of Blood River.

    The Zulus believed the Afrikaners (169 men women and children) to be killed in minutes. They lost an estimated 16 000 warriors and no Boers were killed.

    Imbeciles the likes of Malema also believe that he can through the use of genocidal hate speech destroy the white Boers.
    Malema will be surprised.

    You have my permission to regard me as inveterate, baseless and preposterous and that i will regard a compliment.
    Fact is that i am not convinced by my own intellectual capacity only, but also by my faith in the Just and Faithful God Almighty and by my emotions and my love for my nation the Afrikaner Boer.

    A man with an intellect, but with no faith and emotion is a dead man in a living body. We Afrikaners Boers, we have a dream and one day our God will through His Almighty power liberate us to be free again.
    Free from ANC Communism and liberalism and free from corruption and theft and murder torture and rape. And this time we will also be free from the sick racism of our past.

    Free to uphold and maintain our western standards, our own morals and ethics and free from the African way of corruption and falling into the African abyss of no standards. That is why Africa is where it is. Nowhere and begging for international relieve funding and blaming Colonialism and blaming Apartheid and killing Whites and blaming capitalism whilst they commit their corruption and abuse of power.

    I might not be a lawyer or an advocate but i am extremely better qualified than the ANCYL imbecile and i can assure you that we the Afrikaner Boers will God willing be free as this regime will never conquer our spirit, with or without intellectuals the likes of Pierre de Vos.

    De la Rey De la Rey, De la Rey.

  • Leon

    @Mikhail Dworkin Fassbinder,

    Do not ask me, ask the jurists who wrote the International law, The Rome Statute.

    Your arguments shows your ignorance and that of Pierre de Vos and the legal fraternity at large in South Africa regarding Hate Speech and inflammatory speech.

    I believe i should start a class on this blog: (International law 101) and Pierre de Vos should be my 1st student.

  • Maggs Naidu –

    May 23, 2011 at 17:44 pm

    Hey Leon,

    “one day our God will through His Almighty power liberate us to be free again”

    Just ignore these ignoramuses – they won’t know the truth if it stared them in the face.

    Join the brethren at Devonshire Hotel – our God will through His Almighty power will liberate those who faithfully listened to His message through The dear Reverend Harold Camping.–so-pay-up/

    p.s. why did the Afrikaaners murder 16 000 Zulu warriors and while no Boers were killed?

    p.p.s Where can we sign up for your International law 101 class? Can you combine that with JR’s Logic 101?

  • Maggs Naidu –

    @ Leon,

    p.p.p.s “my own intellectual capacity”. Somebody sold you the Eiffel Tower. Ask for a refund.

  • Leon

    @Maggs Naidu –

    If you believe in the Devil, don’t blame me. OK?

  • Leon

    @Maggs Naidu –

    Strangely enough the person who attempted to sell me the Eifel Tower was also a well-known business man with the surname of Naidu.

    What a co-incidence???

  • Maggs Naidu –

    May 23, 2011 at 18:27 pm

    Aw Leon,

    I am the only one on your side.

    Let’s join forces and fight the enemy instead of among ourselves.

    What say you, eh?

    p.s. Of course I believe in the devil.

    Remember the devil made Hansie do it!

  • Maggs Naidu –

    May 23, 2011 at 18:47 pm

    Hey Leon,

    “What a co-incidence???”

    It’s not a coincidence – I think you’re gullible and believe anything.

    Like the ‘Certificate of Intellectual Capacity’ which is also a fake.

    But don’t feel bad – not everyone can be smart.

  • Leon

    Aw Maggs,

    I am on your side, but on your wrong side.

    And remember Hansie trained the Pakistani team who successfully did it for many years thereafter on behalf of the old Devil.
    The biggest Devil of them all is Madiba.

    I think you should rather be on Malema’s side.
    I am the wrong partner for you, Eish!!!

  • Leon

    Aw Maggs,

    Thank God your not a law student or lawyer.

    When will Malema re-issue your certificate of intellectual capacity. Its expiry date reads 11/10/2001.

    Are you maybe trying to impress Pierre De Vos on this blog?

  • Maggs Naidu –

    May 23, 2011 at 19:02 pm

    Oops Leon

    “I am the wrong partner for you, Eish!!!”

    Sorry to disappoint you, but I already have a partner.

    But send your CV maybe I can help you find love (Dworky is available).

    p.s. of course I am trying to impress PdV – I can do that better if I pass your course on something 101.

  • izeze

    “(Dworky is available)”

    He is? Hey Maggs, that’s the first bit of good news I’ve had all week!

  • Mikhail Dworkin Fassbinder

    Maggs/Izeze. I am indeed available — but only if you renounce RACISM and GENOCIDE.

    Also, no more Primacy Illusion please!

  • Maggs Naidu –

    May 23, 2011 at 19:46 pm

    Hey Izeze,

    Dworky is more than available.

    Even more than Dominique Strauss-Kahn.

    But unlike Leon, he’s not really desperate.

  • Maggs Naidu –

    Mikhail Dworkin Fassbinder
    May 23, 2011 at 20:06 pm

    Hey Dworky,

    Stop flirting with Izeze – you’re gonna make Leon jealous.

    p.s. Guess who issued Leon’s Certificate of Intellectual Capacity?

    For a clue see :

    May 23, 2011 at 19:07 pm – “When will Malema re-issue your certificate of intellectual capacity.”

  • Andrea Muhrrteyn

    @ Jonathan (May 19, 2011 at 12:47 pm)

    “May we all please stop engaging Andrea Muhrrteyn in further discussion about his ranting. It detracts from the actual topic under discussion in this blog. And, it feeds his wayward ego.”

    Andrea is a woman. Could you please clarify how you legally define ‘ranting’. Or do you just use the word to shut anyone up; whom you disagree with; and refuse to honourably engage?

    Could you also clarify what your cultural defintion of ego is; and whether you consider your cultural ‘ego’ definition legally sui-generis? In my culture, our ego’s are not our identity; hence our beings (sense of self) is not intellectually or psychologically threatened by new ideas or concepts; as other culture’s ego-identities are.

  • Andrea Muhrrteyn

    Mikhail Dworkin Fassbinder (May 19, 2011 at 13:28 pm)

    “Andrea: While I have always respected your work, I demand that you abandon you desist from DECEIT, recover your INTEGRITY, and eschew pussy-footing POLITICAL CORRECTNESS!”

    Mikhael; I will be happy to indict Maggs and Brett, if the evidence suggests so. I have not read their comments; and don’t intend to, unless they indicate they are sincere and honourable about discussing their views. In the absence of such honourable sincere notification; I would be wasting my time to read what htey have to say; cause they have no sincere honourable intention of discussing it.

    My principle is not founded on political correctness; I spent a year in prison for calling a corrupt white Afrikaner magistrate a ‘kaffir’. Once you have done the same, you can meet me on a level playing field demonstrating that you practice what you preach about honestly and a disregard for political correctness.

    My principles are founded on honourable ethics:

    I do not make judgements against anyone, if I have not given them and hteir evidence a fair hearing. I would be happy to find Brett and Maggs as pathological moron imbeciles, if the evidence proves such. But so far all I can say is they have not demonstrated honourable sincerity in discussion; so I don’t read any of their comments; since asking them for clarification on any point, would be a waste of time; they don’t answer; they have no honour.

  • Mikhail Dworkin Fassbinder

    @ Andrea

    “I would be happy to find Brett and Maggs as pathological moron imbeciles, if the evidence proves such”

    With respect, Andrea, I am not sure what additional evidence you would need. Just read one sentence of any of the numerous postings of these two gentlemen!


  • Maggs Naidu –

    Mikhail Dworkin Fassbinder says:
    May 26, 2011 at 16:08 pm

    Hey Dworky,

    “With respect, Andrea, I am not sure what additional evidence you would need. Just read one sentence of any of the numerous postings of these two gentlemen!”

    Before you antagonise AM, consider that you have been invited to meet her somewhere. The ‘level playing field’ sounds interesting. Have fun.

  • Sarel (SEGE)

    Regter ken nie die wet (RAPPORT 22 Mei 2011)
    31 Mei 2011

    Pierre de Vos ken dalk die wet, maar ken nie die lewe nie.

    Om te debatteer oor “skiet die Boer” terwyl Boere / boere / polisiemanne (as simbool van die stelsel) doodgeskiet word, is om van naar te word.

    Kan ‘n boer / polisieman wat eenmaal doodgeskiet is ook aan hierdie belaglike akademiese debat oor die (grond)wet deelneem?

    Ek gee my nie uit as ‘n grondwet- of regskenner nie. Dit is veel belangriker dat geregtigheid moet geskied. As die grondwet nie boere se reg op lewe waarborg nie, dan impliseer dit sekerlik die reg op lewe, want sonder lewe kan ‘n Boer geen van die ander regte in die grondwet geniet nie. Hierdie argumente oor gebruik van sekere woorde is nie net van akademiese belang vir ivoortoring akademici wat geen idee het waaroor lewe en dood gaan nie!

    Enigiemand wat ‘n debat voer oor die woorde “skiet die Boer” sonder om die skiet van Boere te probeer stop, maak die grondliggende fout om die onbeperkte reg op vryheid van spraak (dus die reg op haatspraak) bo die reg op lewe te stel. Die wese van die debat gaan om lewe en dood! Prof. De Vos mis die punt heeltemal in sy relaas. Mense wat ‘n valse weegskaal gebruik waarop spraakvryheid meer weeg as lewe, vergeet die waarskuwing in Spreuke 20:23.

    Regter Halgryn het minstens die geweld in ons land (veral teen Boere) probeer verminder. Geen mens met gesonde verstand behoort hiermee ‘n probleem te hê nie.

    Prof. Pierre de Vos laat my dink aan die akademikus wat by sy ouers op die plaas gaan kuier. Hy verduidelik aan hulle dat hy nou uiteindelik, na baie navorsing, kan bewys dat 2 (twee) eintlik gelyk is aan 3 (drie). Hulle sit aan die eetkamertafel en sy ma het 2 (twee) stukkies hoender gaar gemaak. Sy pa, die praktiese boer, het rustig na hom geluister. Hy skep toe vir sy ma die een stukkie in en neem self die tweede en laaste stuk, met die woorde: “Jy kan nou maar die derde stuk kry, ou seun!”

    Politieke of akademiese dagdrome kan net so ver gaan as wat Godgeskape wetmatighede dit toelaat.

    Dit is absurd dat daar enigsins oor BOERESKIET gedebatteer word. Ek is oortuig daarvan dat die woorde “skiet die Boer” beslis “op sigwaarde moord aanhits.” Die ANC moes dadelik vir enigiemand wat geweld in die land aanwakker vasgevat het en nie probeer om geweld as deel van hul kultuur te regverdig nie. Omdat hierdie vanselfsprekende optrede nie gevolg is nie, beland ons in die absurde situasie dat daar oor die saak gedebatteer word. Regter Halgryn het die moed om hierdie onreg te probeer regstel en nou word hy verguis.

    As dit net van akademiese belang was dat daar oor die woorde “skiet die Boer” gedebatteer word, het die geleerde professor dalk ‘n punt beet. Aangesien die dade “skiet die Boer” egter feitlik daagliks in ons land plaasvind, is dit totaal onwenslik en onmenslik om enigsins daaroor te argumenteer – dit kan slegs in geen onduidelike taal afgekeur word.

    Hierdie woorde en dade vind nie in ‘n akademiese lugleegte plaas nie, maar in ons land, Suid-Afrika. Die woorde en dade moet dus altyd in konteks met mekaar beskou word. As ons dan oor konteks wil debatteer, hierdie is letterlik LEWENSbelangrike konteks. As Malema gesing het: “Vermoor die man in die maan!”, sou niemand beswaar gemaak het nie.

    Dat prof. de Vos dit enigsins as voorbeeld gebruik om die woorde “skiet die Boer” as deel van ‘n uitgebreide argument te sing, is minstens baie onsensitief en in wese ‘n voorbeeld van akademiese barbarisme: waar die argument bo die lewe van mense (al is hulle net Boere) geag word.

    Wat het prof. De Vos (en Julius Malema) bereik om die skiet van Boere te verminder of te laat ophou? Prof. de Vos en andere wat slegs die persepsie versterk dat dit reg is om Boere te skiet, skuld die familie van die Boere wat reeds geskiet is, ‘n verskoning. Dit voel vir my, wat al vriende verloor het wat geskiet is, of prof. De Vos en ander wat sing “skiet die Boer” op die grafte van die Boere dans, wat reeds geskiet is, terwyl hulle (stryd-)lustig voortsing. Hoe verdiskonteer prof. De Vos 151 (een honderd een en vyftig) beserings aan ‘n Boer. Of pas dit nie by die akademiese definisie van “SKIET die Boer”, omdat hy nie met ‘n koeël vermoor is nie?

    As prof. De Vos eerlik slegs ‘n akademiese debat oor “skiet die Boer” wil voer, moet hy hom eers daarvoor beywer dat daar geen Boere / boere meer geskiet word nie. In ‘n ideale samelewing waar geen Boer geskiet word nie, is daar dalk plek vir so ‘n debat, maar slegs as die DEBATTEERDERS die WAARBORG gee dat die debat nie die geringste aanleiding sal gee dat daar weer Boere geskiet gaan word nie. ‘n Waarborg kan behels dat die DEBATTEERDERS hul adres opgee met die uitnodiging vir kriminele om by hulle te kom steel, sonder vrees dat die diewe teengegaan sal word. Hierdie waarborg moet in werking tree indien enige Boer na die debat weer geskiet word. Ek daag prof. Pierre de Vos uit of hy bereid is om dit te doen?

    As ons vir prof. De Vos en die ANC sê:”Perdedrolle is vye”, gaan hulle dit eet?
    Hoe verwag hulle enigiemand moet aanvaar: ‘n Boer is nie ‘n Boer nie?
    Dit is absurd. Iemand wat nou wil ophou om ‘n onderdrukker te wees, kan dit nie doen nie, want hy was dan nooit ‘n Boer nie!
    Woordroof ondermyn die basis van die Akademie. As jy willekeurig enige betekenis aan dieselfde woord kan gee, is definisies nie moontlik nie.

    SEGE is tans betrokke by mentorskappe en opleiding van grondeisers. In plaas daarvan dat die projekte deur almal ondersteun word, word die Boere se voortbestaan steeds bedreig deur persepsies te versterk dat dit reg is om “Boere te skiet.”

    SEGE (Sentrum vir Geregtigheid)

  • nonsequitur

    Vermaaklike kommentaar, Sarel. Toemaar, ek stem saam met wat jy daar skrywe, and sekerlik baie ander mense ook. Maar dis nutteloos om nou nog ‘n eier te wil lê oor hierdie boereskietery, want ongelukkig het Prof De Vos sy mind behoorlik opgemaak oor dié besigheid; so seker as wat die Here daai klein groen appeltjies geskep het.

    Verskoon tog my vieslike Afrikaans (dis nog ‘n work in progress).