The past is very much part of the present

In the movie A Reasonable Man director Gavin Hood (whose movie Tsotsi won the best foreign picture Oscar) tells the story of a young Zulu herd boy, Sipho (Loyiso Gxwala) who is on trial for killing a baby. Based on an actual court case, the movie depicts Sipho’s interaction with Sean Raine (played by Woods himself) and the way in which the case affects Raine’s view of the law and forces him to rethink his long held views about the law and about himself.

Sipho insists throughout that he thought he was killing an evil spirit otherwise known as the tokoloshe in popular folklore. The prosecutor, Linde (played by Vusi Kunene) is ready to send him straight to jail and the defense wants him to plead insanity. Gavin Hood’s character, Sean Raine doesn’t believe that he is insane, he sincerely believes that he was killing an evil spirit.

In a pivotal scene Linde (the prosecutor) asks Sean: “Why are you so keen to keep this country in the grip of the past?” to which Sean replies, “the past is very much a part of the present”.

The movie asks profound questions about the way in which judges apply the law in a multicultural society like South Africa. Did Sipho genuinely believe that he was killing an evil spirit and if so, was this belief reasonable in terms of our law? And on what basis must a judge decide whether an accused acted reasonably or not? In the movie, Hood, who himself studied law, explores these questions in a provocative and complex manner.

I was reminded of Hood’s movie this morning as I took part in a discussion on hate speech and struggle songs on Radio Sonder Grense (RSG). Of course, the discussion took place in the context of the singing of a very specific struggle song by Julius Malema. That song, which in the mainstream media has become known as the “Kill the Boer” song, came to renewed prominence when Malema sung it shortly after City Press reported that companies which he had been associated with had allegedly been involved in “dodgy tenders” in Limpopo.

The lyrics of the song sang by Malema included the following passages:

Ayasab’ amagwala (the cowards are scared)
dubula dubula (shoot shoot)
ayeah
dubula dubula (shoot shoot )
ayasab ‘a magwala (the cowards are scared)
dubula dubula (shoot shoot)
awu yoh
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)

awe mama ndiyekele (mother leave me be)
awe mama iyeah (oh mother)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)

aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
…..
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)
awe mama ndiyekele (mother leave me be)
awe mama iyo (oh mother)

aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)
aw dubul’ibhunu (shoot the Boer)
dubula dubula (shoot shoot)

Ziyarapa lezinja (these dogs are raping)
dubula dubula (shoot shoot)
ay iyeah
dubula dubula (shoot shoot)
Ziyarapa lezinja (these dogs are raping)
dubula dubula (shoot shoot)
ay iiiyo
dubula dubula (shoot shoot)

On RSG this morning, after I gave my usual spiel that section 10 of the Equality Act requires us to ask whether the person who sang the song could reasonably be construed as having had the intention to be hurtful or harmful to white South Africans, one after the other, listeners called in to express their opposition to the song and to demand that the song be banned. One could hear the genuine fear, anger and frustration in many of the voices of those who called in. The barely concealed contempt, disgust and hatred of Mr Malema also bubbled to the surface.

I have no doubt that the singing of the song by Mr Malema is experienced as hurtful and very scary by the vast majority of white South Africans. This view is often sincerely held – also by people who are not overtly racist. For the reasonable white farmer or the reasonable white person who never took part in the struggle and do not speak Zulu, it must be as clear as day that this song constitutes hate speech.

But for the reasonable ANC member, the reasonable black (or white) person who took part in the struggle against apartheid, or for the reasonable person whose first language is Zulu, the song might arguably convey a completely different message.

Which highlights the difficulties faced by the judge who is currently contemplating whether he should find Julius Malema in breach of section 10 of the Equality Act because he sang this song. (As Afriforum had – correctly – not asked the court to ban the song outright, the demand by callers that the song should be banned, will therefore never come to pass.)

Who is this “reasonable person” that the law requires the judge to invoke and to rely on when he makes his decision? Is it the reasonable farmer? The reasonable white, middle class South African who only speaks English and Afrikaans? The reasonable ANC member? The reasonable person who took part in the struggle? Is the reasonable person a man or a woman, gay or straight, rich or poor? Does this reasonable person speak Zulu or only English and Afrikaans?

When I was a student at Stellenbosch University many years ago, our Professors did not speak of the “reasonable person” when they invoked this supposedly objective test that forms an integral part of our legal system. They referred to the “reasonable man”, by which most of them probably meant a reasonable white man who happens to have been a lawyer in apartheid South Africa for many years and had then been appointed – along with other white men – as a judge to one of our high courts. (In 1990 there were no black judges serving on any court in South Africa, while only 1 female High Court judge – Leonora van den Heever – served on the bench.)

When some of us – congratulating ourselves on our virtuous adoption of feminism – muttered in a self-satisfied manner that this “reasonable man” was a sexist concept, at least one professor scoffed and said: “What would be next – the reasonable dog or the reasonable criminal?”

The truth is that the reasonable person relied on by section 10 of the Equality Act (and in our common law rules and other legislation) is a fictitious person that is imbued with the values, assumptions, beliefs and ideologies of the judges who have to apply and develop this concept. This is one of the reasons why Julius Malema’s hate speech trial has evoked such different responses from different people in South Africa. We experience the singing of this song by Julius Malema differently depending on our own experiences, fears, beliefs, values and ideological commitments. (A more extreme manifestation of this phenomenon is perhaps the vastly different ways in which different people responded to the allegations of gross misconduct leveled against Judge President John Hlophe.)

Perhaps, as the composition of the bench changes and more women, gays and black South Africans are appointed to it, the concept of the reasonable person might change radically. Then again, one should not underestimate the disciplining power of legal education and of peer pressure in the legal community, which might instill in these judges the same beliefs about what constitutes a “reasonable person” as those currently in fashion.

Like Linde, the prosecutor in A Reasonable Man, judges who happen not to be white, male and heterosexual might reject the idea that we should rethink what we mean when we invoke the reasonable person. When confronted with difficult questions about how we should interpret the meaning of struggle songs, they might also ask: “Why are you so keen to keep this country in the grip of the past?”

Like Sean, the lawyer in A Reasonable Man, I might very well reply: “The past is very much a part of the present”.

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