The ANC, the followers of Julius Malema, and also the ANC Youth League leader himself, ought to acquaint themselves with the provisions of the Riotous Assemblies Act and the Intimidation Act before they embark on civil court appeals and even consider singing or chanting "Kill the Boer" again.

The relevant sections of the two Acts, which are still part of our law, and are accordingly to be respected by all, are quoted in full, below, for the edification of the Youth League and all who feel intimidated by what Mr Justice Colin Lamont has called "the chant" which is accompanied by gestures suggestive of the firing of a gun or firearm of some kind and dancing designed to incite and provoke a thematically appropriate response to the chanting of "Kill the Boer".

The Riotous Assemblies Act of 1956

"17  Acts or conduct which constitute an incitement to public violence

A person shall be deemed to have committed the common law offence of incitement to public violence if, in any place whatever, he has acted or conducted himself in such a manner, or has spoken or published such words, that it might reasonably be expected that the natural and probable consequences of his act, conduct, speech or publication would, under the circumstances, be the commission of public violence by members of the public generally or by persons in whose presence the act or conduct took place or to whom the speech or publication was addressed.

18  Attempt, conspiracy and inducing another person to commit offence

(1) Any person who attempts to commit any offence against a statute or a statutory regulation shall be guilty of an offence and, if no punishment is expressly provided thereby for such an attempt, be liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable.

(2) Any person who-

(a) conspires with any other person to aid or procure the commission of or to commit; or

(b) incites, instigates, commands, or procures any other person to commit,

any offence, whether at common law or against a statute or statutory regulation, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable."

The Intimidation Act of 1982

"1 Prohibition of and penalties for certain forms of intimidation

(1) Any person who-

(a) without lawful reason and with intent to compel or induce any person or persons of a particular nature, class or kind or persons in general to do or to abstain from doing any act or to assume or to abandon a particular standpoint-

(i) assaults, injures or causes damage to any person; or

(ii) in any manner threatens to kill, assault, injure or cause damage to any person or persons of a particular nature, class or kind; or

(b) acts or conducts himself in such a manner or utters or publishes such words that it has or they have the effect, or that it might reasonably be expected that the natural and probable consequences thereof would be, that a person perceiving the act, conduct, utterance or publication-

(i) fears for his own safety or the safety of his property or the security of his livelihood, or for the safety of any other person or the safety of the property of any other person or the security of the livelihood of any other person; and

(ii)           ......

[Sub-para. (ii) deleted by s. 6 of Act 126 of 1992.]

shall be guilty of an offence and liable on conviction to a fine not exceeding R40 000 or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.

[Sub-s. (1) substituted by s. 32 of Act 138 of 1991.]

(2) In any prosecution for an offence under subsection (1), the onus of proving the existence of a lawful reason as contemplated in that subsection shall be upon the accused, unless a statement clearly indicating the existence of such a lawful reason has been made by or on behalf of the accused before the close of the case for the prosecution.

1A  Intimidation of general public, particular section of population or inhabitants of particular area

(1) Any person who with intent to put in fear or to demoralize or to induce the general public, a particular section of the population or the inhabitants of a particular area in the Republic to do or to abstain from doing any act, in the Republic or elsewhere-

(a) commits an act of violence or threatens or attempts to do so;

(b) performs any act which is aimed at causing, bringing about, promoting or contributing towards such act or threat of violence, or attempts, consents or takes any steps to perform such act;

(c) conspires with any other person to commit, bring about or perform any act or threat referred to in paragraph (a) or act referred to in paragraph (b), or to aid in the commission, bringing about or performance thereof; or

(d) incites, instigates, commands, aids, advises, encourages or procures any other person to commit, bring about or perform such act or threat, shall be guilty of an offence and liable on conviction to a fine which the court may in its discretion deem fit or to imprisonment for a period not exceeding 25 years or to both such fine and such imprisonment.

(2) If in any prosecution for an offence in terms of subsection (1) it is proved that the accused has committed any act alleged in the charge, and if such act resulted or was likely to have resulted in the achievement of any of the objects specified in subsection (1), it shall be presumed, unless the contrary is proved, that the accused has committed that act with intent to achieve such object.

(3) If in any prosecution for an offence in terms of subsection (1) the act with which the accused is charged, consists thereof, and it is proved, that he unlawfully had in his possession any automatic or semi-automatic rifle, machine gun, sub-machine gun, machine pistol, rocket launcher, recoilless gun or mortar, or any ammunition for or component part of such weaponry, or any grenade, mine, bomb or explosive, it shall be presumed, unless the contrary is proved, that the accused had the said weaponry, ammunition, component part, grenade, mine, bomb or explosive in his possession with intent to commit therewith or in connection therewith in the Republic, in order to achieve any of the objects specified in subsection (1), any of the acts contemplated in paragraphs (a) to (d) inclusive.

(4) For the purposes of this section 'violence' includes the inflicting of bodily harm upon or killing of, or the endangering of the safety of, any person, or the damaging, destruction or endangering of property.

[S. 1A inserted by s. 7 of Act 126 of 1992.]"

Let it not be said that those intent upon preserving the lyrics of struggle songs, well past their sell-by date, have not been warned that in a society in which reconciliation and unity in diversity are national goals, it is criminal to sing songs that intimidate others and that incite those participating in their chanting to kill an easily identifiable section of the nation, the "Boere" who see to it that the nation is fed. Those who feel intimidated can turn to the criminal courts for protection, in the light of the findings in the judgment of Mr Justice Lamont.

Paul Hoffman SC is Director of the Institute for Accountability in Southern Africa (www.ifaisa.org)

Click here to sign up to receive our free daily headline email newsletter