In the matter between:

AFRIFORUM - Complainant

and

JULIUS SELLO MALEMA Respondent

WITNESS STATEMENT OF ERNST ALEX ROETS

I, the undersigned

ERNST ALEX ROETS

shall give evidence before the above Honourable Court as follows:

IDENTITY OF THE WITNESS

1. I am the national chairperson of the youth structures of the complainant (‘AfriForum').

2. The Complainant

2.1. The complainant is AfriForum, a company incorporated under registration number 2005/042861/08 in terms of s 21 of the Companies Act 61 of 1973 under the style "Afrikaanse Forum vir Burgerregte". At the hearing of this matter, I shall tender in evidence the Memorandum and Articles of Association of the organization.

2.2. The name "AfriForum" is registered as a trade mark under reference 2006/239 12.

2.3. AfriForum has its registered address at 1 Eendracht Street, Kloofsig, Centurion, Gauteng.

3. The respondent and his representative

3.1. The respondent is the President of the Youth League of the ruling political party, the African National Congress. In this capacity he has a platform to communicate his views to the public. He uses this platform energetically and, in consequence, is seldom out of the public eye.

3.2. Where he does not speak himself, he employs the services of Mr Floyd Shivambu, the media agent of the Youth League. Where Shivambu speaks at his own initiative, the respondent can be expected to know of what he says and to repudiate any statement of which he disapproves. I know of no instance in which he has chosen to take this step. In speaking in the manner referred to below, therefore, Mr Shivambu can be taken to speak equally for the respondent.

AFRIFORUM's GUIDING PRINCIPLES

3.3. AfriForum is an active non-governmental civil rights organization. Included among its objectives is the promotion and development of equal rights and responsibilities for the entire population of South Africa, minorities included. In support of its stance, AfriForum relies on the preamble to the South African Constitution, which recognizes that ‘South Africa belongs to all who live in her, united in diversity', and on the values and rights enshrined in the Constitution, human dignity and equality not least.

3.4. The objectives of AfriForum are evident in the civil rights manifesto that the organization adopted upon its establishment. This document, which I shall tender in evidence, states that AfriForum acts in pursuit of:

3.4.1. the expansion and preservation of civil, minority, human and constitutional rights;

3.4.2. the establishment of self-reliant and self-respecting communities;

3.4.3. the attainment of settlements between communities for the promotion of peaceful co-existence and tolerance;

3.4.4. the establishment and preservation of mutual recognition and respect; and

3.4.5. the quest for balance between economic development, the environment and globalization.

3.5. AfriForum is committed to the promotion of the abovementioned objectives in an unbiased pro-active manner and has since its establishment in 2005 already proven itself to be committed to the promotion of the civil rights and protection of all South-Africans regardless of race and ethnicity. As the manifesto emphasizes, no moral justification can be found for racially motivated policies that reduce any grouping to second-class citizens.

4. Locus standi

4.1. AfriForum has 7 (seven) founder members, who are appointed in terms of its articles of association, and approximately 18 000 individual members, who support the organization and contribute financially to it.

4.2. In bringing this complaint it is acting on behalf of its members, but more generally also on behalf of Afrikaners of South Africa who come under the description of "boers".

4.2.1. Depending on the context, this description can be taken as a disparaging reference to white people in general, white Afrikaners more specifically, and white Afrikaans farmers more specifically yet.

4.2.2. Below I describe the construction that the respondent placed on it when he sang a song in which, in the vernacular, people are incited to "kill the boer'.

THE CONDUCT COMPLAINED OF THE RESPONSE THERETO

5. On 8 March 2010 1 consulted the web page of Times Live on which was placed a recording of the respondent singing the song containing the phrase ‘Dubula I'bhunu' on occasion of his birthday celebrations in Polokwane on 5 March 2010. The phrase means "kill the boer".

6. He sang the song once more at a large public gathering held at the University of Johannesburg on 9 March 2010. On that same day, I asked Professor Lionel Posthumus of the University of Johannesburg to translate the song into Afrikaans. His translation of the especially objectionable portions reads as follows:

Ayasaha amagwala

‘Hulle is bang die lafaards'

....

Awudubule (i)bhunu

‘Skiet jy tog die/‘n boer'

Ziyarobha le zintsha (eintlik moes dit wees le(zi,) zinja maar die zintsha-uitspraak is Sotho invloed)

‘Hulle (be)roof hierdie honde'

7. I issued two media statements on that day, at 10h07 and 17h05 respectively. In the first I announced that AfriForum would take up the respondent's conduct in the Equality Court. In the second I announced that on 11 March 2010 I would present the respondent's office with a list of more than 1600 victims of farm attacks.

8. On 14 March 2010, I issued a further media statement in which I announced the ‘Stop Malema' campaign.

8.1. The campaign included a march to the respondent's office. The public was invited to sms the word ‘STOP' to 38655. Monies earned from this campaign would be used to contribute to the legal costs associated with the equality court case.

8.2. A ‘Stop Malerna' petition and Facebook group were also announced. The administrators of the Facebook group were instructed to ensure that the site was not used as a medium for making violent or racist statements.

9. During the evening of 14 March 2010 I participated in a live debate on a television program called Interface on SABC 3. The debate was about the relevance of struggle songs in the new South Africa. The spokesperson of the ANC Youth League, Mr. Floyd Shivambu, also participated in the debate.

9.1. After the debate, Mr. Shivambu said that he would like to see ‘white people' marching to the ANC headquarters to express their disapproval about the situation. In his view this would demonstrate that the tables had turned in South Africa and that blacks were now truly in power.

9.2. I responded that we have already decided to protest on the matter and that he would be receiving a letter from me requesting a confirmation letter for acceptance of our memorandum shortly.

10. I applied to the Johannesburg Metro Police to hold a public protest on 19 March 2010.

10.1. The intention was to gather at Mary Fitzgerald Square in Johannesburg, from where a march to the respondent's offices at Luthuli House (54 Sauer Street) would be held. AfriForum Youth intended to hand a grievance letter to the respondent or his representative.

10.2. A confirmation letter from the respondent or his representative was requested, but, despite various emails and telephone calls to Mr Floyd Shivambu of the ANC Youth League, no confirmation letter was received.

11. On 17 or 18 March 2010 Mr Shivambu requested me to arrange for the leadership of AfriForum Youth to meet with the respondent at his office on 18 March 2010. This meeting took place on 18 March 2010.

11.1. At the meeting, I represented AfriForum in my capacity as national chairman of AfriForum Youth. I was accompanied by Tiaan Esterhuizen, Marlou Lemmer and Nikke Strydom (all members of the AfriForum Youth leadership). The respondent was present at the meeting in his capacity as the leader of the ANC Youth League. He was joined by Floyd Shivambu and Steven Ngubeni.

11.2. In the meeting, the respondent insisted that the hate speech complaint against him be withdrawn. I said that the complaint would willingly be withdrawn if the respondent undertook to apologise for singing the song and to refrain from singing songs that led to tension between South Africans.

11.3. The respondent answered that he would never do that. Over the course of the meeting, he explained his stance in the following way:

11.3.1. The song, which he had sung since he was nine years old, was intended to incite and encourage members of Umkhonto we Sizwe (‘MK') during the armed struggle when they took up arms against the apartheid government. He himself had sung it as a small boy while carrying equipment and weapons in furtherance of the struggle.

11.3.2. There were many songs in which violence against the so-called ama‘bhulu was encouraged. Though I was unable to understand the songs, which he in company with his colleagues sang for us, I did detect that they referred to "i'bhulu".

11.3.2.1. According to the respondent, the word "i'bhulu", as used in the song "Awudubele (i)bhulu", does not refer to famers in the agricultural sense of the word, but to Afrikaners in general.

11.3.2.2. The word "i'bhulu" is also used to symbolize apartheid and any form of oppression and exploitation of blacks in South Africa (though, when questioned on this, he conceded that the literal meaning of the song refers to Afrikaners as the perpetrators of oppression).

11.3.3. Not all whites were oppressors: Jeremy Cronin, a senior official in the SA Communist Party, was an example of someone who was not, for he had demonstrated his commitment to the struggle. But the struggle was far from over. Institutional apartheid might be dead, but apartheid was still being practised in some quarters, and so he would continue to sing the song. ‘We have defeated [institutional] apartheid and we will defeat you'.

11.4. Attacking AfriForum, the respondent characterized it as a privileged white organization that had no respect for the history of events experienced by him. It represented white people who still owned the banks, the farms and expensive cars.

11.4.1. When I made the obvious point that a wealthy black elite is emerging in this country, he asked me to name one rich black man. I said that he himself was one, but he insinuated that this was false by saying that I was a victim of the media.

11.4.2. I then mentioned the name of the Minister in the Cabinet, Tokyo Sexwale, to which he answered that Tokyo Sexwale was a poor man who owes the bank money, while white people still own the bank.

11.4.3. Referring to the present complaint, the respondent asserted that AfriForum was busy dividing the youth. According to him, there would be a large contingent of the respondent's supporters at court. If a court were to declare the song ‘Awudubele (i)bhulu' to be hate speech and prohibit the respondent to sing the song in future, he would encourage his supporters to sing the song "Awudubele (i)bhulu" while he would be merely dancing to the rhythm of the song. He would, in addition, sing other "struggle songs" in which the violence towards the "i'Bhulu" was incited.

12. During the course of this meeting, mention was made of AfriForum's intention to protest outside the head office of the ANC and the ANCYL on 19 March 2010.

12.1. The respondent said that, if this happened, there would be a repetition of what happened to members of the Inkatha Freedom Party (‘IFP') at Shell House (as Luthuli House was formerly known) when they protested outside the ANC Headquarters without the consent of the ANC. When asked what the respondent meant by this, the respondent encouraged us to ‘come and see'.

12.2. By this the respondent undeniably referred to the so called ‘Shell House Massacre' of 28 March 1994, in which 19 members of the IFP were shot dead by members of the ANC when they protested in front of the ANC Headquarters. This was a chilling and horrible threat.

13. The threat served its purpose. On 19 March 2010, a small protest comprising myself, Kallie Kriel (CEO of AfriForum) and various artists convened in Mary Fitzgerald Square and went to Luthuli House to deliver a memorandum and list of victims of farm attacks. When we arrived at Luthuli House, we were confronted by officials of the ANC and the ANC Youth League and members of the police. They refused to let us make a personal delivery the memorandum and the list of victims of farm attacks that we were intent on handing over. In our presence, the documents were torn up by ANC officials and contemptuously trampled into the ground by the party's supporters.

EFFORTS TO OBTAIN THE VIDEO FOOTAGE OF THE EVENTS

14. On 2 February 2011 I requested broadcasted video footage of the meetings and interviews that are the subject of this complaint to shed light on it. The footage reveals what transpired on the following dates:

• 3 March2010
• 9 March2010
• 21 March2010
• 26 March2010
• The first week of April 2010
• December 2009

15. On 7 February 2011 I viewed video footage of the following e-tv news and related reports: 

16. On the same day I viewed the following SABC footage:

• 3 March 2010 (SABC 3)
• 9 March 2010 (SABC 3)
• 26 March 2010 (SABC 3)
• 3 April 2010 (SABC3)

17. The video material discovered in my Discovery Affidavit is the material I received from the two broadcasters. I have no reason to believe that it is not accurate and authentic.

E A ROETS

Monday, February 21, 2011

Transcribed from PDF. Please check against the original.

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