IN THE SOUTH GAUTENG HIGH COURT

(SITTING AS EQUALITY COURT)

CASE NUMBER: 07/20 10 EQ JHB

In the matter between:

AFRIFORUM - Complainant

TRANSVAAL AGRICULTURAL UNION - Intervening Complainant

and

JULIUS SELLO MALEMA - Respondent

AFRICAN NATIONAL CONGRESS - Intervening Respondent

VERINIGING VAN REGSLUI VIR AFRIKAANS - Amicus Curiae

ANC'S PLEA

The African National Congress ("the ANC") pleads as follows to the complainant's particulars of claim:

1 Ad paragraph 1.1 thereof

The ANC admits that the complainant is AfriForum but has no knowledge of the rest of the averments made in this paragraph, does not admit them, and puts the complainant to the proof thereof.

2 Ad paragraph 1.2 thereof

The ANC denies that the complainant is involved in the protection and development of civil rights within the context of the Constitution.

3 Ad paragraph 1.3 thereof

3.1 The ANC has no knowledge of the number of members, if any, the complainant has, does not admit the complainant's claim in this regard, and puts the complainant to the proof thereof.

3.2 To the extent that the complainant claims to be acting "on behalf of ... the Afrikaners of South Africa" in bringing this complaint, the ANC denies this averment.

3.3 The ANC further has no knowledge that in bringing this complaint the complainant "is acting on behalf of its members ", does not admit same, and puts the complainant to the proof thereof.

4 Ad paragraph2 thereof

The ANC pleads that Mr Malema is a member of the ANC., and that he has, at all times material hereto the President of the African National Congress Youth League ("the Youth League").

5 Ad paragraphs 3 to 3.2. inclusive, thereof

5.1 The ANC pleads that, when understood in the historical context of the song of which they form part,

5.1.1 the words cited by the complainant are not "objectionable utterances",

5.1.2 the words "ibhunu" or "ibhulu" or "amabhulu" are not a reference to "farmers",

5.1.3 the words cited by the complainant are not reasonably capable of being construed as demonstrating a clear intention to be hurtful, harmful, incite harm, promote or propagate hatred against farmers,

5.1.4 the words cited do not, in any event, constitute or amount to words on one or more of the prohibited grounds in terms of section 10 of Act 4 of 2000, as amended ("the Equality Act").

6 Ad paragraphs 4 to 4.5, inclusive, thereof

6.1 The ANC pleads that the occasions referred to at which Mr Malema allegedly sang the struggle song or liberation song in question are consistent with the occasions at which such liberation songs are usually sung by comrades among themselves without any intention to be hurtful, harmful, incite harm, promote or propagate hatred against anybody.

6.2 Such occasions may include ANC functions, private functions where comrades happen to converge, and meetings or functions of other liberation movements outside South Africa with which the ANC collaborated during its own struggle.

7 Ad paragraphs 5 to 5.2.2. inclusive, thereof

7.1 The ANC pleads that both the literal and contextual interpretation advanced by the complainant is wholly unreasonable and entirely bereft of the proper context in which the song in question is, and has traditionally and historically been, sung.

7.2 The proper context in which the word "ibhunu" or "ibhulu" is used in the liberation song of which it forms part is that of the oppressive regime, its system of apartheid and all the structures associated with it.

8 Ad paragraphs 6 to 7.2. inclusive, thereof

The ANC has no direct knowledge of the content of the conversation between Mr Malema and Mr Roets on the alleged occasion of the meeting between them, does not admit same, and puts the complainant to the proof thereof.

9 Ad paragraphs 8 to 8.2, inclusive, thereof

9.1 The ANC denies that any adverse "associations" can reasonably be made with the words of the liberation song in question.

9.2 In particular, the ANC denies that the impugned words of the liberation song in question could reasonably be construed as demonstrating a clear intention to be hurtful, harmful, incite harm, promote or propagate hatred against any person and, in particular, Afrikaner farmers and white people in general.

10 Ad paragraphs 9 to 9.3, inclusive, thereof

To the extent that the complainant seeks to create a connection or link (in the form of cause and effect) between the liberation song in question on the one hand, and

10.1 feelings of "racial inferiority" among "a minority group",

10.2 being persecuted,

10.3 being hated and

10.4 being degraded

on the other, the ANC denies that the liberation song in question can reasonably be construed to demonstrate a clear intention to achieve the aforestated effects.

11 Ad paragraphs 10 to 10.2, inclusive, thereof

11.1 The ANC denies that the words of the liberation song in question are targeted at Afrikaners, Afrikaner farmers, individuals or "groups".

11.2 The ANC denies further that the words in question, when considered in their proper context,

11.2.1 constitute "objectionable utterances",

11.2.2 engender humiliation and degradation among white individuals,

11.2.3 encourage derision, hostility and abuse.

11.3 In any event, the ANC pleads that the alleged reaction for which the complainant contends is not reasonable when the words of the liberation song in question are considered in the proper context of the song of which they form part.

11.4 The ANC thus denies all the averments made in these paragraphs.

12 Ad paragraph 11 thereof

The ANC denies the averments made in this paragraph.

13 Ad paragraphs 12 to 12.3. inclusive, thereof

13.1 The ANC pleads that the words of the liberation song in question, when considered in their proper context,

13.1.1 cannot reasonably be construed in the manner for which the complainant contends, and

13.1.2 are, in any event, protected under section 16(1) and 19(1) of the Constitution.

14 Ad the prayers sought in paragraphs I to 7, inclusive

14.1 The ANC denies that the complainant is entitled to the relief it seeks and prays that the complaint be dismissed with costs.

14.2 The ANC pleads in any event that the prayer for a declaratory order which, if granted, would be an order against the world, would be a brutum fulmen and thus practically unenforceable.

DATED AT Sandton on this the 1 day of March 2011.

I V MALEKA SC

M SIKHAKHANE

V NGALWANA

MKHABELA HUNTLEY ADEKEYE INC

Transcribed from PDF. Please check against the original.

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