MEDIATION AGREEMENT MADE AND ENTERED INTO BY AND BETWEEN THE
AFRICAN NATIONAL CONGRESS ("ANC")
JULIUS MALEMA ("Mr Malema")
(COLLECTIVELY REFERRED TO AS "THE PARTIES")
1. The parties are litigants in an appeal to the Supreme Court of Appeal ("SCA") against a judgment by Lamont J handed down on 07 September 2011 in the South Gauteng High, sitting as the Equality Court, under case number: 20968/2010 in terms of which the following order was made:
"1 .The words ("the words") set out below constituted hate speech on the occasions the first respondent sang them:-
1.1 awudubula ibhunu,
1.2 dubula amabhunu baya raypha.
2. The first and second respondents are interdicted and restrained from singing the song known as Dubula lbhunu at any public or private meeting held by or conducted by them ("the song").
3. The words and the song constitute hate speech.
4. The morality of society dictates that persons should refrain from:-
4.1 using the words,
4.2 singing the song.
5. The first respondent is to pay the costs of the first and second claimants as if the trial had run for three days and no experts had been called.
6. Save as aforesaid each party shall pay its own costs."
(hereinafter referred to as "the Equality Court Order")
2. The appeal is due to be heard before the SCA on Thursday 1 November 2012 under case number A.815/201 I
3. The parties have agreed to a full and final settlement of their dispute on the following terms:
a. The parties agree that it is crucial to mutually recognize and respect the right of all communities to celebrate and protect their cultural heritage and freedom.
b. The parties recognize that certain words in certain struggle songs may be experienced as hurtful by members of minority communities.
c. Therefore, in the interests of promoting reconciliation and to avoid inter- community friction, and recognizing that the lyrics of certain songs are often inspired by circumstances of a particular historical period of struggle which in certain instances may no longer be applicable, the ANC and Mr Malema commit to counselling and encouraging their respective leadership and supporters to act with restraint to avoid the experience of such hurt.
d. The parties commit to deepening dialogue among leaders and supporters of their respective organizations and formations to promote understanding of their respective cultural heritages and for the purpose of contributing to the development of a future common South African heritage.
e. The parties commit to continued formal dialogue amongst leaders of the ANC and leaders of AfriForum and TAU-SA and other role players to promote understanding of their respective cultural heritages and aspirations.
f. The ANC and Mr Malema undertake upon the signing hereof to withdraw their Appeal to the SCA with no order as to costs.
g. The parties agree that this Mediation Agreement will be made an Order of Court substituting the Equality Court Order. In this regard the parties agree to jointly approach the Honourable Judge Lamont for this purpose soon upon the signing of this Mediation Agreement.
In the event the Honourable Judge Lamont were to decline the substitution of the Equality Court Order, Afriforum and TAU-SA irrevocably undertake to abandon the Equality Court Order and simultaneously the parties will apply to have this Mediation Agreement made an Order of Court.
h. For the avoidance of doubt the parties agree that each party shall pay its own costs in respect of the Equality Court Proceedings.
Thus signed at Johannesburg on this 30th day of October 2012
For and on behalf of the ANC
For and behalf of Mr Malema
For and on behalf of AfriForum
For and on behalf of TAU-SA
ADDENDUM TO MEDIATION AGREEMENT
MADE AND ENTERED INTO BY AND BETWEEN THE PARTIES REFERRED TO IN THE MEDIATION AGREEMENT
The parties have agreed that Afriforum and TAU-SA will abandon the Equality Court order and the ANC and Mr Malema agree to abandon the appeal to the Supreme Court of Appeal, the parties agree that the Mediation Agreement to which this addendum is annexed shall be made an Order of court by the Supreme Court of Appeal, except with the deletion of paragraphs (g) and (h) thereof, and by the inclusion of the following new paragraph:
"2. "For the avoidance of doubt: each party shall pay its own costs in respect of the Equality Court order and Supreme Court of Appeal proceedings."
Signed at on this 31st day of October 2012
ON BEHALF OF THE ANC
ON BEHALF OF MR MALEMA
ON BEHALF OF AFRIFORUM
ON BEHALF OF TAU-SA
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