In the matter of Malema v Afriforum, which is on appeal before the Supreme Court of Appeal, Geoff Budlender SC made a submission on behalf of CASAC as amicus curiae against the banning of the "shoot the boer" chant.
CASAC, an initiative that promotes the Constitution as promotion for democratic politics and social transformation, does a lot of good work. Yet, the stance which they are taking in the heads of argument deserves some critical comment.
In essence, Budlender SC argues that when the High Court found that the speech in question was directed at a "minority" group, the Afrikaner community, it erred in not having regard to the fact that "minority" in this context is not simply a matter of numbers. It is a concept which embraces marginalisation and vulnerability. The essence of the argument is that in terms of section 10 of the Equality Act, a court must determine what a reasonable person would or could have considered the clear intent of the speaker to be.
Section 10, according to Casac, requires the court also to consider the context of the speech. This includes matters such as (1) the nature of the event; (2) the nature of the audience; (2) the meaning of the words for that audience; (3) the manner of the speech; and (4) the identity of the speaker. Since the court failed to do so, it erred in its judgment. CASAC submits further that the blanket ban on the singing of the song was without any justification at all.
Justice Lamont held that the singing of the song containing the words "awudubul' ibhunu" and "dubula amabhunu baya raypha" constituted hate speech under section 10 of the Equality Act. He interdicted the both Julius Malema and the ANC "from singing the song... at any public or private meeting held or conducted by them".
In coming to his conclusion, Justice Lamont found that the target group of the song were "the Afrikaners". They must be treated as the audience even though they were not physically present. They were a minority that were regarded as particularly vulnerable. The court had a "clear duty" to come to their assistance. The words used had an effect both on the target group and on the group that takes part in the singing. In particular, words could motivate one group to commit acts of violence against another.
To start with, there are actually several rights involved, not only the right to equality. The matter is about balancing the rights to freedom of expression (section 16) and freedom of opinion (section 15) with the right to freedom and security of the person (article 12), the right to life (section11) and the right to human dignity (article 10) in the bill of rights. One can, of course, also link this in general to the right to equality of racial groups (section 9) insofar as it proscribes hate speech.
The gist of CASAC's argument is that the High Court ruling should be reversed because the chant was not directed at a vulnerable minority. It is argued that Afrikaners need not fear for their life if the ANC sings "kill the boer" as part of their liberation repertoire.
But is it really as easy as that?
In South Africa people tend to moralise a lot about racism, but it may actually be sensible to start to focus on racism as a xenophobic reaction of specific groups. The triggers of xenophobia are manifold. It can come about, for example, as a result of discrimination based on race, ethnicity, class, language, gender or religion. It can obviously involve any combination of these factors. Xenophobia can also be triggered by extremely traumatic experiences of a specific group.
If a group experiences extreme trauma or systematic marginalisation or discrimination, a xenophobic reaction of "self-protection" often leads to "othering". Racism thus often surfaces under such circumstances. What I am saying, therefore, is the one should try to understand why people react in a certain way to be able to address the issue with more human understanding.
It is extremely important that societies where you have different groups that experienced trauma either in successive cycles or parallel to each other, should find a way to deal with that to help them coming to terms with the past.
The difficulty is that racism or religious or linguistic intolerance, even if it is understandable in a specific historical context, can spark off the so-called victim-turned-perpetrator cycles. There are instances where these cycles have been ongoing for centuries and where the antagonistic groups are often not able to distinguish events that happened a few years ago from those that lie back much further in history. Reporters in the Balkan wars often observed that when they were told atrocity stories, they were occasionally uncertain whether these incidents occurred the previous day, or in 1941, or 1841 or 1441.
In 2007, South Africa witnessed how Bok van Blerk's De la Rey song swept many Afrikaners into a frenzied state of fear about their future. It was not so much the words of the song but the accompanying video which portrayed them as the martyrs of British concentration camps that whipped up this collective reliving of the trauma, where a quarter of the women and children of northern Afrikaners perished in these concentration camps. Yet, this happened a century ago. Why then, could it still be experienced as if it only happened yesterday? This was much discussed at the time.
Recently Brett Murray's The Spear led to equally hot-headed debates. The painting seemed to be critical of the influence of the SACP during the presidency of Zuma and thus he was depicted after the famous poster of Lenin. Murray also took issue with Zuma's extra marital affairs. One can argue whether the depiction was distasteful or not. Yet, what was interesting is that the focus was not on Zuma's politics but almost exclusively on what was perceived as a disgusting portrayal of black sexuality,
A young journalist, whom I hold in high regard for his excellent opinion pieces, Asiame Molefe, illustrated the point which I am trying to make very well. He is very critical of Zuma as a leader, and actually said that Zuma is the worst president the ANC ever had (see here). Yet, The Spear angered him very much. In an opinion piece, "The Spear: Black anger and white obliviousness"
he relates a very humiliating and painful experience he had as a child when a white policeman bullied his father.
This experience was apparently so traumatic that he even hit out at Mamphela Ramphele about her comments that education for black pupils was better in the apartheid era, despite its inequality, than it is now. His hard hitting observation was that such frivolous comparisons are the only thing worse than apartheid.
One can therefore observe that past traumatic experiences continue to affect people even though they might not have been involved personally in the incident that triggered the trauma. Researchers have observed for a long time that traumatic experiences of previous generations can and do cast its shadow on future generations. What puzzled them is why this happens.
During the last couple of years, scientists focussing on epigenetic research succeeded in making some headway to understand the phenomenon of trauma that seems to be passed on at a biologically level and thus perpetuates the experience in a trans-generational manner.
The Swiss botanist, Dr. Barbara Hohn of the Miescher Institute in Basel, was the first to make an important break-through. She traumatised plants with ultraviolet light. The mother plant was nevertheless able to produce seedlings with exactly the same DNA, which did not look any different from the mother plant before it was traumatised. Yet, these seedlings were highly sensitive to ultraviolet light, and this extreme sensitivity only started to ebb off after three or four generations. Her research findings were published under the title "Transgenerational Memory of Stress in Plants" in Nature, 6 August 2006.
Subsequently, scientists found that basically the same happens to human beings. The babies of mothers, who experienced the traumatic events of 9/11 also suffered from PTDS, even if the women were not even pregnant at the time.
What has become clear so far is that one must distinguish the trans-generational epigenetic effect of trauma from evolution of the DNA. Epigenetic changes represent a biological response to an environmental stressor. That response can be inherited through many generations via epigenetic marks, but if you remove the environmental pressure, the epigenetic marks will eventually fade and the DNA code will - over time - begin to revert to its original programming. These epigenetic marks function like an onboard system attached to DNA strings.
Another question is whether successive traumatic experiences could actually reinforce epigenetic trauma. It seems possible, because it has been observed that successive traumatic experiences by different generations are often diffusely amalgamated in victim perceptions over many generations. South Africa is a particularly complex society because there are so many groups who were traumatised.
The conflict of 16 December 1938 is a particularly important stressor, which continues to influence people. It began with the mystification of the Battle of Blood River as the day when "God saved the Boers", and which they then commemorated well into the 1980s.
One can indeed say that it comes close to a miracle that this handful of Boers (367) actually survived such a massive attack by a huge Zulu army - some historical records talk about an army of at least 12.000 men whereas others claim that it was an attack by 20.000 soldiers. The problem with such acts of commemoration is that its keeps the trauma alive and reinforce negative perceptions of "the other".
The ANC, for its part, has taken exactly this date to launch their armed struggle in 1961. In his autobiography, Long Walk to Freedom (1994, p 337), Nelson Mandela explains the symbolism:
"We chose 16 December, Dingane's day, for a reason. That day, white South Africans celebrate the defeat of the great Zulu leader Dingane at the Battle of Blood River in 1838. Dingane, the half-brother of Shaka, then ruled the most powerful African state that ever existed south of the Limpopo River. That day, the bullets of the Boers were too much for the assegais of the Zulu Impis and the water of the nearby river ran red with their blood. Afrikaners celebrated 16 December as the triumph of the Afrikaner over the African and the demonstration that God was on their side, while Africans mourned this day of the massacre of their people. We chose 16 December to show that the African had only begun to fight, and that we had righteousness - and dynamite - on our side."
Although the 1838 battle was a legitimate act of self-defence, history has been recast to portray Afrikaners as the attackers. In fact, Dingane first double-crossed the Boers in deal to buy land for settlement where he had all the negotiators killed, and then sent off his troops to massacre another group of Afrikaners, about 530 people, before attacking the smaller group at the Ncome River.
Obviously this defeat was traumatic otherwise the commemoration of this day would not play such an important role. Yet, interestingly the mfecane in which other black nations were also brutally subjugated by the Zulus at the time, has been blended out completely from this scenario. The fate of the Zulu army on that day has been transformed into the fate of all black people and is commemorated as such.
The ANC has since its unbanning in 1990 scheduled all its national conferences to fall on this fateful date and thus the memories are kept alive in a very similar way to how Afrikaners celebrated it as the Day of the Vow.
For Afrikaners the perception of victimhood is even traced back to 1795 when the Prince of Orange requested his British relatives to occupy the Cape of Good Hope on his behalf. He was driven from the Dutch Republic as Stadtholder by burghers inflamed by the ideas of republican patriotism that spilled over from France. At that stage the Dutch Republic consisted of the Dutch provinces and Flanders. It was renamed after the Batavi, a Germanic tribe which drove the Romans from the Low Lands in the fourth century.
However, in terms of the Peace Treaty of Amiens, Britain was required to return the Cape to the Batavian Republic as legal successor of the Dutch Republic in 1803. The Prince of Orange then made a secret deal with the English king to the effect that if he would support him to be installed as hereditary monarch of the Netherlands after the war, then Britain could have the geopolitically strategic Cape of Good Hope in exchange. It was expected that Britain should also help to prevent Flanders from falling back to the Habsburg Empire. Thus Britain annexed the Cape in 1806. After Napoleon was finally conquered, this secret deal was sealed in terms of the Paris Peace Treaties of 1819.
Thus, a new chapter started in the history of South Africa. A British governor was installed and in 1820 a massive British settlement programme was launched. He abolished all representative structures of the Boers and proscribed the use of Afrikaans/Dutch in public places. This led to one of the biggest migrations ever in Africa, because the fiercely republican Boers refused to accept that. No sooner had they founded new republics, diamonds were discovered, and they were again colonised. They regained their independence, but when gold was discovered, one thing led to another, and after the failed Jameson invasion, the Anglo Boer War broke out. The scorched earth policy, the high death toll in concentration camps and the loss of their freedom completely traumatised Afrikaners.
After the defeat of the Boers, Lord Milner then set out on a massive Anglicization of Afrikaners with the aim to assimilate them completely into the English-speaking population within one or two generations. As could be expected, this provoked resistance and the Second Language Movement was launched.
What one can observe, therefore, is that at least since 1820, Afrikaners were subjected to consecutive traumatic experiences. The question can therefore very well be posed whether apartheid was an extreme xenophobic reaction to ensure their survival of. Certainly a colonial superiority mentality cannot be denied, but the extreme racism as was practiced once the National Party finally succeeded to come to power was characterised by a strong xenophobic impetus.
The Great Trek and new Boer settlements as well as British colonisation of Natal and the Eastern Cape were obviously not well received by the black nations living there. As a next step, a poll tax was introduced by the Glen Grey Act (1894), which forced many blacks into migrant labour. The next traumatic event was the massive land grabs of 1913. In 1903, Lord Milner appointed a commission to provide a more systematic "native" policy and their recommendations of 1905 formed the basis of the Native Land Act of 1913. Lord Milner's idea was to boost massive British immigration to such an extent that whites would no longer be a minority.
Like in the case of Afrikaners, one can pinpoint consecutive incidents that sparked off high xenophobia levels among black people. Apart from being colonised and their land largely being dispossessed, black voters were removed from the common voters' roll in the Cape in 1936, followed by the degrading race classification of 1950, the forced removals in terms of the Group Areas Act of 1966 and the Bantustan policy being forced upon them. They were relegated to second class citizens in their own country. Racial discrimination and forced removals also left its mark on Coloured people and Indians.
The interaction of these groups in various roles of "perpetrators" and "victims" is a minefield to say the least. Any trigger that reminds one of these groups of past traumatic experiences is like pressing an epigenetic button which resurrects it. Perceptions therefore obviously differ: when the ANC sings "kill the boer", they celebrate their liberation. However, for Afrikaners it is a button, which when pressed, causes fear.
The argument of Budlender, therefore, misses the point in my opinion when he claims that Afrikaners are not a vulnerable minority. The point is not whether a minority or a majority is affected but how latent the epigenetic effect of xenophobia as a result of collective trauma remains. In principle, the size of a group is irrelevant when it comes to its xenophobia levels.
One just need to look at the reaction of Afrikaners to Bok van Blerk's song to realise that their xenophobia levels have not yet normalised. Recent reactions of black people to The Spear show that their xenophobia levels are still relatively high too.
One must rather try to find solutions how to deal with the past in a manner that would allow such xenophobic fears to fade out. It therefore makes a lot of sense to remove such stressors. It seems that a period of least three to four generations would be required to achieve a substantial reduction in xenophobia levels.
With Afrikaners one could literally observe how the third generation after the Boer War started making headway to loosen themselves from the xenophobic grip of the National Party's "survival of the Afrikaner" mantra. It actually started with the generation of the "Sestigers", where young writers like Andrè Brink and Breyten Breytenbach produced literature with critical introspection. This was taken further by the writers of the "Tagtigers" who were very critical of the so-called Bush War and racial separation. Then journalists under the lead of Max du Preez founded Die Vrye Weekblad and started to pepper the government with really critical journalism and rigorously revealed gross human rights transgressions. The rockers of the Voëlvry band shouted the government down and had a massive following. Almost overnight, the power basis of the National Party crumbled away.
One starts to observe something similar in relation to the excesses of the black liberation movement of the ANC/SACP currently. There is ever more critical journalism, especially on incompetent governance and corruption. This is a good sign that the South African society is slowly starting to normalise. But it would be folly to claim that South Africa has already reached that magical state of a completely normal and tolerant society.
Prof Martha Minow, the Yale University expert on genocide and mass violence, observed in her penetrating book Between Vengeance and Forgiveness (1989) that a stance somewhere between vengeance and forgiveness offers the best prospect to achieve this. A path between too much memory and too much forgetting proved the most successful for such societies on the road to normalisation.
Insofar there are strong arguments in favour of a continued blanket ban on singing "kill the boer" or similar songs that causes negative feelings among black people. It also does not quite make sense for the government to launch a Social Cohesion Summit when the ANC still wants to sing "kill the boer". That is contra-productive.
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