Boundaries Between Freedom of Expression and Hate Speech: The Case of Struggle Songs Current Perspectives From the Global South

This discussion article addresses the historical, political and social context of struggle songs in South Africa and the circumstances in which such songs should be considered prohibited hate speech. The analysis is framed around the decision in AfriForum v Malema , in which the Supreme Court of Appeal held that the singing of the Dubul’ ibhunu ( Kill the boer ) song on the occasions in issue did not amount to hate speech. The article approaches the problem from three main perspectives, namely law, politics and music, and to a lesser extent, psychology. It concludes that while courts are required to interpret struggle songs with reference to their performative and figurative meaning and their function, an objective and balanced approach must also be adopted. Regard must be had to the nature of the occasion when a particular song is sung, the role-players involved, the power dynamics at play and the potential for harm against the group targeted.