I would like to start by telling you about a true story of a young man named Brendin Horner.

He was a farm manager. He was 21 years old, and he was brutally murdered. His body was tied to a pole, and a noose was strung around his neck, and he was publicly displayed.

Those who were accused of killing him were arraigned, and at the arraignment hearing a number of local farmers in the community protested. The killing of Brendin Horner caused an enormous amount of outrage in South Africa, and they were met with counterprotesters. Members of the Economic Freedom Fighters (EFF) arrived in their hundreds, and they sang, “Shoot to kill, kill a man, kill the farmer, kill the Boer.”

It was that incident that prompted AfriForum to launch the Kill the Boer case. The thought was that it was important to be able to hold the EFF and Julius Malema to account for this violent rhetoric, these blatant calls for the extermination of a people, and that it would be important for these proceedings to be filmed so that there would be an independent record of what occurred, and to use it as a platform to explain the context in which this speech is uttered.

So part of that case was to provide the context, to show what happens in South Africa: that this sort of rhetoric, sung in the stadium that you saw in front of 90 000 people, does not occur in a vacuum. It occurs under conditions where people are targeted on the grounds of their ethnic background, of their race; that they are not only murdered, but that they are often tortured to death.

The number of killings is particularly alarming. We will be erecting 3 000 white crosses to represent each person who has been murdered in South Africa in a farm attack. And it is worth bearing in mind that that number of 3 000 is double the number of people who were killed in the Troubles of Ireland, double the number of people who were killed in the first and second Intifada. And if you took school shootings in America from 1964 to now, and you added up everyone who was killed in a school, it is double that number. So it is an alarming number of people who were killed.

We know as well from some of the testimony that came out in court that the nature of the killing, which is often described by the South African government as merely crime or as done for financial reasons, is not ordinary crime.

There’s a case that I will never forget involving a mother and a daughter, Alice and Helen Lotter, who were so badly tortured that it was unclear to the police whether they had also been raped, because their genitals had been carved out with broken bottles, and “Kill the Boer” was written in blood over their dead bodies.

When I asked Julius Malema to react to these killings, I said, “If your speech is inspiring people to go out and perform these acts, would that play any role in stopping you from saying it?”

We had also had the evidence of a man who was woken up in the middle of the night, lying in bed next to his wife. She was murdered in front of him. He was shot. He was left paralysed. And he talked about the trauma that he feels when he hears people singing, “Shoot to kill, kill a man, kill the Boer.”

And Julius Malema said to me, “I am not moved. I am not moved. I will say it five times. If it means saying this that I lose this case, I am not moved. I will not stop singing the song.”

So we have a sense of some of the context in which these words are sung and what they inspire people to do.

There’s evidence in Dr Ernst Roets’ book Kill the Boer about a man called Paulus Mandlazi who testified before the Truth and Reconciliation Commission, seeking amnesty for the murders that he committed, where he said, “Well, I was just obeying the political instruction of ‘Kill the Boer’, and when I killed those people it was like going to work.”

Now, the importance of the case was in being able to talk about a subject that is largely taboo in South Africa. The way that people deal with the scourge of farm murders is to delegitimise it, to ignore it, or to imply, “Well, those people have it coming after what they did.” This idea that the sins of the fathers must be visited upon the sons in some sort of racial group dynamic; to say that Afrikaners are not real South Africans, that they are subhuman, and that they deserve death.

And it was important to be able to hear people’s stories and to explain the broad conceptual background, the context in which these words are uttered, hearing from people who had survived farm attacks. We had someone testify whose husband was executed in front of her.

We had a community leader talk about not just the impact on the families and the survivors, but also on the people who work on farms: communities which were often quite close, with black people and white people working alongside each other, building something beautiful on a farm, and often those workers being tied up and abused in these farm attacks; that it caused a deep fracture within the community.

A friend of mine described it as: when you have a person who is killed, it is like dropping a bomb, and the shock waves will ripple over time and over space.

Malema then testified and said many striking things that were not recorded by our press and do not feature in the judgement, but they do feature in the archival footage that I’m very thankful that we have.

He says a number of interesting things. The one was this idea of describing the EFF as a revolutionary Marxist-Leninist-Fanonist movement, that they see themselves as a revolutionary organisation. As you saw from the footage, he says, “In a revolution you must not be afraid of killing.”

In the stand he reiterated this, saying that he’s not afraid of dying, he’s not afraid of killing; that when the time is right, he will bomb the Union Buildings, which is our equivalent of the White House. And when describing the song, he said it is an instruction to the soldiers to go out and to kill. You will notice that the EFF sometimes wear military garb, so the members are considered the soldiers.

He says, “When I think of a farmer, I think of a white person.” And when I asked him about this statement that he’d made, where he said, “We’re not calling for the slaughtering of white people, at least for now,” I said, “Well, you can clarify this for all of us, which is that you could pledge right now to say that you will never call for the slaughtering of white people.” And he refused.

Now, what’s striking about this is that, given the evidence from his own mouth, given the evidence of the context, the decision reached by our Equality Court was that, actually, if you think about the song, what it really is about is a protest song against the African National Congress government for their failures in land reform. Not an argument that had been made by anyone in court.

We found this rather astounding and galling. The matter was taken on appeal. The Supreme Court, to its credit, did not believe that that is what the song meant. But it did not believe Malema’s words either, and it said, “Well, we think this song has a certain kind of history and it shouldn’t be taken seriously, and actually we should rather ignore the literal intention of the words.”

And the Constitutional Court, in a matter that shocked many South Africans, refused to hear the matter on appeal, saying that there were no prospects of success. And I think that moment sent shivers down the spines of many South Africans. There are two things we tell ourselves so that we can go to sleep at night. The one is that we have a free and independent press, and the other is that we have a free and independent judiciary.

And the timing of the Constitutional Court decision was exactly at the time that the American government was paying attention to farm murders and putting pressure on the South African government to do something about the situation. And that is the moment when the court declined to hear the appeal after it had been sitting on their desks for a year.

There is a sense in which South Africans have always thought, “There’s a safety net for us; that we can be assured that our press will hold the powerful to account.” And it’s dramatic seeing the contrast of the articles written about that case. As I would sit next to the journalists in court every day, I would read what they would write, and not once does a journalist quote Malema saying that he’s not afraid of killing, that he refuses to pledge never to call for the slaughter of white people, that he will bomb the Union Buildings. You would think those were newsworthy things to report on.

And then the idea that our courts will evenly apply the law. This also comes under a backdrop when a number of nobodies in South Africa who happen to be white were put through the wringer with huge fines or incarcerated, not for calling for black people to be murdered, not for standing in stadiums with 90 000 people engaging in extreme acts of incitement, but using insensitive racial slurs.

What we have seen from the South African Human Rights Commission is that the law will not be applied equally; that some groups are more equal than others, and that some people, especially if you are powerful and especially if you are in the favoured race, will be given absolute licence to engage in these vile acts of hatred and of incitement; that you will be free to call for people to be murdered, provided that you are in the favoured class.

This is a principle that our Constitutional Court in prior litigation had stood firmly against. The idea is that actually you need to have heightened scrutiny when you have politicians with enormous amounts of power and influence. And this principle was ignored.

So there is a sense in which, once your courts have failed you, you have no choice but to escalate matters further.

And I don’t think, when we started the litigation, that we could have ever dreamed of President Cyril Ramaphosa being pulled into the White House and berated by President Donald Trump and forced to confront the nature of the speech, the nature of the killings in South Africa.

I think it’s very moving that so many people have come today to show their support, to show their condemnation for these acts of killing and torture and incitement. We hope that your presence here will play a role in showing the South African government the error of its ways, and in increasing the pressure on it so that we can really live in the non-racial, non-discriminatory democracy that is envisaged by our Constitution. 

Oppenheimer is a practicing advocate and member of the Johannesburg Bar.