Judge disqualifies Ernst Roets from being expert witness in ‘Kiss the Boer – Kiss the farmer’ case
Mshudu Sadike and Baldwin Ndaba
Pretoria - Johannesburg High Court Judge Edwin Molahlehi has dismissed the evidence of AfriForum’s head of policy and action, Ernst Roets, saying he is not qualified to be regarded as an expert witness because he has a vested interest in the case between the lobby group and the EFF.
And the fact that he authored a book on farm attacks did not make him an expert on the matter either, he said.
In his ruling in the “Kiss the Boer – Kiss the farmer” case, Judge Molahlehi yesterday said that the fact that Roets was an employee of the organisation was a conflict of interest.
Judge Molahlehi dismissed AfriForum’s application with costs against the respondents, EFF leader Julius Malema and party MP Dr Mbuyiseni Ndlozi.
AfriForum was seeking an order at the court to declare the singing of the Struggle song by the EFF constituted hate speech and unfair discrimination.
EFF members allegedly sang the song outside the Senekal Magistrate’s Court during the bail hearing of suspects accused of killing a Free State farm manager, Brendin Horner, in 2020.
Judge Molahlehi agreed with Malema’s testimony that the song shouldn’t be taken literally.
The EFF leader testified earlier in court that the song was directed at the system of oppression.
According to Malema, the farmer is simply the face of land occupation.
AfriForum had called three witnesses in Roets, Hendrik Pieters and Gabriel Crouse. However, the court found that Roets’s evidence was not admissible as it amounted to hearsay.
Judge Malahlehi said Roets was the deponent to the founding affidavit and his testimony was based mainly on his book titled Kill the Boer: Government Complicity in South Africa’s Brutal Farm Murders. The EFF challenged the role of Roets as an expert witness, saying he could not be an independent and objective witness because of his relationship with AfriForum.
Judge Molahlehi said: “It is established that the role of the expert witness is to assist the court and not to be partisan with the party that called him or her to testify.
“Thus the value of the opinion expressed by an expert witness is largely influenced by the witness’s neutrality.
“It is clear even from AfriForum that Mr Roets is disqualified from being an expert witness in this matter.
“I find that Mr Roets does not meet the standards required of an expert witness in terms of his qualification, his neutrality and independence.”
Judge Molahlehi dismissed the application, saying that the singing of the song should be left to the political contests.
“As matters stand, in my view the singing of the impugned song and the lyrics should be left to the political role players. Accordingly, a reasonable listener would conclude that the song does not constitute hate speech but rather that it deserves to be protected under the rubric freedom of speech,” ruled Molahlehi.
The presiding officer also dismissed the case on the basis that AfriForum wanted the court to make a similar Equality Court finding against the late former journalist Jon Qwelane on his remarks about “gay people”.
The ruling against Qwelane was made under Section 10 (1) of the Equality Act, but Judge Molahlehi said that section of the act had since been found to be unlawful and unconstitutional by the Constitutional Court.
He said the test of “hurt” had been expunged from Section 10 (1) of the act.
Endorsing Malema’s testimony, he said: “The most important aspect of Mr Malema’s testimony is that the song has a significant relationship to both the issues of land and economic empowerment of the previously disadvantaged members of society.
“Before democracy, the song was directed at the apartheid regime and more particularly to the dispossession of the land of the majority members of the society by the colonial powers,” the judge said.
He also accepted the evidence of expert witness Professor Elizabeth Gunner, who testified that the songs depicted the living conditions of people in a particular era. Gunner said the song was sung to highlight the slow delivery of land reform and access to land by black people.
In a statement that ended with “Kiss the boer, the farmer” the EFF welcomed the ruling of the court, saying the court had ruled that liberation songs should be protected and recognised as a critique of a system of oppression.
“The landmark judgment must be welcomed by all progressive forces as a victory against racists, who want to fly the apartheid flag and sing the song of torture known as Die Stem in our national anthem.”.
“The judgment dismissed decisively the baseless case as concocted by self-proclaimed racist experts of AfriForum and that was founded on hearsay.
“The case by the racists, which sought to erase the cultural element of the liberation struggle in South Africa, has fallen flat on its face.
“The struggle continues for the return of the land, which racist lobby groups such as AfriForum seek to prevent at all costs. Let us all sing liberation songs freely, in honour of the brave heroes and heroines who fought for our political freedom.
“Kiss the Boer, the farmer!”
AfriForum indicated that it would be appealing the verdict.
Pretoria News