Is SA a free and open democracy for those excluded from Constitutional protection?

South Africa is a democracy. It has the best Constitution; an example for other countries around the world, including in the Western world. This Constitution guarantees all possible freedoms to individuals. A true open society has been established, one that guarantee freedom and equality.

That is the narrative; the unquestionable “reality” since 1994.

Except that, in reality, the South African constitution is rather complex in its allowances for, and guarantees of freedoms and rights.

For me the first and most important principles of fairness in any society, is constitutional equal status and treatment. That principle is clearly made conditional (at best) in the South African constitution.

The Constitution is a list of compromises between the ideologies of the main forces participating in the 1994 transitional process (and then specifically the ANC and the former National Party). However, within the context of compromises, the Constitution also reflects the gradually power shifts over the period 1992 (when the negotiations started), until 1994 (when it concluded), from the National Party towards the ANC. Ultimately, very little of the National Party’s initial demands of groups rights and guarantees against majority domination were included in the final draft of the Constitution.

It is worth noting that the Constitutional Court, in its judgement in the case of came to the conclusion that “our constitutional vision militates against a never-ending determination to oppose change to city, town or street names.  Through the Preamble and the entire Constitution, we imposed on ourselves the duty to transform. “ (City of Tshwane Metropolitan Municipality v Afriforum and Another [2016] ZACC 19). In practice, this implies not only allowing, but enforcing, so-called “positive discrimination”. The reality is that discrimination can never be “positive”, because the concept (in principle) itself implies victims vs beneficiaries.

There is a major problem with the 1994 settlement Constitution: The former National Party’s promises to its voters to protect their group rights were not provided for in it at all, the protection of their individual rights was scaled down and made conditional to the interests of “previously disadvantaged individuals).

There is one possible exclusion, and that is section 235 of the Constitution, which stipulates as follows:

“The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.”

However, let’s be honest about it: This stipulation was added because of the fear of a coup d etat by the former South African Defence Force, under the leadership of General Viljoen, and had (specifically) the town of Orania in mind. Furthermore, it does provide any special guarantees of either group or individual rights outside such a “cultural enclave”, and was (from the start) a practical impossibility as a constitutional guarantee, in the context of the South African demographic and geographical realities. Furthermore, in the South Africa of the year 2026, there is no realistic chance that a cultural minority will be allowed to create their “own” sovereign jurisdiction in the geographical area of the broader country, or to seek (let alone gain) independence from the South African state. It is not, and has never been, a real guarantee against marginalization or discrimination.

Various (essential all) the fundamental rights guaranteed in the Constitution are racially qualified. Although the Constitution does not directly, in so many words, refer to “race”, the understanding of terms such as “persons, or categories of persons, disadvantaged by unfair discrimination” leave little room for an interpretation, other than (primarily) race. Although White women are often “included” in the broader definition of “previously disadvantaged individuals”, over the years this has changed (with them being excluded), and, from the start, this so-called “inclusion” was mere window-dressing. But, even if one regards them as included in the definition, where does it leave White men. The answer is very simply: Excluded from many of the rights awarded to South African citizen in the constitution. This alone makes the South African Constitution one of the most discriminatory fundamental laws in the world. It also implies that the freedoms guaranteed to citizens are reserved for people based on race (and, secondary, on gender). The most “progressive” Constitution in the world actually deliberately excludes the most essential principle of fairness in a society, namely equality and equality.

Consider Section 9 of the Constitution. It stipulates as follows:

“9. Equality

1. Everyone is equal before the law and has the right to equal protection and benefit of the law.

2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

What does that mean? The Constitution guarantees no discrimination, directly or indirectly against anyone, in subsection 9(4); yet in immediately the subsection that follows (9(5), it allows for discrimination: “Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

Section 30 of the Constitution stipulates that “everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”

How much this stipulation be reconciled with the remarks of Judge Jafta, in the case of (City of Tshwane Metropolitan Municipality v Afriforum and Another [2016] ZACC 19). “How can that unquestionably transformative Constitution be expected to recognise cultural traditions rooted in the racist past?  The answer must be, if there is such expectation, that it is misplaced.”  In short, no other conclusion can be drawn, other than, in the South African law, everything associated with the Afrikaner, or its culture, will be, fore ever, be reprehensible and not worth protection, because it has been contaminated by the “history of a racist past”?

Section 16 of the Constitution stipulates as follows:

“1. Everyone has the right to freedom of expression, excluding (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

What remain of this right, in practice, if the courts judge that a song that openly, in that many words, promote the filling of “Boers” as being “not hate speech”, while the display of the old, post-1994, flag is regarded as “hate speech”?

The Supreme Court of Appeal (SCA) upheld this ruling in 2023, confirming it represents apartheid-era white supremacy and causes harm. The judgement states that “the high court considered the history of the old flag and what it represents, and came to the following conclusions. The Union Nationality and Flag Act 40 of 1927 (the Flag Act) was part of a statutory scheme designed to entrench racial segregation and white supremacy. The old flag is a vivid symbol of white supremacy and black disenfranchisement and oppression…. The high court found that any gratuitous display of the old flag, aside from being racist and discriminatory, demonstrates a clear intention to be hurtful; to be harmful and to incite harm; and to promote and propagate hatred against black people, in contravention of s 10(1) of the Equality Act. Such a display constitutes hate speech and is ‘divisive, retrogressive and destructive of our nascent non-racial democracy, the constitutional values of human dignity and equality and the building of a society united in its diversity’.” (Afriforum NPC v Nelson Mandela Foundation Trust and Others (371/2020) [2023] ZASCA 58; 2023 (4) SA 1 (SCA); [2023] 3 All SA 1 (SCA) (21 April 2023).”

Even if every single word in this judgement is correct (although, in the context of the actual wording of section 16 of the Constitution, it is difficult to see how that can be true, compare it with the following words of the song “Kill the Boer, Kill the Farmer”:

Ayasab' amagwaladubula dubulaayeahdubula dubulaayasab 'a magwaladubula dubulaawu yohdubula dubulaaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaawe mama ndiyekeleawe mama iyeahawe mama ndiyekeleawe mama iyoaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaAyasab' amagwaladubula dubulaayeahdubula dubulaayasab 'a magwaladubula dubulaiii yohdubula dubalaaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaawe mama ndiyekeleawe mama iyoawe mama ndiyekeleawe mama iyoaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaaw dubul'ibhunudubula dubulaZiyarapa lezinjadubula dubulaay iyeahdubula dubulaZiyarapa lezinjadubula dubulaay iiiyodubula dubulaAw dubul'ibhunudubula dubulaAw dubul'ibhunudubula dubulaAw dubul'ibhunudubula dubulaAw dubul'ibhunudubula dubulaAyasab' amagwalaDubula dubulaAy iyeahDubula dubulaAyasab' amagwalaDubula dubulaAy iyeah

Translation: The cowards are scaredshoot shootshoot shootthe cowards are scaredshoot shootshoot shootshoot the Boershoot shootshoot the Boershoot shootshoot the Boershoot shootshoot the Boershoot shootmother leave me beoh mothermother leave me beoh mothershoot the Boershoot shootshoot the Boershoot shootshoot the Boershoot shootshoot the Boershoot shootthe cowards are scaredshoot shootshoot shootthe cowards are scaredshoot shootshoot shootshoot the Boershoot shootshoot the Boershoot shootshoot the Boershoot shootshoot the Boershoot shootmother leave me beoh mothermother leave me beoh mothershoot the Boershoot shootshoot the Boershoot shootshoot the Boershoot shootshoot the Boershoot shootthese dogs are rapingshoot shootshoot shootthese dogs are rapingshoot shootshoot shootshoot the Boershoot shootshoot the Boershoot shootshoot the Boershoot shootshoot the Boershoot shootthe cowards are scaredshoot shootshoot shootthe cowards are scaredshoot shoot.

Source: Wikipedia Dubul' ibhunu (downloaded 12 May 2026)

And the Constitutional Court’s judgement? The song is not hate speech.

“We accept that the reasonably well-informed person would have some understanding of Dubula ibhuna’s history in South Africa as a protest song linked to the liberation struggle. They would certainly understand that when protest songs are sung, even by politicians, the words are not meant to be understood literally, nor is the gesture of shooting to be understood as a call to arms or violence. It is plain from this that the singing of Dubula ibhunu cannot, in our view, be equated with wearing a t-shirt bearing a painted message to ‘kill all whites’.

“Whether one agrees with the EFF’s agenda and Mr Malema’s chosen method of conveyance or not, the intent behind the song on the occasions when he sang it is objectively linked to the party’s stated political objectives. It is a form of political speech. Even if Mr Malema’s performance of Dubula ibhunu at the events identified in the complaint may be regarded by some as shocking or even disturbing, Qwelane underlines the importance in our democracy of tolerance for all views. This is particularly so in the context of speech or, in this case, song, by a registered political party, at public events hosted or supported by it. To find that Mr Malema’s singing of Dubula ibhunu on the first six occasions identified in the complaint is hate speech would impermissibly limit the rights protected under s 19 of the Constitution.” (AfriForum v Economic Freedom Fighters and Others (1105/2022) [2024] ZASCA 82; [2024] 3 All SA 319 (SCA); 2024 (10) BCLR 1275 (SCA); 2024 (6) SA 1 (SCA) (28 May 2024)).

What then about the written, clear text of section 16 of the Constitution: Everyone has the right to freedom of expression, excluding (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm?

Is a country with so many exclusions in equality and protection of civilian rights, either directly in its Constitution, or indirectly, through the interpretation of that constitution, really a free and open democracy for those excluded from the protection of its highest law?

Image source: 123RF