The Freedom of Expression Institute (FXI) and nongovernmental organisation Section 16 have jointly applied to the Supreme Court of Appeal to intervene in the appeal of Justice Colin Lamont's judgement in Afriforum's hate speech case against Julius Malema.

The controversial song “Shoot the Boer” was declared hate speech in September last year.

In his ruling, Judge Lamont said the song undermined human rights and was harmful and discriminating. He found that no justification existed for singing the song.

FXI and Section 16 have applied to make submissions to the court on various legal issues, including that the definition of hate speech, contained in Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, is unconstitutional and should be struck down. The appellants claim this on the basis that it is inconsistent with the narrower definition of hate speech in Section 16(2) of the Constitution.

"If the definition of hate speech contained in Section 10 of the Equality Act is constitutional, we wish to posit a test made up of various objective factors which will enable courts to determine how to establish whether speech falls within the current definition of hate speech in the Equality Act," read the statement.

"In this regard, our proposal is that factors such as the intention of the speaker, the audience at which the expression is targeted, the meaning of the expression used in context, and other surrounding factors, are relevant factors to consider," it said.

Also, the appellants will seek to place international law before the court in this regard.

The appellants state that they would like to make submissions on the breadth of the Order made by Justice Lamont in the context of the right to freedom of expression.

AfriForum CEO Kallie Kriel said at the time that should Malema appeal, AfriForum’s legal team was ready to continue the battle.

"We’ve already won two court cases against Malema and are prepared to do it again,” he said.

The application to intervene in the case is being opposed by Afriforum and TAU SA.