Johannesburg — The ANC has dropped its appeal against a court order which in effect bans singing of "Shoot the Boer", it announced on Wednesday.
African National Congress lawyer Leslie Mkhabela said the agreement on the song "Dubula iBhunu" (Shoot the Boer) was signed by the party, civil rights group Afriforum, and the Transvaal Agricultural Union (Tau SA) on Tuesday night.
The agreement reads: "The parties have agreed that Afriforum and Tau SA will abandon the equality court order and the ANC and [former ANC Youth League president Julius] Malema agree to abandon the appeal to the Supreme Court of Appeal.
"The parties agree that the mediation agreement... shall be made an order of court by the Supreme Court of Appeal."
This meant the parties would argue at the appeal hearing on Thursday for the appeal court to make the agreement an order of court.
Asked about the technicalities around abandoning an equality court order, Afriforum lawyer Willie Spies said the Equality Court ruling allowed for the organisation to do so.
In September last year, the High Court in Johannesburg, sitting as the Equality Court, convicted Malema of hate speech after Afriforum took him to court for singing the song.
Judge Colin Lamont held the words undermined people's dignity and were discriminatory and harmful.
Malema lost an application in November for leave to appeal directly to the Constitutional Court against the hate speech ruling. He filed a notice of appeal with the Supreme Court of Appeal in December. Lamont granted him leave to appeal.
ANC secretary-general Gwede Mantashe said Malema was not available to attend the signing of the agreement because he was writing exams.
"We started the process together with Malema, but he was writing exams from yesterday," he said, to chuckles from reporters.
Malema is not known for his academic achievements, having obtained an H symbol for Mathematics on the standard grade in matric, which he wrote in 2002, aged 21. He got GG for Woodworking, also on the standard grade.
According to an Independent Online report dated October 2008, Malema successfully registered for a law degree at Unisa, despite his poor results.
Said Mantashe: "That [writing exams] is very important. He expressly gave me the right to represent him at the mediation."
Mantashe said the agreement was important to the ANC.
"It is educating society that litigation should be the absolute last resort. We must [rather] engage, have talks and sign agreements. To us this is commitment and we are going to do everything we can to stick to the agreement that we have signed."
According to the deal all parties recognise the right to celebrate their individual heritages, and take into account that certain struggle songs might be seen as hurtful by minorities.
"In the interest of promoting reconciliation... the ANC and Mr Malema commit to counselling and encouraging their respective leadership and supporters to act with restraint to avoid the experience of such hurt," it reads.
Mkhabela said Lamont's initial judgement limited freedom of speech in the country.
"The Equality Court judgement did have the effect, in our view, of getting a banning order and restraining free speech, and the agreement... will wipe it [the order] off the slate of legal precedents," he said.
Tau SA general manager Bennie van Zyl said his union had made the right decision in signing the agreement.
"When you deal with this type of thing and these issues, the hardest decision in life is to know which bridge to cross and which bridge to burn down. In this case, we decided to cross the bridge."
The union's president Louis Meintjies later said the parties would discuss farm attacks with the ANC. Mantashe said the issue did not fall under the agreement.
Afriforum chief executive Kallie Kriel said the organisation was happy that a "political settlement" had been reached.
"We are not going to limit the agreement to one song, but look broadly at all songs that have lyrics that are hurtful. We will take a strong stance against lyrics in any song... or racial slurs," he said.
"That's not an eradication of freedom of expression, it's an eradication of polarisation in our society."
In a separate case, shortly before the Equality Court ruling, a High Court last year declared the song an incitement to violence.
Asked how that ruling would impact on the case, Spies said the ANC's appeal against the High Court ruling was postponed indefinitely.
"It is my understanding that the appeal and the case will eventually die a natural death," said Spies.
The separate case involved the same words, but arose as a result of a dispute between two businessmen who had argued whether the term "Dubula 'iBhunu" was appropriate when displayed on a banner at a demonstration.