COURTING CONTROVERSY: Julius Malema's recent rendition of Ayesaba Amagwala sparked a court case and an appeal application. Picture: THE TIMES

THE African National Congress (ANC) has asked the high court in Johannesburg for leave to appeal an order declaring the words "dubul'ibhunu" - judged by the court to mean "kill the boer/white man" - unlawful and unconstitutional.

The words are part of part of the well-known freedom song, Ayesaba Amagwala, which regained prominence recently after being was sung by ANC Youth League president Julius Malema.

Malema's singing of the song caused a furore - with some saying it was hate speech and incitement to violence, and civil rights organisation AfriForum taking Malema to the Equality Court. The song was even blamed by some for the murder of white supremacist Eugene TerreBlanche last month.

But others have, equally passionately, defended the song, saying it had been misinterpreted and is part of SA's struggle heritage.

In its court papers, the ANC's deputy secretary-general, Thandi Modise, said the order of South Gauteng High Court Acting Judge Leon Halgryn - which it is appealing - was wrong because it "imposed an absolute prohibition" on the words - "irrespective of the time, place, manner and context".

The original high court case was brought by businessman Willem Harmse against Mahomed Vawda, a fellow member of an anticrime organisation. The two had argued over what slogan to put on their banner for an anticrime march.

While neither Harmse nor Vawda wanted to appeal, the ANC said it was bringing the appeal in the public interest - because the order was not limited to Harmse or Vawda nor to their march.

"There are a vast number of people who will be affected by the order," said Modise.

She said the song was "known and sung by literally tens of thousands of South Africans".

The order also failed to consider the right to freedom of expression, Modise said.

The ANC is hoping the Supreme Court of Appeal or, alternatively, a full bench of the high court will hear its appeal.

Modise said the ANC should have been joined as a party to the case when it was argued before Halgryn because it was part of Harmse's case that using the words "dubul'ibhunu" violated the ANC's constitution.

The ANC therefore had a "direct and substantial interest" in the outcome of the case and should have been joined as a party, the organisation said.

Generally, an appeal is impossible unless the appellant was a party to the original case.

However, the ANC has also referred in its application to a Constitutional Court judgment that leaves open the possibility of nonparties appealing to the highest court - in exceptional circumstances and if the court decides it is in the public interest.

Tomorrow , the Equality Court in Johannesburg will have a "directions hearing" into AfriForum's case against Malema. It is expected to thrash out how the case will proceed, in particular whether the case should be heard by the magistrate's court - sitting as an equality court - or by the high court.