Let’s not just punish but also teach

SARA GON

The Equality Court has found Penny Sparrow guilty and ordered her to pay a fine of R150 000 within 60 days. Presumably if she fails to pay, which is likely as she is now destitute, an application could be made holding her in contempt of court and she may end up being jailed.

In our view, Sparrow’s Facebook utterances amounted to racism but not hate speech. She may well succeed on appeal to overturn the judgment of hate speech, but she is unlikely to afford the legal representation necessary.

Racism is mostly a matter of opinion, emotion, beliefs and ignorance. Anti-Semitism is usually a part of religious teaching at a young age, then exacerbated by the Israel/Palestine situation.

The government and some of civil society express outrage and demand a need to up the legal ante to further criminalise attitudes. At the same time, there are calls for “an honest dialogue” on racism which is unlikely to take place because honesty would be required by both sides. Both sides would really have to be willing to listen and it doesn’t look like we’re in that space.

It is seldom acknowledged or understood that attitudes cannot be changed by law or fiat. Attitudes can only change by forcing a change in behaviour. Thus the law is the most common instrument of behavioural change.

However, if it’s only punishment that is meted out, then attitudes are likely to harden even while they’re being expressed less openly. Thus it is with racism and thus it will be in the case of Velaphi Khumalo.

A slew of complaints were laid with the Human Rights Commission and the HRC has consolidated them into one charge before the Equality Court. His speech is more likely to be categorised as hate speech.

As most will recall, he ranted anti-Semitic and racist comments on Facebook in response to Sparrow. He may or may not be harshly punished by the court, depending partly on the extent to which Sparrow’s words are determined a mitigating factor.

We suggest that part of any penalty should be an obligation to spend time with those he has hurt, learn about them, their history and how they lead their lives.

Khumalo is a young man, full of anger, with a precarious understanding of history. Wouldn’t society in general and the Jewish community in particular, be better served if the court was asked to give him community service? The SAZF as one of the complainants, could determine, propose and manage the process.

Is it not worth trying to change his mind, and those around him, about whites and Jews through education and experience, and not just through punishment?

Sara Gon is a Research Fellow at the SA Institute of Race Relations