Will there be a hate speech ruling? Velaphi Khumalo waits…

NICOLA MILTZ

This card-carrying ANC member who said he wanted to “cleans (sic)” the country of all white people by acting “as Hitler did to the Jews”, among other hateful comments, sat stony faced in the Equality Court in the South Gauteng High Court this week.

Judge Roland Sutherland heard arguments in the matter between the South African Human Rights Commission (SAHRC) and Khumalo and the appointed amicus curiae (friend of the court), the Legal Resources Centre (LRC).

The 29-year-old employee of the Gauteng Provincial Government, who works as youth sports officer, looked utterly bemused as intense legal argument wafted over his head.

The case is not a cut and dried matter of hate speech. It is one that spans unchartered, complicated legal territory, in which the judge is called upon to rule whether his court has jurisdiction, and if it is actually hate speech.

Going back to 4 January 2016, an angry Khumalo published two widely circulated and reported statements on Facebook. He claimed they were made in reaction to comments made by KwaZulu-Natal estate agent, Penny Sparrow, who called black beach goers “monkeys” on her Facebook page.

His first statement at 05:39 was: “I want to cleans this country of all white people. We must act as Hitler did to the Jews. I don’t believe any more that the is a large number of not so racist white people. I’m starting to be sceptical even of those within out Movement of the ANC. I will from today unfriend all white people I have as friends from today u must be put under the same blanket as any other racist white because secretly u all are a bunch of racist fuck heads. as we have already seen. (sic)”

His second statement at about 11:00 was: “Noo seriously though u oppressed us when u were a minority and then manje u call us monkeys and we suppose to let it slide. white people in south Africa deserve to be hacked and killed like Jews. U have the same venom moss. look at Palestine. noo u must be bushed alive and skinned and your off springs used as garden fertiliser. (sic)”

The SAHRC argued this week that these statements are hate speech directed against white people and against the South African Jewish community, and that they fall outside the ambit of freedom of speech. It said Khumalo’s statements had the effect of being hurtful, inciting violence, and hatred and… amounted to a call for genocide against white people in South Africa.

It said that Khumalo also implied that Jews “deserved” to be “hacked and killed”.

The SAHRC said in papers before the court: “The depiction of Jews as venomous hearkens back to the longstanding racial and religious vilification of Jews, a practice commonly referred to as ‘Jew baiting’.”

It criticised “The odious abuse of the history of the Holocaust… the express glorification of its methods of mass murder, and the shameful attack on the memory of its victims, the great majority of whom were Jews, and the ancestors and relatives of almost every South African Jewish family today.”

When Khumalo made his statements in 2016, it caused an outcry. It led to the ANC laying a complaint of racial discrimination against him in the Equality Court in Roodepoort, dealing only with his first statement.

Soon after his statements, Khumalo was reported to have apologised to the ANC and his employer, describing his comments as “emotional”. The ANC still brought a complaint to the Roodepoort Equality Court in mid-2016 for racial discrimination.

The SAHRC brought a complaint in the Equality Court in the Johannesburg High Court towards the end of 2016, unaware of the ANC matter.

Early in 2017, Khumalo entered into a settlement agreement with the ANC, and admitted to hate speech. He agreed to pay the amount of R30 000 in monthly instalments over 30 months to a charity chosen by the ANC. He was further given a final written warning by his employer, the Gauteng Provincial Government.

Meanwhile, the SAHRC and Khumalo entered into a settlement agreement in the Johannesburg Equality Court. He admitted to uttering hate speech, and agreed to an apology, as well as paying damages of R150 000. The damages were suspended on condition that he refrained from hate speech.

Acknowledging that this was not the first Equality Court dealing with this case, the Equality Court in the Johannesburg High Court subsequently decided that more input was necessary to clarify the matter.

It ordered the parties to make written submissions, and the LRC be appointed as the amicus curia. The court also invited the Minister of Justice, represented by the state attorney, to be made aware of the matter.

Both of Khumalo’s statements were then included and ordered to be heard together, not separately. The court further asked Advocate Stuart Wilson to represent Khumalo going forward.

The main issues argued before Judge Sutherland covered, first, whether the court had the jurisdiction to deal with the matter in light of the fact that the ANC had already brought a complaint at the Roodepoort Equality Court and that the matter had already been settled. Second, it once again tackled whether Khumalo’s statements amounted to hate speech.

In answering papers, Khumalo’s counsel argued that his comments were not hate speech, they were “triggered by instant rage and fury”. Sparrow’s hate speech caused Khumalo to be “deeply hurt and extremely upset” and argued that his statements were a “knee jerk reaction to that anger”.

In Khumalo’s heads of argument he admits that his comments were “grossly inappropriate”.

Advocate Wilson argued “There is no doubt Khumalo should not have said what he said, and that he sincerely and deeply regrets it.”

He argued that Khumalo had already apologised, had been disciplined by his employer, and had already been sued for hate speech in a different Equality Court. Wilson said Khumalo’s statements did not constitute hate speech, and that a reasonable person would have read the words in context, and would have understood them “as meaningless hyperbole”.

He argued further that Khumalo, who grew up during apartheid, was deeply offended by Sparrow’s comments which compared black people to “monkeys” who had been “released” onto public beaches for New Years’ Eve. Even more offensive to him, he said, were the “goading and hurtful” remarks made on Facebook in support of Sparrow’s comments.

Wilson submitted that a reasonable observer would understand that he was “a young black man responding angrily to an affront to his dignity”, and that he had no genuine intent to cause anyone any harm.

Advocate Mark Oppenheimer for the SAHRC said: “However abhorrent Penny Sparrow’s racist hate speech towards black people and however repugnant the commentary she evoked in her apologists, Khumalo’s statements were out of all proportion to the provocation. He, in fact, responded with a call to genocide.

Oppenheimer insisted that a public apology was essential. “It would send a signal to others that they should not do the same.”

Counsel for the LRC, Irene de Vos, argued that Khumalo had paid his dues as he was ordered to make a public apology and pay R30 000 after a complaint lodged by the ANC regarding the same remarks he had made on Facebook. She further argued that his comments did not constitute hate speech.

“Mr Khumalo’s expression fell short of the requirements of hate speech‚” De Vos argued.

Buang Jones, the Provincial Manager of the SAHRC said, “In our legal submissions, we’ve requested the court to refer its findings, if it is found that Khumalo’s statements amounted to/constitute hate speech, to the NPA [National Prosecuting Authority] for a decision for the possible institution of criminal proceedings. We can’t pre-empt the outcome.”

Jones said he hoped the court would deliver its ruling within the next three months.

Khumalo has still not offered proof of payment to the ANC, and he has kept his job.

Judgement has been reserved. In the meantime, Khumalo waits.