William Saunderson-Meyer writes on the complications likely to arise from the criminalisation of racial abuse
It has not been achieved in less fractious and divided societies than South Africa, but prepare yourself for a racist-free, hate-free future. To use President Cyril Ramaphosa’s new favourite phrase, “a new dawn”.
The social engineers are setting great store in the long-delayed anti-hate legislation, which the Cabinet announced will imminently be put before Parliament. They also take encouragement from the recent harsh sentencing for racist abuse, using existing crimen injuria legislation, against the infamous Vicki Momberg.
Historically, crimen injuria – the unlawful, intentional and serious impairment of the dignity of a person – rarely drew anything more onerous than a suspended sentence, especially for a verbal offence.
For example, Patrick Asaneng, the SA Police Service Director for North West, was a few years ago found guilty of charges of assault, crimen injuria and inconsiderate driving, following a road rage incident. Although acquitted on appeal, Asaneng – who, aggravatingly, was in uniform when this occurred – was initially sentenced to a R5,000 fine or six-months imprisonment on the crimen injuria charge.
Momberg’s tirade, during which she used the K-word 48 times against police and emergency response personnel who had come to her aid after she had been attacked, earned her a three-year prison sentence, with a year suspended. She was also found guilty in a separate Equality Court hearing, and had to pay R100,000 restitution to the police officer who had laid charges.
Clearly, the magistrate had decided to send an unambiguous message that racism won’t be tolerated. She went so far as to deny Momberg bail prior to her leave to appeal hearing, a fate more usually reserved for drug dealers with foreign passports.
But the criminalising of words is not easy. There is an enormous degree of subjectivity and potential for confusion, especially in a country with 11 official languages,
In the Asaneng case the insult most at issue was the Sepedi phrase “polo ya gago”, which translates to “you prick”. There was much earnest discussion by the three High Court judges hearing the appeal whether Asaneng said “you prick”, or had used, as he claimed, a sound-alike Setswana phrase.
The Setswana phrase translates loosely to “calm down, or you will die of a heart-attack”. That’s faintly derisory but certainly not a criminal insult to someone’s dignity, especially since there was no racial aspect, since both men were black.
On the Daily Show comedian Trevor Noah recounted the Momberg case and took on the challenge of explaining to an American audience the difference between the K-word and the N-word.
An African-American could call another African-American a “nigger” because, joked Noah, black Americans had copyrighted the word. But “kaffir”, because of the history of South Africa, was beyond the pale for anyone to use, under any circumstances.
We will soon know. There is an only-in-SA kind of case wending its way through the judicial process that will, no doubt after successive appeals, determine the gradations of harm to the K-word.
The case, also for crimen injuria, stems from a black-on-black usage of the K-word, modified. It involves two high-powered business executives, Investec CEO Fana Titi and an erstwhile business associate, Peter-Paul Ngwenya.
Reportedly, the two former friends turned against each other in a fight over shares. Ngwenya then allegedly sent an SMS to Titi “and others” in which he referred to Titi as a “QwaQwa kaffir”.
The crucial question, writes Legalbrief, is whether Ngwenya’s identity as a black man is a defence. Using Trevor Noah’s analogy, do black South Africans have “copyright” on use of the K-word?
Constitutional law expert Phephelaphi Dube said the most recently published version of the draft hate-speech Bill defines any use of the K-word as hate speech. “The Bill does not distinguish the source of the speech, nor does it distinguish power relations.”
But, for practical reasons there will have to be rankings of “hate”. The courts will through case law have to make painstaking rulings, at vast expense, on the entire lexicon of traditional inter-ethnic abuse, of which mlungu, charra, goffel, soutpiel, rockspider, houtkop, and hairyback are just a few examples.
And some are contested. Boesman is widely considered derogatory, but Bushmen is now being rehabilitated by those it refers to, to encompass the Xoi of the Cape, the San of the Kalahari, and the Ju’/hoansi of Namibia. One man’s Boesman is another man’s Bushman.
Then there are also, as we now know from Titi vs Ngwenya, inter-tribal antipathies, of which it appears that QwaQwa origin is particularly looked down upon. How, one wonders, does it rank against other apartheid era homelands, such as Gazankulu, as an insult?
Slurs are not only racial or ethnic. The lexicon of offence will have to include sexual slurs like moffie, queer, doos, piel – all ranked according to efficacy.
If Dube is correct and power relations don’t matter, nor presumably historical context, all pejoratives will be equal. All that matters is the subjective hurt experienced.
Eish, the jails are going to be very full. Move over, Ms Momberg.