The Equality Court has declared that Velaphi Khumalo’s comments on white South Africans are hate speech. It has ordered him to pay court costs and told the NPA (National Prosecuting Authority) to investigate whether he should be charged with a crime.
In January 2016, Khumalo made two posts on Facebook. The Gauteng government employee said he wanted to cleanse the country of white people and “we must act as Hitler did to the Jews”. He said whites had oppressed black South Africans but they remained racist and “deserve to be hacked and killed like Jews”.
Khumalo was posting after realtor Penny Sparrow used the social media platform to liken black people at the beach to monkeys. The Equality Court fined her R150,000.
Judge Roland Sutherland ruled on Friday in favour of the South African Human Rights Commission (SAHRC) in its case against Khumalo, deeming his comments to be hate speech.
“The thrust of this message is that whites should be ostracised, marginalised, excluded, indeed, totally ‘othered’, dehumanised and legitimately be subjected to violence,” said Sutherland.
The judge agreed with Khumalo’s lawyer, Stuart Wilson, that the posts couldn’t literally be interpreted as a call for a genocide against white South Africans, although he said it “purports to legitimise violence towards whites”.
Khumalo’s case hinged on whether he intended to incite harm against whites and the judge’s interpretations could be challenged on appeal.
Sutherland said whether Khumalo’s comments were hate speech depended on the interpretation of the reader (he asked what would a reader at a suburban library think) rather than Khumalo’s intentions.
“Many people, who share Khumalo’s frustrations are likely to be susceptible to being stirred up by such inflammatory talk,” he said.
Sutherland said such comments spark “spiral invective”, with Sparrow’s utterances leading to Khumalo’s response, and that probably leading to further racial outbursts.
Harm often refers to a person or property, but the ruling said Khumalo’s posts harmed South Africa’s social cohesion and could potentially harm the nation-building project.
Defending Khumalo, Wilson’s heads of argument said Khumalo had experienced direct and indirect racism growing up in South Africa. He called the comments “grotesque” but said they did not harm anyone and could not reasonably be viewed as intending to incite violence and were meant only to respond to Sparrow’s insults.
“The history of white domination in South Africa means, for example, that a black person referring to racist attitudes amongst white people does not automatically say anything offensive or improper,” argued Wilson.
“A reasonable person would have taken into account that Mr Khumalo is at the wrong end of the racial distribution of power in South Africa,” he wrote.
Sutherland dismissed the arguments and said the goals of non-racialism mean different groups must be held to the same standards.
In a lengthy passage, he said whites have much to answer for but: “In South Africa, however, our policy choice is that utterances that have the effect of inciting people to cause harm is intolerable because of the social damage it wreaks and the effect it has on impeding a drive towards non-racialism.
“The idea that in a given society, members of a ‘subaltern’ group who disparage members of the ‘ascendant’ group should be treated differently from the circumstances were it the other way around has no place in the application of the Equality Act and would indeed subvert its very purpose.
“Our nation-building project recognises a multitude of justifiable grievances derived from past oppression and racial domination. The value choice in the Constitution is that we must overcome the fissures among us.”
Khumalo has faced the Equality Court before on the same comments, but Sutherland said that did not prevent the SAHRC case going ahead.
Khumalo’s political party, the ANC, took him to the court after he made the Facebook comments. Without legal representation or providing evidence, he signed a settlement agreeing to pay R30,000 to a charity and to actively work towards helping achieve equality.
Wilson and the Legal Resources Centre, admitted as amicus curiae to the case, argued he should not face legal proceedings twice on the same complaints. Sutherland noted that the issue raised specific legal issues but said the case could continue.
The SAHRC called for Khumalo to pay a R150,000 fine but Sutherland ruled against the demand. He said it appeared to stem from Sparrow’s fine but in her case the amount appeared to be a “thumb suck”.
He said the R30,000 imposed already was enough, although the court ruled Khumalo will have to pay the SAHRC’s legal costs.
Khumalo’s employer, the Gauteng government, took him through a disciplinary hearing but allowed him to keep his job after he apologised for his actions.
Sutherland’s judgment does not find that Khumalo probably committed a crime but said he may have committed a crime and the NPA should investigate. Potential charges could include crimen injuria, intimidation or incitement.
Khumalo was ordered to provide a written apology to all South Africans acknowledging his comments were hate speech, that he was wrong, and he would never make such remarks again. DM
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