DA chief whip John Steenhuisen has made an application requesting not to testify in the unfair discrimination case against DA MP Dianne Kohler Barnard.

The Equality Court hearing, which is taking place from 8 to 12 July, continued on Wednesday 10 July in Cape Town.

Advocate Michael Tsele, representing Kohler Barnard, told presiding Magistrate Jerome Koeries that Steenhuisen was requesting the court use his affidavit as evidence.

In his affidavit, Steenhuisen says he was not present at the meeting where Kohler Barnard allegedly made “racist, sexist and xenophobic” remarks and cannot give “evidence of those statements”.

“Because of this, I am advised that my testimony cannot be relevant to the applicant’s complaint,” wrote Steenhuisen.

He was subpoenaed in May to make a statement, which was submitted to the court on 5 July.

Steenhuisen thought he had resolved the matter internally after Louw Nel, the DA’s former parliamentary operations director, laid a complaint with him via email after the now-controversial workshop.

“I reprimanded her for the statements. I indicated that… she has offended the applicant,” he wrote in his affidavit.

According to Nel, who approached the Equality Court with the matter, Kohler Barnard made the following statements at a workshop on crime and policing on 2 February 2018:

• Farm murders have decreased since the removal of then-Zimbabwean President Robert Mugabe, as Zimbabweans have returned home;
• Women have themselves to blame and are stupid for being scammed as they enter into relationships with Nigerian men who sleep with them and solicit money under false pretences; and
• Black children are killing “whiteys” with stones thrown at vehicles from bridges, “never mind the fact that coloured or Indian people are being killed”. Also, the respondent questioned why these children were not in school.

Kohler Barnard claims in her affidavit that each remark was based on “fact”, namely information gathered from an oversight visit to Limpopo, crime statistics and media reports.

DA chief of staff Grant Caswell testified on Wednesday that within the party, “one is used to comments like that being made”. He was speaking from his experience as a person of colour and a “feminist” working within the party.

“I developed a thick skin,” said Caswell.

When Nel asked whether he was “affected” by Kohler Barnard’s comments, Caswell responded:

“I was not affected. I became accustomed to a particular tone working in Parliament…” He pointed out that Nel himself had used this “tone” with him “when relating to superiors such as yourself and other MPs”, he said.

Caswell struggled to recall Kohler Barnard’s exact words, but remembered finding her comments “offensive”.

“I cannot remember the wording of what was said in the meeting, but I can remember the feeling I left that meeting with,” he told the court.

Magistrate Koeries, who took over the case from Cape Town Chief Magistrate Daniel Thulare, was visibly annoyed with Wednesday’s proceedings, where Nel opted to represent himself.

Nel said that he did not have legal training.

“I’ve been so desperate for legal advice that I’ve had to post on social media, asking people for help and to put it simply, I have been offered nothing at all,” he told Daily Maverick.

During the hearing, Tsele repeatedly made objections and corrected Nel’s use of language as he questioned witnesses, saying Nel’s line of questioning was “confusing”.

“I’m starting to feel frustrated and prejudiced in these proceedings,” Nel complained to magistrate Koeries.

Nel told the court on Tuesday that Kohler Barnard hadn’t offered a formal apology for her remarks.

He said he was not “satisfied” with the way the DA had handled her conduct.

“What are you hoping for from this court?” Magistrate Koeries asked.

Nel replied, “The respondent should extend an unconditional apology in writing to myself and all persons present at the meeting for the utterances that were made.”

According to Kohler Barnard’s affidavit, she had apologised through Steenhuisen. “I accordingly said to (Steenhuisen) that I was sorry if Nel felt offended by what I said,” she wrote.

She also said that Nel, who was suspended from the party, has a personal vendetta against the DA which is motivating his action against her.

She said the case should be dismissed as it was a “stratagem” to deal with the “litany of employment-related allegations” against Nel, who has now left the DA.

Nel testified that despite what was written in the affidavit, Kohler Barnard had not issued any form of apology for her statements since the workshop took place.

“She did not apologise to myself, and she did not apologise, to the best of my knowledge, to anyone who was involved in the meeting,” said Nel.

This isn’t the first time Kohler Barnard has been in hot water for making discriminatory statements. In 2015, she was expelled from the DA for sharing a Facebook post which read: “Please come back PW Botha – you were far more honest than any of these [African National Congress] rogues, and you provided a far better service to the public.”

Along with the expulsion, she was ordered to pay a R20,000 fine and attend a presentation on the safe use of social media.

The matter has faced a number of hiccups since it was brought to court in February 2019.

Proceedings were stalled in March when Kohler Barnard failed to show up at court and submit her responding affidavit timeously. The affidavit was submitted a month later.

This angered Thulare, who accused Kohler Barnard of using a “Stalingrad Strategy” through her poor preparation for the case.

Proceedings were stalled again on Monday as affidavits from DA shadow minister Zakhele Mbhele and DA employees Grant Caswell and Kabelo Mhlohlo, three of those present at the workshop, were still outstanding. By 2pm on Monday the affidavits had been submitted.

Tsele requested that the matter be postponed to the next day to allow time to “go through witness statements and prepare questions for cross-examination”.

Nel said he had “exhausted all avenues within the Democratic Alliance” before taking the matter to court.

“(They are) shielding Dianne from accountability,” he said.

Kohler Barnard is set to testify on Thursday 11 July. DM