“One day there was a young man who foolishly stepped too close to a river in flood, slipped, and fell into the raging water. He was swept along and through the town in which he lived. Along the riverbank above him he saw the leading figures of his town. They all held long poles in their hands. The young man knew he was drowning and held out his hand to be rescued. But these old men only leered at him as they used their poles not to pull him to safety but to try and push him under. His friends were on the side of the riverbank too. They stretched out their arms to try and pull him from the torrent, but they could not reach him, and so he was swept under.”
Introduction
On 14th November 2022 Stellenbosch University announced that a Disciplinary Appeals Committee (DAC) had upheld the expulsion of the first-year student Theuns du Toit. This was over the shocking and widely reported incident from the early morning of Sunday the 15th May where Du Toit had urinated in the room and over the things of a fellow student, Babalo Ndwayana. This was in the university residence, Huis Marais, where both students lived.
Through the course of that Sunday a shaken and upset Ndwayana related that when he had asked Du Toit what he was doing Du Toit had said something along the lines of “It's a white boy thing” or “this is what we white boys do” – meaning, it was generally accepted, that this is something “ we white boys like to do to black boys like you”.
Over the following days Ndwayana’s story and a video clip of part of the incident ignited a firestorm of outrage that swept across the Stellenbosch University campus and then the country. A student activist, Anke Spies, posted a petition on change.org, calling for Du Toit’s expulsion. It stated that “Du Toit urinated on the desk, books, and laptop of a black first year student in Huis Marais. This was a racially motivated attack, and in response to his actions, Du Toit claimed ‘this is what we do to black boys’.” It would go on to attract more than a hundred thousand signatures.
The university acted quickly and resolutely. Du Toit was asked to leave the residence that same day and on the Monday, he was suspended from the university. The next day Wim de Villiers, Rector and Vice Chancellor, issued a video message to the university community in which he personally “strongly condemned” the incident as “destructive, hurtful and racist”. He stated an investigation had been launched which, he promised, would once the legally required procedures had been followed, allow for a “decisive outcome” with “permanent expulsion and or criminal charges” being possible available outcomes.
Justice Edwin Cameron, in his inaugural address as Chancellor the following day, also personally condemned the “disrespect and hatred and degradation that were manifested in [this] ghastly incident.” In early June former Constitutional Court Judge, Sisi Khampepe, was also appointed by the university to examine “incidents of racism” at the university more generally, albeit with specific reference to inter alia the Huis Marais incident.
With the release of the DAC’s report the matter had seemingly been brought to a satisfactory conclusion. Despite the demands for the summary expulsion of Du Toit the university had nonetheless followed due process, it said in its 14th November statement, to ensure the “interests and rights of both victims and alleged perpetrators” were protected. Such an approach, it added, also “provides for just, defensible and sustainable outcomes.”
It added that having reviewed the facts of the case the DAC, “led by an independent advocate, evaluated the evidence at hand and found that the expulsion was an appropriate sanction for the transgression as found in the CDC [Central Disciplinary Committee] hearing. Thus, the appeal was unsuccessful, and the expulsion of Mr Du Toit from SU is upheld, and he may not return to the University.” It added that the university would also now be cooperating fully regarding the criminal case opened against Du Toit by Ndwayana and being pursued by the National Prosecuting Authority.
According to this official narrative then this was a case of an unreconstructed white brute deliberately urinating, out of racial motives, on the possessions of a black student. Despite the obviously just calls for this student’s expulsion, the university administration insisted that a fair and just process was followed through both the initial disciplinary process and then the appeal. After considering all the facts both the CDC and DAC had, after carefully and fairly weighing up the evidence, agreed that Du Toit had acted wilfully, was guilty of an act of egregious racism, and should be expelled from the university.
Yet was any of this true? If one turns from the findings of the CDC and DAC, and carefully looks at the evidence on which they supposedly reached their conclusions, the less they seem to make any sense. Was Du Toit really a racist? Did he actually utter the racial phrase that was used to damn him? Was he acting wilfully, or even consciously, when he urinated in another student’s room? And if the answer to all these questions is, most probably, “no”, the question then becomes who were the real unmenschen in this sorry tale?
I
Let’s start the story again from the beginning, this time using the documented and uncontested facts before the disciplinary inquiry. On Saturday evening 14th May 2022 Theuns du Toit and a friend consumed a huge amount of alcohol, first in his residence and then while out on the town. After returning to residence at shortly before 3am that morning, completely drunk, they had barged into the first-floor room of a friend and jumped on his bed to wake him up.
After a failed attempt to phone another friend, Du Toit had then passed out on his friend’s bed. His friend tried to wake him up but failed, he was dead to the world. An hour and a half later, at 4.30 am, Du Toit had got up out and walked out of this room and into the nearby room of Babalo Ndwayana and a (white) friend of Du Toit’s, who was away for the weekend. The door was unlocked.
Ndwayana was awoken by the disturbance and turned on the light, opened the door, and then saw this “white man/boy” peeing in the corner, over his desk in the far corner, splashing his study notes and his university provided laptop with urine in the process. Another (black) student, known as Mr X, had just returned to the residence from studying late on campus. As he passed by, he had heard the cries of a very upset Ndwayana and had come to the door. Mr X had then told Ndwayana he should report the incident and Ndwayana had then started recording it at Mr X’s suggestion.
The video itself is some 17 seconds long and contains a verbal exchange between Ndwayana and Du Toit. It ends at the point where Du Toit has zipped up. Du Toit then walked out the room, past Mr X who was standing by the door, and back to bed. The time Du Toit was in Ndwayana’s room was probably around a minute or so and the whole episode would have lasted little over two minutes.
When he woke up the following morning Du Toit could recall much (though not all) of what had happened during his drunken night out up until the point he had returned to residence and passed out on his friend’s bed. However, he had no memory whatsoever of the later urination incident.
For his part Ndwayana had first reported the incident internally immediately after it had happened. He was not just upset about what had been done in his room and to his stuff but believed that he had also been racially insulted. On the Sunday he related to various people that when he had asked why Du Toit was peeing on his stuff Du Toit had responded along the lines of “it’s a white boy thing”.
On the Tuesday 17th May Ndwayana went to the police station to lay charges of breaking and entering, malicious damage to property, and “racism” (crimen injuria). On the same day he submitted a formal statement to the university’s Equality Unit in which he once again recounted from memory what had happened after he had started recording the video. This went:
“I asked the person what he was doing [First Question], he said ‘waiting for someone, boy’ [First Answer]. I then asked him why he is urinating on my belongings [Second Question] he then told me ‘It's a white boy thing’ [Second Answer]. After the Respondent urinated, he then left my room.”
The actual exchange recorded on the video goes as follows:
NDWAYANA: “Why are you peeing bra in my room.” [First Question]
DU TOIT: “Huh?”
NDWAYANA: “Why are peeing in my room bra?” [Second Question]
DU TOIT: “Waiting for someone”. [First Answer, part 1]
NDWAYANA: “Huh?”
DU TOIT: “b-Oy” [First Answer, part 2]
NDWAYANA: “What?”
DU TOIT: “Wai-ting-for-your-room-mate” [Second Answer]
NDWAYANA: “Wha…?”
In the last moments of the video Du Toit can be seen turning to leave. Although the video matches up with three-quarters of Ndwayana’s recollection of the incident, Du Toit’s second answer is not “it’s a white boy thing” – but in slurred and practically incomprehensible speech - “wai-ting-for-your-room-mate”.
On Thursday 19th May 2022, at around the same time the preliminary investigation was being completed, Ndwayana submitted a further written statement to Student Discipline. This now claimed/clarified that “I ended the video after Theuns stopped urinating. After I have ended the video, Theuns walked out and that’s when he said, ‘it’s a white boy thing’.”
Stellenbosch University proceeded to charge Du Toit with entering Ndwayana’s room without permission (Charge 1), urinating on his things (Charge 2), and “racism” for allegedly making the two statements “boy” and “it is a white boy thing” (Charge 3).
The matter was heard by the University’s Central Disciplinary Committee (CDC) headed by Professor Sonia Human in June 2022. The other members of the committee were Njabulo Maphumulo, Education Coordinator on the Tygerberg Campus, Gretchen Jansen, a law lecturer, and Sebastian Foster, a final year law student. The evidence leader and “prosecutor” was Brendon Hess, an attorney from a local Stellenbosch law firm.
At the disciplinary hearing Du Toit admitted to the factual basis of the first two charges – as recorded on the video – and expressed remorse for his actions. His defence was that he lacked capacity and intention at the time, due to his inebriated state, and that it was not in his character to have deliberately urinated on someone else’s property let alone done so out of racial motives. Close “friends of colour” of his came forward to testify to the committee as to their friend’s completely non-racist character.
For his part, Ndwayana ultimately refused to give evidence at the hearing. His two legal representatives from the UNISA Law Clinic had requested observer status at the hearing. This was initially refused but after an appeal, one of his legal representatives was permitted to sit in the hearing as an observer.
After consulting with Ndwayana his legal representatives now announced that he would not be participating after all. The reason for this they stated is he felt uncomfortable and believed the hearing would not be fair, as he saw a “little bit of bias” from the committee. In practice this meant that Ndwayana’s account could not be thoroughly teased out, scrutinised, or tested in any way.
All the evidence the committee had before it concerning the alleged “white boy thing” remark were Ndwayana’s two unsworn written statements: the first being contradicted by the video, and the second being inconsistent with the first. There was also the hearsay evidence of the people to whom he had related the incident, as well as emails he had sent on the Sunday, both these sets having occurred before the issue had become one of nationwide controversy.
Although Du Toit testified before the disciplinary committee he could not deny that he had made the “white boy thing” remarks as he left the room, given his total amnesia about the incident. All he could say was that he did not think this was something he would have said. He also commented that the frustrated sounding grunt recorded on the video was “oy” rather than “boy”.
The committee found that he had uttered the word “boy”, but it acquitted him on this charge, as this was not perceived as a racial insult by his contemporaries. It nonetheless ruled that he had uttered the “white boy thing” remarks as he left the room and found him “guilty of acting in a racist manner” on Charge 3.
It made this ruling on the basis that Ndwayana’s story “was clear and consistent in the immediate aftermath of the incident” and to fail to accept his version would be to suggest that “Mr. Ndwayana was, and still is, lying.” This reasoning ignored the possibility that Ndwayana had misheard Du Toit – something hardly improbable in the circumstances – and, in any event, his “consistent” early version was contradicted by the video evidence. It was his “inconsistent” later version that the committee was accepting as true.
In addition, the disciplinary committee stated that while Mr X had “testified that he did not hear Mr. Du Toit utter the alleged phrase, however, he did hear a conversation taking place in the room and as Mr. Du Toit left the room (once the video ended).” Since Du Toit could not deny that he had made the comment, the “balance of probabilities” favoured Ndwayana’s version.
On the issue of whether Du Toit had acted wilfully, the disciplinary committee noted that Du Toit was “not incapable of bodily control when the incident occurred”. He had “walked himself into Mr. Ndwayana’s room, he relieved himself on Mr. Ndwayana’s property, he engaged in conversation with Mr. Ndwayana, and then finally, he walked himself out of Mr. Ndwayana’s room. At no point did he lack the capacity of conducting his own bodily mechanics. This is indicative of wilful conduct.”
Although the disciplinary committee accepted that Du Toit was a “first-time offender”, could not remember the incident at all, had shown “true remorse and was at all times cooperative with the disciplinary proceedings” the committee said such mitigating factors could not be allowed to detract from the ultimate order. It proceeded to order Theuns du Toit’s permanent expulsion from the university on the urination and the “racist” statement charges.
It thereby delivered on the “decisive outcome” demanded on day one and already half-promised by Wim de Villiers two days later.
II
The appeal lodged by Theuns du Toit raised various grounds for challenging this ruling. This included the fact that the committee had failed to draw any negative inference from Ndwayana’s refusal to testify before it – and thereby allow his evidence to be tested – as well as the inconsistencies between the two written statements he had submitted.
In his original written statement Mr X said that he asked Ndwayana “is this man drunk or sleepwalking, and he said he did not know.” The appeal stated that the CDC had not given sufficient weight to Mr X’s testimony on this matter (the ruling had not mentioned the possibility that Du Toit was sleepwalking at all). It had also failed to give sufficient weight to Mr X’s testimony “that the phrase ‘it’s a white boy thing’ (or any variation thereof) was not said by the Appellant when he walked out [of] the room....”
Much of the factual basis of the appeal thus centred around the interpretation of the testimony of Mr X, the only person who appeared before the original disciplinary committee who could speak to what had happened. He had stood by the door throughout the period in which the incident was being videoed up until the point Du Toit had passed him on the way out.
The room was not a large one, so perhaps 3m by 3,5m. It contained two single beds and two desks next to each other along the far side of the wall. Through the 17 seconds of recorded conversation Du Toit was standing towards the corner, about a metre from the window side, and diagonally opposite Mr X, who was standing by the door.
Ndwayana stood between them speaking to and filming Du Toit. Mr X told the CDC hearing that “Babalo started taking the video and then he started like interacting with Theuns and then after that I didn’t hear the communication, the conversation between the two. I don’t know if whether I was probably not – I didn’t hear – actually, I heard Babalo speaking but then I didn’t hear Theuns speaking and then after that, after some while, Theuns was done peeing and then he went out of the room…”
Asked about his “sleepwalking or drunk” observation by Hess, and how Du Toit appeared to him, he related that he did not “think he was normal. That’s all I can say. Ja. I don’t think he was himself actually.” (When Du Toit’s lawyer, William Fullard, later asked Mr X about his comment that Du Toit was “drunk or sleepwalking” Mr X confirmed that that was indeed his perception of what he was seeing.)
The question then turned to the critical one of whether Du Toit did, or could have made, the “white boy thing” remark as he walked out the room. There are a few points that need to be kept in mind when trying to make sense of the transcript of Mr X’s testimony on this matter.
Firstly, in both Ndwayana’s initial written statement, and Mr X’s, they reported that Du Toit walked straight out again after he had finished urinating. Neither mentions him saying anything at that point. The entire distance from where he was standing to the door would have been covered by Du Toit in a few steps, so one is talking about an exceedingly brief moment in time, about a second-and-a-half.
Secondly, the claim that Du Toit uttered the “white boy thing” on the way out, as a kind of parting shot, was introduced by Ndwayana in his 19th May statement. In his statements, which were all the CDC had before them, Ndwayana did not claim that he himself had said anything further to Du Toit. He had stated that he had asked two questions while Du Toit was still urinating. Both are captured on the video.
Thirdly, during the 17 seconds that the incident was filmed, Du Toit was standing diagonally across the room from Mr X, mumbling nonsense towards the wall. This was when Mr X heard Ndwayana speaking, but not Du Toit. On the way out, however, Du Toit was walking directly towards Mr X, covering a distance of two metres or so to the door, before passing within centimetres of him on the way out. Since they would have been facing each other at this moment Mr X was perfectly positioned to hear (and see) Du Toit, if he said anything on the way out.
Finally, evidence leaders are meant to ask neutral questions in direct examination and witnesses must explain in their own words what they saw and heard. It is improper to ask leading questions at this stage, ones where the answer is suggested in the question. This is to avoid the corruption or contamination of initial witness testimony. It is only later, usually in cross examination, that leading questions are generally permitted.
The question that Hess should have asked Mr X was whether he heard Du Toit say anything as he walked out the room and, if he answered in the affirmative, what that had been. Instead, Hess immediately pressed upon him Ndwayana’s 19th May version of what had happened. The transcript reads as follows:
HESS: … Babalo says when he was done recording the video, he stopped the video, Theuns walked back to the door.
MR X: Back to the door. To where I was.
HESS: To where you were, yes.
MR X: Okay.
HESS: And he said, “This is a white boy thing”.
MR X: Okay.
HESS: Did you hear that?
MR X: No, I didn’t.
Hess now tried another tack. He asked Mr X “was there a conversation like that? Did you see them having a conversation as Theuns was walking?” The critical point here is that it is Hess himself who has just plucked from thin air the idea of a “conversation” – an ongoing verbal exchange between two people – and inserted it into the questioning. Ndwayana himself had not made this claim and nor had Mr X up until this point.
Mr X is understandably confused by this and thinks Hess is asking about the conversation that there had been – which had been recorded – and so he replies “for sure, ja… I could hear Babalo but I couldn’t hear Theuns.” Hess then asks him to confirm what period he was talking about.
HESS: Okay. Just to make sure, that’s after he was done peeing.
MR X: True.
HESS: Nothing was said.
MR X: Okay, ja.
HESS: Is that correct?
MR X: I think so.
By this point Mr X had stated he had not heard the “white boy thing” remark and had also apparently confirmed that “nothing was said” after Du Toit was done peeing (so after the point the video cut out). Mr Hess now tried yet another approach. This time he simply asserted to Mr X that two things HAD been said.
HESS: Okay. So two things were said, while he was peeing something was said and when he was done, he walked back [out] and there was another thing said.
MR X: Okay
HESS: Is that how you understand it?
MR X: I don’t know what to say now. Ja, I think that’s how it is.
Hess then read out Ndwayana’s 19th May version of Du Toit making the “white boy” remark as he walked out, with the exchange continuing as follows:
HESS: Okay. According to your statement you couldn’t hear the conversation, but you are sure there was a conversation.
MR “X”: You mean when he was walking out?
HESS: Ja.
MR “X”: I can’t really say, but, I mean, ja, I think so.”
Hess then sought to confirm that he was talking about the “second incident”, where Du Toit was walking out, and “according to Babalo that’s where he said: ‘It’s a white boy thing’.”
Mr X: Okay
HESS: What’s your comment to that? Was there…
Mr X: My comment?
HESS: Ja, your comment on that second thing that was said.
MR X: I can’t really comment on the thing that he said because I didn’t hear anything.
So even with Hess pressing upon him (as fact) the notion that Du Toit had said something on the way out, Mr X was clear that he had not heard him say anything, let alone the alleged remark. There is yet a further exchange where Mr X (confusingly) reverts to talking again about the earlier recorded conversation between Ndwayana and Du Toit.
Hess then asks him about Du Toit’s appearance as he left the room. “Did he say anything to you? Did he greet you; did he talk to you?” This is the exact point, it should be emphasised, that on Ndwayana’s 19th May version, Du Toit was supposed to have uttered the words “it’s a white boy thing”. This is a moment Mr X remembers vividly, and he replies: “He didn’t say anything, he didn’t greet me, his eyes were red… He just walked by… he just walked past me as if I wasn’t there.” [My emphasis]
In his questioning Fullard expressly asked Mr X to clear up the mess created by Hess’s leading questions/assertions by explaining that what was at issue here was Ndwayana’s claim that Du Toit had said “white boy thing” on the way out. “I just want your comment on that, if it happened or didn’t happen”, Fullard stated. He then read out the relevant section of the 19th of May statement. The transcript then proceeds as follows:
FULLARD: So Babalo is saying Theuns walked out of the room and while he was exiting, he said it’s a white boy thing. Did you hear it?
MR X: No, I didn’t.
FULLARD: Sorry?
M R X: No, I did not.
FULLARD: And as you already mentioned or testified or stated that you were also standing at the door.
MR X: By the door.
FULLARD: By the door. So when he walked past you, it was close nearby. You passed close to one another.
MR X: He passed, ja.
Thus, despite Hess repeatedly pressing upon Mr X Ndwayana’s 19th May version, and himself asserting that something had been said on the way out, Mr X had positively stated (twice) both that he did not either hear Du Toit say “white boy thing” or “anything” else as he walked out.
Against this were two equivocations from Mr X (“I don’t know what to say now”, “I can’t really say”) that maybe, yes, there had been a “conversation” after all. These had only been extracted though through leading questions. In normal circumstances a hearing would place very little weight on such confused and hesitant replies especially given that they had been obtained in an inappropriate manner.
Yet this was the basis on which the CDC had ruled that – while Mr X had not heard the alleged remark, or Du Toit say anything – he had supposedly testified “that he did hear a conversation occurring at the time the alleged phrase was said”, and so Du Toit could be found guilty on the “white boy thing” remark.
If one reflects for a moment on the circumstances and the accepted facts, this whole notion of a “conversation” having occurred makes little sense. To begin with there was no time for one even to have taken place in the second or two it took Du Toit to get to the door. Ndwayana had not claimed he himself had said anything further. Mr X’s references to hearing Ndwayana speaking relate to the earlier (filmed) interaction. Mr X, for his part, stated that he had not heard Du Toit say anything either.
So, when, and between whom, was this “conversation” even supposed to have occurred?
The claim that there had even been such a “conversation” had originated purely from the evidence leader himself. Mr X had simply hesitated, and then failed to contradict Hess’s assertions. It was this slender reed that the CDC had used to discount the rest of Mr X’s otherwise exculpatory testimony, and thereby free itself to convict Du Toit on the racism charge.
III
The appeal was held in October 2022 and Ndwayana once again turned down an invitation to testify. The Disciplinary Appeal Committee (DAC) was headed by Advocate Ngwako Maenetje SC from the Johannesburg Bar. The other members were Professor Wilbur Kraak, head of the university’s Department of Exercise, Sport and Lifestyle Medicine, and Yanga Keva, a senior law student.
Much of the Disciplinary Appeal Committee ruling is composed of a series of extensive cut-and-pastes of the documents that it had before it. Remarkably, there is no section laying out committee’s view of the accepted and disputed facts and how the issues on appeal intersect with them.
The DAC then proceeded to adopt a defensive crouch at the crease and knocked back one-by-one every single basis of Du Toit’s appeal. Among the many extensive cut-and-pastes in the ruling was a transcript of Mr X’s testimony, as quoted above. Its reading of the confusing and sometimes contradictory exchanges quoted above were that Mr X had “confirmed” that Du Toit and Ndwayana “had a conversation when Mr Du Toit was on his way out after he had finished peeing and after Mr Ndwayana had finished the video recording.”
The DAC then stated: “Although [Mr X] could hear Mr Ndwayana, and could see that he was interacting with Mr Du Toit, he could not hear what Mr Du Toit was saying. Thus, the essence of Mr X’s evidence in this regard is simply that if Mr Du Toit said anything to Mr Ndwayana in the conversation that he observed when Mr Du Toit was on his way out of Mr Ndwayana’s room Mr X did not hear it.”
Here, the DAC itself is confusing Mr X’s testimony around the earlier filmed interaction where Du Toit was facing towards the wall and Ndwayana was asking him questions, with his testimony about what happened as Du Toit walked out. As noted above he had been consistent in his evidence that he had not heard Du Toit say “anything” on the way out.
On the apparent contradiction on the timing of Du Toit’s alleged remark between Ndwayana’s 17th May and 19th May statements the DAC is silent. It does say that the CDC was right to observe that “on the day of the incident Mr Ndwayana’s report regarding the statement that Mr Du Toit allegedly made, i.e., the “white boy” variation, was [initially] consistent” and that “everything considered, we are unable to fault the conclusion reached by the CDC that Mr Ndwayana’s earlier documentary evidence of what happened was reliable.”
It does not explain however how Ndwayana’s version, which was indeed fairly consistent up until it was recorded on 17th May, could be considered reliable given that it was contradicted by the video evidence. Moreover, the version the CDC and now the DAC were accepting was the “inconsistent” 19th May version.
The DAC also rejected Fullard’s argument that little evidential weight could be put on Ndwayana’s (inconsistent) statements, given that he had refused to testify before the CDC and subject himself to cross examination. What would presumably have been probed in his testimony was whether he did in fact hear what he initially claimed he had heard. The obvious questions to ask in this regard were whether he may have misheard or misinterpreted what Du Toit had said and why he later changed the timing of this alleged statement from seemingly when Du Toit was still urinating, in Statement One, to afterwards, in Statement Two.
He would also have needed to be asked for his assessment of Du Toit’s mental state, and whether he agreed with Mr X that Du Toit may have been sleepwalking. Presumably he would also have been asked to confirm that, as indicated by his statements, he himself had not said anything further to Du Toit after the video ended, so in reality there had been no such “conversation”.
According to the DAC, however, there was simply “no version” that Fullard could have “put to Mr Ndwayana that showed that Mr Du Toit had not made the alleged statement”:
“At best for Mr Fullard, he would only have probably put to Mr Ndwayana the fact that Mr “X” had not heard Mr Du Toit utter the alleged statement. But in fairness to Mr Ndwayana, Mr Fullard might have been expected to disclose to Mr Ndwayana that Mr “X” confirmed in his evidence that he observed Mr Ndwayana and Mr Du Toit having a conversation and while he could hear Mr Ndwayana, he could not hear Mr Du Toit’s response. The possibility would still have remained that the alleged statement may have been uttered at the time when Mr “X” observed the conversation between Mr Du Toit and Mr Ndwayana but when he could not hear what Mr Du Toit was saying.”
Once again, the DAC is mistaking Mr X’s testimony about the conversation that had occurred while Du Toit was standing urinating on the other side of the room with his testimony on whether Du Toit said anything on his way out. Self-evidently there is zero possibility that the alleged statement may have been uttered at this earlier stage as the entire relevant section of the exchange was captured on video.
The DAC also dismissed the appeal’s point that the CDC had failed to give any weight to, or even consider, Mr X’s observation that Du Toit could have been sleepwalking, it being common cause that he was still heavily inebriated. The DAC stated that “Mr ‘X’ did not express a positive or firm view that Mr Du Toit was sleepwalking or drunk. The evidence quoted above shows clearly that he raised it as a question or query to Mr Ndwayana. He seems to have done so because Mr Du Toit did not appear to him to be normal or to be himself.”
The DAC further suggested too that you apparently need to be an expert to tell whether someone right in front of you is sleepwalking or not. “The observation that he may have been sleepwalking is not one that a lay person, such as Mr “X”, could have made at the time,” it stated. “In fact, he did not make such an observation. He merely raised it as a question or query. No one presented evidence before the CDC that Mr Du Toit was in fact sleepwalking at the time of the incident, i.e., during the trespassing, urination and responding to Mr Ndwayana.”
Given these and other findings on several more technical legal points, the DAC concluded “that there is no basis for us to interfere with the CDC’s findings on appeal regarding guilt on charge 3.” In any event, it went on to declare, even if “we are wrong on the outcome of charge three,” Du Toit deserved to be thrown out of the university based on charge 2 alone. There is no explanation as to how Du Toit could be considered to have acted “wilfully” given the drunken-sleepwalking state he was in, and his total amnesia about the incident.
IV
Given that we now have the evidence that was before the CDC and DAC it is useful to pause, rewind, and play this story back from the beginning, given that we now have enough information to know well enough what seems to have actually happened.
To begin with, far from being some sort of white supremacist “throwback,” Theuns du Toit was an exemplar of post-apartheid society. He had been born long after the end of apartheid and had grown up in an integrated environment, gone to a minority white high school, and had close friends of all races. He was, it was noted, acquainted with Ndwayana through Ndwayana’s roommate, who was a friend of Du Toit, and they were familiar with each other and had been on amicable terms. There was no reported personal friction or animus between them.
On the night of the incident Du Toit had consumed an extraordinary amount of alcohol, passed out on his friend’s bed at 3am in the morning, and then stood up an hour and a half later with a pressing need to pass water, alcohol being a powerful diuretic. As is not uncommon in such circumstances he had “sleepwalked” through the events of the next two or so minutes, high doses of alcohol also increasing slow wave sleep during the period (Stage 3 sleep) in which parasomnias tend to occur. In other words, at no point was he acting consciously, or even awake. The physiology of this is well described in the video here.
Du Toit had headed in the vague direction of the toilets but instead ended up in the room of Ndwayana and his friend, before relieving himself in the dark. After the light was turned on and Ndwayana asked him what he was doing he responded, but in a bizarre and nonsensical fashion. In the moment, Ndwayana – who was bewildered, disgusted, and highly upset by what was happening – misheard the “oy” sound as the word “boy” and (most probably) the second “wai-ting” as “white thing”, and so initially believed that he had also been racially insulted and demeaned.
The next day on waking up and being informed what had happened, Du Toit, who had no memory of the incident, went to Ndwayana to ask what he had done, and what he had said, and had also apologised and had tried to clean up his mess. This apology and explanation had not placated Ndwayana and at lunchtime he had already escalated the matter in an email to the SRC demanding Du Toit’s expulsion. He also shared what had happened with SASCO, which immediately released a statement denouncing this “racist action” by this “racist hooligan”.
The in-itself highly degrading and humiliating video of Du Toit was widely circulated on the Sunday and soon found its way onto social media where it soon went viral. Instead of being seen as yet another video of some unfortunate drunk urinating-while-sleepwalking – videos of which are often posted on social media for prurient laughs – it was instead invested with enormous racial weight and meaning.
This was partly because the incident had been wrongly framed upfront by SASCO and others as a “racist” one; because it suited many people to believe what they wanted to believe; and because Du Toit was being judged in a racially prejudiced way. If you have been taught to believe that black people continue to be oppressed victims, and that white people are innately racist, then there is only one way that the video could be perceived.
Without having tested Ndwayana’s version, or having heard Du Toit’s, Du Toit was tried, condemned, and sentenced by mass opinion, based on two misheard comments combined with his Afrikaans name, skin colour, and burly physical appearance.
A racial frenzy then took hold on the Stellenbosch campus and swept up much of the national media and even President Ramaphosa as well. In their scramble to condemn Du Toit and thereby distance themselves from his actions, senior university leaders also publicly prejudged the incident as one driven by racial hatred.
This case thus begins, as with many others before it, with mass outrage being triggered by an apparently racially motivated white-on-black incident. This was based upon faulty and incomplete information, and it was initially driven, in part, by the usual unscrupulous EFF-type racial opportunism. Though not completely excusable everything up until this point was familiar and, on a certain human level, understandable.
However, it is the point at which the university’s functionaries took over that the story becomes considerably more disturbing and far less explicable. It would have started becoming apparent to the university authorities from very early on that there was likely no substance to the charge that Du Toit had uttered racial statements to Ndwayana. They soon had Ndwayana’s 17th May statement, and they (along with everyone else on the planet) had access to the video, and after some careful listening it would have become clear that the former was not supported by the latter.
In his 19th May statement Ndwayana adjusted his version, placing the offending statement at the point where Du Toit walked out, but this version was not supported by the eyewitness testimony of Mr X who, though perfectly positioned to do so, did not hear (or see) Du Toit say this or anything else as he left the room. This was a charge that was going to be exceedingly difficult to sustain in any fair and impartial disciplinary hearing. In the event Ndwayana himself in effect chose not to stand behind it when he refused to testify against Du Toit when the inquiry was convened in June 2022.
At this point the university had no basis left to persist with the “racist” statement charge. The CDC also had compelling evidence before them from the video and Mr X that Du Toit could not have made the “white boy thing” remark at all. The members of the committee also soon learnt that Du Toit was the opposite of a “racist”, even if he had been horrifically slandered as such.
The one explanation for his actions that perfectly fitted in with all the established facts, and his recorded behaviour on the video, was that this was a urinating-while-sleepwalking incident induced by Du Toit’s earlier consumption of a massive amount of alcohol. In no way then could the incident be considered to have been racially motivated or driven by racial hatred.
The words he had uttered throughout this episode of parasomnia were gibberish. He still had a case to answer for recklessly drinking so much, but when he had urinated in his Ndwayana and his friend’s room and over Ndwayana’s stuff he had clearly not been acting wilfully or with intent.
A fair punishment would have taken this into account and been both proportional and rehabilitative. Moreover, knowing what it now did, the CDC in fact had a positive moral obligation to exculpate Du Toit on the racist statement charge.
If the CDC had issued such a ruling, and explained the true facts and its reasoning carefully, it is likely that it would have been quite calmly accepted. Whatever its other faults, mob outrage and the intensely felt emotions that drive it can only be sustained for so long. At worst, such a finding would have caused some mild and passing embarrassment to all those, including the university leadership, who had wrongly prejudged the incident as a racial one.
Yet, despite the accuser himself abandoning the process, and the video and Mr X’s evidence being exculpatory, the members of the CDC seemed to have calmly and coldly convicted Du Toit of uttering the “white boy thing” statement. This remark, it then proceeded to declare, could not be anything but racist, “purely racist. It assumes such dominion over another person – effectively portraying Mr. Ndwayana and people of colour as the toilet for white men.”
Apart from this finding being factually unsound, this was indescribably cruel. It meant that the CDC were not just ordering Du Toit’s expulsion from the university, but that they were destroying what was left of his reputation and robbing him of his future as well.
This finding was unfounded and unjust, and it was one that cried out to be corrected. The next person who could have stretched out her hand to Du Toit was Justice Khampepe. She had been appointed by the university to examine “incidents of racism” at the university with specific reference to inter alia the Huis Marais incident, and she would have had access to all the evidence set out above.
In her report which was finalised on the 25th of October and released in early November, Khampepe said that she would not make any findings on this matter, given that it was then still on appeal. She nonetheless did comment that “nothing in the evidence before this Commission would lead me to disagree with the CDC's finding that Mr du Toit acted in a racist manner.”
She also commented adversely on the fact that the student leaders of Huis Marais held to “the view that Mr du Toit's conduct was in no way racially motivated but was solely a consequence of alcohol abuse. Even when it was put to them that the CDC had found that the incident did involve racist conduct, they persisted with the stance that no racism was involved.” This suggested that the “transformation project” had been lost on them, she declared.
The Disciplinary Appeal Committee also should and could have remedied the injustice of the CDC’s original ruling. Yet the members of the panel showed little interest in even applying their mind to the case. Apart from the deliberate obtuseness of much of the ruling, and the truculent unwillingness to give Du Toit a fair hearing, the panel had not even bothered to “read for meaning” the critical sections of the statements and transcripts before them. Their rejection of the appeal on the racism finding was thus based on a glaring misreading of Mr X’s evidence.
Conclusion
It is truly terrifying to become the centre of a storm of racial outrage and hatred, and it is very easy to make errors of judgment in such a moment. It is also not necessarily the wrong strategy to temporise with an inflamed mob, and allow some time to pass, after which the mob psychosis would have dissipated, and this kind of matter can then be adjudicated calmly and fairly.
What is so disturbing about this story is how after the machinery of personal destruction was initially set in motion, the process was manned, pursued, and then brought to completion, by leading and completely respectable members of Stellenbosch University and the legal profession.
Long after the mass outrage had died away, the mob had ceased to be a factor, the original accuser had walked away from the process, and the truth of what had happened had become apparent; this institutional effort to drive Du Toit out of Stellenbosch University and to annihilate his reputation, continued being pursued methodically, relentlessly, and without mercy.
Indeed, the degrading and dehumanising racial defamation of Du Toit by certain leading members of Stellenbosch University has continued to escalate unabated. For Professor Jonathan Jansen, for example, the “white male” Du Toit was like a dog who had used urine to mark his territory in protest at “black incursion” into his space.
For Professor Anton van Niekerk the implication of Du Toit’s supposed “this is what white boys do” [sic] remark was that “white boys” like him felt entitled (albeit only when heavily intoxicated) to urinate on other people, especially if they had “black skins”. This modus operandi, he suggested, was the sort of thing that would have fitted in well in a Nazi concentration camp.
One would have hoped that as it became ever-more apparent that Du Toit had not committed the racial crime he had been accused of, that those participating in this process of personal destruction would have desisted; that a point would be reached at which those involved would realise that this youth had been made to suffer enough for his actual offence, and that one could persist with this process only by acting in an increasingly unmenschlich and ethically questionable manner.
And yet it seems that for all those involved, the moral dividing line was like the receding horizon, they could walk towards it, but never reach it.
