In early December 2015, President Jacob Zuma sacked Finance Minister Nhlanla Nene and replaced him with the obscure politician, Des van Rooyen, in an effort by the corrupt elements around him to capture the Treasury. Although Zuma was forced to backtrack within days, the move caused huge shock both locally and internationally, as it exposed how close South Africa was to the edge of full-blown kleptocracy.

One effect of the Zuma government’s increasingly flagrant corruption, along with the economic stresses the country was creaking under, was to acutely sharpen racial sensitivities – particularly to that of any possible expression of white racial prejudice, no matter how obscure the source.

On 2 January 2016, a retired Durban estate agent, Penny Sparrow, went onto Facebook to express her displeasure at the mess left after New Year festivities held on the beach.

Sparrow likened the black people to “monkeys”. She said the revellers had been “allowed to be released”, and this had invited “huge dirt and discomfort to others”. All she saw were “black on black skins” and, despite knowing some “wonderful thoughtful black people”, this particular “lot of monkeys” didn’t even want to try. She said “cute little wild monkeys do the same” – which is to “pick, drop and litter”.

Someone took a screenshot of these inflammatory remarks and sought to distribute them as widely as possible. Soon they went viral with the effect of provoking a wave of anti-white rhetoric in response.

The most extreme version of this came in a comment by Velaphi Khumalo, a member of the ANC and a public official employed as a sports promotion officer by the Gauteng Provincial Department.

On the morning of 4 January, at 05h39, Khumalo went onto a Facebook group, Political Debate SA, to publish the first of two statements. It read as follows:

“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 whit people. I’m starting to be sceptical even of those within our Movement of the ANC. I will from today unfriend all white people I have as friends from today you 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]

Later that day, at around 11h00, Khumalo published his second statement. He would later claim this was in response to what he perceived as “most white people in the group” either agreeing with Sparrow’s comments or who sought to defend the right to freedom of speech:

“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]

There have been several recent cases where verbal insults, particularly those deemed offences against the dignity of the majority, have been summarily and harshly punished, either by the judicial system or in the court of public opinion. Cases such as these have invariably been preceded by substantial and somewhat hysterical media coverage.

Chris Hart lost his job for his misconstrued tweets. Penny Sparrow was made to pay R150 000, and also received a further R5 000 fine and two year suspended sentence for crimen injuria. Vicki Momberg’s K-word-laden rant landed her a three-year custodial sentence. Kassie Nair has even recently been denied bail for using the K-word and, in effect, insulting the president.

These cases all raise important questions about freedom of expression, its limits, the nature of hate speech, and whether angry outbursts on social media should even be punished at all – and, if indeed so, the kind of punishment that might fit the “crime”.

The Khumalo case, however, also presented a test case for the rule of law – in the sense of the “idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary Courts” – and what the repercussions might be for the most extreme form of racialist rhetoric when sent in the other direction.

I

After Khumalo’s tweets were reported on in the press, the provincial department for which he worked issued a series of media statements in response. On 6 January, it distanced itself from the “racist utterances” and said it would launch an internal inquiry. This disciplinary process was announced the next day. Media reports then surfaced that Khumalo had made an apology to the Gauteng government and the ANC.

Khumalo was then suspended on 8 January. Four months later, the department announced the remarks – “which were construed as being racially offensive” – had led to a charge of serious misconduct.

The ‘Disciplinary Panel’ then issued a ‘Final Written Warning’. If Khumalo accepted this, the suspension would be lifted. This warning was valid for a period of six months, after which it would be expunged from his file. The provincial department in addition took measures to “orientate and workshop” all its employees on its “communication policies” and the “use of social media”.

A few months later, the ANC then referred a complaint to the Roodepoort Equality Court. What was curious, however, is that the proceedings were held in camera, rather than publicly as required by the Equality Act. The ANC in addition did not release a press statement afterwards, despite the case being undoubtedly high profile and in the public interest. This would later lead to the suspicion that these proceedings were “friendly” towards Khumalo, and the idea that “an embarrassing episode was being quietly tucked away”.

The complaint was however withdrawn on the same day, and the parties instead entered into a settlement agreement. Khumalo accepted his utterances amounted to unfair discrimination and hate speech. He also agreed to pay R30 000 in thirty monthly instalments to a charity of the ANC’s choice, and give one-hour talks on racism to three schools identified by the ANC.

During the same period, but separately, the South African Human Rights Commission (SAHRC) also instituted proceedings at the Equality Court in Johannesburg (Gauteng Local Division).

It referred a complaint of hate speech – for his first utterance alone – and requested a full and public apology to all South Africans. It also sought damages and asked for the case to be referred to the Director of Public Prosecutions.

Instead, however, another settlement agreement was reached. Khumalo would acknowledge he committed hate speech and would agree to damages of R150 000. Interestingly, this amount was wholly suspended for a period of 12 months, on condition that he not commit further hate speech during that time.

This agreement was not however made an order of court. On 9 November, Judge Roland Sutherland ordered a formal hearing and directed that amicus curiae be appointed.

Given that two separate cases had been lodged by multiple complainants at the Equality Courts, there were several legal questions at stake. The proceedings would therefore look at whether Khumalo’s case could be heard since it had already been litigated once before. It would also provide the opportunity for matters to be properly ventilated.

The Legal Resources Centre and Advocate Irene de Vos were then appointed as amicus curiae, a role they volunteered to fill after another organisation was unable to. The SAHRC then also filed an additional complaint to include Khumalo’s second utterance, and it sought relief of R150 000 for each of his statements.

At the time of entering into the settlement agreements with both the ANC and SAHRC, Khumalo was unrepresented, and so the LRC sought legal representation for him. Advocate Stuart Wilson took on the case pro bono.

The LRC is an organisation which describes itself as “a public interest law centre that seeks to use the law as an instrument of social justice”. Advocate Wilson meanwhile is the former head of the Socio-Economic Rights Institute (SERI), one of South Africa’s leading social justice organisations.

II

Advocate Wilson relied heavily on the court staying or dismissing the case based on procedural points. These technical issues were valid and important, and perhaps the best option for getting his client off the hook. However, both Advocates De Vos and Wilson also sought to build a case that Khumalo’s utterances should not be considered hate speech at all. Their arguments in this regard were infused with the theory and language of the social justice movement in the West.

De Vos told the court that a “massive distinction” needed to be made between Khumalo and Sparrow’s utterances. She said the purpose of the Equality Act was “nation-building”, and that Sparrow had harked back to a previous era of racial segregation.

Khumalo, however, was in a “political debate” about racism. He was “expressing his political views” and his utterances were merely “political hyperbole”.

“We cannot nation-build if we suppress spaces where people – and I stand by especially those that have been historically disadvantaged – are given the room and voice to raise those concerns,” she said.

People needed to be able to “freely, robustly, offensively” debate politics – which was what Khumalo was doing. And while the issue could be taken with the content of his utterances, this was “political debate vital to nation-building” while Sparrow’s words were “purely, plainly offensive”.

In its written submissions, the LRC argued that speech could be found on a spectrum, ranging from “banal” to that which “advances the purposes of truth-finding, self-fulfilment and democratic discourse”. And even though the content was questionable, Khumalo’s utterances were “in the realm of the political”.

The LRC also made the case that the identity of the target group mattered when deciding on hate speech – and Khumalo “did not aim his attack at Jewish people”.

“It was against white people, particularly racist white people,” the LRC wrote. “Speech is scrutinised less strictly where it is targeted at the powerful or dominant. Mr Khumalo’s speech was aimed at the dominant, not the vulnerable.”

Khumalo’s counsel – Advocates Wilson and Ofentse Motlhasedi –argued in their written submissions he had made a series of “intemperate” remarks, and though his utterances were “grossly inappropriate”, the fact remained he had already been sued and had “clearly” showed his “contrition”. The question was rather whether the court had jurisdiction to pronounce on his case. Could he be sued twice in the Equality Court? Instead, the SAHRC was “coming after Mr Khumalo” and wanted to “punish him” a second time and this was against procedural fairness.

His words in addition did not amount to hate speech, since the test had “not been met”. In context they were “meaningless hyperbole”. To be declared hate speech they would have to demonstrate “a real and imminent threat of actual harm” and not merely a “fanciful or far-fetched” call for violence. The images he conjured were “absurd and cartoonish”.

His counsel also wrote that South African society continued to “suggest to him, in ways both overt and subtle, that he was somewhat less than human”. Sparrow’s remarks confirmed what “society tells him subliminally all the time”, which is that “many, perhaps most, white people” would “never truly regard him as equal”. This was “indicative of the lazy white racism” which he would have been subjected to most of his life. He was furthermore “not in a position of authority or influence” and found himself “at the wrong end of the racial distribution of power in South Africa”.

The SAHRC had provided little evidence of “escalating racial tensions” – and the “anecdotal evidence of so-called farm murders” had been provided in the “vaguest of terms”.

“There is no suggestion that white people in this country are even in the remotest danger of being subjected to an organised programme of violence or murder,” they wrote.

Khumalo had furthermore not made any call to action. Wilson told the court that the only “actual conduct advocated” was that Khumalo was going to “unfriend white people” on Facebook. This he said was “hardly the programme of a genocidaire”.

Khumalo was in no way attempting to resile from his agreement with the ANC, but wanted to “withdraw his admission” that his words amounted to hate speech. Wilson said there was “little to gained in interrogating that question”, since Khumalo had already apologised.

“Must we really drag him through an academic exercise about whether these particular remarks are hate speech?” Wilson asked. 

III

In his response Advocate Mark Oppenheimer, acting on behalf of the SAHRC, told the court that Khumalo’s counsel had “performed some incredible mental gymnastics” to try and convince the court that the words did not amount to hate speech.

The SAHRC had highlighted the gravity of Khumalo’ utterances in light of the increasing climate of intolerance in South Africa, and Oppenheimer warned of a “slow-drip of constant hatred” and the “othering” of communities.

He said statements claiming some people were deserving of death, if they were repeated often enough, could create a snowball effect, eventually resulting in a “cataclysm of violence”. He used examples of farm murders, as well as the xenophobic attacks that swept across the country in 2008, which were preceded by inflammatory statements against foreigners.

Indeed, a United Nations report of August 2016 on hate speech in South Africa states that the committee was “concerned at the rise of hate crimes and hate speech” in the country, including “physical attacks against certain ethnic groups and non-citizens, discriminatory statements by State officials and politicians, and the increase in use of media and the internet to propagate racist hate speech”.

“If these words are not hate speech, then there is [no] hate speech,” said Oppenheimer. “We might as well tear up section 10 of PEPUDA, because nothing will ever count.”

IV

In his ruling Judge Sutherland dismissed the arguments of the LRC and Wilson and declared the utterances hate speech, ordering a referral to the NPA.

The claim that his words did not amount to hate speech appear not to have helped Khumalo’s case at all – and Sutherland found it significant he had recanted his admission.

“Khumalo undoubtedly regrets making the utterances because of the consequences that have followed,” he said.

He however found the sincerity of his apologies were called into question after his retraction. Khumalo might well have been given legal advice that an argument “could be mounted that might service to exonerate him”, but he was nevertheless responsible for the “outcome of his own choice”.

Khumalo’s message was one that whites “should be ostracised, marginalised, excluded, indeed, totally ‘othered’, de-humanised, and legitimately subjected to violence”.

Sutherland then considered whether people who read these statements might be “inclined to share those views and be encouraged by them to also shun, denigrate and abuse the target group”.

He said it could not be denied that black South Africans had “a great deal to be justifiably resentful about”, but this however meant that “many people who share Khumalo’s frustrations are likely to be susceptible to being stirred up by such inflammatory talk”. He found that this could lead to the target group responding in kind, creating a “spiral of invective”. He said this was a risk that carried “uncertain but frightening possibilities”.

Crucially, the judgement pushed back against the idea of differential treatment. When applying the test for hate speech, Sutherland found the contextual argument to be among “the more complex and controversial value choices”.

“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,” he said.

That purpose is one of social cohesion. The ‘othering’ of whites “or any other racial identity” is against constitutional values and “being relaxed about vituperative outbursts” against white people contributed “nothing of value towards promoting social cohesion”.

Instead he said that any argument for context – such as the possibility of mitigating or aggravating circumstances – should rather be taken into consideration when deciding on remedial measures.

The judgment also contains important points regarding the purpose of damages. Sutherland said the amount of R150 000 in the Sparrow case had gained “notorious default status”, but having read the judgment, he could not determine “why the sum was thought appropriate”.

There had been no assessment of Sparrow’s financial standing, and the sanction did not seem related to whether she could or could not afford to pay it. He said the amount seemed “a thumb-suck intended to serve as a measure of society’s indignation”. This approach he called “crude and undeserving of endorsement.”

“Imposing the payment of sums of money which may be ruinous to a respondent does not achieve an outcome the Equality Act encapsulates,” he said. These “huge money payments” were “counter-productive” and did not serve to rehabilitate.

V

The Khumalo judgment is significant and a victory for the freedom of speech, since it narrowed the scope for declaring words hate speech.

The freedom of expression is protected by section 16 of the Constitution. Some speech is however prohibited, and that includes:

(a) propaganda for war;

(b  incitement of imminent violence; or

(c  advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

The right is therefore broad, and it is given effect to by statute. The relevant section under the Equality Act (PEPUDA) has however been described as a “most unfortunate, convoluted formulation” – and this has resulted in a number of controversial and conflicting judgments.

Section 10(1) of PEPUDA prohibits words based on one or more of the prohibited grounds – such as race – that “could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) harmful or to incite harm; (c) promote or propagate hatred”.

The legislative drafters however omitted the words “and” or “or” between the various factors, and so it has been unclear whether prohibited speech need only be hurtful or harmful or incites harm or that promotes or propagates hatred – in other words requiring adisjunctive (or separate) reading of the various elements. A conjunctive (or joint) reading would however mean that all those elements need to be present in order for speech to be declared hate speech.

This distinction becomes important when deciding whether or not words, such as racial insults that might be deeply offensive and hurtful, can be declared hate speech.

In the Khumalo case, all the parties argued for a conjunctive reading of the section. This makes it somewhat curious that, during the proceedings, the case was made for a distinction to be drawn between his and Sparrow’s utterances.

Sutherland nevertheless held that all the factors enumerated in section 10(1) should be read conjunctively. This means that to declare hate speech, words should not only be hurtful, but also harmful or incite harm, and promote or propagate hatred.

This could render other judgments “unsafe” and there are examples of cases that have therefore been “clearly wrong”.

Conclusion

Velaphi Khumalo is fortunate his case landed before Judge Sutherland. And while some may perceive it unjust that he was not made to pay higher damages, the ruling instead calls into question the heavy-handedness of other sanctions that have recently been meted out.

More importantly, however, the case is a victory for the rule of law and the fundamental right of individuals, whatever their race, to be treated equally before the law.

And while Khumalo’s counsel were representing their client, their argument that the words did not amount to hate speech is highly questionable. What is most concerning, however, is that the LRC – a well-funded and leading human rights organisation – made submissions that might have contributed to devastating jurisprudential consequences had they been accepted. In particular, their argument about the identity of the target group of these kinds of utterances.

Had a different judge found in Khumalo’s favour, would it have meant that, even though the “content” of such rhetoric was deemed controversial, it would nevertheless be justifiable, in “context”, for some groups – who happen to hold all political power and who have done so for twenty-four years – to call for the burning, hacking, killing, skinning of minority groups, as well as the use of their children as garden fertiliser?

Sutherland found there was no place for this in South African society and that there could “never be an excuse” to absolve individuals from accountability in this regard.

“The value choice in the Constitution is that we must overcome the fissures among us. That cannot happen if, in debate, however robust, among ourselves, one section of the population is licensed to be condemnatory because its members were the victims of oppression, and the other section, understood to be, collectively, the former oppressors are disciplined to remain silent,” he said.

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