In its recent ruling expelling Theuns du Toit for urinating on Babalo Ndwayana’s belongings, the Stellenbosch Central Disciplinary committee ruled that on the balance of probabilities Du Toit had stated “it is a white boy thing” – in reply to a question from Ndwayana as to why Du Toit was urinating on his things.

The committee then interpreted Du Toit’s alleged remark to mean (in accordance with Ndwayana’s early understanding) that what Du Toit meant was that “[peeing on other people’s / people of colour’s property] is a white boy thing”. This, given Du Toit and Ndwayana’s respective skin colours, could not be anything other than “purely racist” because it “assumes such dominion over another person – effectively portraying Mr. Ndwayana and people of colour as the toilet for white men.”

This finding in particular – expressed in such inflammatory language – is a reputational and educational death sentence for Du Toit. It underpins not just the decision to expel him from Stellenbosch University, but it also means that no other university is ever likely to admit him to continue his studies. It renders him essentially a “non-person” (a “nothing”) in the contemporary South African and international context.

In a previous article I argued that if one looked at the uncontested facts, the video of the incident, and the circumstances around it, it was clear that Du Toit was sleep walking through the incident. It was absurd then for the committee to rule that he had been acting “wilfully”.

From evidence reported on in Rapport newspaper on Sunday it now seems highly questionable whether Du Toit uttered the “white boy thing” remark at all. And certainly, the disciplinary committee had no proper basis in front of it to allow it to rule that he had.

As is common cause Babalo Ndwayana was disturbed at 4.30am in the morning of 15^th May 2022 by Theuns du Toit entering the room Ndwayana shared with his roommate, who was away for the weekend. This (white) roommate was a friend of Du Toit’s and Du Toit and Ndwayana knew each other and had been on friendly terms.

It was completely dark when Ndwayana awoke and when he opened the door and turned on the light, he saw Du Toit urinating in the corner of the room – on the desk he shared with his roommate, and over Ndwayana’s things (a laptop, his study notes, and a textbook). (The entrance to the toilets was actually the next door along).

Ndwayana must have let out a loud exclamation as a (black) student walking by (Mr. X) came to the door to see what was happening. Ndwayana pointed to Du Toit and what he was doing. According to Mr X he had asked whether Du Toit was “drunk or sleepwalking” and Ndwayana said he did not know. Mr X told Ndwayana to record what was happening, and report it, both of which he did. After Du Toit had finished relieving himself he left the room and went back to bed.

From the start Ndwayana believed that he had been racially demeaned. Immediately after the incident he sent messages to the Huis Marais leadership and his mentor reporting the incident and saying Du Toit had “insulted” him. The following day when Du Toit woke up and was told what he had done he went with some friends to Ndwayana’s room to find out what had happened, apologise, and clean up his mess.

Ndwayana recounted to the group that when he had asked Du Toit why he was urinating on his stuff Du Toit had replied something along the lines of “It's a white boy thing”. Ndwayana would have learnt at this point that Du Toit could remember nothing of the incident and so had no reason to question his own recollection going forward.

A few hours later Ndwayana sent a letter to the Students Representative Council complaining about this incident. In this he said that when he had asked Du Toit what he was doing Du Toit had said “this is what we white boys do”.

Ndwayana was clearly convinced on the Sunday morning that Du Toit had acted “racially” and had conveyed the message to him verbally during the incident that the reason why he was peeing on his stuff was because this is something that we white boys like to do to black boys like you.

Although Ndwayana refused to testify at the hearing, the Central Disciplinary Committee found that on the balance of probabilities Du Toit had made the “white boy thing” remark. This was in large part because throughout Sunday Ndwayana had reported hearing this phrase to several different witnesses. By contrast, Du Toit could not remember anything, and could therefore not present his own account of what he had said.

The committee stated that although Ndwayana’s version began to vary over time, especially as he became the centre of a media firestorm, his “testimony” in the immediate aftermath of the incident “was clear and consistent”. To fail to accept the truthfulness of Ndwayana’s account “would be to conclude that Mr. Ndwayana was, and still is, lying. That is a conclusion that [would] be ill-established and would in many ways be demeaning.”

There can be little doubt that Ndwayana was initially sincere in his belief that disparaging racial remarks had been made to him. The pertinent question – which the disciplinary committee failed to consider – is whether Ndwayana could not have misinterpreted or misremembered what he had heard.

It is certainly more likely than not that his memory of the events would have been imperfect. The whole incident, from the time Du Toit started urinating to the time he left the room, could not have lasted much longer than 60 seconds. Ndwayana was being woken in the early hours of the morning and had had no time to wake properly and clear his head before processing what was going on. He was obviously highly upset by seeing what was being done in his room and to his things by this large “white boy”. He reported the next day that he was traumatised by what had happened.

Both Ndwayana and Du Toit are second-language English speakers, and some of Du Toit’s speech was so slurred it was nearly incomprehensible. Du Toit’s answers were also bizarre and bore little logical connection to what he was being asked. This is all indicative, incidentally, of someone speaking while sleepwalking.

In his initial written statement submitted to the university on 17^th May 2022, Ndwayana once again reiterated what he remembered had happened: “I asked the person what he was doing, he said ‘waiting for someone, boy’. I then asked him why he is urinating on my belongings he then told me ‘It's a white boy thing’. After the Respondent urinated, he then left my room.”

It is crucial to note that the second question is relayed in the present tense (“why he is urinating”) with the alleged reply following on immediately after. There is also no mention of conversation continuing after Du Toit had finished urinating and left the room.

If you set this version against the 18 second exchange recorded on video the former appears to be a reasonably good, but in parts flawed, recounting from memory of the latter. See graphic below.

In both, Ndwayana asks Du Toit twice what he is doing. In his first answer Du Toit does say “waiting for someone” followed a short while afterwards by a sound that could reasonably be understood as “boy”. What was actually meant or intended by this verbal effusion is another matter, and probably unknowable. The committee itself ruled that it could not be assumed to be a racial insult.

As he can be seen about to try and zip up his trousers, again Du Toit makes mumbled remarks at the point where Ndwayana’s statement suggested he had said “it is a white boy thing”. In slurred speech that requires repeated listening it turns out Du Toit said, “waiting for your roommate”. This reply is noticeably absent from Ndwayana’s statement.

Clearly then Ndwayana’s recollection of the exchange in his 17^th May statement, while broadly accurate on much else, is not reconcilable with the video recording on the last and critical aspect of the alleged “white boy thing” remarks.

This suggests the strong possibility that in the upset and confusion of the moment Ndwayana had misheard and misinterpreted Du Toit’s slurred “waiting for your roommate” remark as having something to do with “whites” – with his mind subconsciously filling in the meaning.

However, “clear and consistent” Ndwayana’s testimony had been in the aftermath of the incident, it was thus not supported by the video. At some point the penny must have dropped in this regard and on 19^th May – three days after Stellenbosch University had condemned this “destructive, hurtful and racist incident” – Ndwayana submitted a second statement.

In this he said that: “I ended the video after Theuns stopped urinating. After I have ended the video, Theuns walked out and then that's when he said, ‘it's a white boy thing’.”

This version addressed the problem presented by the incompatibility between his 17^th May statement and the video. But Ndwayana had now presented two seemingly conflicting versions on when Du Toit had made the “white boy thing” remark. In his first statement he suggested this was while Du Toit had been urinating. And in his second he explicitly stated that this had been as Du Toit was leaving the room.

In its initial “statement of facts” the committee states that “At the time the video ends, Mr. Ndwayana alleges that, in response to him asking Mr. Du Toit why he was urinating on his belongings, the accused stated, ‘it’s a white boy thing’ or ‘this is what white boys do’.”

Yet this is not the version Ndwayana presented in his “consistent” testimony made in the immediate aftermath of the incident, but the contradictory version that he presented four days later, at a point at which the whole incident had already become an issue of great national controversy.

Because Ndwayana refused to testify at Du Toit’s disciplinary hearing he could not be questioned over his version, let alone the apparent contradiction between his two statements. In normal and less racially fraught circumstances his refusal to testify would have meant that the disciplinary committee would not have put any weight on these versions at all. Du Toit would then have had to be automatically acquitted on this charge.

Yet not only did the Committee not do this, but it also then went with the (second) version, without which it would not have been able to rule against Du Toit on the “white boy” statement charge. It did this moreover while conveying the misleading impression that this version was Ndwayana’s initial one (not the one made much later).

Given that Ndwayana refused to testify, and Du Toit could not remember anything, the sole eyewitness before the disciplinary hearing was the student Mr X. Although he could not hear what was said by Du Toit, his evidence on the timing was critical. If Mr. X had testified that the conversation had continued after Du Toit had stopped urinating, the point at which the video had been ended, then Ndwayana’s second version could (at least potentially) be true.

In his original statement Mr X said that “I was standing there the whole time while he [Du Toit] was peeing on the desk” and “While I was standing there Babalo was talking to this man, but I could not hear the conversation. After [Du Toit] finished peeing, he walked past me down the passage and up the stairs”.

As in Ndwayana’s first statement there is no mention of the conversation continuing after Du Toit stopped urinating. Yet according to the disciplinary committee’s ruling Mr X stated that while he did not hear Du Toit uttering the contested phrase “he did hear a conversation taking place in the room and as Mr. Du Toit left the room (once the video ended).” The committee then said that “in light of Mr. X testifying that he did hear a conversation occurring at the time the alleged phrase was said” this was a further reason for believing Ndwayana’s (second) version.

However, Rapport newspaper now reports that the committee’s version of Mr. X’s testimony has been directly disputed by Du Toit’s legal team. According to Dirk van Niekerk of DVN Attorneys, William Fullard, Du Toit’s legal representative in the disciplinary hearing, explicitly asked Mr X whether Du Toit had made any racist remarks when he walked out of the room. Mr X had said in reply that Du Toit didn’t say a word as he went out.

If Fullard’s memory is correct, then not only did the committee misrepresent Mr X’s testimony, but it means that it is simply not possible for Du Toit to have made the racial remark attributed to him at all.