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Kind. Forgiving. Obsequious. Reconciliatory. These are some of the poignant adjectives that have come to define the ordinary black South Africans in post-1994 South Africa. Yet “arrogant”, “lazy”, “entitled”, “monkeys”, “rapists”, “k*ffirs”, “ignorant” is how white South Africa appears to have convinced itself we are. This must stop. How?
Many people, including lawyers, appear unaware that racism is not only criminal, but ranks among crimes of the worst sort. It is constitutionally outlawed.
In fact, so deprecated is racism that section 9(5) of the Constitution places the burden on the person accused of racism to disprove the allegation. One is not presumed innocent of racism until proven otherwise. Once a prima facie case is made, one is presumed racist until proven otherwise. That is a significant and deliberate departure from the constitutional norm, because racism is a serious crime.
The Promotion of Equality and Prevention of Unfair Discrimination Act (Act 4 of 2000) (Pepuda) characterises racism as hate speech. For example, section 10(1) prohibits any publication, propagation, advocation or communication of words that could reasonably be construed to demonstrate a clear intention to be hurtful or promote hatred against any person.
There can be no doubt that Penny Sparrow intended (whether by dolus directusor dolus eventualis) to hurt the black people she referred to as “monkeys”.
There can be no doubt that the fellow who was driven by the sports minister’s transformation foray into rugby and cricket to refer to black people as “k*ffirs” intended (whether by dolus directusor dolus eventualis) to hurt black people.
There can be no doubt that when Jonathan Shapiro depicted the National Director of Public Prosecutions as a monkey in a cartoon, he intended (whether by dolus directusor dolus eventualis) to hurt Shaun Abrahams.
There can be no doubt that when a person attributes gang rape to an entire race as a “pleasurable pastime” and as part of that race’s culture, that person intends (whether by dolus directusor dolus eventualis) to hurt that entire race and the women of that race.
In each of these cases, the law places the burden on these people to disprove their racist intent (section 13 of Pepuda). One of the remedies that the equality court may grant a victim of racism is to refer such racism for criminal prosecution to the Director of Public Prosecutions (section 10(2); section 21(2)(n) of Pepuda).
Once the Director of Public Prosecutions decides to prosecute, and the racist is found guilty of racism (AKA hate speech), a criminal sanction will be imposed. This is where the courts can play a significant role in rooting out racism. I believe the legislature should perhaps even extend the minimum sentence regime to hate speech or racism cases. That way, racists will at least think twice before abusing their right to freedom of speech.
Black people have borne the brunt of racism for far too long. It is time we all bring a stop to this pain by using the legal tools that are there and lobby for harsher sentences. My human dignity (which is not only an entrenched right but a foundational value of our Constitution) is not worth the paltry R150 000 fine that the Equality Court imposed on Sparrow.
As a result of the leniency of the sanction meted out on her by the Equality Court, Sparrow still believes she did nothing wrong, if the interview in You magazine is any indication. Clearly, she has not got the message that her racist rant is a serious crime.
Jonathan Shapiro’s response was to appear on television and express shock that black people should react with outrage at his portrayal of Abrahams as a monkey. Clearly, he does not get it.
The fellow who called black people “k*ffirs” got “community service”. The judicial officer who imposed such a soft sanction does not seem to get it.
A person in high office faces complaints akin to racism for calling black people rapists by culture. This is an opportunity for a strong deterrent message to be sent to all who may be thinking of saying these outrageous and racist things.
Black people can stop racism. It starts with one person. However many hate mails I get, I shall do my fair share by exposing racism wherever it emerges and insisting on a harsh sentence. I ask more rational South Africans to join me in bringing an end to this scourge. I am gatvol. Be gatvol together with me.
Ngalwana SC is an advocate at the Duma Nokwe Group
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