The hate speech case against Velaphi Khumalo, when compared with similar cases in the past, raises serious questions about the law that defines and prohibits hate speech. As we await an Equality Court ruling, what ought to happen?

On 4 January 2016, Velaphi Khumalo, an official in the Gauteng Department of Sports, Arts, Culture and Recreation, brazenly called for genocide against white people.

“We must act as Hitler did to the Jews,” he wrote. “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 the ANC. I will from today unfriend all white people I have as friends from today u 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 throughout).”

Khumalo made his post in the wake of the infamous rant by estate agent Penny Sparrow, in which she bemoaned the number of black people on the Natal beaches and called them “monkeys”.

“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,” he wrote in a separate post. “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 throughout).”

The irony of berating a group of people for venom in the same breath as he called for their genocide appeared to be lost on Khumalo.

His case has been brought before the Equality Court by the South Africa Human Rights Council (HRC). It has heard arguments from all sides, and is expected to rule on the matter soon.

The Equality Court was established by statute to hear complaints pursuant to the Promotion of Equality and Prevention of Unfair Discrimination Act of 2002, known among lawyers as PEPUDA, and among simple people like me as the Equality Act. It is not a criminal court, and does not have the power to impose prison sentences. It may, however, refer matters to the National Prosecuting Authority for further investigation.

Sparrow was ultimately fined R150,000 for hate speech by the Equality Court, to be paid to the Oliver and Adelaide Tambo Foundation.

In 2017, the Equality Court ordered Vicky Momberg, an estate agent who burst into a k-word-laden tirade at a police officer after a smash-and-grab incident, to pay R100,000 in damages to the officer in question.

In a separate case, brought before a criminal court, Sparrow was convicted of crimen injuria, and given an option of 12 months in prison or a R5,000 fine, in absentia. Similarly, Momberg faced eight counts of crimen injuria, was convicted on four, and was sentenced to three years imprisonment, one of which was suspended.

Crimen injuria is the crime of unlawfully and intentionally impairing the dignity or privacy of another person. Momberg was the first person to land in prison as a result of racist hate speech.

In other cases, a T-shirt that read “KILL WHITES”, with a tiny “s” before the first word, was ruled to be hate speech because its ambiguous intent was clear to the wearer, and incited harm. In a case against EFF leader Julius Malema, the old struggle song dubul’ibhunu (“Shoot the Boer”) has also been ruled to be hate speech, since it incites violence against people based on their ethnicity. Neither case led to substantive punishment.

On the face of it, Khumalo’s utterings appear to be the most obvious case to date of hate speech that intends to incite harm on the basis of race. He admitted, in a settlement with the ANC, that it was hate speech, and agreed to apologise and pay R30,000 to a charity.

According to court documents, however, Khumalo’s lawyer, Stuart Wilson, now argues that his statements did not amount to hate speech at all. They did not cause harm, he says, even though whether they did is irrelevant. The courts have long held that no actual harm needs to ensue for a statement to be considered actionable on grounds of incitement.

They were not, he says, “intended to induce violent action” and “could not reasonably be construed to have done so”. If that is the case, one wonders what the threshold would be for a statement to be intended to induce violent action.

If a member of a right-wing neo-Nazi group were to say, “We must act as Hitler did to the Jews… black people in South Africa deserve to be hacked and killed like Jews,” would Wilson defend him by saying that wasn’t really hate speech and couldn’t reasonably be construed as incitement to cause harm?

Khumalo’s statement goes far beyond the threshold set by Sparrow, who simply used an insulting term about black people in general, and Momberg, who directed racist epithets at a black person in a fit of temper. Although both were deplorable, racist and hateful, neither of those could remotely be interpreted to constitute incitement to commit harm.

This raises the interesting question of whether those rulings were, in fact, correct. Section 10 of the Equality Act defines hate speech as speech “that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred.”

Surprisingly, nobody thought to add “and” or “or” between the three criteria of that clause. Is hate speech supposed to meet only one of them, or all three? If it is interpreted disjunctively, as lawyers would say, that is, with “or” between the criteria, section 10 is clearly unconstitutional.

Section 16 of the Bill of Rights says its protection of expression does not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm”.

That is, the Constitution requires speech not just to be hurtful, or promote hatred, but also to constitute incitement. It demands a conjunctive reading of section 10 of the Equality Act, placing “and” between the criteria. Such a reading is indeed what counsel for the HRC, Mark Oppenheimer, asked of the Equality Court.

In Khumalo’s case, as in the case of the “sKill Whites” T-shirt and “Shoot the Boer”, this threshold was arguably met. Both can, in some contexts, be interpreted as incitement.

In neither Sparrow’s nor Momberg’s case could one reasonably interpret their speech to have incited anyone to commit harm, however. Yet the Equality Court still ruled their cases to have fallen foul of section 10 of the Equality Act.

This suggestion of a disjunctive reading of the Act sets a very troubling precedent for free speech. It would make it illegal to simply hurt someone’s feelings, which would outlaw a great deal of protected expression – including journalism. Both the complainant and the respondent in the Khumalo case argued that this interpretation would be absurd.

Khumalo’s defence lawyer argued that he should be excused because he was just an angry young man, hurt not only by Sparrow’s particular racism, but by racism he had experienced his whole life. This may be true, but it clearly cannot be excusable for everyone who was subjected to racism, and who is offended by racist statements now, to respond by calling for violence.

Moreover, a similar argument of provocation could be made for Momberg, who spoke in a fit of temper after having been subjected to a traumatic crime. Arguably, provocation would have been a better defence in Momberg’s case than in Khumalo’s, given that he had time to cool off and consider his words before posting them to Facebook.

Khumalo previously settled a case with the ANC. Although this case was not heard in the Equality Court, it was made an order of the court after the fact.

His defence now argues that the case against him has already been litigated. The HRC’s counsel, however, argues that the case was never investigated by the Equality Court, the ANC settlement did not address the respondent’s second statement now before the court, the respondent has withdrawn the admission that it was hate speech, and the complaining parties were not the same. Therefore, the rubber stamp on that settlement ought not to prevent the Equality Court from hearing the complaint now before it.

The Equality Act does not provide, either way, for the problem of how to deal with multiple complaints about the same facts. Oppenheimer proposed that the Equality Court be empowered to consolidate cases brought against the same respondent over the same facts.

The HRC asked the court to make several orders in relation to Khumalo’s statements, including that they be declared hate speech, that he be ordered to apologise to all South Africans, that he should be interdicted from publishing hate speech in future, that he pay damages to an appropriate organisation to the value of R150,000 for each of his two statements, and that the matter is referred to the NPA for possible prosecution.

The referral request is based on two grounds. The first is that it constitutes “direct and public incitement to genocide”. As a signatory to the Convention for the Prevention and Punishment of the Crime of Genocide, as well as the Rome Statute of the International Criminal Court, South Africa has criminalised such incitement in its domestic law, and made it punishable even if it does not result in actual genocide.

The second is under the Riotous Assemblies Act of 1956, which, “despite its oppressive history”, remains in force. This makes it a criminal offence to “incite, instigate, command or procure any other person to commit any offence”, subject to the same “punishment to which a person convicted of actually committing that offence would be liable”.

It is notable that the HRC does not request prosecution on the grounds of crimen injuria, which has been used in other cases of racist hate speech. One likely reason is that there wasn’t a specific victim whose dignity could be said to have been impaired.

However, if one considers the offence of crimin injuria in light of the constitutional right to freedom of expression, it is arguable that this offence shouldn’t even be on the books at all. It would be interesting to see Khumalo, should he be charged with crimen injuria, argue the constitutionality of that law.

The legal questions raised by the Khumalo case are important, then. Most important, they include how section 10 of the Equality Act should be interpreted and how hate speech should be defined.

The Equality Court ought to make it clear that any hate speech conviction must rest on the incitement to do harm. If that is so, it calls into question the rulings against both Momberg and Sparrow, although it surely condemns Khumalo. And if the Equality Court refers Khumalo’s case for criminal prosecution, it looks like he may face far more serious charges than either Momberg or Sparrow did. DM