The man who said he wants to “cleanse this country of all white people” has “paid his dues, and then some”, the Legal Resource Centre (LRC) argued as the case landed in the Equality Court this week.
The SA Human Rights Commission (SAHRC) had taken Velaphi Khumalo, 29, to the Equality Court, sitting in the South Gauteng High Court, following a Facebook post he made in 2016.
The youth sports officer at the Gauteng Department of Sport and Recreation posted on Facebook that: “I want to cleanse this country of all white people. We must act as Hitler did to the Jews.
“I don’t believe any more that there is a large number of not so racist white people. I’m starting to be sceptical even of those within our movement of the ANC.”
The LRC, acting as amici curiae, or friends of the court, argued that Khumalo has paid money to the ANC; has apologised publicly; has received a final warning from his employer; and training.
“Mr Khumalo has paid his dues, and then some. Were the principle not to be applied, it would offend a sense of fairness and equity,” they argued.
In their papers the LRC argued the prohibition of hate speech in the Equality Act should be interpreted in a way that “strikes a balance between freedom of expression and protecting human dignity, equality, freedom, the healing of the divisions of the past and the building of a united society”.
“This balancing exercise cannot take place in a vacuum, rather it must take into consideration South Africa’s history of oppression and continuing inequality, among other contextual factors. Whilst the content of the expression can be challenged, there is no doubt that Mr Khumalo was responding to a discussion about race in post-apartheid South Africa.
“The nature of his expression was political. Were it purely personal, less value would be attached to it.
“However, Mr Khumalo was engaging in a discussion in the realm of the political. Second, the identity of the target group.
“The complainant identifies the target group as white people and people of Jewish descent. Mr Khumalo used an unfortunate metaphor, but he did not aim his attack at Jewish people. It was against white people, particularly racist white people,” the LRC said.
The SAHRC wants Khumalo’s statements declared as hate speech and the matter to be referred to the director of public prosecutions for criminal proceedings to be instituted.
The commission argued that Khumalo’s statements amounted to incitement to genocide.
“The statements are hate speech directed against white people and the Jewish community in South Africa, on the prohibited grounds of race. The statements have the effect of being hurtful, propagating hatred and inciting violence and genocide,” the SAHRC.
Khumalo’s legal representatives argued that their client “sincerely and deeply regrets” what he said.
“Clearly, these statements were grossly inappropriate. Mr Khumalo accepts this. He has apologised to ‘all the people of South Africa’ for them.
“He has also been disciplined by his employer. He has been sued for hate speech once already in the Equality Court. He did not oppose the suit, and settled it on terms that clearly show his contrition for what he said,” his papers read.
The question in this case, Khumalo’s representative posed, is whether Khumalo can be sued twice in the Equality Court for hate speech, given that the alleged hate speech arose from the same remarks.
“We submit, in the first place, that this court should decline to entertain the complaints because this is the second time Mr Khumalo has been pursued for substantially the same set of remarks.
“The first Facebook post published by Mr Khumalo was the subject of a complaint to the Equality Court by the ANC. That complaint (‘the ANC complaint’) was settled with an apology, a fine and other ancillary relief,” they said.
Judgment has been reserved.