Why do we not prosecute racists?
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This country seems unable to deal with hate speech and demeaning comments, writes Pinky Khoabane.
When South Africans go to the polls on May 7, it will be exactly two years and four days since Kenneth Sinclair unleashed his hateful vitriol against black South Africans on Facebook – and was able to get away it.
His utterances, and the resultant response of Chapter 9 institutions, bring sharp scrutiny on this country’s inability to deal with racism.
Unlike England, for example, where racism is criminalised and those who dare to rant publicly are dealt with speedily and with efficiency, South Africa – as with almost everything it negotiated during Codesa – has accommodated racists by developing institutions which neither have the will nor the inclination to deal harshly with those who inflict the pain of racism and undermine the dignity of others in the process.
On May 3, 2012, Sinclair, a student at the Cape Peninsula University of Technology, opened his tirade thus: “Seriously, seriously, seriously had enough of the blacks in this country. Arrogant f****** swines, and I will make it my Facebook status because I want THEM ALL to know. You are all f*** all without whites, you would still be in your little mud huts…”
He didn’t stop there, making his hatred against blacks very evident on a platform which would allow him the reach: “If you aren’t a racist, go spend a day at Cape Tech, in town, you will wanna join the KKK when you are done. F****** brain dead monkeys.”
Sinclair’s reference to the Ku Klux Klan – a far-right extremist group that advocates white supremacy and has historically expressed its views through terror attacks on and the murder of black people in the US – stood to incite violence against blacks and constitutes hate speech.
In fact one of those responding to Sinclair’s update, a certain Michael Kallis, responded: “Sometimes I just wanna pull out a f****** pump- action shot gun and do the deed. F***.”
It will also be two years and a few months since members of the extremist far-right Afrikaner Weerstandsbeweging chanted “Bobbejaan klim die berg” at blacks who were outside court during the murder trial of the organisation’s leader, Eugene Terreblanche.
This was a few months after Judge Colin Lamont had ruled against the singing of the struggle song, Dubul’ iBhunu (Shoot the boer), in favour of Afriforum, another racist formation that masquerades as a civil rights movement.
Interestingly, the same Afriforum didn’t lodge a complaint against AWB, even though in an e-mail to me, Kallie Kriel, its leader, confirmed that the chants were racist.
The DA, which had also been vocal and had previously lodged hate speech complaints against ANC representatives, was unsurprisingly quiet.
A question I lodged on their website, asking whether they would be laying a complaint against the AWB, was not even answered.
I lodged complaints of hate speech against the AWB and Sinclair with the South African Human Rights Commission (SAHRC) and the Equality Court.
I also lodged a case of crimen injuria against Sinclair with the SAPS.
I’ll deal with the case of Sinclair first, to indicate the ineptitude of the Chapter 9 institutions tasked with addressing this evil crime.
As in all cases lodged with the SAHRC, I was requested to provide the evidence and motivate why the utterances fitted the crime of hate speech.
Now, let’s for a minute think of an illiterate person who was a victim of racism and his or her ability to posit such an argument.
The requirements necessary for SAHRC to deal with the matter immediately rule out this person. I needed the assistance of attorneys to postulate an argument that showed hate speech.
On June 27, 2012, the SAHRC invited me to a meeting with “two respondents”.
Their names were withheld and the venue was not given.
I heard from the SAHRC Western Cape region only when I complained to the commission’s chief executive, Kayum Ahmed.
The SAHRC referred me to a media statement on the matter and informed me that Sinclair had “to date not come forward to engage with the commission”.
The letter referred me to the provincial manager and chief executive if I wasn’t happy with the response.
The press statement spoke of two respondents who had shown remorse, and their penalty was community service.
I was the complainant in the matter and I had not been given this information before the press statement.
In my response to the letter, I asked for details of this community service – what it entailed and for how long. Those details were not forthcoming.
The commission has failed to date to expand on the community service.
A year later, Sinclair racially attacked an elderly lady.
I wrote to the SAHRC commending them for their wonderful work in dealing with Sinclair and his racism.
Only then did I learn that Sinclair had finally come forward and the commission had imposed community service, the details of which were not forthcoming.
Once again, I was told to appeal this decision if I wasn’t happy by engaging with another process of the SAHRC.
It is important to note that I had until that moment not been informed of any of the processes against this racist, a requirement of the commission.
The Western Cape region of the SAHRC promised to send me an official letter and this has not happened.
In the Equality Court in Randburg, the court initially complained that it could not serve the complaint on the accused because I was in Johannesburg and he was in the Western Cape.
I offered to pay for the courier service, but this did not compel the court manager, Natasha Naidoo, to send the complaint. Naidoo ignored my e-mails and telephone messages until I turned to the Constitutional Court.
There I spoke to advocate Holland Xolisani Holland. Within hours of receiving an e-mail from the Concourt requesting an explanation, Naidoo told me that she had sent the complaint to the Western Cape’s Equality Court.
She assured Holland she would do a follow-up and revert back with feedback.
A year later, having ignored the public protector to whom I turned when my correspondence to the Concourt, the Department of Justice and Naidoo went unheeded,
Naidoo now says she is not dealing with this matter because the SAHRC is dealing with it.
Didn’t Naidoo initially say she had sent the complaint to the Western Cape?
The public protector’s Zingisa Zenani, who had since October last year not bothered to give me feedback on the matter, suddenly informed me of this new development from Naidoo this week.
The SAPS has not bothered to take up the matter either.
In the matter of the AWB, the SAHRC had initially demanded proof which comprised the media statements, which I duly submitted.
Six months later, having complained to chief executive Ahmed, they attributed the delay to a complaint lodged by another right-wing group which was supposedly similar, but was against blacks.
Two years later, the proof required from me has shifted to the ridiculous. I was given 14 days to provide names of court officials, among others, the failure of which led to the closure of the case.
And in the usual dismissive approach of the SAHRC, if I’m not happy, I can appeal.
Sinclair’s statements are unlawful, hateful, hurtful and propagate the belief that his race is superior to Africans, all of which is clearly in violation of sections of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
The AWB’s racist chants are hate speech, as demonstrated by Judge Lamont’s judgment against the then ANC Youth League leader, Julius Malema.
In another country, where racism is criminalised, these racists would have served time behind bars.
Not in South Africa, of course, where despite the history of institutionalised racism, racists are allowed to roam freely.
* Khoabane is a writer, author and columnist.
** The views expressed here are not necessarily those of Independent Newspapers.