Johannesburg - The defence by freedom fighter-
turned-tycoon Peter-Paul Ngwenya that black people can call each other ka****r without intending to impair the dignity of another is disingenuous and devoid of substance.
The Randburg Magistrate’s Court heard this submission on Wednesday as the State closed its arguments in its crimen injuria case against Ngwenya.
Prosecutor Yusuf Baba told the court that a black person can be held criminally liable for calling another black person with the banned word.
Ngwenya is facing crimen injuria charges for calling his business partner Fani Titi a “QwaQwa k****r”. Titi opened a case in 2016.
Ngwenya admitted to saying these derogatory remarks to Titi in an SMS following a dispute. He testified that the fallout happened after he found out that Titi had “stolen” his shares in a company.
Ngwenya added that Titi’s action aggrieved him the most because he shared the business opportunity with him as a fellow black brother.
Ngwenya alleged that Titi stole his shares and shared them with a white lawyer.
After admitting to calling Titi the k-word, Ngwenya argued there wasn't criminal intent when blacks used the term among each other.
He said he never intended to harm Titi’s dignity, but to protest against his behaviour.
Sentenced to Robben Island in 1985 and released in 1991, Ngwenya - a former Umkhonto weSizwe operative - went on to become a media tycoon post-1994.
Earlier in the trial, Ngwenya told the court: “It has a different meaning when used by black people among themselves. It is used to describe a conduct. I used it in that context.”
But Baba sought to convince the court to find against this defence, saying the law did not ban only whites from using the term.
“It is of course illegal, as the case law is clear that it constitutes crimen injuria,” said Baba.
“It is disingenuous to suggest that the accused really believed that he could say that to Titi without causing a serious insult to his dignity and reputation,” he said.
Titi was hurt by the term, Baba told court.
“Clearly, he was upset when he used the words and used it to cause injury to Titi. He succeeded.
“The accused intended the words to cause reputational injury to Titi, and the words were experienced by Titi to be extremely injurious.”
It was also a weak defence that black can call each the k-word, the court heard.
“The second ‘defence’ is equally devoid of substance,” Baba said.
“It is unimaginable that anyone in the country, and in particular the accused, could genuinely have thought that it was morally and legally acceptable for people of the same race to call the other the k-word.
“It is clear from the evidence of the accused that he well understood that a person committed a crime of crimen injuria when he impaired another person’s dignity.”
Ngwenya’s defence team was to submit its closing arguments on Thursday.