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Victims of racism find it difficult to prove claims

While hundreds of Stellenbosch University students protested over an alleged racist incident at Huis Marais, experts warn that it will not be easy to prove the racism claim. Picture: Ayanda Ndamane / African News Agency (ANA)

While hundreds of Stellenbosch University students protested over an alleged racist incident at Huis Marais, experts warn that it will not be easy to prove the racism claim. Picture: Ayanda Ndamane / African News Agency (ANA)

Published May 22, 2022

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WHILE the furore over the alleged peeing incident at Stellenbosch University continues, investigators face a mammoth task in proving that the incident was racist, warn experts.

The alleged urine incident sparked outrage after Babalo Ndwayana, a first-year agriculture student, filmed Theuns du Toit urinating on his desk, books and laptop.

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The university has launched an investigation and the South African Human Rights Commission (SAHRC) will also probe the incident.

In a Facebook post, Ndwayana’s father, Mkuseli Kaduka, rubbished claims of reconciliation with Du Toit’s family. “I’m very committed to seeing this fight through to the end. If I come out of this with anything it’ll be the dignity of my child restored and the perpetrator facing what’s due to him.”

SAHRC commissioner responsible for education, André Gaum said the probe was not expected to take long as there was a “limited number” of witnesses, including the victim and the alleged suspect.

“We are still trying to make contact with the alleged victim. We will then put the allegations in a formal letter to the alleged suspect,” Gaum said.

So how would racism be proven in the matter?

Gaum said racism was commonly defined as “prejudice, discrimination, antagonism of members of a particular racial or ethnic group”.

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“It is easy to make an allegation of racism. It does cause damage to an alleged perpetrator and therefore it is important to first establish the facts before reaching a conclusion.

“We look at unfair discrimination on a prohibited ground, if there’s differentiation between someone belonging to a specific group and another group. There’s a presumption that discrimination is unfair and the burden of proof then swings around and the alleged perpetrator needs to show that the discriminations is fair.”

Gaum said in some cases, including the Brackenfell High School matric ball ruckus, the facts led to racism being ruled out after the SAHRC launched an investigation into the exclusion of black pupils from a private event organised by white parents.

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“Facts play a key role,” he said.

Regarding the Stellenbosch incident, Gaum said the allegations might result in a number of criminal law offences.

“One might be successful with a charge of crimen injuria but it depends on the facts of the matter. If there’s a racist attack on someone, obviously it amounts to assault but could also include hate speech, unfair discrimination and criminal offence at the same time,” Gaum said.

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He said the commission was working with various bodies on systemic interventions to address racism and other forms of unfair discrimination based on prohibited grounds and sexual orientation in educational institutions.

South Africa and other countries such as the UK and the occupied territories are still grappling with issues of racism.

Political analyst Sanusha Naidoo said racism remained an explosive and sensitive issue. Key to the Stellenbosch matter was that the alleged victim had captured evidence.

“But the question is what message will be sent out on how to treat fellow human beings. We are one, and not distinct from each other,” said Naidoo.

She said the challenge with proving racism lies with the person who had experienced the act.

“The person who commits the so-called racist act has very little burden of proof,” she said.

Naidoo said racism entrenched in society caused complexities and complications in the commissions of inquiry and other investigations.

While hundreds of Stellenbosch University students protested over an alleged racist incident at Huis Marais, experts warn that it will not be easy to prove the racism claim. Picturer: Ayanda Ndamane / African News Agency (ANA)

“The other challenge is do you prove it in terms of the reference of a commission of inquiry or along the lines of the accusation.

“It’s not something we can put in a machine and define. It’s based on a personal experience and the interpretation of how the complainant felt at the time. It’s very much the identification and the identity of the other. It’s a personal viewpoint. The challenge is that we are constantly racialised according to backgrounds.”

She added that some people experienced “racial profiling” because of their skin colour. “The onus of proof is very difficult if you are accusing the other person on the basis of the benchmark that we use to define racism as a hate crime, or as an infringement of basic or universal human rights.”

Gaum said the commission was involved in getting universities to develop a compulsory human rights module for students and the steering committee of vice-chancellors of universities to develop a diversity and sensitivity programme for students.

The SAHRC was also in discussions with the Basic Education Department on the development of diversity and sensitivity programmes in schools.

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