NICOLA MILTZ
The Equality Court ruled last Friday that his vile comments that South Africans ought to treat whites like Hitler treated Jewish people were hate speech.
The court said he was not literally calling for a white genocide, but his words “hurt the nation-building project” and that blacks and whites should be held to the same standard.
Judge Roland Sutherland’s judgement ended a protracted legal process which dealt in depth with the definition of hate speech as set out in Section 10 of the Equality Act.
Sutherland ruled in favour of the South African Human Rights Commission (SAHRC) in its case against Khumalo, declaring his comments to be hurtful, harmful, and a promotion of hatred.
The court ordered him to pay legal costs, and told the National Prosecuting Authority to investigate whether he could be criminally charged.
Khumalo was also ordered to provide a written apology to all South Africans acknowledging that his comments were hate speech. In it, he needed to admit that he was wrong, and that he would never make such remarks again. He was ordered to remove all references to the comments from social media.
Khumalo wrote two posts on Facebook in January 2016. On 4 January, amid a storm over comments made by estate agent Penny Sparrow, Khumalo wrote, “[We should] cleanse South Africa of all whites. We must act as Hitler did to the Jews. I don’t believe any more than is a large number of not so racist whit people. I’m starting to be sceptical even of those within our movement 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 already seen.”
In a subsequent posting, he wrote, “Noo seriously though u oppressed us when u were a minority and then manje [now] u call us monkeys and we suppose to let it slide. 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 [burned] alive and skinned and your off springs used as garden fertiliser.”
Khumalo, who at the time worked as a sports officer for the Gauteng provincial government, said he wrote the posts after Sparrow used the social media platform to liken black people at the beach to monkeys. He said he was “deeply hurt” and in a “state of anger”. The Equality Court fined her R150 000.
Sutherland maintained: “The thrust of this message is that whites should be ostracised, marginalised, excluded, indeed totally ‘othered’, dehumanised, and legitimately be subjected to violence.”
The judge agreed with Khumalo’s lawyer, Stuart Wilson, that the posts couldn’t literally be interpreted as a call for genocide against white South Africans, although he said it “purports to legitimise violence towards whites”.
Sutherland said that whether Khumalo’s comments were hate speech depended on the interpretation of the reader.
Defending Khumalo in his heads of argument, Wilson said Khumalo had experienced direct and indirect racism growing up in South Africa. He called the comments “grotesque”, but said they did not harm anyone. He maintained they could not reasonably be viewed as intending to incite violence and were meant only to respond to Sparrow’s insults.
The ruling said Khumalo’s posts harmed South Africa’s “social cohesion”, and could potentially harm the nation-building project.
Khumalo was brought before the Equality Court in Roodepoort previously over the same comments, when his political party, the ANC, took him to court following his Facebook comments. Without legal representation or providing evidence, he signed a settlement agreeing to pay R30 000 to a charity and to work actively towards helping achieve equality. To date, there has been no proof forthcoming that he has paid the amount.
Sutherland said the R30 000 imposed already was enough, although the court ruled that Khumalo would have to pay the SAHRC’s legal costs.
The Gauteng government put Khumalo through a disciplinary hearing, but allowed him to keep his job after he apologised for his actions.
