NICOLA MILTZ
Khumalo, an ANC member who is employed by the Gauteng department of sports, arts, culture, and recreation as a sports promoter, apologised unconditionally for the comments he made on Facebook on 4 January 2016.
“I admit that my comments were hurtful not only to white people, but also to black people. My comments were wrong, and I undertake not to utter them again in private or public spaces,” Khumalo wrote in a public statement.
“I accept the decision of the Equality Court that the comments constituted hate speech. I will not repeat them, or any other remarks that contravene Section 10 of the Equality Act.”
He stressed that his comments were fuelled by the events of the time, and that he “should have known better”.
Mark Oppenheimer, an advocate acting for the South African Human Rights Commission (SAHRC), told the SA Jewish Report this week that the judgement was very important. He explained that it cleared up ambiguities in the law as to the Equality Court’s requirements for hate speech.
“For example, in the Penny Sparrow case, the court found that you needed only one of the three requirements for hate speech listed in the Act. The court found she committed the act of hate speech because her words were hurtful.”
The Khumalo judgement says that it is now required that words must be hurtful, propagate hatred, and be incitement to harm or harmful directly. “All three must now be present to constitute hate speech,” said Oppenheimer.
Explaining further, he said, “So there is a higher threshold for what constitutes hate speech, and this makes it a pivotal judgement. It gives much more clarity as to what constitutes genuine hate speech as opposed to speech that is merely hurtful. The judgement is significant for freedom of speech because it narrows the scope for declaring hate speech.”
Oppenheimer said the case was also a victory for the rule of law, and the fundamental rights of individuals, whatever their race, to be treated equally before the law. He explained that the court rejected the argument that you cannot have hate speech directed at whites, only at blacks.
Back in 2016, Khumalo posted on a Facebook group called Political Debate SA amid a storm over estate agent Sparrow’s hateful comments.
He 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.”
In his apology, Khumalo said he wrote the posts after Sparrow used the social media platform to compare black people at the beach to monkeys. He said he was “deeply hurt” and in a “state of anger”.
Referring to Sparrow’s remarks in his apology, he said, “Those remarks made me angry. I responded in kind. I accept that I was wrong to do so. I did not intend to harm anyone. I was hurt and angry.”
Khumalo said he accepted the Equality Court’s decision that it was not what he intended that mattered, but whether the remarks might reasonably have been understood to be intended to damage the nation-building project and other white people.
Khumalo said as a sign of respect for the rule of law, he had instructed his lawyers not to appeal any aspect of the Equality Court’s judgement.
“I would also like to urge my fellow activists who interact [with] and or manage the Facebook pages Political Debate SA and Independent Thinkers not to allow such platforms to deteriorate into a racists’ ranting page,” he added in his apology.
“I am sure that the purpose of the groups is to engage frankly. However, there is a difference between frank talk and racism. I clearly crossed that line. I hope others in future will take my case as an example, and refrain from making hateful comments. Unfortunately, remarks that are as bad or worse than anything I said are still made on that page on a regular basis. This must stop.”
The lengthy and highly technical judgement delivered last month by Judge Roland Sutherland brought to an end the protracted legal proceedings 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 SAHRC in its case against Khumalo, deeming his comments to be hate speech.
Sutherland declared that Khumalo’s comments were hurtful, harmful, and promoted hatred, and thus constituted hate speech.
The court ordered Khumalo to pay court costs, and told the National Prosecuting Authority to investigate whether he could be charged with a crime. Khumalo was ordered to provide a written apology to all South Africans acknowledging that his comments were hate speech, that he was wrong, and that he would never make such remarks again. He was ordered to remove all references to the comments off social media.
The South African Jewish Board of Deputies (SAJBD) this week welcomed the unconditional apology by Khumalo for his hate-filled comments in 2016.
National Director Wendy Kahn told the SA Jewish Report, “It is important that Mr Khumalo has taken accountability for his offensive words, and that he is adhering to the judgement of the Equality Court. We are encouraged that his apology has been made to South Africans as the consequences of hate have an impact on all of us in our society.”
She said apologies in any situation where there have been hurtful and hate-filled remarks are appreciated.
Over the years, the SAJBD had been involved in many situations where anti-Semitic comments had been made, and the perpetrators had refused to take responsibility for their hate. In some cases, the SAJBD had pursued these matters for years.
“There have been several successful mediations that have led to understandings that have resulted in genuine apologies, positive outcomes that have educated and changed behaviours,” Kahn said.
