SUNDAY TIMES - Jail the racist
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Sunday Times News By QAANITAH HUNTER, THANDUXOLO JIKA, JAN-JAN JOUBERT and BIANCA CAPAZORIO, 2016-01-10

Jail the racist

Students attend the removal of the Verwoerd commemorative plaque from a building on the University of Stellenbosch campus. In the foreground is the university’s chief operating officer, Professor Leopold van Huyssteen.
Image: ADRIAN DE KOCK

We will jail racists! This is the government's hardline approach to the racism storm that engulfed South Africa this week.

President Jacob Zuma yesterday also lashed out at racists, saying that they had no place in the country and were "living in the past".

During the week, several prominent South Africans were punished for perceived outbursts of racism on social media, with celebrity DJ Gareth Cliff being booted off the Idols South Africa judging panel and Standard Bank economist Chris Hart being suspended.

Deputy Minister of Justice John Jeffery said the government was already working to add hate speech and racist behaviour to the current bill on hate crimes, which will now be redrafted and released for public comment.

"The original intention was not to criminalise hate speech, which can already be dealt with as a civil matter in the Equality Courts ... but in light of the current developments we felt, as justice, we need to look at that.

"Obviously with a crime there are various forms of punishments ... fines, restorative justice ... [that] may be more appropriate, but those things will have to be looked at . . . but not excluding jail," said Jeffery.

This week, the ANC in parliament said it was considering the German example of criminalising the promotion of Nazism and Holocaust denial.

In Germany, section 130 of the Volksverhetzung (incitement of the people) legislation makes it a crime to incite hatred against a national, racial, religious or ethnic group, or make statements that "assault the human dignity" of such groups. Offenders may receive jail sentences of between three months and five years.

Zuma called for a national debate on race.

Speaking at the ANC's 104th birthday celebrations in Rustenburg yesterday, he said: "We have travelled a long way to finding each other as South Africans. The ANC calls on all people of this country to work together and defeat the demons of racialism and tribalism.

"It is clear that there is a tiny minority that still harbours a desire for separate amenities and who idolise apartheid-era leaders who made our country the skunk of the world. These people do not represent the true character of the new South Africa. They are living in the past."

The reference to those idolising apartheid-era leaders was a veiled swipe at the DA following MP Dianne Kohler Barnard's sharing of a Facebook post praising apartheid leader PW Botha.

The move to seek to criminalise racism comes after a number of racist incidents this week, sparked by a reference to black people as "monkeys" by former KwaZulu-Natal estate agent Penny Sparrow.

Sparrow's Facebook post about black beachgoers caused anger among many. Complaints were lodged with the South African Human Rights Commission and criminal cases were opened against her.

It was not only Sparrow's post that sparked the anger but also a tweet by economist Chris Hart, who said that "25 years after Apartheid ended, victims are increasing, along with a sense of entitlement and hatred towards minorities".

Hart's statement resulted in his suspension by his employer, Standard Bank.

Idols judge Cliff was fired from the show after his tweet on the Sparrow saga upset many. Cliff retweeted a poll that asked if racist social media utterances should be criminalised, adding: "People really don't understand free speech at all."

The Gauteng sport, arts, culture and recreation department suspended an employee, Velaphi Khumalo, for his Facebook post calling for black South Africans to do to white people what "Hitler did to the Jews".

And eNCA news anchor Andrew Barnes was castigated for mocking Basic Education Minister Angie Motshekga's English pronunciation.

Even though Zuma did not refer to these incidents directly in his speech, he made it clear that such behaviour would not be tolerated.

Currently, racist and offensive speech falls under crimen injuria, which is less punitive.

Justice Minister Michael Masutha said the proposed bill would have to strike a balance between discouraging hate speech and allowing for free speech.

"The abuse of free speech is as damaging as other forms of antisocial behaviour ... How do we regulate that kind of behaviour without eroding free speech?" he asked.

"Racism has been outlawed under our constitution. [We have to look at] how we criminalise racist behaviour," Masutha said in an interview with the Sunday Times.

Hugh Corder, professor of public law at the University of Cape Town, said the punitive measures to be taken against hate speech and racist behaviour would depend on how parliament drafted the legislation.

"It could include custodial sanction [imprisonment], correctional supervision or the option of a fine," said Corder.

ANC caucus spokesman Moloto Mothapo said jailing racists would be an effective tool in dealing with the issue. He pointed to "the prevalence of racism and apartheid denial 22 years after democratisation" and said: "Yet no one has been criminally charged or has served jail time." This, he said, showed "that current legislation is not sufficient".

Lawson Naidoo, executive secretary to the Council for the Advancement of the South African Constitution, said the free speech and expression guaranteed in section 16 of the constitution flowed from the founding provisions of human dignity, equality, human rights and freedom.

Naidoo called on South Africans to use existing avenues, including the Human Rights Commission and the Equality Court, to deal with culprits.

"Criminalising racism is the easy option. Passing a law will not fix the problem. In fact, it may well make justice slower and more expensive than through the Equality Court, which is less formal, easier to access, faster and cheaper - exactly because it is intended to provide speedier recourse to the vulnerable and the poor," said Naidoo.

He agreed that there was much in common with the German situation, but said a stronger deterrent was peer pressure and the ostracising of racists by society.

"It is a pity that it followed on such hurtful incidents, but the way in which South Africans have condemned and distanced themselves from offensive behaviour has been a strong positive in the past week," he said.

hunterq@sundaytimes.co.za, jikat@sundaytimes.co.za, joubertj@sundaytimes.co.za, capazoriob@sundaytimes.co.za