Magistrate blasts Kohler Barnard's 'Stalingrad strategy' in racism case

DA MP Dianne Kohler Barnard was criticised by a magistrate for failing to prepare for a case at the Equality Court on Thursday in which she is accused of making discriminatory utterances. 

It was a bruising 95 minutes in which both Kohler Barnard and her advocate, Michael Tsele, were criticised for appointing an advocate on the eve of the hearing and failing to file a responding affidavit.

"I have read a little bit on strategy and to the little bit I've read, there is something called the Stalingrad strategy … it would appear to me that your client has adopted that strategy in dealing with this matter," said an angry magistrate Daniel Thulare as Tsele proposed that the case against Kohler Barnard be referred to an alternative dispute resolution forum.

Kohler Barnard was taken to the Equality Court by DA staff member Louw Nel in February for allegedly making discriminatory utterances during a workshop with staff members in the party's offices in parliament a year ago.

According to Nel, who is the DA's director of parliamentary operations, Kohler Barnard's utterances were xenophobic, sexist and racist in nature.

She allegedly told the hour-long workshop that:

• Farm murders had decreased since the removal of then Zimbabwean president Robert Mugabe, as Zimbabweans had returned home.
• Women had themselves to blame and were stupid for being scammed as they entered relationships with Nigerian men who slept with them and solicited money under false pretences; and
• Black children were killing "whiteys" with stones thrown at vehicles from bridges, never mind the fact that coloured and Indian people were also being killed. She allegedly also questioned why these "kids" were not in school.

The Equality Court sat on Thursday to determine whether it was the proper forum to hear the matter or whether it should be referred to a different body, institution, tribunal or forum.

Nel, who represented himself, argued for the court to hear the matter saying the utterances allegedly made by Kohler Barnard were not part of a political debate, but discriminatory utterances made in the context of an otherwise rational discussion surrounding matters of safety and security.

In his affidavit, Nel said the alleged utterances caused great hurt and offence to him, and to his colleagues with whom he had a conversation at the conclusion of the workshop.

He said utterances suggesting that Zimbabweans were somehow predisposed to murder were especially hurtful and offensive to him as his children had a Zimbabwean mother and some of his colleagues were born in Zimbabwe.

"The utterances that were made by Ms Kohler Barnard had no factual basis. As far I am concerned she was simply a member stating her prejudices ... I don't think it was political debate," he told the court on Thursday.

Nel argued that there was no space for a political debate in the context of the workshop as it was attended by employees who were employed to support DA MPs in parliament, positions which could also be interpreted as working for MPs.

He said Kohler Barnard was one of two MPs who were present at the workshop, the other being Zak Mbhele. Five DA staff members including himself were also part of the meeting.

"In my contention, they were discriminatory in nature on the basis of ethnicity, on the basis of gender and on the basis of race," he said.

Tsele said Kohler Barnard was disputing Nel's version on two bases – factually and that his version was a gross mischaracterisation of what Kohler Barnard said, and in some instances simply false.

He said Kohler Barnard believed that her comments were taken out of context, in some instances distorted but that she was open to a process that would not be adversarial and where "emotions are put aside and people can sort out their differences which seemed to be political in nature".

He suggested "a suitable mediator" agreed upon by both parties should hear the matter, adding that the Human Rights Commission was one such suitable institution.

Thulare blasted Kohler Barnard for not filing a responding affidavit despite being served papers on February 23. He criticised the DA MP for being "almost dismissive" of the case and Nel's "serious accusations".

He declined Tsele's request to refer the matter to an alternative dispute resolution forum, asking if Kohler Barnard was "dismissive" to a court, how much more would she be to another institution. He also declined a request to postpone the case to May 9.

"In the absence of a response under oath by Ms Barnard received by this court, on what basis do you submit that I can take any effectual averment from yourself from the bar?

"What I have before me that amounts to evidence is what Mr Nel says. Is that the disposition of a person who is amenable to the course of action that you are talking to?" he said.

The court instructed Kohler Barnard to file responding papers by April 25 and postponed the case to May 3.