Black on black racism: is the k-word not an insult?
The court will have to decide whether it is hate speech if a black person calls another the k-word, in a case involving Investec CEO Fani Titi and former business associate Peter-Paul Ngwenya
Is the k-word still racist when it is used by a black person?
This question is at the heart of a crimen injuria case being brought by Investec CEO Fani Titi against his erstwhile business associate Peter-Paul Ngwenya.
And it is one of the crucial areas of debate about the highly contested Prevention and Combatting of Hate Crimes and Hate Speech Bill, which was approved by cabinet on Tuesday and will soon come before parliament.
Titi and Ngwenya have been involved in a long-running business feud that resulted in Titi obtaining a Protection from Harassment Act order against Ngwenya in the Randburg Magistrate's Court. Last year, The Sunday Times reported that the two former friends had turned against each other in a fight over shares they bought in Gagasi FM and Heart FM, which were worth millions of rands.
Ngwenya is now on trial for allegedly violating that order.
In what is believed to be a legal first, Titi is also pursuing a crimen injuria case against Ngwenya for sending an SMS message to himself “and others” on June 23 2016 in which he referred to Titi as a “QwaQwa k*****r”.Crimen injuria is legally defined as “a wilful injury to someone's dignity, caused by the use of obscene or racially offensive language or gestures”.
The prosecutor in the case, advocate Yusuf Baba, referred to the matter in the trial of convicted racist Vicki Momberg, who suggested that the state was only pursuing her over her video-taped and repeated use of the k-word because she was white.
“We prosecute all cases involving the k-word in this court,” Baba said.
Titi has started testifying in the case, and will face cross-examination from Ngwenya’s lawyers when he returns to court to fight the case later this month.
But a crucial question that still needs to be answered is whether Ngwenya’s identity as a black man may be used as a defence of his alleged use of the k-word.
Or is the word a racial slur regardless of who says it?
It’s that question which has been central to some of the controversy surrounding the Prevention and Combatting of Hate Crimes and Hate Speech Bill.
The bill was initially intended to address the offence of hate crimes, or criminality motivated by prejudice. But, six years after it was first mooted, the offence of hate speech was also included by the bill’s drafters.This inclusion was reportedly motivated by the public outrage over the notorious Penny Sparrow Facebook post, in which the former KwaZulu-Natal estate agent likened black people to monkeys.
The draft bill’s definition of hate speech was soon mired in controversy. It reads:
Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that – (a) advocates hatred towards any other person or group of persons, or (b) is threatening, abusive or insulting towards any other person or group of persons; and which demonstrates a clear intention, having regard to all the circumstances, to – (i) incite others to harm any person or group of persons, whether or not such person or group of persons is harmed; or (ii) stir up violence against, or bring into contempt or ridicule, any person or group of persons,based on race, gender, sex, which includes intersex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism or occupation or trade, is guilty of the offence of hate speech.
Constitutional law expert Phephelaphi Dube says the most recently publicised version of the draft bill would define the alleged use of the k-word by Ngwenya as “hate speech”.
“The draft bill does not distinguish the source of the speech; nor does it distinguish power relations. Further, considering that crimen injuria is defined as the unlawful, intentional mpairing of one’s dignity, then the use of the ‘k’-word constitutes a hate crime in terms of the draft bill.
“Even if both individuals are black, given the historical context of the term, it serves to reinforce the dehumanising historical background,” she said.
Deputy Justice Minister John Jeffery says the latest version of the bill identifies “hate speech” as that which is “harmful or propagates hatred towards a certain group”.
But, he says, exemptions have been created for the use of loaded terms: if they are used in “good faith”, as or part of creative expression, academic or scientific study or in the pursuit of fair and accurate reporting.
Religious groups are also exempt from potential prosecution if they make utterances in line with their beliefs. Crucial, he says, is that the use of terms in these contexts “does not incite violence”.
“The important issue here is: can it be proved that there was an intention to cause harm with the use of the words?”
He said the bill does not identify any specific words as constituting hate speech as “context is obviously important”.