Should we criminalise racism in South Africa?

News that former England Football captain John Terry has been cleared by a UK court of racially abusing fellow footballer Anton Ferdinand after allegedly calling Ferdinand a “fucking black cunt”, led one Twitter commentator to remark that in UK law it now seems to be a valid defence against racial abuse to claim that “some of my best friends are black”.

The question is whether, in South Africa, the case would ever have reached a criminal court. Racism, per se, is not criminalised in South Africa. Neither is racial discrimination. And because members of our police service are flooded with complaints of criminal behaviour, it is unclear how many would actively investigate allegations against others regarding their racist, sexist or homophobic insults against innocent individuals. Moreover, our legislature has not created an individual crime relating to these kinds of insults, so we rely on the common law for guidance in such cases.

If one verbally attacked somebody else one might conceivably be charged with criminal defamation if it could be shown that one unlawfully uttered words intended to injure another person’s reputation. But I would suspect that hurling racial or sexual abuse at somebody because the person happens to be black or gay would not in and of itself be viewed as injuring the dignity of somebody else. Today we celebrate the fact that some of us are gay or black, so when somebody tries to lower your reputation by calling attention to this fact in an abusive way, he or she is merely injuring his or her own reputation in the eyes of any reasonable person. This view was taken by the Constitutional Court in the Dey case relating to suggestions that somebody was gay.

But there is another, far more potent, avenue open in the criminal law to deal with those who hurl insults at somebody else, an avenue that is increasingly being reverted to by those involved in domestic disputes. (I am not sure that the criminal law is the best way to deal with domestic disputes in which one spouse or partner insults another in the heat of an argument. Often a social worker, a couple’s councillor or a divorce lawyer would do more good than involving the police and pursuing a crimen iniuria charge against one’s spouse because he or she called you ugly names.)

One can have somebody else investigated and charged with  crimen iniuria if they unlawfully and intentionally impair your dignitas. A person’s dignitas is affected if either publicly or privately he or she is subjected by another person to offensive and degrading treatment or when he or she is exposed to ill will, ridicule, disesteem and contempt.

This kind of attack will only attract criminal sanction if it is deemed to be unlawful and it will only be deemed to be unlawful if the insult to the dignity of another person is so gross as to evoke outrage in the minds of reasonable people imbued with the values of openness and freedom and a respect for the right to freedom of expression contained in the Constitution. The context will be important. It would be far more difficult for a politician or some other public figure to claim that insults or ridicule directed at him or her would be unlawful, than it would be for somebody who has not willingly placed his or herself in the public sphere. If, on the other hand, the insult has an obviously derogatory racist, sexist or homophobic content, it would be difficult to escape criminal sanction.

There is therefore no doubt that if somebody uses highly derogatory racial, sexist or homophobic terms to insult somebody else, he or she will leave him or herself open to prosecution for crimen iniuria. One example from our law reports can be found in the 1999 case of S v Steenberg in which the (white) accused greeted the (black) complainant in a Bar by saying “Good afternoon, kaffir”, in Zulu and added to that, in Zulu, that he (the appellant) is a “shaven white pig”. On appeal the Natal High Court (as it then was) confirmed the conviction of the appellant on a charge of crimen iniuria, holding that a determination of whether an iniuria warrants a conviction on a charge of crimen iniuria entails a value judgment.

Two important points were made by the judge in this case. First, in each case one has to focus on the prevailing norms in our society which, according to the court, required that a person who utters the word “kaffir” with the necessary intention, be convicted of crimen iniuria. (I would assume that this means that where a person insults a woman by calling her a “bitch” or insults a gay man by calling him a “moffie”, he or she would open him or herself up for criminal prosecution. Second, the judge stated that in order to prove the commissioning of the crime the state would have to prove that the individual had the intention to hurt the dignitas of the victim. But the intention could take the form of the subjective foresight by the accused of the consequences (hurt and humiliation in this instance) of his or her actions and acceptance that these consequences might ensue.

The important point to make is that – unlike with the hate speech provision of the Equality Act, which does not create a criminal sanction – one could only be found guilty of crimen iniuria for launching a racist, sexist or homophobic attack, if the attack was aimed at a specific victim or victims. A person who made general racist statements not aimed at anyone in particular would not normally be found guilty of crimen iniuria, although he or she might be found to have uttered hate speech in terms of the Equality Act.

As an example, an individual who uttered broad racist generalisations about all black people could not be charged with crimen iniuria. Neither could anyone who sang a song like dubula ibhunu. It is therefore not a criminal offense in South Africa to be a racist (or a sexist or a homophobe). It only becomes a criminal offense when one displays the intention to hurt a specific person because of his or her race, sex or sexual orientation in an unlawful way.

I know this is a controversial point, but I am not sure the criminal law is the best way to deal with racist, sexist or homophobic insults or with general racist, sexist or homophobic beliefs. Naming and shaming those who expose themselves as racists, sexists or homophobes and ensuring that there are negative financial and other consequences for them after they make racist, sexist or homophobic statements (for example, by ensuring they lose their jobs, are socially shunned by right-thinking people or lose those lucrative modelling contracts) seem to me a more effective way of making people reconsider their prejudices.

Besides, in modern day South Africa much of the racism, sexism and homophobia are more subtle than the brutal hurling of racist, sexist or homophobic insults. Many People have been trained not to call others “kaffir” or “moffie” – even as they continue to think that most black people and gay men and lesbians are intellectually, morally and in any other way inferior to themselves. People do not even know how filled with prejudices they are (“some of my best friends are black”) and are often shocked when confronted by others about their prejudices. They deny their prejudices and claim to have never harboured any racism – even as they patronise others.

The criminal law is not going to address these insidious forms of prejudice. In my view, naming, challenging, and debating these forms of prejudice, and continuously shaming those who display it might stand a better chance of changing people’s behaviour and attitudes. But then again, there is something emotionally satisfying about seeing somebody convicted of a criminal offense for hurling racist insults at somebody else, so perhaps the usefulness of the occasional criminal crimen iniuria case should not be underestimated. It would be interesting to hear what readers think.

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