Picture: 123RF/EVEPAR5
Picture: 123RF/EVEPAR5

The high court in Johannesburg declared on Friday that Velaphi Khumalo’s comments that blacks should do to white people what “Hitler did to the Jews” amounted to hate speech.

The court interdicted Khumalo from repeating the comments  and ordered him‚ if he had not already done so‚ to remove all references to the utterances from any social media or other forms of public communication.

The court also ordered that Khumalo publish a written apology to all South African citizens acknowledging that the comments were hate speech; that he was wrong to say them; and that he undertook to never utter any remarks prohibited by the Equality Act.

Khumalo was ordered to pay the costs of the South African Human Rights Commission (SAHRC)‚ which was the complainant in the matter.

On January 4 2006‚ Khumalo published a number of comments on the internet‚ including: “I want to cleans [sic] this country of all white people. We must act as Hitler did to the Jews.” He also said that “white people in SA deserve to be hacked and killed like Jews”.

The high court had to deal with the fact that the SAHRC was the second complainant against Khumalo; the ANC had also laid a complaint in the Equality Court sitting in the Roodepoort magistrate’s court.

In the Equality Court case‚ which was concluded in February last year‚ Khumalo was found guilty and ordered to pay R30‚000 towards a charity organisation identified by the ANC. When the matter was heard by the high court in Johannesburg in June‚ Khumalo’s lawyer argued that he had paid his dues and should not be made to pay or apologise again.

Inciting harm

“Mr Khumalo explained himself‚ apologised in affidavits in two courts. He has received a final warning from his employer; been reprimanded by his employer; received training; and has been cast into a criticising public eye. He has been ordered to pay monies‚” Stuart Wilson argued in June. Judge Roland Sutherland said in his judgment on Friday that the SAHRC’s complaint should be adjudicated despite the earlier ruling.

He said the issue for decision was whether Wilson was correct in submitting that Khumalo’s utterances were mere hyperbole and did not constitute incitement to cause harm. Sutherland said the test for hate speech was whether Khumalo’s utterances could reasonably be construed to demonstrate a clear intention to “incite harm”.

He said that what Khumalo did was to invoke the 20th century’s worst human tragedy to colour his rage at white people.  Khumalo proclaims his opinions [that] all whites are untrustworthy because they‚ so he believes‚ all harbour pejorative views about blacks‚” the judge said.

Sutherland noted that‚ according to Khumalo‚ white people were so despicable that they deserved the same fate as the Jews killed during the Holocaust. Sutherland consequently found that Khumalo’s comments did amount to hate speech.

He said it would have been preferable to have all complaints against Khumalo adjudicated in a single, consolidated proceeding‚ but that this case showed that different aggrieved persons can refer complaints to different courts.

Sutherland said he considered making a directive that the SAHRC be served with a copy of every complaint. “This‚ however‚ would be burdensome‚ and the SAHRC has not expressed a view that such a procedure is appropriate‚ given its resources.”