Use of K word is puzzle for court to solve
Is the K-word still racist when used by a black person?
It is this question that is at the heart of a crimen injuria case being brought by Investec CEO Fana 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 Combating of Hate Crimes and Hate Speech Bill, which was approved by the 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 rand.
Ngwenya is now on trial for allegedly contravening that order. In what is thought to be a legal first, Titi is also pursuing a crimen injuria case against Ngwenya for sending an SMS to himself “and others” on June 23 2016 in which he referred to Titi as a “QwaQwa k ***** r”. Peter-Paul Ngwenya is on trial in a case relating to the sending of an SMS.
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”.
Titi has started testifying and will face cross-examination from Ngwenya’s lawyers when he returns to court to fight the case later in March. 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?
The Prevention and Combating of Hate Crimes and Hate Speech Bill was initially intended to address the offence of hate crime or criminality motivated by prejudice. But six years after it was first mooted, the offence of hate speech was also included by the drafters of the bill.
Constitutional law expert Phephelaphi Dube said the most recently published 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 was defined as the unlawful, intentional impairing of one’s dignity, then the use of the K word constituted a hate crime in terms of the draft bill.
“Even if both individuals are black, given the historical context
But exemptions had 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 exempted from potential prosecution if they make utterances in line with their beliefs. It was crucial, he said, 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?”
Jeffery said the bill does not identify any specific words as constituting hate speech because “the context is obviously important”.