Nair plays race card

Post - - FRONT PAGE - KAILENE PILLAY

HAWKS in­ves­ti­gat­ing of­fi­cer, War­rant Of­fi­cer Anuresh Lutchman, who tes­ti­fied in the bail ap­pli­ca­tion of Kessie Nair, has been la­belled as “dis­hon­est and insane”.

In an af­fi­davit, Nair la­belled War­rant Lutchman’s tes­ti­mony as “ma­li­cious and ly­ing un­der oath”.

Nair faces charges of crimen in­juria af­ter he called Pres­i­dent Cyril Ramaphosa the k-word in a video that went vi­ral.

Mag­is­trate Ncumisa Gcolotela had ruled that Nair would un­dergo men­tal eval­u­a­tion at the Fort Napier Hos­pi­tal in Pi­eter­mar­itzburg. Chris Gounden, act­ing on be­half of Nair, ar­gued his client should be granted bail un­til his ad­mis­sion into hos­pi­tal, which is only ex­pected in April. Nair ac­cused the State of wast­ing re­sources by hav­ing the Hawks in­ves­ti­gate a “triv­ial case”. He said the of­fence was equiv­a­lent to uri­nat­ing in pub­lic.

Gounden ar­gued that Nair “is be­ing per­se­cuted be­cause he’s In­dian”. The mat­ter was ad­journed to Oc­to­ber 17 for a de­ci­sion on the bail ap­pli­ca­tion.

A SELFIE video rant landed Kessie Nair in hot wa­ter. Nair faces six counts of crimen in­juria and two of in­cite­ment to pub­lic vi­o­lence af­ter record­ing him­self spew­ing racist lan­guage at Pres­i­dent Cyril Ramaphosa.

He has since apol­o­gised to the pres­i­dent.

What is crimen in­juria, and why is it be­ing used in this in­stance?

Crimen in­juria is a sup­ple com­mon law of­fence that has been ap­plied to a di­verse ar­ray of con­duct. It’s a unique fea­ture of South African crim­i­nal law and fo­cuses on the pro­tec­tion of dig­nity and pri­vacy rather than the pro­tec­tion of rep­u­ta­tion, which is en­com­passed by the law of defama­tion.

It’s de­fined in South Africa as “un­law­fully and in­ten­tion­ally im­pair­ing the dig­nity or pri­vacy of an­other per­son”.

The early recorded cases tended to in­volve in­ci­dents of pri­vate or pub­lic in­de­cent ex­po­sure and in­va­sion of pri­vacy, es­pe­cially cases in­volv­ing what’s col­lo­qui­ally termed “peep­ing Toms”.

Sub­se­quently, the crime was also ap­plied to de­mean­ing con­duct and of­fend­ing words. This in­cludes the deeply racist and deroga­tory term “k **** r”, which was cen­tral to an­other re­cent high-pro­file case of crimen in­juria. A woman named Vicki Momberg was sen­tenced to three years in prison (one of which was sus­pended) for her racist abuse of black po­lice of­fi­cers at a crime scene. This was caught on cam­era.

The sever­ity of Momberg’s sen­tence caught head­lines: it’s be­lieved to be the first case re­sult­ing in a sub­stan­tial prison sen­tence for racist ut­ter­ances alone.

Crit­ics lauded the mag­is­trate in Momberg’s case for tak­ing a zero-tol­er­ance ap­proach to racism.

In Nair’s case, too, there has been a swift and loud pub­lic out­cry for a harsh penalty.

But does a zero-tol­er­ance ap­proach nec­es­sar­ily mean harsher penal­ties? Is it a good prece­dent to use prison for harm­ful words alone rather than harm­ful ac­tions? Momberg’s sen­tence is be­ing ap­pealed; this is due to be heard next month.

The out­come of this ap­peal is bound to have an im­pact on Nair’s case should he be con­victed. So what can be learnt from pre­vi­ous sim­i­lar cases?

Even though the use of the word “k **** r” is con­sid­ered one of the most se­ri­ous forms of ver­bal crimen in­juria, the courts have been re­luc­tant to hand down prison sen­tences to such con­vic­tions.

In one in­stance, a prison sen­tence for a man who di­rected the word at a black traf­fic of­fi­cer was over­turned on ap­peal.

Part of the rea­son for the ap­peal judge’s de­ci­sion was that “nei­ther (the de­fence) nor (the State) were able to re­fer us to any de­ci­sion of the High Court in which an ef­fec­tive term of im­pris­on­ment was im­posed or con­firmed on re­view or ap­peal in a case of crimen in­juria of this na­ture”.

Ar­guably, there is sound jus­ti­fi­ca­tion for the court’s re­luc­tance to hand down prison terms for ver­bal crimen in­juria. Prison is ex­pen­sive for so­ci­ety. It costs the tax­pay­ers over R100 000 a year to house an in­mate in prison.

That money could be go­ing to ed­u­ca­tion, em­ploy­ment ini­tia­tives and other so­cial ser­vices to help pre­vent of­fend­ing in the first place.

Prison also costs so­ci­ety in non-mone­tary terms.

In many re­spects prison con­trib­utes to a cy­cle of of­fend­ing and des­o­cial­i­sa­tion that causes wide­spread dam­age in com­mu­ni­ties. So, prison should be re­served for the most se­ri­ous of­fences and for of­fend­ers who pose a risk to so­ci­ety.

Calls to im­pose harsh prison sen­tences for ver­bal crimen in­juria are of­ten premised on the need to de­ter such be­hav­iour. But prison sen­tences are un­likely to achieve this laud­able goal.

There are two as­pects to deter­rence in crim­i­nal jus­tice. The first is called gen­eral deter­rence.

This en­tails us­ing pun­ish­ment to de­ter other would-be of­fend­ers from com­mit­ting sim­i­lar crimes. The se­cond as­pect is called spe­cific deter­rence: us­ing the pun­ish­ment to de­ter a par­tic­u­lar of­fender from of­fend­ing again in the fu­ture.

Re­gard­ing gen­eral deter­rence, re­search has shown for many decades that the most im­por­tant fea­ture in us­ing the crim­i­nal jus­tice sys­tem to de­ter would-be of­fend­ers is not the sever­ity of pun­ish­ment.

The con­cepts of “cer­tainty” and “pub­lic­ity” are far more im­por­tant. In other words, even if the death penalty could be ap­plied for crimen in­juria, if of­fend­ers be­lieve they will not be caught it will do lit­tle to de­ter them.

Con­versely, a fine that’s be­lieved to be cer­tain, due to the con­sis­tency with which it’s ap­plied as well as the pub­lic­ity of its ap­pli­ca­tion will put far more peo­ple off the of­fen­sive con­duct.

From a spe­cific deter­rence per­spec­tive, prison is a par­tic­u­larly blunt tool to rid peo­ple of racism. Jour­nal­ist Re­becca Davis’s ob­ser­va­tions of the Momberg case ring true here:

There are pre­sum­ably few peo­ple who would ar­gue that time in prison will “cure” Momberg of her ev­i­dently deeply in­grained racism. A jail term in this case may feel in­tu­itively sat­is­fy­ing to many, but does lit­tle to ad­dress the wider so­cial prob­lem of racism and its causes.

The fre­quency of ap­par­ent in­ci­dences of ver­bal crimen in­juria in­volv­ing racism dis­plays that the crim­i­nal jus­tice sys­tem must adopt a zero-tol­er­ance ap­proach. But this ap­proach needs to be a much smarter one than sim­ply throw­ing these of­fend­ers in prison.

And it’s too soon to tell if Nair’s case will re­sult in a con­vic­tion.

The case has been post­poned for him to un­dergo psy­chi­atric eval­u­a­tion to de­ter­mine whether he is men­tally fit to stand trial.

If Nair is con­victed and pun­ished, the crim­i­nal jus­tice sys­tem should de­vise a sen­tence that has the so­phis­ti­ca­tion, con­struc­tive­ness and hu­man­ity that’s so de­void from his rep­re­hen­si­ble be­hav­iour. – The Con­ver­sa­tion

● Phelps is a se­nior lec­turer in crim­i­nal jus­tice, Uni­ver­sity of Cape Town

KESSIE NAIR

VICKI MOMBERG

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