Nair plays race card
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