Better watch your mouth

The social engineers are setting great store in the new anti-hate Bill. They also take encouragement from the recent harsh sentencing of Vicki Momberg.

It has not been achieved in less fractious and divided societies than South Africa, but prepare yourself for a racist-free, hate-free future. The social engineers are setting great store in the new anti-hate Bill. They also take encouragement from the recent harsh sentencing for racist abuse, using existing crimen injuria legislation, against the infamous Vicki Momberg.

Historically, crimen injuria rarely drew anything more onerous than a suspended sentence. For example, Patrick Asaneng, the SA police service director for North West, was a few years ago found guilty of crimen injuria, following a road rage incident. Although acquitted on appeal, Asaneng was initially sentenced to a R5 000 fine or six months’ imprisonment on the charge.

Momberg’s tirade, during which she used the K-word 48 times, earned her a three-year prison sentence, with a year suspended. In a separate Equality Court hearing, she had to pay R100 000 restitution.

Clearly, the magistrate wanted to send an unambiguous message that racism won’t be tolerated. But the criminalising of words is not easy. There is an enormous degree of subjectivity and potential for confusion, especially in a country with 11 official languages.

In the Asaneng case, the insult was the Sepedi phrase polo ya gago, which translates to “you prick”. There was much discussion by the three high court appeal judges whether Asaneng said that, or had used, as he claimed, a sound-alike Setswana phrase. That translates loosely to “calm down, or you will die of a heart-attack”.

On Saturday Night Live, comedian Trevor Noah took on the challenge of explaining to an American audience the difference between the K-word and the N-word. An African-American could call another African-American a “nigger” because, joked Noah, black Americans had copyrighted the word. But the K-word was beyond the pale for anyone, ever.

We will soon know. There is an only-in-SA kind of case in process that will determine the gradations of harm to the K-word.

The case, also for crimen injuria, stems a black-on-black usage of the word. It involves two business executives, Investec CEO Fana Titi and an erstwhile associate, Peter-Paul Ngwenya.

Reportedly, the former friends turned against each other in a fight over shares. Ngwenya then allegedly sent an SMS to Titi “and others” in which he referred to Titi as a “QwaQwa k **** r”. The crucial question, writes Legalbrief, is whether Ngwenya’s identity as a black man is a defence. Using Noah’s analogy, do black South Africans have “copyright” on use of the word?

Constitutional law expert Phephelaphi Dube says no. “The Bill does not distinguish the source of the speech, nor does it distinguish power relations.”

For practical reasons, there will have to be rankings of “hate”. The courts will have to make rulings on the entire dictionary of interethnic abuse, of which mlungu, charra, goffel, soutpiel, and rockspider are just a few examples.

Slurs are not only racial. The lexicon of offence will have to include sexual slurs like moffie, queer, doos – all ranked according to efficacy.

If Dube is right, all pejoratives will be equal. What matters is the subjective hurt experienced.

Eish, the jails are going to be full. Move over, Ms Momberg.