Why Zuma's trial matters for South Africa's constitutional democracy

Former South African president Jacob Zuma stands accused of racketeering, fraud, money laundering and corruption.
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Former South African president Jacob Zuma’s court appearance carries huge significance for the country. That’s because his criminal trial is not merely about public outrage at state capture and corruption in high political offices. Nor is it just about Zuma facing the consequences of his abuse of office. Or the criminal justice implications of a former president being charged with a series of crimes.

Its broader significance is that Zuma’s court appearance affects many of the most important philosophical foundations of South Africa’s constitutional democracy. The charges against him are immensely important for the foundations of the state. They also matter for democracy and for the constitutional social contract.

This is because the legitimacy of any elected public representative is based on the mandate they receive at a general election. That mandate is the product of a contract between voters and public representatives. Voters cede part of their most fundamental democratic rights of public participation to the representatives. In exchange, and as a cornerstone of representative democracy, elected representatives must account for their actions to Parliament and to the voters.

If a public representative deviates from that mandate – or abuses it for other purposes or his own interest, or worse even for criminal purposes – then the foundation of representative democracy is violated. If abuses become widespread, or if a person in a key public position violates this contractual relationship, the foundation of representative democracy is under threat.

Public opinion in South Africa accuses Zuma of such a violation. The public also expects him to take political responsibility for it. In this context, his prosecution will amount to a public process to rectify and remedy his undemocratic and unconstitutional behaviour.

Zuma’s mere appearance in court, and the accompanying public humiliation, should act as a reprimand for his abuse of the public’s trust in him as elected president. In essence, it could be seen as a process to restore the constitutional relationship between the public and elected representatives.

State capture and state institutions

Although his charges don’t address it directly, state capture is a subtext in his court appearance. State capture – the alleged undue influence of Zuma’s friends, the Gupta family, in the running of the state for private gain – has caused serious institutional degradation in the public sector. The works of scholars Daron Acemoglu and James A. Robinson emphasise the importance of strong and capable state institutions.

Once institutions are threatened or undermined, states start to malfunction and constitutional crises develop. Institutions are associated with a number of constitutional principles. These include the separation of powers, judicial independence, a state’s responsibility to provide security and services as well as to collect taxes. Once state institutions are weakened, it becomes impossible to implement and protect constitutional rights.

Zuma’s infiltration of state institutions, such as the criminal justice system, the revenue service, the intelligence institutions and enterprises such as the power utility Eskom, almost broke the institutional spine of the state. This would have happened had it not been for institutions such as the Public Protector and the National Treasury, the Reserve Bank and the judiciary.

Part of Zuma’s legacy also includes the state’s fiscal capacity being seriously compromised as well as state institutions such as the Hawks or National Prosecuting Authority.

It’s necessary for him to account for all, in public.

The law and moral values

The criminal offences that Zuma faces – including corruption, fraud, money laundering or racketeering – are not only crimes. They’re also violations of a society’s moral value system.

A legal system is intended to protect a society’s value system. It’s therefore an essential aspect of any constitutional democracry.

In this light, Zuma’s trial is not only about whether he did, or didn’t, commit certain crimes. It will also serve to reaffirm the moral values that direct the lives of public representatives. Corruption, for example, harms the relationship between the voter and public representative and the electoral mandate that regulates that relationship. It challenges the very essence of representative democracy.

A former president on trial will be a strong reminder that political power is not supreme, that it cannot guarantee uncensored immunity and privilege. A trial will send the message that unbridled power comes with high risks and huge costs.

Luckily, the South African legal system does not allow for presidential immunity. It can thus avoid the spectre of autocratic executives who escape punishment for corruption.

A message for the private sector

Zuma’s trial also sends a message to the private sector – that it’s conduct is judged by the same moral values as those used for public representatives. State capture collusion by private sector entities equally undermines the constitutional dispensation.

Hopefully, Zuma’s case will motivate business executives to reconsider how they relate to government, what form of lobbying is acceptable, how they participate in procurement processes, and how they deal with conflicts of interest.

It’s very important that the Zuma case is approached with utmost professionalism by the prosecuting authority. All the principles of the rule of law should be on display. No special treatment should be considered and no overt political agendas should be tolerated from any side – either to please or to humiliate.

Dirk Kotze, Professor in Political Science, University of South Africa

This article was originally published on The Conversation.

Is South Africa's opposition party ready to challenge for power in 2019 elections?

Mmusi Maimane, leader of South Affrica’s main opposition party, the Democratic Alliance, briefs the media after its conngress.
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The Democratic Alliance (DA), South Africa’s main political opposition party, has held its national congress and declared its readiness for the 2019 elections. It considers these its most important to date.

Apart from electing a not-so-new leadership, the congress was marked by robust debate about setting a political agenda for the future. It reflected on key issues such as land reform and promoting diversity in its ranks.

It also addressed the need to recreate the party’s image in preparation for the 2019 general elections. The DA must stand strong and not be divided on the basis of race, said Mmusi Maimane, who was re-elected unopposed as federal leader.

Born from a merger between the former Democratic Party’s amalgamation with the New National Party and the Federal Alliance, the DA sought to become a “party for the people” on the platform of non-racialism and a formidable opposition to the governing African National Congress (ANC). The DA espouses liberal politics and has claimed a long history of resistance to apartheid, most notably through its hero Helen Suzman who was a thorn in the flesh of successive apartheid regimes. Yet, the party struggles to lose the label of a “white party” that would bring back apartheid.

The DA is potentially in a good position to become a challenger for power. The dominant ANC suffered a loss of legitimacy under the leadership of Jacob Zuma, most evident in its steady loss of electoral support. It is fighting to regain ground after it emerged quite bruised from the 2016 local government elections. It lost the key metropolitan municipalities of Tshwane, Johannesburg and Nelson Mandela Bay where it dominated since 1994.

The governing party is trying to repair its image by riding on the positive sentiment that has accompanied President Cyril Ramaphosa’s leadership – of both the ANC and the country.

But history might be against the ANC. It has been shown that dominant parties tend to break down due to a crisis of legitimacy. Weak political leadership, corruption, factional battles and governance, all of which have recently plagued the ANC, have been known to favour challenger parties.

Challenging for power

It would seem that the 2019 general elections may be the opportunity for the DA to emerge as a credible challenger for power. It is the largest opposition party with a track record in governance. But, one will also need to consider the potential impact of the Economic Freedom Fighters (EFF) which – like the DA – will campaign in ANC strongholds for votes.

The DA still has a lot of work to do, most notably around race and representation. More specifically, it needs to break down perceptions that it is a white party. These perceptions were evident in its failure to win outright majorities in the 2016 local government elections; it had to rely on coalitions to oust the ANC from power in key municipalities.

In building the DA as a sound alternative to the ANC, Maimane has claimed that the DA rather than the ANC now embodies the non-racial vision of Nelson Mandela.

Racialised politics

Yet, a racialised dynamic continues to find expression within the internal dynamics of the DA, as shown by talk of a “black caucus” in its ranks. It indicates that racial prisms shape internal party dynamics.

Mmusi Maimane was reelected unopposed as leader of Democratic Alliance, South Africa’;s main opposition party.
Supplied

Significantly the party’s former parliamentary leader, Lindiwe Mazibuko, has urged it to reflect on

“a culture that isolates black members and leaders”.

She was responding to the DA’s anti-racism pledge that all new members would be required to sign.

The debate on diversity at the congress shaped the contest between mayors Solly Msimanga and Athol Trollip for the position of party federal chairperson. In celebrating his victory, Trollip proclaimed that he was “humbled that the DA election was not all about race”.

Given the reports about the narrow margin of Trollip’s victory, it’s possible his win could have been the result of political pragmatism. Potentially, some members may have voted for him so that the party could demonstrate unity ahead of the motion of no confidence against him brought by the EFF in his capacity as Nelson Mandela Bay’s mayor.

The battle of ideas

Maimane avers that the DA remains committed to creating a non-racial and equal South Africa in which each person will have equal opportunity, regardless of background. He draws on the vision of African liberalism.

He has highlighted the need to carve out a new agenda for African liberalism:

As African liberals, we know that poverty is the greatest threat to individual freedom, because civil liberties mean nothing if there is no food on the table. A hungry person cannot claim freedom. This is why we believe in social welfare and a growing economy that lifts people out of poverty.

The ANC similarly seeks to secure “political hegemony in society” through what it posits as the “battle of ideas”.

Through the battle of ideas, the DA may now move to further lay claim to Mandela’s and the ANC’s historic mission of creating a non-racial, non-sexist and democratic post-apartheid society. The DA has reclaimed the vision of Nelson Mandela and placed African liberalism at the core of its ideological battle of ideas. The extent that they will win the vote in ANC strongholds remains to be seen given a lack of political trust towards the DA in those areas.

Towards a party for all

The challenge for the DA seems to be ironing out issues of representation, voice, and feelings of black marginalisation within its own party structures before embarking on the 2019 election campaign.

This would require the party to decisively solve its internal divisions and put an end to such labels as “black caucus”, which effectively undermine its message of non-racialism and stated quest to be a party for all South Africans.

Joleen Steyn Kotze, Senior Research Specialist in Democracy, Governance and Service Delivery at the Human Science Research Council and a Research Fellow Centre for African Studies, University of the Free State

This article was originally published on The Conversation.

South African farm murders are fake says viral Facebook post

As somebody who is actually making the time to follow the news in South Africa, unlike Ms Adrian Fleur it seems, I can not let this Facebook post by Ms Fleur just slide .

I would not have been concerned by her post, because there are many people who deny or plainly lie about the true situation in South Africa, but her post is going viral . Her post has currently almost 3400 shares around the world and every time I look there are more shares.

I take issue with her post and will copy and paste it later . I personally try to share all verified accounts shared on reputable news sites about farm murders on my FB page, so I know exactly how bad the situation of our farmers are .

Not only farmers of course because South Africa is one of the unsafest countries in the world and a category that is just as vulnerable is elderly white people who are regularly attacked, killed , maimed and sometimes raped in their own homes .

I dont exclude the fact that crime in general in South Africa is out of control . We have about 52 murders in South Africa each and every day and attacks on foreign tourists are escalating rapidly. Our parks, beaches and mountains have become dangerous because of lurking criminals out to rob and savagely assault people just out to enjoy nature .

In short South Africa has become dangerous and our farmers are very much in danger . I have spoken to many farmers and what is clear is that they have to transform their farm houses in mini fortresses in an effort to survive . But many dont survive .

At last count there were about 110 farm attacks in South Africa so far this year and 17 murders of white South Africa farmers, only for 2018.

These are verified figures released by civil rights body Afriforum . The numbers of attacks are mind numbing and its hard to keep count.

The numbers are so high that we have to keep stats . We cant remember it all . Behind every number of course is a human being with family and loved ones .

I ask you to rather follow the twitter account of Ian Cameron of Afriforum - @IanCameron23 - who try and visit as many farm attack scenes as he can. He only places verified information about South African farm attacks and murders. Believe me, you will get a better picture if you do that than merely reading a post by somebody staying in the UK. A person with suspect motives it seems .

The FB post by Ms Fleur can be regarded as fake news despite the fact that she call South African farm murders and attacks fake news. One can only wonder what motive she has and why she would try and deny what is actually happening on the ground.

I wont try and go into her motives. All I know is that she lies a lot. A lot !

I will need a few pages to pull Ms Fleur's lies apart one by one .

The first thing she does is to ask that people dont share stories of South African farm murders, even from reputable news sites. I wonder why she would do that ? If she is so certain that SA farmers are not under threat, why would she ask that people must not share such stories ?

People who know me and follow me on Facebook know that I hate fake news sites and I regularly share a list of all fake news sites in South Africa . It is so that there are a number of clickbait/fake news sites operating in South Africa - some of them Nigerian - who do try and exploit the situation .
But there are also good Facebook pages that only share verified information. Those are Maroela Media, Willshir Security, BKA Boere Krisis Aksie and South Africa Today .

Fact is SA farmers are under attack . This is the truth and undeniable . Facts speak for themselves.
There are not many attacks on black SA farmers, but there are some. There are also accounts of farmworkers being attacked, sometimes killed.

The issue of South African farm murders are complex, made worse by the fact that the SA Police dont keep official numbers. But statistics are being kept by Afriforum and agricultural body TLU -SA. Those numbers tell their own story .

The second thing that Ms Fleur does is link all people that want to draw attention to the slaughter of white South African farmers as racists and she link them to various groups around the world like the KKK.

South African whites wont touch extremists groups like the KKK with a bargepole.

We are proud people just trying to survive and provide for our own families. The Suidlanders that she is talking about is not even a group that features much in South Africa and almost never enter the SA pubic debate. They are more like a survivalist cult , a small insignificant organization .

It must also be noted that the mainstream media in South Africa and around the world also ignore the issue of murders on white South African farmers and for their own reasons . That is why we say that if people like Lauren Southern and Katie Hopkins want to help us, we are not going to say no. The emphasis will always be to carry true facts, not made up facts .

Ms Fleur is clearly out to sweep the matter under the carpet and what is worse is that she finds it necessary to lie and obfuscate.

I wonder why she would tell a clear lie that the murders on white farmers are decreasing when in fact it is escalating. Strange enough, the last figures she gives is those for 2015/2016 . And those numbers are faulty.

In 2011 there were 96 farm attacks and 48 murders, in 2012 it went up to 174 farm attacks and 53 murders . The numbers for 2016 is 357 farm attacks and 70 murders on farmers and for 2017 it was about 80 murders on farmers [ Google Plaasmoorde in 2017 reeds soveel as in 2016 - Maroela Media.

The most reliable figure recently mentioned by Ian Cameron is about 1700 murders on farmers and family members during the last 21 years . Most South Africans wont dispute that number, so why would an ex South African do it ? What is her agenda ? Why does she lie ?

Attacks on white South African farmers are extremely violent and murders are preceded by torture in many cases. Cases of farmers being tortured with boiling water and melted hot plastic dripped on them, have been reported many times. These facts are not in question .

I want to take you to a debate that happened in the SA Parliament in March 2017 that shows the callous attitude the governing ANC has towards attacks on white South African farmers .

“This past weekend the 62 year old Nicci Simpson was tied to a chair and tortured with an electrical drill, drilling holes in her feet, legs and knees. Her ribs were broken and she was stabbed multiple times. Luckily she survived this horrific attack.” – Anette Steyn MP, DA Shadow Minister of Agriculture, Forestry and Fisheries in the parliamentary debate on farm murders 14/3/2017
“
He said that it is not ordinary crime when people are tortured until they die, where a woman is raped for hours on end while her husband is forced to watch, where people’s heads are crushed and they are set alight, or where an electrical drill is used to drill holes in a woman’s feet after she had already been tortured in other ways. “In one instance in Parys, a farmer’s testicles were cut off and eaten by the attackers after they had cooked it. This is the shocking and uncomfortable truth of farm murders which can no longer be ignored,” Dr. Groenewald said. – Dr. Pieter Groenewald, FF Plus Leader in the debate on farm murders in Parliament 14/3/2017

Duduzile Promise Manana, ANC MP, shouted “Bury them alive!” when Dr Pieter Groenewald spoke about the plight of white farmers.

The photo accompanying this article is that of little Kayla Meyer who will forever be 9 years old .
Monty McCormack, 73, his son Kennith McCormack, 42, Kennith’s fiancée Marietjie Meyer and her daughter Kayla, were killed on a smallholding in Rodora, Randfontein in March 2016 . And no, she was not the only child murdered on a South African farm .

Here is a copy and paste of the FB post by Adrian Fleur that is taking the world by storm :

" Facebook friends! 🙏 STOP SHARING SOUTH AFRICAN "WHITE GENOCIDE"/FARM MURDER STORIES! 🙏 You are supporting white terrorists and white supremacist groups when you do this. They have purposely manufactured these unproven stories that are easily spread on social media with the aim of inciting hatred and division. Many of the pictures can be traced back to unrelated crimes in different countries at different times. Many of the people being interviewed in videos have admitted these brutal attacks never happened. I am SO TIRED of seeing these stories on my timeline, not because they are gory or upsetting, but because I hate that people I care about are pushing evil agendas created by evil people. We are all responsible adults, we can source our news from reliable sources, we all know HOW TO INTERNET.

The main group behind these stories are the Suidlanders (South African white nationalist group), who travelled abroad last year to spread their propaganda. Others promoting these unverified stories are the KKK (white terrorist group), Richard Spencer (white supremacist), the American Freedom Party (American white supremacist group), Lauren Southern (Canadian far-right personality), The Daily Stormer (far-right extremist website), Katie Hopkins (far-right instigator here in the UK) and plenty more. Look these people up, read the stuff published on these websites, and decide for yourself if you want to be aligned with them.

Ok, numbers. There were 49 farm murders in 2015/2016. This number was twice as high 20 years ago, and has only decreased over time. These are the only verified statistics we have about this issue, and they include people of colour, as should all house break-ins/robbery numbers in South Africa. These stories spread on Facebook are publishing false statistics that are not backed up by any research whatsoever. They are also intent on comparing South Africa to Zimbabwe when the two countries are completely different to each other historically, politically, economically - this is a false equivalence, and white South Africans IN PARTICULAR should be able to spot racist rhetoric like this.

Furthermore, there is NO genocide against white people in 2018 and using the term is completely inaccurate and offensive. Genocide is the systematic, organized mass murder of six million Jews during the Holocaust. Genocide is what happened in Rwanda, Darfur, Sudan, Kurdistan, Bosnia. Genocide is the government-sponsored extermination of nearly the entire native population of North America. Genocide is reducing nearly a million Australian aborigines to less than 50,000 in less than ten years. 49 murders is NOT A GENOCIDE. There is NO organized mass murder taking place against white people ANYWHERE in the world, let alone one sponsored by the government or the entire black population of South Africa.

In fact, white people are less likely to be murdered than ANY OTHER RACE group. They make up just 1.8% of murder victims in South Africa. "White genocide" is a dangerous and disgusting conspiracy theory - the same one used by Anders Behring Breivik to justify killing 77 people in the 2011 Norway attacks. It is the narrative that fuels the terrifying hatred and bloodlust that you saw on the faces of the Charlottesville neo-Nazis last year. The "white genocide" myth is well-researched and information about this and other aspects of white supremacy are easy to access in this day and age. There is NO excuse to be sharing false propaganda online in 2018 "
  By :  Daniel Sutherland
Sunday 1st April 2018 @ 12:53 AM
SOURCE

The Batswana case shows how complex the land issue is in South Africa

Limpopo Province, South Africa. Who owned this land?
Flickr/mifl68

Land expropriation, a hot topic in South Africa, has taken a new twist. Led by the governing ANC, the push is to now use the pre-colonial period as the reference date when deciding the land’s rightful owners.

Until now, the Natives Land Act of 1913 was considered the cutoff point. Going back further in history means all land that’s currently owned by white people (as much as 75% of the privately owned land in South Africa) could be claimed by black people whose forebears were unfairly dispossessed.

I regret to say that my fellow historians and I are unlikely to provide much clarity when policymakers must come up with reliable formulas regarding land claims. The pressure is on to redress injustices of the past, rightly so. The public discussion gaining in volume, however, has tended to oversimplify the question of who is entitled to claim. And that may create legal problems in future.

In practice, expropriation will not be a matter of deciding which land was seized in the past, but one of deciding which descendants of the dispossessed are entitled to it.

The example of Tswana communities of South Africa prior to 1800 presents some of the difficult questions that could arise when trying to right old wrongs.

Over the past 35 years I have studied the history of the Setswana-speaking people before and after white Dutch and English speaking people dispossessed them of land in the area roughly equivalent to the present Limpopo and North West provinces.

My research has taken me into early records found in government and missionary archives in Gaborone, Mochudi, Pretoria, Johannesburg, Cape Town, Harare and London. I’ve read many early 19th century travellers’ accounts and interviewed many knowledgeable elders.

Mobility and social fluidity

I have come to regard the richest sources of early Tswana history to be found in oral histories and maboko (self-praises). In particular they were recited by Tswana historians and written down between 1925 and 1968, both in South Africa and in Botswana (then the Bechuanaland Protectorate The bulk of these were recorded and translated by anthropologist Isaac Schapera, ethnographer Paul-Lenert Breutz and Vivien Ellenberger, a Bechuanaland administrator with an interest in Lete and Tlokwa history.

What the Tswana at that time remembered about their ancestors should perhaps be kept in mind when considering their past use of land. Briefly:

Most Tswana communities were mobile. With the exception of the Fokeng and the Mmatau Kwena, blessed with rich soils and abundant water, they shifted their capitals fairly regularly after a decade or so. Grazing and soils had played out, or water sources had dwindled, perhaps towns had turned foul (no drop toilets in those days).

Movement from place to place varied from short to longer distances. Certain areas (especially those with reliable water like Lindleyspoort) were occupied by different merafe (followers of a kgosi (king) over the space of a century or so.

Historians and archaeologists have linked some of their stonewall settlements to given groups. Yet, though the landscape occupied by early Batswana is strewn with stonewalling, connecting each of them firmly to historical merafe will be difficult.

We should also keep in mind that the make-up of Tswana communities changed over time. No Tswana morafe (singular of merafe) was homogeneous at any point. Each contained an assortment of old timers, newcomers and
groups of various ethnic identities or totems.

Some established new wards in a settlement (dikgoro, dikgotla), others abandoned them. Merafe that were independent at one point could at another become the subjects of an unrelated kgosi. A morafe might shed members who relocated to adopted new homes. In sum, Tswana communities changed their composition over time and shifted their locations, making it difficult if not impossible today to link a community or its constituent families to a particular piece of land.

That means that no particular family or group today can be linked exclusively to a particular piece of land.

Colonial intruders and dispossession

Even before disruptive intruders appeared, Tswana merafe were unsettled and jostling for relative power, for reasons not fully understood. Regional powers such as the Hurutshe were losing their grip and breaking up. Others such as the upstart Ngwaketse were expanding, absorbing others, borrowing cattle on the long term with no interest payable, and creating havoc.

Then came intruders such as Sebitwane’s Kololo (refugees from turmoil in the Orange Free State), Mzilikazi’s Ndebele (a break-out militarised entity from KwaZulu Natal)and in turn Potgieter’s Voortrekkers, Boers moving north from the Cape to escape British rule.

After being dispersed by Mzilikazi, many Tswana were returning to their old haunts when the Dutch-speaking Boers entered the scene and claimed much of the land between present day Zeerust and Pretoria for themselves. Though some Tswana collaborated with these Transvaal Boers as a way of accumulating wealth, they quickly learned that it meant accepting terms dictated by the Boer authorities.

Kgosi Kgamanyane Pilane.
National Heritage Monument, Pretoria

Some Tswana followed their leaders to resettle elsewhere (Bechuanaland, just across the Transvaal border, was a popular destination). For those who remained in the Transvaal, the best terms were had by those Tswana “kapiteins” who supplied the Boers with auxiliaries on commando raids for cattle and slaves on the fringes of the Zuid-Afrikaansche Republiek.

Among them was Kgosi Kgamanyane Pilane of the Kgatla Kgafela, whose own leboko boasts of his assistance to (and duplicity while under) the maburu (Boers), whom, incidentally, he despised. Before he too left with most of his followers for Bechuanaland, his people were crowded inside the boundaries of the farm Saulspoort (also known as Moruleng). Paul Kruger, then commandant, and later president of the Zuid-Afrikaansche Republiek, had sold its title to the Dutch Reformed Church missionary Henri Gonin.

Kgamanyane’s descendants fought with the British in the Transvaal during the Anglo-Boer War (1899-1902)stole thousands of Boer cattle, and later sold them to acquire more than 30 farms once owned by their tormentors. These private farms became known as the Saulspoort Location.

It well may be that archaeologists can assist some present descendants to identify their original, precolonial territories. The old Transvaal is strewn with stonewall settlements on privately owned farms, some of which have been clearly linked by oral histories and early travellers’ accounts, to Tswana groups related to modern, nearby settlements. One is the old Hurutshe town of Kaditshwene in Enselberg, established by ancestors of the residents in the nearby villages of Mokola and Lekubu (Braklaagte).

Whether this rocky hilltop site, if restored, can be rendered productive other than as a tourist destination is open to question.

At least in this case, however, there is a clear historical linkage between today’s South Africans and the land their ancestors used before whites appeared on the scene. Unfortunately, it is likely to be one of the few exceptions.

When weighing the available evidence about the pre-colonial Tswana, the major question is: should lands claimed by presumed descendants even be considered or should redress be attempted in some other way?

Fred Morton, Professor of History, University of Botswana

This article was originally published on The Conversation.

Jail time for South African woman using racist slur sets new precedent

South African court rules that racism is a criminal offence.
Shutterstock

A South African estate agent Vicky Momberg was caught on video verbally abusing a black policeman. She used the word ‘kaffirs’ repeatedly during her tirade against men who were trying to assist. The word is deeply offensive and considered the most racist in South Africa. The state brought a case of crimen injuria against Momberg and a court has sentenced her to three years in jail (one suspended). This makes her the first person in the country to be jailed for this offence. Thabo Leshilo asked legal experts Penelope Andrews, René Koraan and Chantelle Feldhaus to explain the significance of the judgment.

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What is the significance of the judgment?

Penelope Andrews: The significance of the judgment is substantive and symbolic. It’s substantive in that the crime committed by the accused is punished severely. Symbolically it sends a message that racism is not to be tolerated. In fact, one could go so far as to say that the law establishes that anyone using the “k” word publicly to abuse and humiliate will be severely punished.

René Koraan and Chantelle Feldhaus: Past cases indicate that the verbal form of crimen injuria is not that serious. But the Momberg sentence is a first of its kind in South Africa. She was sentenced to three years imprisonment of which one year was suspended for a period of three years, on condition that she did not commit crimen injuria again. In effect this means that Momberg will serve two years imprisonment.

What is crimen injuria in South Africa and its basis?

Penelope Andrews: According to principles of criminal law crimen injuria consists in unlawfully and intentionally impairing the dignity or privacy of another person.

René Koraan and Chantelle Feldhaus: South Africa’s criminal law system is based on common law and statutory law. Common law offences include abduction, arson, bigamy, fraud, incest, housebreaking, rape, robbery, and treason. Statutory crimes include crimes such as tax fraud and prevention of organised crime.

Crimen injuria (or iniuria) is a crime under the South African common law, defined as the act of “unlawfully and intentionally impairing the dignity or privacy of another.”.

Crimen injuria provides the basis of protecting the constitutional right to human dignity in criminal prosecutions. It can happen either verbally or by deed. Importantly, crimen injuria should be distinguished from criminal defamation which has to do with the good name or reputation of a person. Both the right to privacy and dignity are protected in different sections of the Constitution of the Republic of South Africa.

To determine if a person’s dignity was impaired the victim should, firstly, have been aware of what the accused was doing to them and secondly, the victim should have felt degraded or humiliated because of what the accused did to them. This is also objectively determined by the court. The court then considers whether a reasonable person in the same circumstances of the accused would also have felt humiliated or degraded by the conduct of the accused.

It seems that currently, the most serious form of verbal crimen injuria is the use of the word kaffir. It is evident from case law that calling a police officer the ‘k’-word in South Africa is regarded as serious enough to warrant criminal proceedings.

How does it differ from hate speech?

Penelope Andrews: Crimen injuria is a criminal offence. Hate speech is a civil offence. Rather, it’s prohibited in the constitution as well as legislation that protects people against unfair discrimination. Hate speech also has a very specific definition, whereas (crimen inuria) is arguably more broadly defined.

René Koraan and Chantelle Feldhaus: The Constitution promotes free speech, but that doesn’t extend to hate based on “race”, ethnicity, gender or religion. South Africa is also a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination, which requires countries to make racial superiority or hatred punishable by law.

South Africa has drafted a new bill to cover this. The hate-speech bill being considered by parliament provides for the criminal prosecution of people who commit the offences of hate crime and hate speech. It defines hate speech as

an intentional communication (including speech) that advocates hatred or is threatening, abusive or insulting towards any other person or group of persons; ranging from race and gender to social origin.

According to the bill, a guilty first offender may receive a maximum of three years prison sentence and up to ten years for a subsequent conviction.

What are the implications of the precedent-setting judgment?

Penelope Andrews: There may be several implications. First, the judgment is a clear statement that the use of racial slurs and the impairment of human dignity will not be tolerated. One could argue that there is now an unequivocal zero tolerance for the use of the “k” word.

Second, the implication may be that all kinds of racial slurs, that involve not just anti-black hatred, but also anti-semitic, xenophobic, anti-female and homophobic slurs, will not be tolerated.

The third implication is that there is a strong sensitising and educational effect. The airwaves and social media have already been abuzz with commentary since the sentence was passed. Crimen injuria has become a household term as people argue about the law’s meaning, the punishment, what constitutes (crimen inuria) and whether the judgment was fair.

René Koraan and Chantelle Feldhaus: The court sent a message that racism is not just inappropriate, but it is criminal. The hope must be that the penny drops for South Africans that their actions carry big repercussions. The judgment and the sentence highlight the fact that South Africa needs to put hate crime legislation in place. It’s already at an advanced stage but it needs to be promulgated.

Penelope Andrews, Dean of Law and Professor, University of Cape Town; Chantelle Feldhaus, Lecturer in the Faculty of Law, North-West University, and René Koraan, Senior Lecturer: Criminal Law, North-West University

This article was originally published on The Conversation.