ZELDA VENTER
SOUTH Africa has adequate laws in place to address racism, but without the changing of mindsets, our laws are of little use to address the bigger picture.
While the affected party may receive appropriate relief for racism and while it may make an example of offenders and wrongdoers, the legal approach is unlikely to be effective and may in fact further inflame racial conflict.
This is according to Professor Joel Modiri, Associate Professor and Head of Jurisprudence, specialising in legal philosophy, critical race theory and anti-discrimination law at the University of Pretoria.
In recent incidents, on Boxing Day an SABC employee, Nobuntu Mkhize allegedly hurled racist comments at flight attendants on a FlySafair flight from Durban to Cape Town and later in December a couple at a Food Lovers Market in Fourways north of Johannesburg referred to black people as “baboons.”
In taking a look at racism and the law, Modiri said nothing less than a radical re-organisation of society along more African, democratic and socialist lines will restore peace and harmony in this still “unsettled” and “unreconciled” country.
“Without this form of corrective and substantive justice, the problem and the pain of racism will simply keep repeating itself.”
There are several avenues for legal (criminal and civil) relief for victims of racist violence, racial discrimination, race-based hate crimes and hate speech and other racially motivated harmful acts.
Modiri explained that there is the common law crime of crimen iniuria which deals with the impairment of the dignity of another person.
Cases of unfair racial discrimination, hate speech or harassment can also be lodged with the Equality Courts; or by way of complaints to the SA Human Rights Commission. The newly adopted "Hate Crimes Act" also provides for the criminalisation of hate crimes and hate speech.
He explained that the penalties flowing from a civil or criminal case dealing with racism would largely be the same as those available in the general private law or criminal law matters.
In civil matters, monetary relief or compensation in the form of damages could be obtained where the harm or violation resulted in any kind of loss. In criminal matters, imprisonment, community service and other sentences would also be available and would be decided upon based on several factors including the facts of the case, the circumstances of the parties, the nature of the offence and the demands of public interest.
Modiri added that the serious limitation of individualised case-by-case treatments of racism is that it detracts from the larger structural dimension of racism that is the product of a multi-century system of political and economic racial domination, directed against the black majority population.
“The legalistic approach embodied especially in the Hate Crimes Act reduces racism to a series of bad acts rather than treating it as a deeply embedded system that apportions life chances in a racially unequal manner and thus reproduces racial inequality and violence.”
Modiri explained that it reduces racism to matters of hateful feelings and bad apples of all hues and not as a matter of historical and material oppression directed against the black majority population.
While the affected party may receive appropriate relief for racism and while it may make an example of offenders and wrongdoers, the criminal approach is unlikely to be effective.
The problem of racism that comes from the history of colonial-apartheid has produced massive material inequality and thus also generated deep wounds and deep social antagonisms that are unlikely to be resolved through criminalisation, he said.
“What we need is not a national dialogue but a serious commitment to reparations, to addressing the legacies of colonial-apartheid, to actually transforming racialised power relations and identities in South Africa through a deep reckoning with our past.”
Modiri said in the context of a highly litigious country like South Africa, in which the courts are extremely overburdened and under-resourced and in which most people cannot afford the costs associated with court litigation, we need to be cautious about this approach.
“There is a growing body of research which has in fact argued that criminalisation and other punitive and penal responses to social problems (such as racial inequality and racial divisions) simply ramifies those social problems.”
“Anti-discrimination law (which attempts to change hearts and minds) and criminal law (which aims to punish and rehabilitate offenders) without first committing to social transformation, economic redistribution and reharmonisation of a divided society will not be the solution.”
The issue is still about economic power and landlessness as much as it is about the violation of the basic dignity and equality of all human lives.
“This is where we should be looking if we take the fight against racism seriously,” he said.
According to Wayne Ncube, head of Lawyers for Human Rights, the Prevention and Combating of Hate Crimes and Hate Speech Act of 2023, marks a pivotal step in addressing hate crimes and hate speech in South Africa.
“While the Act provides mechanisms to combat racist and derogatory remarks, broader societal challenges hinder its full potential to foster unity and accountability.”
Public incidents involving such remarks, and the often sensationalised manner in which they are covered, tend to deepen societal divisions rather than addressing the underlying issues.
This highlights the need for more thoughtful engagement with these issues to promote reconciliation rather than fueling polarization, he said.
“One critical tool in addressing racism and discrimination is the Equality Court, designed to provide accessible and efficient remedies for violations of equality. However, the Equality Court remains significantly underutilised due to a lack of public awareness.”
Additionally, budgetary cuts or limitation to key institutions such as the South African Human Rights Commission and the National Prosecuting Authority have further constrained access to justice as they have large mandates and the Act adds to their responsibilities without addressing capacity constraints.
“Addressing racism and discrimination in South Africa cannot be divorced from the urgent need to tackle growing inequality. Deep economic divides perpetuate the social and racial injustices that fuel prejudice and discrimination. Without meaningful intervention to reduce inequality, including equitable access to resources, quality education, and economic opportunities, the structural drivers of discrimination will remain unaddressed,” he said.
Neeshan Balton of the Executive Director of the Ahmed Kathrada Foundation is also of the opinion that the laws are in place, but that no law will change human behaviour.
He said the Penny Sparrow matter, where she was slapped with a R150 000 fine following racial slurs, is a good example that the law is addressing these issues.
But he said while the laws are effective, it takes time to apply. People need to be educated and this should start in our education system.
“I'm not aware of a specific anti-racism policy guide in schools. There are broad guidelines, but no specific policy. The huge issue of mindset in our country is something which has not been grappled with yet,” Balton said.