When is the k-word not racist?

Investec CEO Fani Titi has brought a crimen injuria case against former partner Peter-Paul Ngwenya.
Investec CEO Fani Titi has brought a crimen injuria case against former partner Peter-Paul Ngwenya.
Image: Robert Tshabalala

Is the k-word still racist when it is used by a black person?

This question is at the heart of a crimen injuria case bought by Investec CEO Fani Titi against his erstwhile business associate Peter-Paul Ngwenya.

And it is a crucial area of debate about the highly contested Prevention and Combating of Hate Crimes and Hate Speech Bill, approved by cabinet on Tuesday and which will soon come before parliament.

Titi and Ngwenya have had a long-running business feud resulting in Titi obtaining a Protection from Harassment Act order against Ngwenya in the Randburg Magistrate's Court.

Last year, The Sunday Times reported that the two former friends had turned against each other in a fight over shares they bought in Gagasi FM and Heart FM, which were worth millions of rands.

Ngwenya is now on trial for allegedly violating that order.

In what is believed to be a legal first, Titi is also pursuing a crimen injuria case against Ngwenya for sending an SMS message on June 23 2016 - in which he referred to Titi as a "QwaQwa k*****r".

Crimen injuria is "a wilful injury to someone's dignity, caused by the use of obscene or racially offensive language or gestures" .

Prosecutor Advocate Yusuf Baba referred to convicted Vicki Momberg, who suggested the state was only pursuing her over her video-taped use of the k-word because she was white. "We prosecute all cases involving the k-word in this court," Baba said.

Titi has started testifying and will face cross-examination from Ngwenya's lawyers later this month.

But, may Ngwenya's identity as a black man be used as a defence of his alleged use of the k-word. Or, is the word a racial slur regardless of who says it?

That question has been at the heart of some of the controversy surrounding the hate crimes and hate speech bill,

The bill was initially intended to address the offence of hate crimes, or criminality motivated by prejudice. But, six years after it was first mooted, the offence of hate speech was also included.

Constitutional law expert Phephelaphi Dube said the draft bill would define the alleged use of the k-word by Ngwenya as "hate speech".

"The draft bill does not distinguish the source of the speech . Even if both individuals are black, given the historical context of the term, it serves to reinforce the dehumanising historical background.".

Deputy Justice Minister John Jeffery said the bill identifies "hate speech" as that which is "harmful or propagates hatred towards a certain group".

Crucial, he said, is that the term "does not incite violence".

"The important issue here is: can it be proved there was an intention to cause harm with the use of the words?"

The bill doesn't identify any specific words as hate speech.

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