“Why do some apologetic gestures actually seem to add fuel to the fire of spite?” This question was asked by Professor Erin O’Hara O’Connor of Vanderbilt University’s Law School writing on “Victims and Criminal Punishment”.
I would like to reflect on it with regard to the Adam Catzavelos apology before the Equality Court.
A 284-word apology and R150,000 fine payable in instalments were all that Catzavelos was required to submit to get South Africans off his back for his 22-second video on a Greek beach calling black South Africans by the k-word. Public reaction was diverse and split. Some urged that bygones be bygones, others were extremely unhappy with the slap on his wrist by the Equality Court, with the approval of the SA Human Rights Commission (SAHRC).
Signifying the disquiet is one tweet by @Izululami who commented: “A fine of 150,000 is an insult. That guy is an unapologetic racist jackass who is not gonna abandon his racial bull just because it cost him 5,000 a month. He’s only gonna be careful not to get caught. People like him must be banished from OUR country…”
Not long ago, South African estate agent Vicky Momberg got a three-year jail sentence with one year suspended for three years for her tirade referring to black law enforcement officers as “kaffirs”. The judgment was hailed as a message that anyone who uses the k-word to revile black people would be punished severely.
The judgment itself was groundbreaking as the first in South Africa that ordered imprisonment for crimen injuria for using the k-word. It was acknowledged by the Constitutional Court in SARS v CCMA(2017 (1) SA 549 (CC) that being called “a kaffir is the worst insult that can ever be visited upon an African person in South Africa”.
The SAHRC has also acknowledged this fact in its March 2019 findings regarding certain statements made by Mr Julius Malema and another member of the Economic Freedom Fighters.
Momberg’s and Catzavelos’s hate speech cases are not the only ones we have had to be exposed to. There are others. A typical example is the case of The South African Human Rights Commission v Khumalo (EQ6-2016; EQ1-2018) regarding a complaint against Velaphi Khumalo, who on 4 January 2016 published on the internet hateful utterances against whites. He called on black South Africans to do to white people what “Hitler did to the Jews”.
The utterances were considered hate speech in terms of section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (The Equality Act). The order of the court was that Khumalo “shall within 30 days of the date of this order publish a written apology directed at all South Africans in which he acknowledges that the utterances were hate speech, that he was wrong to utter them, and undertakes never again to utter any remarks prohibited by section 10(1) of the Equality Act”.
I would like to confine myself to the growing jurisprudence of an apology gaining prominence as a hate crimes defence or mitigating factor, with special attention on Catzavelos’s apology, given the fact that it has awoken discourse in the area of criminal punishment and sentencing in South Africa.
Perhaps in our ventilation of apologies for hate crimes as South Africans we must also reflect on certain questions raised in courts in South Africa and globally: What does an apology involve? What makes an apology meaningful? Is the law concerned whether or not an apology is given sincerely? Is an ordered apology an apology?
There is nothing wrong with Catzavelos having made an apology. Section 21(2) of the Equality Act does confer powers on the Equality Court to make a wide range of remedial orders, including an order for an unconditional apology. For some reason, his apology has not totally endeared him to everyone, and one cannot pinpoint exactly what the problem was with his apology, other than the argument that he got out of his horrible crime with insignificant consequences. Perhaps it was because his apology seemed self-serving and self-interested.
“As a perpetrator, I have damaged my own humanity,” read Catzavelos from his prepared statement. He may as a perpetrator of a hate crime be facing significant psychological and contextual challenges. But inasmuch as he acknowledged that his racial slur caused harm to “black South Africans but also to our country”, he was as concerned and interested in the harm to his family.
It was, in my view, all about him and not about those who suffered from the use of the k-word. Perhaps because he needed to pay only R150,000 in instalments as financial punishment, which he can always raise through the dreadful crowdfunding by his sympathisers.
Another person may argue that I am being harsh on the poor guy because he expressed deep remorse for using a prohibited racial slur. Did he show remorse? For any adult South African to argue ignorance that the k-word is deeply dehumanising and “hurtful” for black South Africans, in my view, smacks of arrogance.
It is not “potentially” hurtful, as Catzavelos’s apology suggests: it is hurtful. His apology may also be designed to mitigate the possible sentence with regard to the charge of crimen injuria he is facing, or indirectly influencing the criminal charge to be dropped.
The guy pleaded for forgiveness; but I am concerned that his apology was halfhearted and that he was not remorseful to a degree that one can say that he will not do it again or he will not align himself to people or groups who celebrated as patriotic his racial slur video. Apology is not remorse. It is for the very same reason that some progressive courts frown upon simple or self-serving statements of apology and regard “sorry” as not enough.
I do not want to appear flippant about Catzavelos’s apology – or that of Velaphi Khumalo and others – and his plea for forgiveness. It would seem that in South Africa, in the name of social cohesion and restorative justice, perpetrators of hate crimes are not being punished enough to atone for their crimes.
As Stephen Garvey (Punishment as Atonement, 1999) writes: “When an offender commits a crime, he not only imposes a material loss on his victim but also sends a message. In effect, he says: ‘I’m better than you. I don’t need to respect your rights’. Crime degrades, demeans, diminishes and dishonours the victim, in addition to whatever material damage it may cause.”
Catzavelos was well aware, and strategically so, that he could get away with a simple apology. Jeffrie G Murphy observed (in The Role of Forgiveness in the Law 2000), “If I were going to set out to oppress (offend) other people, I would surely prefer to select for my victims, persons whose first response is forgiveness rather than persons whose first response is revenge.”
With such outcomes as the ones in the many hate crimes cases and/or inquiries in South Africa, our hate crime laws are becoming more symbolic than deterrent.
I am reminded of the dissenting opinion of Justice Clarence Thomas in Dawson v. Delaware 503 US 159, 171 (1992), who argued that evidence that a criminal offender was racist was relevant at sentencing and that it must be considered as a rebuttal to the claimed mitigating value of his/her evidence. The learned Justice Thomas also argued that the racist character of the offender must be a red flag for his/her future dangerousness.
OPINION: Omphemetse S Sibanda