Victims of ‘racism’ find it difficult to prove claims

WHILE the furore over the alleged peeing incident at the University of Stellenbosch continues, investigators face a mammoth task of proving the incident was racist, warn experts.

The alleged incident sparked outrage after Babalo Ndwayana, a first-year agriculture student, filmed Theuns du Toit urinating on his desk, books and laptop.

The university has launched an investigation and the South African Human Rights Commission (SAHRC) will also probe the incident.

In a Facebook post, Babalo Ndwayana’s father Mkuseli Kaduka dismissed claims of reconciliation with Theuns du Toit’s family.

“I’m very committed to seeing this fight through to the end. If I come out of this with anything it’ll be the dignity of my child restored and the perpetrator facing what’s due to them. I will not waiver nor yield in my quest to seek justice.”

SAHRC commissioner responsible for education, Andre Gaum said the probe was not expected to take long as there was a “limited number” of witnesses, including the victim and the alleged suspect.

“We are still trying to make contact with the alleged victim. We will then put the allegations in a formal letter to the alleged suspect.”

Gaum said racism was commonly defined as “prejudice, discrimination, antagonism of members of a particular racial or ethnic group”.

“It is easy to make an allegation of racism. It does cause damage to an alleged perpetrator and therefore it is important to first establish the facts before reaching a conclusion.

“We look at unfair discrimination on a prohibited ground, if there’s differentiation between someone belonging to a specific group and another group.

“There’s a presumption that discrimination is unfair and the burden of proof then swings around and the alleged perpetrator needs to show that the discrimination is fair,” said Gaum.

He said in some cases, including at the Brackenfell High School Matric Ball ruckus, the facts led to racism being ruled out after the SAHRC launched an investigation into the exclusion of black pupils from a private event organised by white parents.

“Facts play a key role,” said Gaum.

He said in the Stellenbosch incident, allegations might result in a number of criminal law offences.

“One might be successful with a charge of crimen injuria but it depends on the facts of the matter. If there’s a racist attack on someone obviously it amounts to assault but could also include hate speech, unfair discrimination and criminal offence at the same time.”

Gaum said the commission was working with various bodies on systemic interventions to address racism and other forms of unfair discrimination based on prohibited grounds and sexual orientation in educational institutions.

Political analyst Sanusha Naidu said racism remained a sensitive issue and key to the Stellenbosch matter was that the alleged victim had captured evidence.

“But the question is what message will be sent out on how to treat fellow human beings. We are one and not distinct from each other,” said Naidu.

She said the challenge with proving racism lies with the person who had experienced the act.

“The person who commits the so-called racist act has very little burden of proof,” said Naidu.

She said racism was entrenched in society and caused complexities and complications in the commissions of inquiry and other investigations.

She added that some people experienced “racial profiling” because of their skin colour.