Almost seven months on, a case of hate speech against Chinese people finally had its day in court on Monday 25 November. Non-profit organisation The Chinese Association (TCA) lodged a complaint with the equality court after racist and xenophobic statements surfaced on the Facebook pages of Carte Blanche and the Karoo Donkey Sanctuary in 2017.
Those statements came after the investigative journalism television show ran a report about animal abuse and the donkey skin trade. The episode aired the day after the annual Chinese New Year celebrations, leading to an avalanche of abuse and racist and xenophobic sentiment directed towards Chinese.
Not a trial
The mood was sombre when the equality court could not get through the inquiry on hate speech and unfair discrimination earlier this year. The case was meant to run for five days, from 25 to 30 March, but had to be postponed with just one witness Emma Sadleir who runs the Digital Law Company having given evidence only in part.
The first two days of the inquiry were spent discussing procedural matters. One of the 12 respondents had asked the court to accept her confession and excuse her from taking part in the proceedings. The following day, another respondent told the court that the matter was not ready to be heard. Her lawyer said that access to court papers did not happen timeously and this would prejudice his client.
The complainants protested, saying that the respondents were turning the equality court proceedings into a trial when they were supposed to be restorative and conciliatory in nature. The court’s mandate is to adjudicate cases that involve the infringement of the right to equality, unfair discrimination and hate speech.
The proceedings in the court are informal in nature to allow unrepresented complainants to lodge complaints with assistance from the South African Human Rights Commission or any other non-governmental organisation. Instead of the hearing posturing as a trial, at the equality court it takes the form of an inquiry. The onus is on the complainant to prove their case on a balance of probabilities rather than beyond reasonable doubt, as is the case in criminal matters.
The case resumed on 2 October for Sadleir to finish giving her evidence. It was then postponed to 25 November.
TCA resumed its case with four witnesses – Yoon Park, Melanie Yap, Henry Wing and TCA chairperson Erwin Pon – giving evidence. With the exception of Pon, the witnesses submitted their evidence by way of affidavits and were cross-examined by the eighth respondent’s lawyer, advocate Collin Garvey.
Yap, who is the co-author of Colour, Confusion and Concessions: The History of the Chinese in South Africa, briefed the court on the history of the South African Chinese community. Yap’s evidence, along with that of Park, was largely based on this history and experiences of racial discrimination in the country. Wing gave evidence on his experience of racial discrimination during apartheid.
Not South African enough
Edwin Chang was born and raised in Kliptown, Soweto. His family was among the first migrants to move to South Africa.
“I remember in Kliptown when we used to have a shop. We were only allowed to open in certain hours … We used to sit and watch the police. If police came, we would tell others to close the shop and lock up. At night, people used to come by, knock on the windows and we would sell through the window while one monitors the police movement,” said Chang.
Chang’s family, like most black people in the 1960s, were the victims of forced removals. The family lost their home and business. Since then, Chang has lived in Old Chinatown, maintaining the historical buildings that form part of South Africa’s heritage.
Chang, who had been at the equality court almost every day of the case, said little has changed for South Africans of Chinese descent post-apartheid and there are still those who challenge his South Africanness.
“Most people said, ‘Hey, why don’t you get citizenship from China?’ I said, ‘Look, in China we cannot get citizenship [because] they don’t recognise us as Chinese [citizens], our homeland is here in South Africa … Where can we go? We can’t go nowhere,” says Chang.
The hate speech directed at Chinese South Africans has made him feel unwelcome in the country.
Pon broke down in tears while detailing his experience of racial discrimination and the abuse he suffered as a child growing up in South Africa.
“I went to a white school and it was not easy for me. I was the only Chinese kid there. I could not speak English at that time. I was teased by a lot of the kids and they called me names … they called me ‘ching chong’ and told me to go back to China,” says Pon.
He gave this emotionally charged evidence in the presence of his grandmother, Ng Sui Chee Pon, who is 106 years old and a leader in her community. Pon remembered going to his mother and saying, “‘Mom, why am I Chinese? Why do they keep doing this to me?’ I didn’t like being Chinese at that time.”
But his mother told him to be proud of who he was and “not be ashamed of being Chinese”.
Pon had to change schools because of the bullying and racial discrimination, he told the court. But despite doing this numerous times, the bullying and racial abuse did not stop.
“I remember this time, specifically, a couple of kids came to me and said, ‘Eat this chalk.’”
Judge Motsamai Makume interjected: “Chalk for writing?”
“Yes, the writing chalk. ‘Eat this chalk. When you eat this chalk you will be one of us, we won’t tease [you] anymore, we will leave you alone.’ I remember eating this chalk and choking and wanting to vomit.”
Engulfed with emotion, Pon said the abuse persisted. In another incident, an older pupil in a different school teased him and kicked him in the stomach, injuring him.
“Again, I did not do anything wrong. I looked different,” said Pon.
Pon cited his past experiences as the main driver behind him being part of TCA and ensuring that future generations of South Africans of Chinese descent do not feel excluded and marginalised because of their heritage.
Advocate Ben Winks asked Pon to take the court through the events that led to the current proceedings. He told the court that a joyful evening, after celebrating the Chinese New Year, was short-lived. One Facebook user had written on TCA’s Facebook page that he wished the Chinese community “death and destruction” on their New Year. This comment Pon decided to ignore.
Moments later, he received a slew of messages and calls directing him to the Facebook pages of Carte Blanche as well as that of Karoo Donkey Sanctuary. The alleged hate speech comments were posted on these pages after Carte Blanche showed donkeys being killed so their skins could be exported to China.
The volume of these “racist, xenophobic and quite frankly genocidal comments” had to be stopped. Not only because they were broad generalisations of Chinese people, but because they were inciting violence, says Pon. “As the chairperson of the Chinese community, it would have been negligent of me not do anything.”
The TCA leaders met and approached Sadleir, a social media lawyer, who helped draft letters to the administrators of the Facebook pages instructing them to take down the comments.
Pon went on to explain how they identified the respondents. He told the court that a team was assembled to look at “the most racist, most xenophobic, genocidal and most violent” comments, and also verify the identities of the people who had made those comments for the purposes of serving them with legal papers.
Garvey objected to Pon’s evidence, saying it was opinion and hearsay. Makume overruled the objection.
Pon finished giving evidence by reading the comments to enter them into the court record, and telling the court that some of the respondents had confessed and apologised for making them.
The eighth respondent, Mariette van der Linde de Klerk, represented by Garvey, kicked off the cross-examination by showing video clips of the donkey skin trade that appeared on Carte Blanche.
On Wednesday 27 November, Garvey put it to Pon that there was general ignorance around the epidemic of rhino poaching and the donkey skin trade. Pon responded by saying that this wasn’t correct and that caring for animals is not limited to one race group.
Pon went further to say that the donation of R250 000 by TCA to the Kruger National Park was not a cosmetic exercise but a genuine concern by TCA around the epidemic of rhino poaching. This, he said, had no relation to the fact that the trade had connections with the People’s Republic of China, as Garvey was insinuating.
Garvey said the comments made by the eighth respondent did not amount to hate speech because no one was harmed. Pon responded that harm was not only physical, and that he and most of the Chinese community suffered emotional harm and were traumatised by the comments. He added that they, as a community, did not need to wait for someone to die before taking action.
Van der Linde de Klerk disputes that they made the racist and xenophobic comments against the Chinese community.
TCA wants the court to grant a “relief geared at improving social relations, including an unconditional apology, an interdict preventing similar future speech, damages and that the respondents render community service to monitor and remove anti-Chinese hate speech on social media”.