(Extract from Mail & Guardian April 14 2008)
Maternity waiting-room joke deemed criminal
David Hambile Gumede Justice reporter
A finding of guilty with exacerbating circumstances was handed down in the Hate Speech Special Court yesterday, with sentences of imprisonment and corrective re-education passed on three defendants, Rudolph Crasston, Herbert Driver-Fullman and Josephine Jolson, all of Sandton.
The trial arose from charges made under provisions of the Prohibition of Hate Speech Act of 2004. The three, all white persons, were accused under Section 18(3) of the Act, which prohibits any act or statement made in public which, inter alia, advocates hatred that is based on race or which undermines human dignity.
The charges arose from an incident on the 17th of January this year, which took place in a popular Sandton public restaurant and where the telling of a racially inflammatory joke was overheard by a plain-clothes Hate Speech Invigilator (HSI), who had seated herself at a table close to the three accused.
As the anonymity of all HSIs is guaranteed under Section 12(5) of the Act, this HSI gave evidence wearing a large brown paper packet over her head. Under cross-examination she said that she was one of about 2 000 so-called ”free range” HSIs. These were specially trained to infiltrate society at all levels in order to identify and bring to justice any citizens guilty of racial discrimination, gender hostility or generalised bigotry.
The joke in question is set in a maternity hospital waiting room where three anxious fathers-to-be are seated. One is an English-speaking South African, the second an Afrikaner and the third an African.
After a while, a doctor enters the waiting room and offers congratulations to the three men, saying that they had all become proud fathers of healthy male babies.
The doctor then announces: ”Unfortunately, we have a particularly stupid delivery-room sister on duty tonight and she has gone and mixed up the babies. I am therefore going to ask you gentlemen to come into the nursery one by one, so that you may each identify your son.
The English-speaking South African goes in first and comes out a minute or so later, carrying an African baby. ”Hey,” cries the alarmed African father, ”what are doing with my son?”
The English-speaking South African replies: ”I’m making sure I don’t get the f***ing Afrikaner”.
Appearing for the state, senior prosecutor Viljoen Grubb said the telling of the joke in a public place was a prima facie violation of the relevant clause in the Act in that, according to the evidence of the HSI, the joke could easily have been overheard by other patrons of the restaurant. He said the intention behind the joke was to depict Afrikaner people as being inferior to English-speaking South Africans.
The English-speaking South African’s prejudice was so ingrained he would go so far as to steal another couple’s child. Grubb said the joke, therefore, ”undermined human dignity or adversely affected the equal enjoyment of any person’s or group of persons’ rights and freedoms in a serious manner”.
Grubb said that there was a further and even more serious criminal infringement of the Hate Speech Act in that the choice of the African baby by the English-speaking South African implied that ”even an African child was preferable to a ”f***king Afrikaner”. Grubb said this was ”a sickening display of racial prejudice which advocated hatred based on race or ethnicity and propagated racial superiority”.
For the defence, senior advocate Smiley Mucous said that he found it ludicrous that criminal charges could be brought against two of the accused, Driver-Fulman and Jolson, merely for having laughed at the joke. Mucous suggested that his clients apologised for any hurt they may have caused and that they had been drinking at the time and were suffering from post-democratic stress syndrome.
Judge Godly Lickwhistle intervened at this point, observing that a joke cannot be a joke unless it is delivered to listeners. The fact that the two joke-receivers had, to use the HSI’s phrase, ”laughed uproariously and banged the table”, demonstrated they were part and parcel of the racial crudity of the joke’s sentiments.
Prosecutor Grubb said that there was further racially discriminatory content to the joke. According to the HSI, the joke-teller gave a broad wink when he repeated the doctor’s words ”particularly stupid delivery-room sister”. Grubb said that figures recently released by the Department of Health stated that more than 80% of health workers in South African hospitals were ”of colour”. The use of the words ”particularly stupid” was clearly intended to imply that 80% of the country’s dedicated health workers were merely stupid. This was deeply racist.
Judge Lickwhistle agreed that, for purposes of sentencing, this was indeed an exacerbating circumstance and sentenced joke-teller Crasston to three years imprisonment. Joke-receivers Driver-Fullman and Jolson were given a year’s imprisonment, suspended for five years on condition they attend ”a racial sensitivity course” at an approved re-education camp for the same period of time.
Leave to appeal was denied.