/ 20 August 2022

Inside the ‘contradictory’ statements of Babalo Ndwayana, victim of the Stellenbosch University urination and racism saga

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Centre of the storm: Babalo Ndwayana’s desk was urinated on by fellow Stellenbosch University student Theuns du Toit. Photo: Esa Alexander

The defence team of expelled Stellenbosch University student Theuns du Toit is expected to argue on appeal before the institution’s disciplinary committee later this year that the victim in the urination matter, Babalo Ndwayana, made contradictory statements about the incident, bringing into question the claim that Du Toit is a racist, which ultimately led to his expulsion. 

On 15 May, a “heavily toxicated” Du Toit was filmed by Ndwayana while he urinated on Ndwayana’s desk in the latter’s room in the Huis Marais residence. Du Toit’s friend — Ndwayana’s roommate — was away for the weekend.  

A laptop, textbook and notebooks were damaged as a result of Du Toit’s actions. Du Toit is alleged to have muttered, when confronted by Ndwayana, that he was urinating on the desk because it was “a white boy thing”. 

It is this allegedly uttered racial statement that has come into dispute, but was fobbed-off by the university’s central disciplinary committee (CDC).   

The Mail & Guardian has seen the ruling from the CDC panel. 

Du Toit’s legal representative, William Fullard, when arguing on behalf of his client at the committee meeting that eventually found Du Toit guilty, contended that the incident “was not a deliberate or intentional undertaking by the accused, but rather a drunken mistake”, and that Du Toit’s actions were not racially motivated. 

Ndwayana did not testify before the committee, claiming the panel was “biased and unfair” after it would only grant access to one of his two legal representatives.

Ndwayana’s representative, from the Unisa Law Clinic, told the panel:  “[Mr. Ndwayana] does not feel that the decision [of the hearing] is going to be fair. He sees a little bit of bias from the committee.” 

In its decision, the panel called the allegations by Ndwayana’s legal representatives “unfounded and lamentable”.  

“This CDC is convinced that their actions [cost] Mr Ndwayana the opportunity to speak his truth — a necessity in not only this matter but also in his own healing process. We believe that Mr Ndwayana’s voice deserved to be heard. It was in the interests of the student community as a whole, alumni and even on a national level to hear his story in this setting. However, his legal representatives, through their actions, robbed him of this crucial opportunity.”

Ndwayana’s version of events that were put to the panel could not be contested by Du Toit, who did appear before the committee. Du Toit admitted he was intoxicated after drinking one-and-a-half bottles of brandy with a friend the previous night and could not remember the discussion with Ndwayana on early Sunday morning, or what took place during that encounter.    

Du Toit also told the committee that he was part of a drinking culture at the university and relied on alcohol to “fit in”.

The committee ruled that Du Toit’s “state of intoxication cannot and does not form a defence”. Regarding the urination charge, the committee said, “It is self-evident that the act was, at a bare minimum, grossly insulting, abusive and intimidating.”

The panel found Du Toit guilty on the charges of trespassing, urinating on a fellow student’s possessions and “acting in a racist manner in saying a variation of ‘it’s a white boy thing’”.

The only testimony the disciplinary panel heard from Ndwayana came in the form of two statements. The first was made two days after the incident, and another was submitted two days after the first statement was made.  

The first statement relates how Ndwayana was told by a fellow student (the only witness, named Mr X) to record the incident.  

Ndwayana said in that statement: “I asked [Du Toit] what he was doing, he said ‘waiting for someone, boy’. I then asked him why he is urinating on my belongings, he then told me ‘It’s a white boy thing’. After the respondent urinated, he then left my room.” 

Ndwayana said he then reported the incident to his mentor. 

Two days later, Ndwayana changed his statement to read that Du Toit had said “it’s a white boy thing” only after he had stopped filming. 

“After I have ended the video, Theuns walked out and then that’s when he said ‘it’s a white boy thing’”, according to the second statement. 

By this time, a clip of the incident was available on social media, where the alleged racial statement could not be heard. In the video, Du Toit can be heard saying: “waiting for someone”; “boy” and “waiting for roommate”. 

But according to Nomonde Gxilishe, who is a principal attorney at the Unisa Law Clinic in Cape Town and a legal representative for Ndwayana, the statements are not contradictory. 

“I do not see the inconsistency. The only thing is that in the first statement of 17 May 2022 he does not specify when the words “it’s a white boy thing” were uttered. It is in the second statement of 19 May 2022 wherein he is specific about when the words were uttered i.e. after the video was stopped,” Gxilishe told M&G. 

“The fact that he did not specify in the first statement exactly when the words were uttered does not support the allegation that he contradicted himself.

She said Ndwayana had been consistent in his statements about Du Toit saying “it’s a white boy thing”.

A source said Ndwayana’s roommate and Du Toit would occasionally invite Ndwayana to socialise with them, and that Ndwayana had also borrowed clothing from Du Toit, placing the trio on “friendly terms”.  

Two days after the incident, Ndwayana was interviewed by eNCA. He said that he awoke to a “strange white man … boy….” in his room. Asked later in the interview if there were any racial remarks made by the man/boy in his room, Ndwayana replied “no”. He also confirmed that Du Toit was drunk.  

In an interview with News24 on 17 May, Ndwanyana said: “I would forgive him, because he is, like, also traumatised enough now …. My father said I must make criminal charges but I said to him it is already enough now. We must also think he is someone’s child.” 

The only testimony that could support or question Ndwayana’s statements put before the committee was that of Mr X, a fellow resident of Huis Marais, who encouraged Ndwayana to film the incident. 

Mr X told the committee that he did hear the conversation in the room and when Du Toit left the room. But he said he did not hear Du Toit utter “it’s a white boy thing”. 

Du Toit had fallen asleep in the room of his drinking mate prior to the incident. That room was two doors away from Ndwayana’s room. The dormitory toilets were one door away. 

The committee had to determine whether the phrase, “it’s a white boy thing”, or a version thereof, was uttered by Du Toit. 

It conceded in its judgment that only Ndwayana had heard the phrase being uttered. 

Du Toit’s defence brought in witnesses to testify about Du Toit’s character. The panel learned from the witnesses that Dutoit has a person of colour as a roommate, and a best friend.  

But the committee said the testimonies “cannot hold incredible sway”. 

“Simply because no previous evidence of racist behaviour has been presented does not mean one cannot be racist in a particular moment or incident.”

The panel conceded to the argument put forward by the defence that Ndwayana’s recollection of what was said started to “differ” as time passed. 

It acknowledged that “Ndwayana was thrust into the country’s — and international — spotlight, his testimony developed variations and, as such, more holes through which to question his reliability.”

But it stated that Ndwayana’s initial testimony was “clear” and “consistent” immediately after the incident, despite the panel at times relying on the second statement. It did not consider whether Ndwayana could have misunderstood or failed to remember what he allegedly heard. 

“It is this CDC’s belief that the balance of probabilities must fall in favour of Mr Ndwayana. To fail to do so would be to conclude that Mr Ndwayana was, and still is, lying. That is a conclusion that will be ill-established and would in many ways be demeaning,” according to the committee’s decision. 

“Mr. Du Toit, on a balance of probabilities, is found to be guilty.” 

Ndwanyana’s father, Mkuseli Kaduka, said at the time of the incident that the family would be pursuing criminal charges against Du Toit. He told M&G last week: “We’re still waiting for the appeal process on his expulsion from school, then we will concentrate solely on the criminal case and we’re still exploring other avenues open to us.”

The spokesperson for Stellenbosch University and the committee, Martin Viljoen, told M&G the university would not “comment prematurely” on the fairness of the disciplinary hearing and would instead allow the appeal process to run its course. 

“Furthermore, the [university’s] disciplinary code for students was followed closely throughout the disciplinary process. This includes the detailed investigations that were carried out as part of the principles of good and fair process management that were maintained throughout the case.”

Universities South Africa (USAf) said it welcomed the committee’s decision. 

“We are pleased with the outcome and we don’t think there [were] any particular irregularities that would impede on the substantial and procedural fairness of the matter,” said USAf’s Linda Meyer. 

“It was a fair and equitable judgment. There is no place for racist behaviour or anything that can be construed as racist. Any actions of [that] nature must be called out of our universities. Therefore, although there is some question about the intent [of Du Toit’s actions], the action in itself can be construed as a racist act.”