'Xenophobic, racist and sexist': Case against DA MP Kohler Barnard goes to Equality Court

2019-03-28 16:52
Dianne Kohler Barnard. (Netwerk24)

Dianne Kohler Barnard. (Netwerk24)

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DA MP Dianne Kohler Barnard will face an Equality Court hearing over alleged racist and discriminatory complaints made at a staff workshop, Cape Town's chief magistrate ruled after a fraught exchange on Thursday.

Magistrate Daniel Thulare, presiding over the matter in the Cape Town Regional Court building, was visibly annoyed because Kohler Barnard had not submitted "even one line" in an affidavit to help him decide whether there was still a possibility of mediation.

"She isn't even here," said Thulare, suggesting that Kohler Barnard might be employing a "Stalingrad strategy" in her handling of the accusation by Louw Nel, who lodged the complaint.

He expressed a concern that without Kohler Barnard's side of the story, it was difficult to tell whether the court would be involving itself in settling a "robust political debate" that could be better managed in a different forum.

Not a DA member

Nel is the opposition party's operations manager at Parliament.

He told the court that he is not a member of the DA but just an employee in their office. The alleged comments in question were made in a workshop setting, so there was no question of whether it was a political dispute.

Nel alleged in his affidavit that in a workshop on February 2, 2018, Kohler Barnard made comments that were "xenophobic, racist and sexist in nature".

In a paraphrased explanation of the comments,  he alleged that she said:

- "Farm murders have decreased since the removal of then president Robert Mugabe, as Zimbabweans have returned home";

- "Women have themselves to blame and are 'stupid for being scammed as they enter into relationships with Nigerian men who sleep with them and solicit money under false pretences; and";

- "Black children are killing 'whiteys' with stones thrown at vehicles from bridges, 'never mind the fact that coloured or Indian people are also being killed'; also, the respondent (Kohler Barnard) questioned why these 'kids' were not in school."

He submitted in the affidavit: "It is my contention that the utterances listed above amount to unfair discrimination on the grounds of ethnicity, gender and race, and betrayed a bigoted attitude towards Zimbabweans, women and people of colour."

'Utterances are not supported by fact'

He continued that in her position, Kohler Barnard would know that the utterances "are not supported by fact".

DA MP Zakhele Mbhele was also present at the hour-long workshop along with Grant Caswell, Mondli Zondo, Christa Badenhorst and Kabelo Mohlohlo, his affidavit read.

They also caused hurt and offence to himself and in conversation with his colleagues, to them too. He said that associating Zimbabweans with murder is particularly hurtful and offensive to him as his children have a Zimbabwean mother and some of their colleagues were born in Zimbabwe.

He said Kohler Barnard had a responsibility to uphold the values of human dignity as set out in the Promotion of Equality and Prevention of Unfair Discrimination Act.

The point of the proceedings was to decide whether it was an Equality Court matter, so there were no submissions over the merits of the complaint.

Kohler Barnard's lawyer advocate Michael Tsele fought hard over the almost two-hour directions hearing to defend Kohler Barnard's lack of an affidavit, and submitted that mediation would be a better option.

Comments taken out of context

He said he was "perfunctorily" briefed fresh, but did know that Kohler Barnard disputed making the comments Nel accuses her of, and said they were taken out of context.  

"The respondent says the comments were taken out of context and in some instances distorted. She would be open to a suitable mediator agreed upon by all parties or an institution who is capable [of dealing with matters of this sort].

But Thulare was not satisfied.

"You remember that if Mr Nel may have misunderstood her, you may have misunderstood her," said Thulare.

Thulare ruled that the matter be heard as an Equality Court matter.

There was another hiccup when May 9 was proposed as the return date.

Nel, representing himself, pointed out that that would be the day after the May 8 provincial and national elections and it was not just Kohler Barnard who had a reputation to protect, but also himself.

Thulare also wanted to know why Kohler Barnard should get so much time to prepare an affidavit and witness statements.

The return date was eventually set at May 3 when a trial date is expected to be set.

Guilty of breaching DA's social media policy

It is not the first time Kohler Barnard is accused of making inappropriate comments.

Kohler Barnard returned to her police and justice portfolio, known as "shadow minister of police" within the party, in August 2017.

That was after being demoted to "deputy shadow minister of public works" in 2015 after sharing a post on social media which praised apartheid-era prime minister, PW Botha.

She said she had shared it without reading it fully.

"Please come back PW Botha - you were far more honest than any of these [ANC] rogues, and you provided a far better service to the public," the post read.

At a DA disciplinary hearing, she pleaded guilty to breaching the party's social media policy, misconduct and bringing the party into disrepute.

In December 2015, Kohler Barnard’s expulsion from the DA was lifted following an appeal.

The party had her attend a presentation on the safe use of social media, pay a R20 000 fine and resign from all elected positions in the party, except that of MP.

Comment from Kohler Barnard was not immediately available.

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