‘Justice not served’: Family outraged as student who urinated on Babalo Ndwayana's belongings walks free

The family of Babalo Ndwayana has expressed deep disappointment after the acquittal of former Stellenbosch University student Theuns du Toit, who was caught on video urinating on Ndwayana’s belongings in a university residence in 2022.

Du Toit was cleared this week of charges of crimen injuria and malicious damage to property, bringing a three-year legal process to a controversial close. The Stellenbosch magistrate's court found there was insufficient grounds to convict him.

The incident, which went viral on social media at the time, drew national outrage and sparked renewed debate on racism and privilege in South African institutions.

Ndwayana’s father Mkuseli Kaduka, told TimesLIVE the family was devastated by the Stellenbosch magistrate's court’s decision.

“Babalo and myself are both disappointed and devastated by the outcome of the case. Justice was by no means served at all,” said Kaduka.

Stellenbosch University said it considered the process fair and closed. Meanwhile the SU convocation lamented the damage caused by the case to the university's reputation and called for an apology to Du Toit.

Kaduka also criticised society and institutions, accusing them of failing to adequately address the deeper issues highlighted by the incident.

“The only time society as a whole talks about such issues is when these despicable acts happen. One would've thought that after so many years of our so-called democracy we wouldn't be dealing with such incidents. But it's judgments like these that do not act as a deterrent for anyone who even thinks of doing these inhumane acts,” he said.

Kaduka spoke of the lasting emotional and psychological toll the ordeal has had on his son.

“It's still early days, but I've seen the damage the actions of that boy did to my son and how withdrawn he's become. I'm just hoping that the support and love he's receiving all around will help him heal.”

Kaduka added that the family has not sought financial compensation, contrary to speculation by some.

“People are going around saying we're looking for money but at no point have we ever asked or received money from anyone.”

When asked what message he would share with others facing discrimination or injustice, Kaduka urged people to speak up.

“‘Evil prevails when the good do nothing.’ All I can say is that it's within all of us to speak up against these evil acts and root them out of our society. Because in our silence they just become emboldened. Taking on issues of racism means you're opening yourself up for ridicule, even intimidation at times, but let's stand up and be vocal about such people and acts.”

Kaduka said the family was still processing the judgment and considering their legal options.

“We will take things one day at a time and hopefully one day we will recover as a family — and more especially Babalo,” he said. 

Du Toit, who was expelled by the university, did not deny the urination incident, but claimed it was not racially motivated and that he had not intended any damage. He said it occurred while he was drunk, it was dark and he only realised where he was when the light was turned on.

According to TwoOceansVibe, his lawyer Dirk van Niekerk said the state could not prove that he had acted with criminal intent. 

The claim by Ndwayana that Du Toit had uttered “it’s a white boy thing” was challenged with the help of a forensic sound engineer, who reviewed a tape of the incident, and a witness who was present who testified he did not hear Du Toit saying that.

According to IOL, Ndwayana also gave two conflicting affidavits on when Du Toit allegedly uttered the racist phrase. Initially he said this was when he asked Du Toit why he was urinating on his belongings. Two days later, he handed in a second affidavit saying Du Toit uttered the words after he stopped recording the video.

TimesLIVE