Landmark decision to jail race hatred woman
Publish date: 29 March 2018
Issue Number: 4429
Diary: Legalbrief Today
Category: General
In a decision hailed as a landmark ruling in race hatred cases by the NPA – and as an example of double standards in how the law is applied by critics – racist estate agent Vicki Momberg was sentenced to an effective two years’ imprisonment yesterday on four counts of crimen injuria, notes Legalbrief. She began serving her time immediately after being denied bail pending an application for leave to appeal the sentence by the Randburg Magistrate’s Court. The 49-year-old is the first person to be jailed for crimen injuria. A TimesLIVE report notes Momberg went on a racist rant shortly after being a victim of a smash-and-grab in Johannesburg in 2016. She loosely hurled the K-word 48 times at police officers and 10111 operators who had tried to assist following her ordeal. Momberg was sentenced to three years' imprisonment‚ one year of which was suspended for three years on condition that she is not convicted of the same offence. Her lawyer Kevin Lawlor asked the court to release Momberg on bail pending the outcome of her application for leave to appeal the jail sentence, but Magistrate Pravina Raghoonandan, who during sentencing remarked that ‘respect for one another is sacrosanct, we are all human beings,’ dismissed the application. The leave to appeal application will be heard on Wednesday. Business Day quotes prosecutions boss Shaun Abrahams as saying: ‘This is a victory for the rule of law and sends a strong message to every citizen to treat every other person with dignity and not to discriminate on the basis of race. ‘This foreshadows the significance and necessity of the need for the hate speech Bill (before Parliament).’ NPA spokesperson Phindi Mjonondwana said the sentence imposed sends a strong message to would-be offenders. She described it as a landmark ruling... 'setting a precedent for other racial-related cases'.
Delivering sentence the magistrate said: ‘Ms Momberg, it does not give me pleasure to impose this sentence… it is a sad day for me.' A Cape Times report notes Raghoonandan said previous sentences against those who had been convicted of crimen injuria had not been an effective deterrent against would-be racists and bigots. She said it was up to the courts to show they were not afraid to give out custodial sentences that would actively prevent such behaviour in the future. ‘This habit and culture must change; innocent black people were violated,’ she said. The magistrate pointed out how the officers, in full uniform and simply trying to perform their duties, had been stripped of their dignity and self-worth by the use of the K-word against them. Minister of Justice and Correctional Services Michael Masutha was at the forefront of the chorus of those who welcomed the judgment. ‘We believe that this strong sentence will deter would-be hate crime perpetrators in our society. We also find it defeating and disappointing that we are dealing with a case of this nature in a year when we celebrate Nelson Rolihlahla Mandela,’ he is quoted as saying.
‘People need to watch their tongues before they talk‚’ warned Momberg prosecutor Yusuf Baba in a TimesLIVE report. He said while media reported on racial-related incidents‚ prosecutors saw many more cases than those that made the headlines. ‘Harsher sentences must be meted out because of the abuse that takes place on a daily basis. We are experiencing this on a daily basis and as such a strong message has to be sent out.’ Baba said Momberg deserved a direct imprisonment sentence as she had hurled racial slurs more than once. ‘You take all these (race-related) cases‚ the utterances were made once‚ but not in this case. To ask for direct imprisonment takes a lot from any person and this case warranted direct imprisonment.’ He said it was time for the Prevention and Combating of Hate Crimes and Hate Speech Bill to be passed into law. ‘... it is time a loud message is sent to every race‚ every person in the country. This cannot go on anymore.’ He described Momberg’s case as the ‘worst’ he has come across. A Business Day report notes that the key to avoiding harsh punishment in crimen injuria cases is a genuine display of remorse and at least the appearance that the accused has understood and is sorry for the hurt caused. Momberg, however, seemingly did everything she could to avoid the impression that she was remotely sorry for what she had said. In arguing for Momberg to get jail time, Baba said the state believed Momberg had not shown any real remorse. She had pleaded not guilty to the charges against her on the basis that she suffered from ‘situational anxiety’ and suffered from ‘sane automatism’. She later suggested that she was being victimised because she was white.
AfriForum claimed the punishment illustrated the double standards in SA law regarding race. ‘The inconsistency being applied in this country regarding minorities has reached the level of absurdity. The reality ... is thus that a white person who insults a black person goes to prison‚ while a senior officer in the Defence Force who says that white people’s eyes and tongues must be stabbed out is simply asked nicely not to repeat it‚’ AfriForum deputy CEO Ernst Roets is quoted as saying in a another TimesLIVE report. ‘In addition‚ an influential political leader talking about genocide is rewarded with an invitation to join the ruling party‚’ he added‚ referring to EFF leader Julius Malema. AfriForum said it had in the last year laid charges against 113 people who publicly incited rape‚ murder‚ assault and even genocide against white people. Up until now‚ no significant progress has been made with these cases‚ the group said.
The sentencing marked ‘a historic and important moment for SA', according to News24 editor Adrian Basson in an editorial. ‘It is the first time (that I am aware of) that someone will be imprisoned for using racist language in our country’s history.’ He said he would be surprised if this case did not go all the way to the Constitutional Court. ‘This is also an important moment for our jurisprudence, that incorporates the principles of reconciliation and restorative justice,’ he wrote. It is a particularly important moment for white South Africans to reflect on Rugoonandan’s ruling, he noted, adding: ‘It is simply unacceptable for any white South African to still use racist slurs like those uttered by Momberg in the year 2018. It was never acceptable, but if you still think it’s okay to use racial slurs like the K-word (also when black people are not present) 24 years after Nelson Mandela and the ANC extended a hand of friendship to their former oppressors, you have serious introspection to do – probably from your prison cell.’
A Daily Maverick commentary says the sentence deserves scrutiny. It notes that although the egregiousness of Momberg’s words is undeniable, her sentence is surprising. A first offender convicted of crimen injuria would ordinarily be sentenced to a fine and a jail sentence suspended on condition that the offender does not re-offend. In Momberg’s case, however, Raghoonandan handed down the maximum permitted sentence. In delivering sentence, Raghoonandan acknowledged that the penalty was unusually severe. ‘The crime of crimen injuria is generally not considered a serious offence,’ the magistrate said; but ‘it depends how a particular person’s dignity has been impaired.’ The Centre for Constitutional Rights’ Phephelaphi Dube reportedly said the sentence might well be overturned on appeal. ‘I’m not too convinced that the sentence will withstand further legal scrutiny and it does not appear to fit the crime, even if she was remorseless,’ Dube said. The DM also suggests the freedom of expression implications of this will need to be teased out by legal experts. It should also be noted that the state appears to prosecute crimen injuria quite selectively. For example, a 2016 judgment penned by Judge J Allie in the Western Cape High Court pointed out that in SA law: ‘There are no reported cases where sexist utterances have been found to amount to crimen injuria.’ And the DM adds: 'The Momberg case should also spark discussion about the nature and purpose of justice in cases such as these. There are presumably few people who would argue that time in prison will ‘cure’ Momberg of her evidently deeply ingrained racism. A jail term in this case may feel intuitively satisfying to many, but does little to address the wider social problem of racism and its causes.'
