Convicted racist Vicky Momberg walks up from the cells during sentencing proceedings at the Randburg Magistrates Court, Johannesburg on 28 March 2018. Picture: Yeshiel Panchia
With the first person being sentenced to jail in South African history for using the appalling k-word – it is probable more cases of hate speech and hate crimes will flood the courts.
With the massive precedent that the effective two-year jail term handed to Vicki Momberg in the Randburg Magistrate’s Court sets, coupled with the imminent enactment of the Prevention and Combating of Hate Crimes and Hate Speech Bill, there is sure to be an increase in cases of this nature.
In effect, Momberg, should she lose on appeal, will spend 15 days in prison for each of the 48 times she had used the k-word.
What the sentence showed, according to legal experts, is that racism in South Africa, given its tumultuous past, will not be tolerated, and with Momberg being made a direct example of, more and more South Africans in similar circumstances will now flock to the courts.
“More criminal cases are going to be opened. I think the Equality Court is going to be flooded more than ever before,” criminal law expert Cliff Alexander said. “I think we are going to see more criminal prosecutions stemming from the use of racial terms. People are going to be flocking to the police stations.”
He said the courts would in all likelihood determine if cases can be resolved through a defender showing remorse.
“The Equality Court is quite busy already. It’s a fantastic institution. But does it really have teeth?”
People in hate crime situations will also look to a middle ground of a capital settlement, he added.
“I think that is also what one is going to see a lot of. People are going to be paying to make these things go away. It is going to be a case where ‘if you don’t give me R100, then I am going to lay the charge against you’.”
From a legal standpoint, the hate crimes bill is welcomed, but does come with a grey area, Alexander said.
“I think the bill is long, long, overdue. There are unfortunately elements on both sides of the divide [with regards] to discriminatory speech. It cuts both ways. It should have been implemented and enacted a long time ago.
“However, the unfortunate aspect about it, is that it is subject to abuse. Think about it … if you go to a restaurant and you don’t like the service the waiter gives you and you reprimand him about it, he could say you called him something derogatory along racial lines.
“He could be a Chinese person. It doesn’t have to be a black person – it’s going to come down to a he said, she said.
“It is exactly the same as the Sexual Offences Bill. If you falsely lay a charge against someone, you open yourself up to criminal prosecution, but it’s got to be proven once again. It is open to abuse like any legislation. That is my only concern.”
Legal expert William Booth pointed to other laws which could be used in similar circumstances – leading to confusion.
“Having too many laws is incorrect in dealing with the same conduct. It becomes a bit confusing to where matters will go.
“It may be too much of the same thing. It should be looked at, and put into one Act which covers everything. Put everything in a unified piece of legislation.
“What I can’t fathom is why are there so many of these cases? One wonders why people have to resort to racial comments.”
– yadhanaj@citizen.co.za
Info:
Sentence is evidence of double standards, says AfriForum
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