Should unrepentant racism end in jail time?
A Gauteng court is dealing with at least five racism cases a month - and the number is growing
Karyn Maughan
Twenty-four years into democracy, racism seems to be a well-entrenched and polarising part of life in South Africa – and both the state and ordinary citizens are turning to the courts in a bid to eradicate it.
The Randburg Magistrate's Court, which recently sentenced convicted racist Vicki Momberg to an effective two years in jail, is dealing with at least five racism cases a month – and that number is growing.Investec CEO Fani Titi will get into the witness box in that same court later this month to pursue his crimen injuria case against his former friend and business associate Peter-Paul Ngwenya. Ngwenya is accused of sending a text message in which he referred to Titi as a "QwaQwa k*****r".
The case is important because it will examine just how important identity is when determining whether someone's dignity has been injured by an allegedly racist comment.
In essence, the court will have to determine, legally, whether a black person can be found to be racist.Prosecutor Yusuf Baba, who put Momberg on trial, has handled a number of these crimen injuria prosecutions – cases of alleged racism or prejudice in which the alleged victim resorts to the criminal justice system to fight back.
He says such cases are often settled when the person accused of racism sincerely apologises to the person they have insulted.
"The complainant will come and say: This person has made amends with me, how can I go ahead with this? Then they settle the matter."
Key here, of course, is the attitude of the accused racist. If she or he shows genuine remorse, these cases can be settled without ever going to trial.
Court records show the case against Momberg was postponed in September 2016 to allow her lawyers to offer the state a plea-and-sentence deal, in which she would have pleaded guilty to using the k-word 48 times, apologised and agreed to house arrest as a punishment.
Instead, she fired her lawyer and pleaded not guilty. That strategy, it seems, has cost her dearly.
Her lawyers are now preparing to bring an application for leave to appeal both her four crimen injuria convictions and her effective two-year jail term on Wednesday next week. They have previously argued that she was temporarily insane at the time that she made her racist utterances, as she was traumatised by a smash-and-grab robbery.
The court was not convinced.
Momberg's case may very well end up at the Constitutional Court, as South Africa grapples over whether unrepentant racism should end in jail time. The Department of Justice is also pushing for new legislation that will make hate speech a statutory offence, with the prospect of jail time for offenders.The mooted law does not identify any specific words as hate speech, but stresses that the context of the comments is crucial to determining whether they constitute hate speech or not. Key here is whether the words constitute incitement to cause harm to any particular group of people on the basis of race, sexual identity, culture, disability or other factors.
As Momberg battles to be released pending her appeal, Sports Department employee Velaphi Khumalo will face charges of crimen injuria linked to his Facebook post about white people, made weeks after estate agent Penny Sparrow described black people as monkeys on Facebook.
He was suspended after posting on Facebook that black South Africans should do what "Hitler did to the Jews" and cleanse the country of white people. He went on to say: "I will from today unfriend all white people I have as friends from today u must be put under the same blanket as any other racist white because secretly u all are a bunch of racist fuck heads."
The Human Rights Commission says 19 complaints were lodged against Khumalo over his comments, which, under the new legislation currently before parliament, would constitute hate speech.
Also in the Equality Court is the Nelson Mandela Foundation's attempt to ban "gratuitous" displays of the old South African flag, on the basis that such public displays of a flag synonymous with the oppressive apartheid regime are deeply offensive to many South Africans.
The foundation said it sought the partial ban of the old South African flag after repeatedly seeing it displayed at public events: "The decision to launch this application comes after years of watching public displays of the old flag and hoping that such behaviour would stop. These displays demonstrably compound the pain experienced by millions of black South Africans who suffered under apartheid and continue to struggle under its legacy. Displays of the old flag at demonstrations against farm murders on "Black Monday", October 30 2017, at least two of which were verified, persuaded us that the time had come to act."
AfriForum is opposing the ban on the basis that it infringes the constitutional right to freedom of expression, and suggests that, should offence be a basis for banning the old flag, the rainbow gay flag could be next.
Gay rights organisations have responded to this argument with shock and anger, and are expected to ask to make submissions to the Equality Court. Activists say the rainbow flag is associated with love, acceptance and joy, and any comparison with the old South African flag is "completely inappropriate".
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