Vicky Momberg, Penny Sparrow and Matthew Theunissen all made racist remarks. Why did Sparrow get a fine, Theunissen anger management classes and community services and Momberg jail time?
To many South Africans the way our law deals with racism seems like a conundrum.
Since the Vicky Momberg sentencing, South Africans have responded in different ways. Some felt that her sentencing was unfair compared to what happened to other racists in the past. The cynical among us fear that jail time was reserved for Momberg only and that future offenders would not held equally accountable.
South Africans have been speculating about the fate of Velaphi Khumalo, who called for white people to be treated like Hitler treated the Jews. Khumalo was scheduled to appear in the Equality Court on April 3. The complainant, who also opened a crimen injuria charged against him, hoped that his fate would be the same as that of Momberg.
Those affected by racism therefore have two vehicles through which justice can be served. The one is hate speech law with a fine or community service as a possible punishment for the wrongdoer. The other is crimen injuria with possible jail time as a result.
He who reacts to racism, must do so keeping this in mind. If A wants B to land in jail for being a racist towards A, he cannot expect that outcome from the Human Rights Commission or Equality Court’s handling of a hate speech complaint.
If I may dumb it down a bit: that would be like asking an ice cream vendor for a chocolate flavoured scoop and being furious when he doesn’t serve you vanilla ice cream. It is a basic principle: you cannot get what you do not ask for. If a complainant does not address racism in terms of criminal law, he cannot expect the perpetrator to incur jail time.
Jail time is not typically imposed for crimen injuria, but that does not mean that our courts have to refrain from doing so. In the Momberg case, the court found the imposing of jail time justified. Factors that could have contributed may have been the seriousness of the offence – she mentioned the k-word more than 40 times, and the fact that a probation officer felt a racist vibe and endured humiliating comments when dealing with Momberg after the prosecution process started.
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Momberg has elected to appeal her sentencing. If the court of appeal confirms the sentence of the Randburg Magistrate’s Court, this could set a precedent according to which racists can be jailed in future. Only time will tell whether this will happen.
Meanwhile, racism victims should take note of developments in the legal sphere. If you have been affected by racism, lay a charge of crimen injuria with the police. If you do not open a case, you cannot complain if the racist who hurt you is not prosecuted. The responsibility is yours to launch the process. And yes, report hate speech to the Human Rights Commission as well. It is your right.
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