Jail time for all racists? Here's what the law says

2018-03-28 16:30
Vicky Momberg (Felix Dlangamandla, Beeld, Gallo Images, file)

Vicky Momberg (Felix Dlangamandla, Beeld, Gallo Images, file)

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On Wednesday the Randburg Magistrate's Court sentenced Vicki Momberg to three years in jail with one year suspended after she was found guilty on of four counts of crimen injuria last year in connection with a 2016 racist tirade in which she used the k-word 48 times.

Could this judgment pave the way for more racists to be criminally prosecuted? Constitutional expert Phephelaphi Dube sheds light on the issue.

This is the first time a judge sentences someone to jail for using the k-word. What was the legal framework that made it possible for the judge to give Momberg jail time?

Hate speech is currently governed by the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Equality Act). The Constitution sets the boundaries of free speech and proscribes it regarding propaganda for war, incitement of imminent violence or advocacy of hatred based on race, ethnicity, gender, or religion that constitutes incitement to cause harm. 

Based on this understanding, Ms Momberg's speech while offensive and hurtful, lacks the advocacy for incitement element which would justify incarceration.

However, in terms of the Equality Act (Promotion of Equality and Prevention of Unfair Discrimination Act, 2000), there has to be a clear intention to be hurtful in the particular communication – hence Ms Momberg being found guilty of hate speech.

Has a precedent been set for all incidents of racism to be criminally prosecuted?

As it stands, the element of intention is required for criminal liability to ensue, which limits who can therefore be criminally charged under the auspices of the Equality Act and the Constitution. In other words, there should be an intention to be racist as opposed to jest. This has to be determined by the court. 

From a constitutional point of view, is this a good thing? Some say it limits freedom of speech.

Any conduct which is in contravention of the Constitution should be prohibited. Therefore, the limitations set in the Constitution are a necessary protection against the infringement of the human rights of others (human dignity and equality, etc.). However, there is a need to balance the contravention of the Constitution (ie. the offence) against the sentence.

In this instance, the custodial sentence is probably not going to change Ms Momberg’s prejudice and is not going to lead to behavioural change. In other words, the sentence appears inappropriate as it will not lead to rehabilitation. It will most likely be challenged in a higher court.

Where does the so-called Hate Speech Bill fit into all of this? 

The Hate Crimes Bill, which is at an advanced stage, creates a criminal offence of hate crime, and the 2016 version sets the threshold at the advocacy of hatred towards another person or groups of persons, is threatening, abusive or insulting. It even considers the element of intention and if passed, the Bill will be particularly effective in deterring violent crimes against vulnerable groups. The Bill is intended to lend clarity to the freedom of expression and its limitations and when passed, will be the primary legislation in cases involving hate crimes. (Although its hate speech provisions may not meet constitutional muster.)


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