The Vicki Momberg case: Equality Court vs Criminal Court

The sentencing of former estate agent Vicki Momberg has sparked debate about the differences in the sentences various courts have imposed for crimes stemming from similar incidents.

Magistrate Pravina Rugoonandan sentenced Momberg last Wednesday to three years in prison, of which one year was suspended.

Momberg had been convicted of four counts of crimen injuria, after she lashed out at a black police officer who had been assisting her after an alleged smash-and-grab incident in Northriding, Johannesburg. She used the k-word 48 times.

READ: Momberg sentencing 'will act as a deterrent to other racists' - Kathrada foundation

While some felt that that the sentence imposed on her was justified, others believed that it raised double standards in the courts.

Many compared the sentence to that of Economic Freedom Fighters leader Julius Malema, who was found guilty of hate speech in 2011 for singing "Shoot the Boer". The court ordered Malema to refrain from singing the song and to pay part of the legal costs of lobby group AfriForum, which took him to court.

The difference is that Momberg's prison sentence was imposed by a criminal court and that the order against Malema was made by an Equality Court.

Speaking to News24, law expert Professor James Grant explained that, although there was some commonality, the courts varied in the way that they dispensed justice.

"Their purpose and role [are] very different. A criminal court is effectively for punishment while an Equality Court is to drive reconciliation," said Grant.

However, he pointed out that fines imposed by the Equality Courts could be seen as punishment.

South African Human Rights Commission (SAHRC) spokesperson Gail Smith explained that Momberg was charged with crimen injuria, which made it a criminal matter.

"Momberg was found guilty of criminally violating the dignity [of the police officer] through the use of the k-word.  The Equality Courts do not deal with criminal matters and so, do not do crimen injuria matters."

She added that the Equality Court did not sentence people to jail terms.

"The aim is restorative justice – and educative, so people understand Section 9 of the Constitution and that equality and dignity are human rights, and that violations [of] these can be taken to court."

Smith added that the commission instituted proceedings on behalf of the complainant in the Equality Court while the complainant also instituted criminal proceedings on his own in the criminal court.

"Momberg did not dispute the hate speech allegations in the Equality Court matter and was found guilty and a court order was imposed," said Smith.

"She was told to apologise, do community service and make a financial payment to the complainant.  She did not dispute any of the order, except the financial payment."

"She further failed to comply with the order – so no apology was made, no community service.  The SAHRC was instituting contempt of court [proceedings] against her when she was sentenced to jail.  So we cannot serve her papers for contempt of court."

Another case similar to Momberg's was that of Matthew Theunissen, who posted on Facebook in 2016: "So no more sporting events for South Africa... I've never been more proud than to say our government are a bunch of K*****S... yes I said it so go f**k yourselves you black f***ing cunts.”

The Equality Court ordered him to stay off of social media for 12 months and to perform three to six months of community service. He was never charged criminally.

Likewise, with controversial KwaZulu-Natal realtor Penny Sparrow, who was ordered to pay R150 000 to the Oliver and Adelaide Tambo Foundation for her racist comments. This was after a Facebook post in which Sparrow likened black beach-goers to monkeys.

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