It is rare that the judgment of a magistrates’ court takes on such significance that it is said to be “ground-breaking”, “landmark” or historic. This was what was said about the judgment and sentence that Randburg Magistrate Pravina Rugoonandan passed this week.
As the law of our land is so heavily dependent on precedents, or stare decisis, Vicki Momberg, the accused in this matter, and in private life an estate agent, will have her name in the history books. She will become as well known as the Brown in Brown versus Board of Education in the US, a case which became a household name in the campaign for civil liberties in that country.
Momberg was found guilty of the usually innocuous crime of crimen injuria last November. This week, she was back in court to be sentenced. To the consternation of her pack of supporters and counsel, the magistrate sentenced her to a custodial sentence of in effect two years. To crown it all, she refused to grant Momberg bail pending her application for leave to appeal.
The crime of crimen injuria is thought to be innocuous, because perpetrators of such acts usually get away with a fine. However, our superior courts have indicated very firmly that utterances like the k-word will not be tolerated and that they have no place in our constitutional dispensation.
The Equality Court gave Momberg a hefty fine, but she remained unrepentant.
Crimen injuria results when the perpetrator utters or communicates words or actions that are meant to cause injury or harm to someone’s dignity or, by using obscene or racially offensive language, demeans or hurts them.
To show that government will act firmly against perpetrators of such racially offensive and demeaning language, Parliament has passed a law that makes hate speech a criminal offence.
There can be no gainsaying the truth that, for some time now, South Africa has been suffering from some gratuitous expressions of (white) racism. Again and again, too often not to take notice, white South Africans have been involved in blatant race hate and violence. Whether it is in Ventersdorp in North West, or Belfast in Mpumalanga, racial violence in our country is a fact of life.
This is particularly so as the hatred and violence is perpetrated against the most powerless people imaginable – the poor and unemployed. It is not unusual for someone to be accosted by white racists at a petrol station or in a queue in a shop. There are far too many white people in our country who have not come to terms with the fact that the South Africa that they knew and loved is no more. The danger with much of this perception is that it undermines the goodwill that many white people have towards other races and the big strides that are being made to better race relations.
Our democracy is replete with laws that promote racial equality, forbid racial intolerance and guarantee rights for all. Our courts have done a sterling job in seeking to root out all forms of racial intolerance, harassment and violence. The SA Human Rights Commission and other chapter 9 institutions are there to stop the racist tendencies that engulf society. And yet, tragically racism marches on!
Why does it still continue
Crimen injuria is a common law offence. It was part of our legal system even during the apartheid years. The only difference, one assumes, is that apartheid gave cover to and legitimised the crassest forms of racism and bigotry imaginable. The entire system of law was stacked against the majority to protect racial bigotry. In the new dispensation, then, why does it still continue in such a blatant fashion?
The first and most obvious reason is surely that, for many white people – especially those on the underside of history, and whom circumstances put on the same social scale as black people – race hate and competition for resources turns into various forms of assertion of power, even where none exists.
The second is sheer contempt for our constitutional dispensation. There may be instances where such people do not recognise that apartheid is no more. They may do so, in part, because in far too many places in South Africa today, black people and their exercise of authority are invisible or nonexistent.
It may be excusable for some people to maintain a reference point in the apartheid past. Frankly, in large areas of the private sector and in sport, the relations of power between black and white are largely intact.
I remember once, when I was Unisa vice-chancellor, I came across a team of workers digging trenches, who had been contracted to do so by the university. I found a rather rotund white man standing over the black workers as if he had nothing to do. I then had to confront him and told him that if he had nothing to do, I would see to it that the contract price for the job was paid only to those who were working.
Finally, this situation exists because, as government, we are loath to assert the power of the state in an appropriate manner. Understandably, therefore, many people have no respect for government or for the laws of the state.
I remain sceptical, however, about whether instances like the Momberg case will bring about a wholesale change of mind in our country. Law, as a deterrent, does not give me much hope when one has regard to the scale of the problem.
As long as we continue to have public and other schools being segregated in our country, or where large swathes of suburbs are havens of racist intolerance, and where racially exclusive clubs continue to be in business, and churches are the most racially exclusive societies in the country, we are nowhere near to addressing the problem. The law can only deal with individual perpetrators. In my view, legal processes will take far too long to deal with the scale of the problem.
Scholars have been writing about illiberal democracies in Africa and eastern Europe, that have been joined by Donald Trump’s America. What it means is that there is a veneer of a functional democracy – regular free and fair elections, the courts, etcetera. However, within that, one has a state behaving in a manner that undermines the very democratic principles that are meant to sustain the state – intolerance against LGBTI persons and racial intolerance, while allowing forms of racist bigotry and violence, all in the name of liberal values. These are the “virtues” of an illiberal democracy.
The other way of viewing this is, as one author puts it, to recognise the subversive in democracy. The subversive refers to the power of agency to overturn from below the accepted and taken-for-granted norms of human conduct of organisation in society.
In other words, it means that people who hold attitudes of entitlement in some forms of freedom of expression and in racist societies, should recognise that democracy cannot exist for its own subversion.
The principles of democracy exist to undermine anything and everything that is contrary to democracy. In other words, I look forward to the day when South Africans in their numbers march against all interests, societies or racially exclusive suburbs, churches or clubs and demonstrate that South Africa will not tolerate any more racism.
We need to make racism unacceptable – in private, among family and friends, or in public spaces. South Africans must call a halt to racism. Racism, no more!
- Professor Pityana sits on the advisory council of the Thabo Mbeki Foundation