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Few would disagree with the guilty verdict in the Momberg case. However, many will disagree with the draconian sentencing which is in my opinion a clear case of the punishment not fitting the crime.
I will herein attempt to show just why the sentencing sets a very dangerous precedent and why Momberg should immediately appeal the sentence (not the guilty verdict) and take it to the Constitutional court if necessary.
Firstly, crimen injuria had always been a complicated recourse and one will find very few guilty verdicts or cases where people follow this recourse instead of other civil procedures.
We already understand that most black people find the K-word unacceptable and that it comes down to dignity (which is supposedly protected for ALL under our constitution).
However, much is wrong here. And I am not justifying her behaviour, but pointing out the many problems in this case. It seems for example that the court did not take in consideration any mitigating circumstances for this overly-harsh sentence. That she had just been the victim of a smash-and-grab which would absolutely traumatize any reasonable person.
So the first question regarding the “reasonable person” test often applied by courts is to ask: What is more traumatizing? To be called names and insulted or to be the victim of a violent crime?
Personally (and this is subjective) I would be utterly traumatized for years after a violent crime but only feel angry for a few hours after someone had insulted me. It does not seem that the court had taken this into account since most people will be shocked and angry and not be themselves right after such a traumatic incident.
But it is the sentencing which is very disturbing and as mentioned already, utterly draconian and a case where the punishment does not fit the crime.
Prison sentence for insults? This is complete overkill and one should wonder about the objectivity of a magistrate in handing down such severe punishment. One should also ask how much of a role did pressure from government play in the apparent decision to make an example of someone. No matter how objective judges or magistrates may try to be, there is always a subjective influence in decisions and rulings.
One only has to look at Constitutional Court cases where often the ruling is divided. And this is not only on interpretation, but often due to the subjective background of a judge and how they perceive life. How liberal or how conservative they are themselves for example. And therefore personal views often play a role in decisions. I can give many examples of this – for example the judgement in the Prince case regarding the use of marijuana many years ago which was split and could have gone the other way if there was one extra liberal judge on the bench that day.
What is also extremely concerning is that I understand from media reports that Momberg was also denied bail. Why? What risk is she exactly to the public? We have murderers and rapists who receive bail, but not Momberg?
The biggest concern is the future role this sentencing will play in the creation of a Nanny State or even despotism instead of a democracy. We supposedly have freedom of speech and expression, yet that had been dealt a severe blow over the past couple of years and is in even greater danger with the threat of a totally draconian and unconstitutional Hate Speech Bill in the pipeline.
Censorship had taken a massive hold on us in a supposed “democratic” South Africa and the hypocrisy is in fact shocking.
The media are the first to try and defend freedom of speech, yet they do so only in their own interest. News24 and the majority of other news sites had now completely closed their public comments sections, thus enforcing censorship so that the public cannot voice their opinion or defend themselves or take part in a debate regarding crucial issues.
Sometimes they might open a comments section (like Max du Preeze heroicly does) but then those comments are sifted selectively.
I myself tried to comment on Facebook regarding the Momberg sentencing and my comment was immediately deleted, even though it contained only criticism and no hate speech, incitement or racism.
With the intended Hate Speech Bill in the making, almost any criticism will be seen as so-called “hate speech” and criminal records and prison sentences a reality. They even intend to make body-language subject to the definition of hate speech which is absurd.
For example, if a gay man hugs or touches me and I show disgust or dislike, this would be interpreted as hate against the gay man. I will be the guilty party. It cannot possibly get more absurd than that you might think?
Soon ANY criticism may be interpreted as so-called hate speech without it having to comply with the Constitution's prerequisite that it must ALSO incite harm. Mere criticism will get you in trouble. And that applies to the media and people like Adriaan Basson too. In other words, it will completely suppress freedom of speech or opinion and there will be an atmosphere of fear ruling free thought and expression. Much like under Lenin and Stalin where people were executed or sent to the Gulags for expressing anything contrary to the Party's agenda.
