THE Vicki Momberg conviction was historic. For the first time in SA history, a person was convicted on hate speech and sentenced to prison for the crime of crimen injuria.
Media outlets worldwide showed the video clip in which she verbally abused police officers in 2016. Media outlets such as Al Jazeera showed viewers instances of other racist incidents in South Africa, the most disturbing of which was the case of the two white farmers who stuffed a black man into a coffin and threatened to set him on fire.
But this is not the first time the ANC has tried to criminalise hate speech. In 2016, in the heat of the controversy over racist speech triggered by statements made by Penny Sparrow, the ANC proposed legislation to criminalise hate speech. The wisdom of enacting such legislation is highly debatable.
Since such legislation was not enacted, the prosecution in the Momberg case resorted to the common law crime of crimen injuriato convict her.
The decision to invoke crimen injuria raises the question whether all future cases involving hate speech will be prosecuted as crimen injuria, and whether the ANC intends to proceed with legislation. Context is all-important. Countries with recent histories of institutionalised racism of the worst kind, such as Germany and SA, have criminalised certain forms of offensive speech.
Interestingly, the case was decided by a Magistrate’s Court. In light of the gravity and national importance of the case, it is time for the Constitutional Court to pronounce on this issue. There have been few Constitutional Court cases on freedom of speech and a substantial jurisprudence on the issue needs to be developed. There is an acute need to address the issue of the kinds of speech that will qualify as hate speech, which has been declared explicitly unconstitutional in section 16 of the Constitution.
In cases of freedom of speech, the Constitutional Court has been guided by the twin concerns of vulnerability and dignity. Its most important concern has been protecting the dignity of the vulnerable. Women, people with disabilities and the poor have been described as vulnerable. A group can further be considered vulnerable when it is at a historic tipping point, when a shock from which it would otherwise recover causes collective catastrophe. Dignity seems to be the leitmotif in how the courts will assess the culpability of those accused of racist speech and action. Crimen injuriaessentially means “an insult to dignity”. The link between the recognition of dignity in our common law and the constitutional protection of dignity should be made more explicit.
A question that has been raised is whether white people can be the object of hate speech. It is generally understood that white South Africans are not a vulnerable group. The late Justice Pius Langa said that under certain circumstances, white people can qualify as vulnerable.
The remedy for hateful or “wrong” speech is more speech. The debates in the traditional media and social media over the past weeks show that South Africans are sufficiently vocal to remedy speech with speech.
One of the most tragic aspects of the recent high-profile hate speech and racism cases is the absence of remorse. Magistrate Pravina Rugoonandan stated that the absence of remorse played a role in her sentencing. Momberg’s absence of remorse traumatised her probation officer to such an extent that she had to recuse herself from the case. The two farmers in the “coffin case”, Theo Jackson and Willem Oosthuizen, similarly denied any wrongdoing.
The judge in that case, Judge Segopotje Mphahlele, was particularly incensed. She explicitly stated that her sentence was influenced by the fact that the accused showed no remorse. This lack of remorse and self-justification not only show the insensitivity of many South Africans towards the historical pain of others, they show an intention to cause more pain. The difficult question we have to ask as a nation is about the social utility of imprisonment. It should be asked whether imprisonment strengthens or weakens feelings of remorse.
As a free speech fundamentalist, I resist the criminalisation of speech except in a very narrow category of hate speech. But watching the clip of the farmers, I felt ashamed of white South Africans and immeasurably sad. What is needed is far more than an occasional prison sentence, what is needed is a national conversation on race. — HuffPost SA.
• Mia Swart is a research director, HSRC visiting fellow, Brookings Doha Centre.