tag:theconversation.com,2011:/uk/topics/vicky-momberg-51814/articlesVicky Momberg – The Conversation2018-10-03T14:10:31Ztag:theconversation.com,2011:article/1040782018-10-03T14:10:31Z2018-10-03T14:10:31ZSouth African law needs a zero tolerance approach to racist utterances<figure><img src="https://images.theconversation.com/files/238446/original/file-20180928-48659-1sx21na.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African President Cyril Ramaphosa was recently the subject of a racist video rant.</span> <span class="attribution"><span class="source">Lintao Zhang/EPA</span></span></figcaption></figure><p>A “selfie” video rant has landed a South African man, Kessie Nair, in hot water. Nair faces six counts of crimen injuria and two of incitement to public violence after recording himself <a href="https://www.thesouthafrican.com/kessie-nair-arrested-k-word-cyril-ramaphosa/">spewing racist language</a> at the country’s President Cyril Ramaphosa. He has since <a href="https://www.news24.com/SouthAfrica/News/forgive-me-kessie-nair-apologises-to-ramaphosa-public-for-k-word-slur-20180926">apologised</a> to the president.</p>
<p>But what is crimen injuria, and why is it being used in this instance?</p>
<p>Crimen injuria is a supple common law offence that has been applied to a diverse array of conduct. It’s a unique feature of South African criminal law, and focuses on the protection of dignity and privacy, rather than the protection of reputation, which is encompassed by the <a href="https://docplayer.net/61883297-Protecting-dignity-under-common-law-and-the-constitution-the-significance-of-crimen-iniuria-1-in-south-african-criminal-law.html">law of defamation</a>. </p>
<p>It’s <a href="https://www.saps.gov.za/faqdetail.php?fid=9">defined</a> in South Africa as “unlawfully and intentionally impairing the dignity or privacy of another person”. The early recorded cases tended to involve incidents of private or public indecent exposure and invasions of privacy, especially cases involving what’s colloquially termed “peeping Toms”. </p>
<p>Subsequently, the crime was also applied to demeaning conduct and offending words. This includes the deeply racist and derogatory term <a href="https://www.news24.com/Columnists/GuestColumn/mogoeng-we-are-too-soft-on-racism-20161108"><em>“kaffir”</em></a>, which was central to another recent high profile case of crimen injuria. A woman named Vicki Momberg was sentenced to three years in prison (one of which was suspended) for her racist abuse of black police officers at a crime scene. This was caught on camera. </p>
<p>The severity of Momberg’s sentence caught headlines: it’s believed to be <a href="https://theconversation.com/jail-time-for-south-african-woman-using-racist-slur-sets-new-precedent-94179">the first case</a> resulting in a substantial prison sentence for racist utterances alone. Critics lauded the magistrate in Momberg’s case for taking a zero tolerance approach to racism. In Nair’s case, too, there has been a swift and loud public outcry for a harsh penalty.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1044802842672988162"}"></div></p>
<p>But does a zero tolerance approach necessarily mean harsher penalties? Is it a good precedent to use prison for harmful words alone rather than harmful actions? Momberg’s sentence is being <a href="https://citizen.co.za/news/south-africa/1988865/momberg-to-appeal-prison-sentence/">appealed</a>; this is due to be heard in November. The outcome of this appeal is bound to have an impact on Nair’s case, should he be convicted. So what can be learned from previous similar cases?</p>
<h2>The costs of prison</h2>
<p>Even though the use of the word <em>“kaffir”</em> is currently considered one of the most serious forms of verbal crimen injuria, courts have been reluctant to assign prison sentences to such convictions. </p>
<p>In one instance, a prison sentence for a man who directed the word at a black traffic officer was <a href="http://www.saflii.org/za/cases/ZAECHC/2004/14.html">overturned on appeal</a>. Part of the reason for the appeal judge’s decision was that “neither [the Defence] nor [the State] were able to refer us to any decision of the High Court in which an effective term of imprisonment was imposed or confirmed on review or appeal in a case of crimen iniuria of this nature”. </p>
<p>Arguably there is sound justification for the court’s reluctance to assign prison terms for verbal crimen injuria. Prison is expensive for society. It costs the taxpayers <a href="http://www.dailymaverick.co.za/article/2017-07-18-fact-sheet-the-state-of-south-africas-prisons/">over R100 000 a year</a> to house an inmate in prison. That money could be going to education, employment initiatives and other social services to help prevent offending in the first place.</p>
<p>Prison also costs society in non-monetary terms. In many respects prison contributes to a cycle of offending and desocialisation that causes widespread damage in communities. So, prison should be reserved for the most serious offences and for offenders who pose a risk to society.</p>
<h2>Deterrence</h2>
<p>Calls to impose harsh prison sentences for verbal crimen injuria are often premised on the need to deter such behaviour. Prison sentences are unlikely to achieve this laudable goal. </p>
<p>There are two aspects to deterrence in criminal justice. The first is called <a href="https://legaldictionary.net/general-deterrence/">general deterrence</a>. This entails using punishment to deter other would-be offenders from committing similar crimes. The second aspect is called <a href="https://legaldictionary.net/specific-deterrence/">specific deterrence</a>: using the punishment to deter a particular offender from offending again in the future.</p>
<p>Regarding general deterrence, <a href="https://www.bloomsbury.com/au/principled-sentencing-9781841137179/">research has shown</a> for many decades that the most important feature in using the criminal justice system to deter would-be offenders is not the severity of punishment. The concepts of “certainty” and “publicity” are far more important. In other words, even if the death penalty could be applied for crimen injuria, if offenders believe they will not be caught it will do little to deter them. </p>
<p>Conversely, a fine that’s believed to be certain, due to the consistency with which it’s applied as well as the publicity of its application, will put far more people off the offensive conduct.</p>
<p>From a specific deterrence perspective, prison is a particularly blunt tool to rid people of racism. Journalist <a href="https://www.dailymaverick.co.za/article/2018-03-29-analysis-why-the-vicki-momberg-racism-sentence-deserves-scrutiny/">Rebecca Davis’s observations</a> of the Momberg case ring true here:</p>
<blockquote>
<p>There are presumably few people who would argue that time in prison will ‘cure’ Momberg of her evidently deeply ingrained racism. A jail term in this case may feel intuitively satisfying to many, but does little to address the wider social problem of racism and its causes.</p>
</blockquote>
<h2>A smarter approach</h2>
<p>The frequency of apparent incidences of verbal crimen injuria involving racism displays that the criminal justice system must adopt a zero tolerance approach. But this approach needs to be a much smarter one than simply throwing these offenders in prison. </p>
<p>It’s too soon to tell if Nair’s case will result in a conviction. Currently it is postponed for him to undergo psychiatric evaluation to determine whether he is mentally fit to stand trial. </p>
<p>If Nair is eventually convicted and punished, the criminal justice system should devise a sentence that has the sophistication, constructiveness and humanity that’s so devoid from his reprehensible behaviour.</p><img src="https://counter.theconversation.com/content/104078/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kelly Phelps does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Calls to impose harsh prison sentences for verbal crimen injuria are often premised on the need to deter such behaviour.Kelly Phelps, Senior Lecturer in Criminal Justice, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/956662018-04-26T14:21:24Z2018-04-26T14:21:24ZSouth Africa’s freedom journey shows 1994 was merely a starting point<figure><img src="https://images.theconversation.com/files/216527/original/file-20180426-175077-1jnckp1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Workers affiliated to the The South African Federation of Trade Unions protest against the proposed minimum wage. </span> <span class="attribution"><span class="source">EPA/Nic Bothma</span></span></figcaption></figure><p>Twenty-four years into South Africa’s <a href="http://www.sahistory.org.za/article/south-african-general-elections-1994">‘miracle’ democracy</a>, it is clear that the historic <a href="https://www.jstor.org/stable/723604?seq=1#page_scan_tab_contents">1994 election</a> and the constitutional settlements of <a href="https://www.acts.co.za/constitution-of-the-republic-of-south-africa-act-1996/constitution_of_the_republic">1993 and 1996 </a> were mere starting points. These revered historical moments set guiding principles and benchmarks, but they were neither the solution nor the final destination. South Africa’s democracy is an ongoing struggle.</p>
<p>As the country celebrates <a href="http://www.bloemfonteincourant.co.za/fs-to-host-2018-freedom-day-celebrations/">Freedom Day 2018</a>, continuous contests for freedom and justice unfold around <a href="https://www.businesslive.co.za/rdm/news/2017-09-27-anti-corruption-marches-across-sa-target-guptas--as-cosatu-strikes/">governance</a> and leadership, <a href="https://mg.co.za/article/2018-04-25-the-start-of-strike-season-what-to-expect">economic justice</a> as well as <a href="https://www.enca.com/south-africa/government-must-make-our-language-official-chief-khoisan-sa">reconciliation and inclusion</a>. The struggles are intense, often tumultuous, even disconcerting. Yet they are also anchored in the frameworks and promises of the 1994 beginning. </p>
<p>It makes South African politics the place for those with robust hearts, stamina and an appetite for ongoing change.</p>
<h2>Deferred revolution</h2>
<p>South Africans generally, and scholars in particular, have had few illusions that the struggle was destined to be ongoing. At moments in the negotiation process, many lamented the compromises of the <a href="https://omalley.nelsonmandela.org/omalley/index.php/site/q/03lv02424/04lv03275/05lv03294/06lv03298.htm">constitutional negotiations</a>. The subsequent low-intensity transformation was also criticised. Talk was of a <a href="https://search.proquest.com/openview/80a405820c2bc512da00a5ae84143583/1?pq-origsite=gscholar&cbl=48673">suspended and deferred revolution</a>.</p>
<p>A mere six years ago, even the governing African National Congress (ANC) was embroiled in a debate about what it called a ‘second transition’ or <a href="http://www.anc.org.za/docs/discus/2012/transition.pdf">‘second phase of the transition’</a>. And, recent events such as the death of Winnie Madikizela Mandela (hailed as radical icon that had been <a href="https://mg.co.za/article/2018-04-06-00-how-the-anc-betrayed-winnie">betrayed by the ANC</a>), and the anti-minimum-wage strike by the South African Federation of Trade Unions <a href="https://www.dailymaverick.co.za/zapiro/?utm_medium=email&utm_campaign=Zapiro%20Thing%2026%20April%202018%20Wine%20Wizard%2062&utm_content=Zapiro%20Thing%2026%20April%202018%20Wine%20Wizard%2062+CID_46bb9287ff23f90d11a98ae0471adf92&utm_source=TouchBasePro#.WuGUwWdfB2A%20%22%22">(Saftu)</a> showed the extent of the restlessness around the demands for more meaningful socio-economic change – and further transitions. </p>
<p>These events link into President Cyril Ramaphosa’s era with its promise of a <a href="https://www.dailymaverick.co.za/opinionista/2018-02-22-the-ramaphosa-spring-from-contradictions-to-lines-in-the-sand/#.WuHIdi5ubIU">new transition</a>, away from a captured and compromised political order.</p>
<p>But the major flaws of the original settlement stand out when one considers in some detail the areas of ongoing contest. These include governance, economic justice as well as reconciliation and inclusion. </p>
<h2>What 1994 promised, but didn’t deliver</h2>
<p>South Africa is the <a href="http://www.statssa.gov.za/?cat=22">most unequal country in the world</a>. The Constitutional Court has, mostly for practical purposes, given up trying to enforce the socio-economic, second generation rights that came with the <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">Constitution</a> and were endorsed through the wondrous 1994 election.</p>
<p>The architects of the Constitution erred in assuming there would be systematic and definitive improvement in socio-economic transformation following the end of apartheid and the dawn of democracy. It has since become accepted that socio-economic delivery will be commensurate with what <a href="http://www.saflii.org/za/cases/ZACC/2000/19.html">government can afford</a>. The state’s ability to deliver is severely hampered by <a href="https://www.sjc.org.za/if_we_allow_state_capture_the_fight_against_inequality_will_be_lost">state capture and corruption</a>.</p>
<p>Freedom in 1994 brought the promise of good leadership and accountable, responsible government. Yet, neither elections nor the <a href="http://journals.sagepub.com/doi/abs/10.1177/0032329295023003002?journalCode=pasa">constitutional negotiations</a> could guarantee that politicians would not abuse the constitution and government office for their own gain. There were no instruments to prevent the rapid spread and entrenchment of this plague. </p>
<p>Nor have elections provided the panacea they were expected to deliver. South Africans love their elections, and they lap up party political propaganda and promises, <a href="https://www.google.com/search?ei=L-bgWrTPI4aXgAbsg7-ICA&q=dominance+and+decline+the+anc+in+the+time+of+zuma&oq=DOMINANCE+AND+DECLINE&gs_l=psy-ab.1.0.0l3j0i30k1l3j0i8i30k1">election after election</a>. </p>
<p>But regular elections haven’t yet ensured that South Africa becomes a multiparty democracy in which the possibility of losing power would ensure responsible governance. </p>
<h2>South Africans have had to fight for their rights</h2>
<p>One of the most endearing, or exasperating, things about South Africa is that citizens want to keep on believing in the 1994 dream, come hell or high water, come disdain and corruption, by the leaders that had been put into place, mostly by the ANC. The result is that change often depends on those exact, compromised internal party-movement processes that are beyond the ambit of constitutional provisions.</p>
<p>When South Africans voted in 1994, few had imagined that the fight 20 years on would be to drag the state away from captors acting in cahoots with the <a href="https://www.scribd.com/document/329757135/State-Capture-Report-2016#from_embed">first citizen and his followers</a> and place it back into the hands of the citizens. </p>
<p>Clearly, the constitutional order was designed on the assumption of a multi-party rotational system, and not a dominant party order.</p>
<p>At the moment of freedom in 1994, South Africans could not have imagined that they would have to take to the streets to get action (and sometimes legislation) on crucial policy issues. Cases where the constitutionally established processes have just not been enough include <a href="https://www.tandfonline.com/doi/abs/10.1080/03056244.2017.1288615?scroll=top&needAccess=true&journalCode=crea20">land transformation</a>, housing and post-secondary education.</p>
<p>People have also been forced to protest simply to get provincial and municipal governments to do their work. And, mass mobilisation by civil society and political parties was needed to help the ANC <a href="https://journals.co.za/content/journal/10520/EJC-c70c6d816">get rid</a> of its own president, and his proxies. Citizen activism has taken the constitutional benchmarks and moved South Africa beyond the established order.</p>
<h2>Reconciliation and inclusion</h2>
<p>Little was it imagined that the reconciliation that was forged around the 1994 election and the <a href="http://www.justice.gov.za/trc/">Truth and Reconciliation Commission </a> would become so fragile towards the 25 years of freedom, such that court convictions for <a href="https://theconversation.com/jail-time-for-south-african-woman-using-racist-slur-sets-new-precedent-94179">racism</a> would serve as the reminder that all is not well in the <a href="http://uir.unisa.ac.za/bitstream/handle/10500/3761/thesis_tshawane_n.pdf">land of the rainbow</a>. Little was it imagined that the death of Winnie Madikizela Mandela, a mere few weeks before the 24th celebration of freedom, would <a href="https://www.dailymaverick.co.za/opinionista/2018-04-18-gaping-wounds-and-the-clamber-to-contain-the-winnie-fallout/#.WuDmSGdfB2A">as painfully as it did</a>reopen the racial wounds of the apartheid system. </p>
<p>This sketch is but a few brush strokes that depict the story of South African freedom and liberty as it approaches its ‘silver’ anniversary next year. The <a href="http://journals.sagepub.com/doi/abs/10.1177/0032329299027003003?journalCode=pasa">flaws</a> and shortcomings of the original promise are tangible. </p>
<p>But freedom in the South African mould is also an exhilarating and promising process. No settlement or solution will be taken for granted if it is not fit for purpose. The freedom of 1994 is evolving beyond the promises of the 1996 Constitution. It’s time for constitutional architects, and the politicians in government, to catch up.</p><img src="https://counter.theconversation.com/content/95666/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Susan Booysen has in the past received funding from Wits University.</span></em></p>South Africa marks 24 years of freedom amid continuous contests over over governance, economic justice as well as reconciliation and inclusion.Susan Booysen, Professor in the Wits School of Governance, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/946462018-04-11T07:14:23Z2018-04-11T07:14:23ZHow the law can help change racist minds in South Africa<figure><img src="https://images.theconversation.com/files/214076/original/file-20180410-587-1m2kst.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Much recent news and public discourse might seem to indicate that South Africa’s non-racial <a href="https://www.scholaradvisor.com/essay-examples/descriptive-essay-south-africa-rainbow-nation/">rainbow</a> is fading. Racism, its expression and its consequences, seem to be all around.</p>
<p>First prize goes to former real estate agent <a href="https://www.news24.com/SouthAfrica/News/vicki-momberg-sentenced-to-an-effective-2-years-in-prison-for-racist-rant-20180328">Vicki Momberg</a>. She was recently sentenced to a <a href="https://theconversation.com/jail-time-for-south-african-woman-using-racist-slur-sets-new-precedent-94179">three year</a> jail term (one year suspended) for the vicious racial abuse of black traffic officers and police emergency call centre operators attempting to help her after a smash and grab incident. </p>
<p>Then there is the <a href="https://www.timeslive.co.za/news/south-africa/2018-03-02-britain-must-intervene-in-sa-land-debate-says-member-of-european-parliament/">land reform debate</a>. Its enormous complexity is swept aside by both black populist politicians demanding the return of land “stolen” by whites and the white right claiming that white farmers are <a href="https://www.news24.com/SouthAfrica/SA-farmers-under-siege-20000906">under siege and fear for their lives</a>. </p>
<p>In reply to <em>Business Day</em> columnist Peter Bruce’s stating that the extent of farm murders has been grossly exaggerated, a white correspondent to the newspaper <a href="https://www.businesslive.co.za/bd/opinion/letters/2018-04-05-letter-bruce-should-bury-hatchet/">cited</a> approvingly the man generally accepted as the architect of the brutal policy of apartheid, <a href="http://www.sahistory.org.za/people/hendrik-frensch-verwoerd">Hendrik Verwoerd</a>:</p>
<blockquote>
<p>Verwoerd felt that the only way whites in SA would survive would be if some system could be devised to that they could maintain control of their destiny within a Western framework. Otherwise, they would simply be overwhelmed… Now we are experiencing what Verwoerd predicted. Whites are being bullied incessantly and deprived of their assets by black politicians.</p>
</blockquote>
<p>How on earth should South Africans deal with all this? There is, frankly, no easy answer to this question. But here are a few considerations.</p>
<h2>Complex problem</h2>
<p>Journalist Joshua Carstens, writing on <em>News24</em>, suggested that Momberg’s crude racism was <a href="https://www.news24.com/Columnists/GuestColumn/changing-peoples-minds-and-hearts-about-race-lessons-from-vicki-momberg-20180406">“simply the tip of an iceberg”</a>. He had no quarrel with her sentence, but wondered whether it would work. He argued that while it might be possible to regulate people’s behaviour,</p>
<blockquote>
<p>you can’t legalise people’s minds and hearts. </p>
</blockquote>
<p>Unexpressed racism may be even more dangerous if it is left lurking below the surface. He went on to encourage like-minded whites to take a stronger stand against racism in their private lives. </p>
<p>Nothing wrong with that at all. Indeed, its sentiment is highly commendable. But, would it really be better if racists displayed their honesty by roundly abusing black people? Or is it better if they curb their lips for fear of joining Momberg in jail? </p>
<h2>Legislation changing minds</h2>
<p>It’s wrong, I think, to suggest that legislation cannot change minds. True, it might often take the long haul. But laws do more than reflect social norms: they mould them.</p>
<p>The law is meant to entrench what society thinks is right. If it prescribes that racism, sexism or homophobia are wrong, there is probably a better chance that people will come to accept it in genuine democracies (especially over the generations). But the law can also be used to effect structural change.</p>
<p>Take for instance <a href="http://www.dti.gov.za/economic_empowerment/bee.jsp">black economic empowerment</a> and <a href="https://www.labourguide.co.za/employment-equity/summary-of-the-employment-equity-act-55-of-1998-issued-in-terms-of-section-25-1">equity employment legislation</a>. Their pros and cons are much debated, yet it seems difficult to deny that without them, South Africa would have a much stronger white minority profile today than it would without them. </p>
<p>For all their faults, such laws and associated state pressures for “demographic representivity” would seem to have been a necessary element in decolonising society. This is not to deny that they come with numerous difficulties. </p>
<p>This is shown by the case of Mark Lamberti, chief executive officer of Imperial Holdings. He called Adila Chowan, a Muslim Indian woman who had become group financial manager at the company’s subsidiary, a <a href="https://www.news24.com/SouthAfrica/News/former-amh-employee-wins-race-and-gender-discrimination-case-20180402">“female employment equity”</a> candidate in the presence of other senior managers. Lamberti was convicted in the High Court of impairing her dignity and ordered to pay her costs and yet to be decided damages.</p>
<p>Lamberti has responded by insisting that he is <a href="https://citizen.co.za/news/south-africa/1880989/mark-lamberti-resigns-from-eskom-board-following-court-judgment/">not a racist</a>. Whether or not his actions were racist were not dealt with by the court; the <a href="https://www.biznews.com/leadership/2018/04/06/chowan-imperial-lessons-judgement-sa-corporate-executives/">judgment</a> was that he had offended the complainant’s dignity. Whether or not one’s view is that he was racist and/or sexist, it is beyond doubt that his behaviour was thoroughly crass. </p>
<p>Nonetheless, it points to a dilemma.</p>
<h2>Constructive ambiguity</h2>
<p>Equity employment is designed to promote fairness in the workplace and black upward mobility in the face of white structural privilege. But the irony is, as Chowan has so bravely <a href="https://mg.co.za/article/2018-04-06-00-my-victory-should-help-all-women">highlighted</a>, black and female candidates resent being labelled as equity employment candidates. </p>
<p>They point out, correctly, that it is demeaning to any black or woman appointee to say that they got the job because they were black or female. They want to be recognised as having been appointed on merit. Yet the problem is that without such goads as equity employment legislation, progress towards racial equality in the workplace would almost certainly be a lot slower.</p>
<p>South Africa’s main opposition party, the Democratic Alliance, is <a href="https://www.pressreader.com/south-africa/sunday-times/20180408/281569471299652">wrestling with this very issue </a>. The party has long claimed that it has become <a href="https://www.news24.com/SouthAfrica/News/maimane-stands-firm-on-diversity-20180407">increasingly racially diverse</a> as the governing ANC has in practice and much rhetoric withdrawn from non-racialism. Yet although the DA now has a black leader in Mmusi Maimane, there has been rising discontent among its black membership that the party is still dominated by a <a href="https://mg.co.za/article/2016-01-28-das-black-leaders-live-with-racism">conservative old guard of whites</a>.</p>
<p>This has led to calls for the introduction of race-based quotas, which many in the party have resisted. They complain that such group determined racial categorisation would run against the DA’s liberalism, which is based on the advancement of individual rights. </p>
<p>Reportedly, the party’s senior leadership arrived at a compromise proposal for putting to the DA’s federal congress which committed it to taking,</p>
<blockquote>
<p>active steps to promote and advance diversity… without recourse to rigid formulae or <a href="https://www.pressreader.com/south-africa/sunday-times/20180408/281569471299652">quotas</a>. </p>
</blockquote>
<h2>Complex problem</h2>
<p>What should be drawn from all this? Probably many things. But one certainty is that more humility is necessary from all those engaged in the debate. People must accept that there are no easy answers. The project of rendering South Africa more equal is one of enormous complexity, fraught with as many philosophical problems as structural and political ones. </p>
<p>Alas, there will be more Mombergs, more Lambertis and more people seeking to revive Verwoerd and render his memory respectable. There will be more black populism in response. </p>
<p>Yes, it’s almost certainly going to be a rough ride, but those South Africans who don’t believe or don’t want to believe that a better South Africa is possible should be honest about it – and bugger off elsewhere.</p><img src="https://counter.theconversation.com/content/94646/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roger Southall receives funding from National Research Foundation</span></em></p>Unexpressed racism may be even more dangerous if it’s left lurking below the surface.Roger Southall, Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/941792018-03-29T11:02:39Z2018-03-29T11:02:39ZJail time for South African woman using racist slur sets new precedent<figure><img src="https://images.theconversation.com/files/212631/original/file-20180329-189807-rcwqg5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African court rules that racism is a criminal offence.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>A South African estate agent Vicky Momberg was caught on video <a href="https://www.news24.com/SouthAfrica/News/vicki-momberg-sentenced-to-an-effective-2-years-in-prison-for-racist-rant-20180328">verbally abusing </a> a black policeman. She used the word <a href="http://thelawthinker.com/south-africa-calling-people-kaffirs-is-a-crime/">‘kaffirs’</a> repeatedly during her tirade against men who were trying to assist. The word is deeply offensive and considered the most racist in South Africa. The state brought a case of crimen injuria against Momberg and a court has sentenced her to three years in jail (one suspended). This makes her the first person in the country to be jailed for this offence. Thabo Leshilo asked legal experts Penelope Andrews, René Koraan and Chantelle Feldhaus to explain the significance of the judgment.</em></p>
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<p><strong>What is the significance of the judgment?</strong> </p>
<p><em>Penelope Andrews:</em> The significance of the judgment is substantive and symbolic. It’s substantive in that the crime committed by the accused is punished severely. Symbolically it sends a message that racism is not to be tolerated. In fact, one could go so far as to say that the law establishes that anyone using the “k” word publicly to abuse and humiliate will be severely punished.</p>
<p><em>René Koraan and Chantelle Feldhaus:</em> Past cases indicate that the verbal form of crimen injuria is not that serious. But the Momberg sentence is a first of its kind in South Africa. She was sentenced to three years imprisonment of which one year was suspended for a period of three years, on condition that she did not commit crimen injuria again. In effect this means that Momberg will serve two years imprisonment.</p>
<p><strong>What is crimen injuria in South Africa and its basis?</strong></p>
<p><em>Penelope Andrews:</em> According to <a href="http://www.loot.co.za/product/jonathan-burchell-principles-of-criminal-law/vjmg-3196-g260?PPC=Y&gclid=EAIaIQobChMI8JyXxJGR2gIV6JztCh3eDwyiEAAYAiAAEgIBIfD_BwE&gclsrc=aw.ds">principles of criminal law</a> crimen injuria consists in unlawfully and intentionally impairing the dignity or privacy of another person.</p>
<p><em>René Koraan and Chantelle Feldhaus:</em> South Africa’s criminal law system is based on common law and statutory law. Common law offences include abduction, arson, bigamy, fraud, incest, housebreaking, rape, robbery, and treason. Statutory crimes include crimes such as tax fraud and prevention of organised crime.</p>
<p>Crimen injuria (or iniuria) is a crime under the South African common law, defined as the act of <a href="https://www.saps.gov.za/faqdetail.php?fid=9">“unlawfully and intentionally impairing the dignity or privacy of another.”</a>.</p>
<p>Crimen injuria provides the basis of protecting the constitutional right to human dignity in criminal prosecutions. It can happen either verbally or by deed. Importantly, crimen injuria should be distinguished from criminal defamation which has to do with the good name or reputation of a person. Both the right to privacy and dignity are protected in different sections of the <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">Constitution of the Republic of South Africa</a>.</p>
<p>To determine if a person’s dignity was impaired the victim should, firstly, have been aware of what the accused was doing to them and secondly, the victim should have felt degraded or humiliated because of what the accused did to them. This is also objectively determined by the court. The court then considers whether a reasonable person in the same circumstances of the accused would also have felt humiliated or degraded by the conduct of the accused.</p>
<p>It seems that currently, the most serious form of verbal crimen injuria is the use of the word <em>kaffir</em>. It is evident from case law that calling a police officer the ‘k’-word in South Africa is regarded as serious enough to warrant criminal proceedings.</p>
<p><strong>How does it differ from hate speech?</strong> </p>
<p><em>Penelope Andrews:</em> Crimen injuria is a criminal offence. Hate speech is a civil offence. Rather, it’s prohibited in the constitution as well as legislation that protects people against <a href="http://www.justice.gov.za/legislation/acts/2000-004.pdf">unfair discrimination</a>. Hate speech also has a very specific definition, whereas (crimen inuria) is arguably more broadly defined.</p>
<p><em>René Koraan and Chantelle Feldhaus:</em> The Constitution promotes free speech, but that doesn’t extend to hate based on “race”, ethnicity, gender or religion. South Africa is also a signatory to the International Convention on the Elimination of <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx">All Forms of Racial Discrimination</a>, which requires countries to make racial superiority or hatred punishable by law.</p>
<p>South Africa has drafted a new bill to cover this. <a href="http://www.justice.gov.za/legislation/hcbill/hatecrimes.html">The hate-speech bill</a> being considered by parliament provides for the criminal prosecution of people who commit the offences of hate crime and hate speech. It defines hate speech as</p>
<blockquote>
<p>an intentional communication (including speech) that advocates hatred or is threatening, abusive or insulting towards any other person or group of persons; ranging from race and gender to social origin.</p>
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<p>According to the bill, a guilty first offender may receive a maximum of three years prison sentence and up to ten years for a subsequent conviction.</p>
<p><strong>What are the implications of the precedent-setting judgment?</strong> </p>
<p><em>Penelope Andrews:</em> There may be several implications. First, the judgment is a clear statement that the use of racial slurs and the impairment of human dignity will not be tolerated. One could argue that there is now an unequivocal zero tolerance for the use of the “k” word. </p>
<p>Second, the implication may be that all kinds of racial slurs, that involve not just anti-black hatred, but also anti-semitic, xenophobic, anti-female and homophobic slurs, will not be tolerated. </p>
<p>The third implication is that there is a strong sensitising and educational effect. The airwaves and social media have already been abuzz with commentary since the sentence was passed. Crimen injuria has become a household term as people argue about the law’s meaning, the punishment, what constitutes (crimen inuria) and whether the judgment was fair.</p>
<p><em>René Koraan and Chantelle Feldhaus:</em> The court sent a message that racism is not just inappropriate, but it is criminal. The hope must be that the penny drops for South Africans that their actions carry big repercussions. The judgment and the sentence highlight the fact that South Africa needs to put hate crime legislation in place. It’s already at an advanced stage but it needs to be promulgated.</p><img src="https://counter.theconversation.com/content/94179/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Past cases indicate that verbal crimen injuria is not that serious. But a landmark sentence in South Africa has changed that.Penelope Andrews, Dean of Law and Professor, University of Cape TownChantelle Feldhaus, Lecturer in the Faculty of Law, North-West UniversityRené Koraan, Senior Lecturer: Criminal Law, North-West UniversityLicensed as Creative Commons – attribution, no derivatives.