The murky case of Vicki Momberg and Crimen Injuria

Yesterday Magistrate Pravina Raghoonandan, in a potentially precedent setting judgment, sentenced Vicki Momberg to three years in prison of which one year will be suspended.  Momberg was convicted of crimen injuria in 2017. Crimen injuria refers to a deliberate injury to another’s dignity by using racially offensive or obscene language or gestures.

Momberg was caught on camera hurling racial slurs and verbally abusing police officers and 10111 operators who attempted to assist her after a smash and grab in February 2016. 

One of the key discussions on the South African criminal justice system is how definitive the laws around crimen injuria are. How does South Africa’s understanding and conviction of crimen injuria offences compare to other countries? The precedent-setting Momberg case provides an ideal opportunity to interrogate the question of justice when harm is not physically determinable.

Although Magistrate Raghoonandan admitted that her ruling was an unusually harsh sentence, the aggravating evidence against Momberg was plentiful.

Magistrate Raghoonandan said Momberg used the K-word a total of 48 times with some of her utterances captured in a viral video and the others during a phone call she made to the police after a smash and grab incident. Momberg showed no remorse for her actions throughout court proceedings, which commenced in 2017. When ordered by the Equality Court in June last year to pay R100 000 in damages, to write an apology and to commit to sensitivity training and community service, Momberg appealed the order.  This is also not Momberg’s first time in court for racism, she was tried for a previous racist rant 12 years ago.

James Grant, an advocate for the High Court of South Africa, says he believes Momberg’s offence falls in the same category as assault but he is unsure of how to gauge the damage it causes: “I just don’t know whether to put it in the same category as a light assault like a slap in the face, or a more serious assault like a punch in the face.”

The murkiness surrounding the interpretation and definition of crimen injuria can be attributed to the fact that harm is caused on a psychological level rooted in historical subjugation and systemic racism, “I’ve been fortunate enough not to suffer that indignity,” says Grant, “and I think courts should take this into account [the personal damage these slurs cause].”

Similarly, in Germany – another country with a history of a brutal fascist regime - a 32-year-old neo-Nazi was sentenced to 18 months in prison for making fun of the Holocaust on social media.

The World Human Rights Watch Briefing Paper on ‘The State Response to “Hate Crimes” in Germany’ reports: “Germany has made progress in improving its institutional response to “hate crimes” over the past decade, including more effective recording of such crimes by the police, prevention programs” to mitigate the occurrences of hate crimes.”

“Germany takes a different approach. It has no separate category of offences for “hate crimes” involving violence. Nor does it explicitly provide for higher sentences for them. But the courts can still take hate motivation into account during sentencing using general sentencing principles,” the authors of the report note.

Grant says that because the case took place in a magistrate’s court, the ruling is not binding on other courts, but: “There should be consistency,” he says, “one should expect that other similar crimes should be sentenced similarly.”

Momberg has been denied bail while her lawyers appeal yesterday’s judgement.

Sumeya Gasa and Azarrah Abdul Karrim

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