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12/04/2018 10:41 SAST | Updated 12/04/2018 14:09 SAST

Vicki Momberg Case: We Need A National Conversation On Race

One of the most tragic aspects of the recent high-profile hate speech and racism cases is the absence of remorse.

Gulshan Khan/ AFP/ Getty Images
The Vicki Momberg conviction was historic.

On Dignity and Atonement: Questions raised by the Momberg Case

The Vicki Momberg conviction was historic. For the first time in South African history, a person was convicted on hate speech and sentenced to prison for the crime of crimen injuria. The case became international news.

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. Watching this clip as I was waiting to be interviewed in the Al Jazeera studios, a shiver ran up my spine.

But this is not the first time the ANC has tried to criminalise hate speech. In 2016, in the heat of the controversy on 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 injuria to convict Momberg.

Sunday Times via Getty Images
Convicted racist Vicki Momberg during sentencing at the Randburg Magistrates Court on March 28, 2018 in Randburg,(Photo by Simphiwe Nkwali/Sunday Times/Gallo Images/Getty Images)

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 still intends to proceed with legislation.

Context is all-important. Countries with recent histories of the institutionalised racism of the worst kind, such as Germany and South Africa, have outlawed or criminalised certain forms of offensive speech.

Interestingly, the case was decided by a magistrates 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 still needs to be developed. There is an acute need, specifically, 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.

This lack of remorse and persistent self-justification not only shows the complete insensitivity of many South Africans towards the historical pain of others, it shows a continuous intention to cause more pain.

In cases of freedom of speech so far, 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 injuria essentially 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 which has been raised again and again is whether or not white people can be the object of hateful speech. It is generally understood to be clear that white South Africans are not a vulnerable group. The late Justice Pius Langa has stated that under certain circumstances, white people can qualify as vulnerable.

As a free speech fundamentalist, I resist the criminalisation of speech except in a very narrow category of hate speech.

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. Like a wound that needs air to heal, speech needs the disinfectant of sunlight.

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.

AFP/Getty Images
Convicted racist Vicki Momberg is pictured at the Randburg Magistrate Court to appeal the four charges of crimen injuria. (Photo credit: GULSHAN KHAN/AFP/Getty Images)

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 persistent self-justification not only shows the complete insensitivity of many South Africans towards the historical pain of others, it shows a continuous 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 standing in the studios, watching the clip of the farmers, I felt ashamed, 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.

Mia Swart is a research director, HSRC Visiting Fellow, Brookings Doha Centre