This was the essence of Vicki Momberg’s closing defence arguments this week, as the case against the real estate agent nears its end.
Momberg became infamous last year, after a video of her using the racial slur against police officers trying to assist her following a smash-and-grab went viral. Recordings of her talking to 10111 operators and flinging the same - and other - insults, were also used against her.
Her crimen injuria trial at the Randburg Magistrate’s court has continued far longer than it should have, after disputes between Momberg and two of her lawyers stalled proceedings and the advocates chose to withdraw.
Her current lawyer Joe Davidowitz also tried to remove himself from the case just prior to the defence’s closing arguments but the court forced him to stay on to finish the almost-completed trial.
This week, Davidowitz outlined Momberg’s defence of sane automatism, arguing the State, led by prosecutor Yusuf Baba, had failed to prove that Momberg had the intent to harm the dignity of those subjected to her rant.
According to the defence lawyer, Momberg had been so traumatised after a smash and grab incident just prior to her tirade that she lost all inhibitions and consciousness of her actions.
“No one in full control of their capacities would act in this manner,” he told Magistrate Pravina Rugoonandan.
“He said that her 'ranting and raving' was clearly an indicator of an acute distress disorder triggered by the crime against her.
He said his client's use of the word 48 times, as counted by Baba, was more of an indication of her loss of self than if she had simply used it once.
Davidowitz outlined how his client had been unable to tell the difference between the assailants and those trying to help her, and how her state of disorientation and confusion also led her to using the k-word against one of the white officers trying to help her.
The white officer had told the court Momberg had said: “We are all (k-words), including you!”
This was just before threatening to shoot everyone around her.
“This is not a case of racial hatred. (Momberg) does not approve of the use of the k-word, nor is it a word she normally uses,” he said.
Davidowitz cited a case from 1993 in which a woman was acquitted of murder because she had entered into a state of sane automatism after an assault by her husband and subsequently killed him.
Because of the lack of memory, and lack of intention, she was acquitted, and Davidowitz believed the State had not proven Momberg’s intention to commit a crime beyond a reasonable doubt.
Magistrate Rugoonandan asked Davidowitz to try and explain why Momberg was able to remember certain aspects of the incident, and was able to drive herself home and take cellphone calls, while claiming to have amnesia during her rants.
In response to the defence’s claims, Baba argued that the sane automatism argument was usually reserved for violent crimes, and that this was likely the first time the courts had heard it used for crimen injuria.
Throughout his own closing arguments last month, Baba had cited the precedent-setting State vs Eadie (2001), a criminal trial where a murderer had tried to convince the court he too had suffered from a lack of criminal capacity during the attack.
However, the case had set the bar so high to prove sane automatism (or non-pathological incapacity) that almost no other defendant had succeeded in proving it since.
Baba was also insistent that Davidowitz’s claims that this was not about race were irrelevant, as regardless of the race of the person at the receiving end of the slur, the word was used to infringe a person's dignity.
He was also particularly acidic towards the testimony of a Dr Walter Ward, an expert who had been brought in to testify on Momberg’s behalf and told the court she was not responsible for her actions.
Baba had uncovered during Ward’s cross-examination that he did not have psychiatric training and that he had even told the court he was not on the stand to make any findings regarding Momberg’s mental state.
Because of this, Baba said at the most recent proceedings, Momberg’s claims of having amnesia and a lack of understanding of her actions had not been proven to the court.
The case was postponed to 3 November for judgment, though the proceedings could be hampered by a media application to televise the ruling live.