Johannesurg - A potentially precedent-setting decision lies in the hands of Magistrate Pravina Rugoonandan, which could see the first person in South African history be handed a prison sentence for crimen injuria.
For more than a year, Randburg Magistrate’s Court has heard the criminal trial of estate agent Vicki Momberg, the woman caught on video in 2016 using the k-word 48 times against the officers helping her after a smash-and-grab.
The trial has seen its share of drama, with Momberg changing lawyers multiple times and accusing Rugoonandan, prosecutor Yusuf Baba and even the probation workers of conspiring against her.
Momberg has also insisted the Equality Court was wrong in ruling her behaviour as highly offensive, and handing her a R100 000 fine.
On Wednesday, Rugoonandan is expected to sentence Momberg, who she earlier found guilty of four counts of crimen injuria - one for each of the officers who was verbally assaulted.
And if the prosecution gets its way, Momberg could be the first person in South African history to be given a prison sentence for crimen injuria. The probation officers’ report, which was compiled on Momberg’s request, has suggested that prison could be an appropriate sentence for her, though only indirect imprisonment for no more than a total of 2000 hours.
This would mean Momberg would be incarcerated on weekends, subject to anger management and other rehabilitation programmes within the prison system.
This week, Baba finally laid all of his cards on the table through his closing arguments.
He had hinted he was pushing for a prison sentence during trial, but this week he told the court he believed it was the only just sentence for the 49-year-old.
He cited Constitutional Court case law, the Equality Court ruling of Penny Sparrow - also heavily fined for racial slurs - and even the Oscar Pistorius case as the reason the court should not tolerate Momberg’s racist outbursts and continued use of the k-word.
The word’s injurious history meant that its use against the officers was a violation of their human rights, according to Baba.
He also argued Momberg’s behaviour during trial and subsequent insults to the probation worker compiling the report, were evidence enough that she showed zero remorse.
“Nothing in the pre-sentence reports suggest that (the accused) feels remorse
“The accused in mitigation throughout her testimony was more interested in her actions and in no way gave any inclination that she considered how the victims' dignity in this matter was affected,” Baba told the court.
He did not think indirect imprisonment would be a harsh enough deterrent to other racists in the country.
“The only suitable sentence in this regard is direct imprisonment without an option of a fine.”
Momberg’s lawyer, Kevin Lawlor, spent more than an hour arguing that Momberg’s mental issues were the reason for her harsh behaviour during the 2016 incident.
He referred to the pre-sentencing report, which had also acknowledged that full-time imprisonment would not be a healthy environment for Momberg.
He once again repeated Momberg’s defence during the criminal trial, was that she was so traumatised by the smash-and-grab that she did not have full control of her faculties when she began abusing the police officers.
It was because of this that she lacked the intent required to find her guilty of crimen injuria.
Lawlor blamed the media’s coverage of the case as a further factor that had aggravated his client’s mental state, and asked that rather than a prison sentence, the court order Momberg receive at least a year of psychological treatment.
He did not specify whether this would be an in-patient or out-patient programme.
Rugoonandan’s decision could set a new precedent for crimen injuria law if she sides with the prosecution.
Currently, the general sentence for such crimes is a fine.
In a bizarre coincidence, case law from 1970 saw the State prosecute another Momberg for racial remarks towards a police officer.
This Momberg received a parking ticket from a traffic officer and began publicly swearing at and insulting him.
As a result, Momberg, who was also found guilty of crimen injuria, had initially been sentenced to six months imprisonment, though this was later changed to a fine of R200 on appeal.
Vicki Momberg has made it quite clear in numerous parts of the trial that she would appeal her conviction on crimen injuria, and has claimed to have lodged an appeal against the Equality Court ruling as well.
If her appeal on the criminal conviction and sentencing fails, she could be the first South African imprisoned for use of the k-word.