Momberg on Wednesday became the first person to be jailed for crimen injuria. She became infamous when a 2016 viral video showed her using the k-word 48 times against police and 10111 operators trying to help her after a smash-and-grab incident.
For more than a year, the Randburg Magistrate’s Court heard her dramatic criminal trial, witnessed her multiple meltdowns and claims that the presiding magistrate, prosecutor and even probation officers assisting her had been conspiring to convict her.
On Wednesday, Momberg’s case - but not her inevitable appeals - finally ended. The State asked magistrate Pravina Rugoonandan to deviate from normal sentencing because of the seriousness of the incident.
"Ms Momberg, it doesn't give me pleasure to impose this sentence it is a sad day for me,” said Rugoonandan before handing the down an effective two-year jail term.
Previous sentences against those convicted of crimen injuria had not been an effective deterrent against would-be racists and bigots, she said.
It was up to the courts to show they were not afraid to hand down custodial sentences that would actively prevent such behaviour.
“This habit and culture must change; innocent black people were violated,” she said. The officers, in full uniform and simply trying to perform their duties, had been stripped of their dignity and self-worth by the use of the k-word against them, the magistrate said.
Justice Minister Michael Masutha led the chorus of those who welcomed the judgment.
“This strong sentence will deter would-be hate crime perpetrators," he said.
Stephans Mahlangu, acting Justice Ministry spokesperson, said the crime committed against Constable David Mkhondo and the sentence highlighted the need for the development of the law on hate speech and hate crimes.
“No crime which has its basis in racism should go unpunished."
The SA Human Rights Commission (SAHRC) said the sentencing sets a significant precedent in that it confirms the constitutional protection of human dignity. Spokesperson Gail Smith said: “Crimen injuria is a wilful injury to someone’s dignity in this case, caused by the use of the k-word. The SAHRC welcomes the court’s definitive judgment." The judgment affirmed the SAHRC's position on hateful utterances as a violation of human rights.
On social media, Siphamandla Ndlovu tweeted: “There’s a difference between free speech and hate speech. She used the k-word 48 times.”
AfriForum said Momberg's sentence confirmed the double standards in South Africa regarding race. AfriForum deputy chief executive Ernst Roets said Momberg’s remarks were indeed racist and needed to be condemned, but the sentence was imposed a few days after an SANDF officer was simply reprimanded for his racist remarks.
Throughout the trial, Momberg who was denied bail after sentencing on Wednesday, claimed that the smash-and-grab incident so traumatised her that she was not aware of her behaviour.
This defence, known legally as “sane automatism”, has rarely worked in the South African courts, with legal experts saying only one court issued a not-guilty verdict to an accused using this defence in the past 15 years.
A lesser sentence on the four charges of crimen injuria would have opened the floodgates for this defence. The magistrate was greatly concerned by Momberg’s lack of remorse.
She believed Momberg regretted her actions, but failed to show she had a full appreciation of the damage she had done.
Momberg’s advocate, Kevin Lawlor, said he wished to appeal against the conviction and sentence, asking to start bail proceedings. He would need until April 4 to prepare, he said, asking the court to grant Momberg R2000 bail. It was refused.
With Momberg spending her first night in jail, prosecutor Yusuf Baba and NPA spokesperson, Phindi Mjonondwane, welcomed the sentence.