Momberg yesterday became the first person to be given a prison sentence for crimen injuria.
She first became infamous when a 2016 viral video showed her using the k-word 48 times against the police officers and 10111 operators trying to help her after a smash-and-grab incident.
For more than a year, the Randburg Magistrate’s Court has heard her dramatic criminal trial, witnessed her multiple meltdowns and even allowed her perpetual claims that the presiding magistrate, prosecutor and the probation officers assisting her had been conspiring to convict her.
Yesterday, Momberg’s case - though not her inevitable set of appeals - finally came to an end. Magistrate Pravina Raghoonandan was asked by the prosecution to deviate from normal sentencing procedures because of the seriousness of the incident.
“Ms Momberg, it does not give me pleasure to impose this sentence It is a sad day for me,” said Raghoonandan, before sentencing the estate agent to an effective two-year prison sentence.
The magistrate said previous sentences against those who had been convicted of crimen injuria had not been an effective deterrent against would-be racists and bigots.
The magistrate said it was up to the courts to show they are not afraid to give out custodial sentences that would prevent such behaviour in the future.
“This habit and culture must change, innocent black people were violated,” she said. The magistrate pointed out how “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,” she said.
Justice and Correctional Services Minister Michael Masutha led the chorus of those who welcomed the judgment.
“We believe that this strong sentence will deter would-be hate-crime perpetrators in our society.
“We also find it disappointing that we are dealing with a case of this nature in the year that we are celebrating the centenary of Nelson Rolihlahla Mandela,” said Masutha.
Stephans Mahlangu, acting spokesperson for the Justice and Correctional Services Ministry, said the crime committed against Constable David Mkhondo and the sentence imposed by the court highlighted the need for the development of the law with regard to crimes of hate speech, as well as hate crimes in South Africa.
“No crime which has its basis in racism should go unpunished,” said Mahlangu.
The South African Human Rights Commission (SAHRC) said the sentencing set a significant precedent in that it confirmed the constitutional protection of human dignity.
Gail Smith, SAHRC spokesperson, said the right to human dignity was a foundational value of South Africa’s constitutional democracy and was enshrined in the constitution.
“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,” said Smith, adding that the SAHRC believed the judgment affirmed its 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. Magistrate Pravina Raghoonandan has set a good precedent in South Africa.”
AfriForum, however, said the sentence imposed on Momberg confirmed there were 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 comments. “The inconsistency being applied in this country regarding minorities has reached the level of absurdity.
“The reality in South Africa is that a white person who insults a black person goes to prison, while a senior officer in the defence force who says white people’s eyes and tongues must be stabbed out is simply asked nicely not to repeat it,” Roets said.
Throughout the trial, Momberg, who was denied bail after her sentencing yesterday, has claimed that after the smash-and-grab incident, she was so flustered and traumatised that she was not aware of her behaviour.
This defence, known legally as “sane automatism”, has rarely worked in South African courts, with legal experts explaining to The Star that only one court had provided a not guilty verdict to an accused using this defence in the past 15 years.
For Raghoonandan, a lesser sentence on the four charges of crimen injuria would have opened the floodgates for this defence.
She was also concerned by Momberg’s lack of remorse. While she believed the estate agent regretted her actions, Momberg had failed to show she had a full appreciation of the damage she had done.
Momberg’s advocate, Kevin Lawlor, immediately indicated he wished to appeal against the conviction and sentencing, asking to start bail proceedings pending an application for leave to appeal.
Lawlor, who only recently be- came Momberg’s lawyer after she had dropped at least three others due to conflicts with them, said he would need until Wednesday to prepare for the appeal application.
In the interim, he asked the court to allow Momberg to be released on R2000 bail, but the prosecutor, Yusuf Baba, opposed this.
Raghoonandan sided with Baba.
National Prosecuting Authority spokesperson Phindi Mjonondwane welcomed the sentence, which made Momberg the first person to be sent to prison for crimen injuria.