THREE weeks. That’s how long you’ll spend in jail if you utter South Africa’s most infamous word. Vicki Momberg said it 48 times on the trot. She’s looking at three years in jail, with a year suspended, so make that two weeks inside for each utterance.
Magistrate Pravina Raghunandan made history last week when she handed down the sentence at the Randburg Magistrate’s Court, five months after Momberg, a former estate agent, was convicted on four counts of crimen injuria in the same court.
She’d apparently just been the victim of a smash-and-grab incident in Northriding, Johannesburg, in February 2016, when a black police officer approached to help her.
She was distraught, her lawyer said. What ensued instead was a racist rant in which the k-word was used 48 times, including in a call to the emergency 10111 centre - as well as a threat to drive over any black person she might see, or shoot them if she had a gun.
It was a singular act of racism that was shocking even in a country once the gold standard for institutionalised racism.
It wasn’t a once-off incident either. Momberg was never remorseful; indeed, her conduct - two years after the incident - traumatised her probation officer to such a degree that she had to recuse herself from the case.
Despite this, her tone-deaf defence team approached the probation department for a pre-sentencing report. It was so dire, they opted not to present it in court. The prosecution did, though.
Head probation officer Daphney Naidoo suggested that Momberg be jailed for between 100 and 200 hours, but not longer because it wouldn’t address the underlying issues Momberg had. Magistrate Raghunandan saw it differently. “Respect for one another is sacrosanct, we are all human beings. This case has become public interest; some may think the sentence is harsh It must send out a clear message for people who use the k-word.”
It definitely has sent a message, far and wide, as it ought. One of the greatest tragedies has been the upsurge in anecdotal and reported racism by South Africans who are Born Frees, who weren’t even alive during apartheid to blame it for their prejudices.
Racism is a scourge in this country and needs to be not just outlawed, but also seen to be outlawed.
Momberg’s sentence, if it is upheld by a senior court, will do just that.
The problem will be to unpack the compelling nature that allowed the magistrate to lay down a jail sentence far in excess of what the probation officer recommended and indeed way beyond, as columnist Rebecca Davis noted in the Daily Maverick.
She referred to Penny Sparrow, also a former estate agent, whose Facebook rant merited a R5000 fine and a suspended two-year jail sentence, and UCT student Djavan Arrigone, who escaped jail after being convicted of crimen injuria and assault after he urinated off a night club balcony on to a black man below. All of these incidents happened in the same year - 2016.
Last year, Momberg was also ordered to pay Constable David Makhondo, the police officer who bore the brunt of her racist wrath, R100000 by the Equality Court. In Raghunandan’s defence, neither of the other two cases involved the use of the k-word. It remains a unique South African pejorative, our version of the equally hated American “nigger”.
But there are other words that are fast reaching the same nadir: amakula for Indians, amakhaladi for coloureds, amakhwerekhere for foreigners generally and Boer(e) or amaBhunu for Afrikaners specifically.
It doesn’t matter that Boer might be a word that actually means farmer in Afrikaans or once described an Afrikaner state.
Mining shares on the Rand were once known as k*****s and traded as such, while the Eastern Cape was once termed Kaffraria and the SANDF’s Buffalo Volunteer Rifles Regiment in East London was the Kaffrarian Rifles until 1999. What does matter is the intent of the person uttering the word and its effect upon the people who are intended to hear it.
In 2014, the Supreme Court of Appeal effectively found as much when it criminalised the use of the word k***** in Prinsloo v The State. The word, said the bench, “was used to hurt, humiliate, denigrate and dehumanise Africans”, and that the appellant, Bloemfontein businessman Lourens Stephanus Prinsloo, had intended to humiliate, denigrate and injure the dignity of the complainants. As such, the appeal failed and the original sentence of R6000 or a year in jail, all suspended for five years, was upheld.
If Boer became a pejorative like the k-word, people like Judge Nkola Motata of tea-drinking, Jaguar-crashing fame would be incredibly relieved to remember that our law is not retrospective.
For, despite his efforts to deny the viral video of him looking dishevelled and drunk, raging at the homeowner whose wall he crashed into in Craighall, Johannesburg, he’s never denied the epithets he issued freely that night. Then there’s Julius Malema, who had to be rapped over the knuckles for singing Shoot The Boer - which could ultimately be both hate speech and racist.
Racism is racism, irrespective of who it is practised by, and we must as South Africans - indeed as the much-derided Rainbow Nation - stamp it out wherever it occurs, if we are to ever hope of creating the society that our much-lauded constitution envisages.
We dare not create a get-out-of-jail card condoning bad, even criminal, behaviour for some groups because of past, appalling injustices visited upon them or their forebears. If we do that, we allow a Frankenstein situation where the oppressed become the oppressors, which we have seen all too often in other parts of the world, with tragic consequences.
It remains unconscionable that other Facebook posts, inciting racial hatred, are merely ignored because the authors aren’t white.
Velaphi Khumalo is perhaps the best example, receiving a slap on the wrist from his employers, the Gauteng Department of Sport, for calling on South Africa to treat whites the way Hitler did the Jews, and was seemingly ignored by the Equality Court, even though his rant followed Sparrow’s but predated Momberg’s.
It means calling out racism wherever it occurs, not defending it as freedom of speech or fudging it as a metaphor, as the EFF tried to do with its Port Elizabeth battle cry “cutting the throat of whiteness”.
Racism is an evil that has to be eradicated if we are to ever move forward, and South Africa remains a place where we stand the best chance of doing just that.
White South Africans have been incredibly privileged to witness, through the #Fallist movement, the ripping off of the scabs of wounds that were never properly cauterised by the political miracle of April 27, 1994.
They have been able to begin to understand concepts like white privilege and the legacy that still pervades so many aspects of life, as Ferial Haffajee poignantly argues in her book What if there were no Whites in South Africa?
But any efforts to truthfully, honestly and sustainably address racism are perennially derailed, most recently by former president Jacob Zuma’s opportunistic use of the race card last year and the advent of crassly expedient race-mongering by Bell Pottinger and the Gupta-bots personified by Andile Mngxitama.
Sparrow and all the other white racists might just add fuel to the fire, but the often unreported consequence of race-mongering is the centrifugal effect on minorities, seen in the adopting of laager mentalities and higher than normal rates of emigration.
Racism is sadly part and parcel of South African life. If we are not racist, then too many of us, irrespective of our hue, colour, class or creed, remain at the very least raced - seeing the world through the prism of them and us.
When we add an economy in distress, spiralling formal unemployment and political impotence, we see this toxic trifecta of resentment spilling over into xenophobic attacks in our townships.
This vicious cycle has to be stopped and reversed into a virtuous cycle, but to do so will take courage and statesmanship, not leadership, as well as a very high pain threshold. It means holding everyone to account without fear, favour or prejudice, on the basis of what they’ve done, not who they are.
Magistrate Raghunandan quite correctly drew a line in the sand. Momberg deserves to be in jail, of that there is no question.
But she shouldn’t be alone for too long - if the law is properly and fairly applied. It’s tough medicine, but critical if we are to emerge from this hideous morass that continues to define us almost 400 years after Jan van Riebeeck first anchored in Table Bay.