Yesterday the former real estate agent, who called police officers “kaffir” 48 times in 2016, was handed a threeyear prison sentence, one of which was suspended, in the Randburg Magistrate’s Court.

Momberg is the first ever person in South Africa to serve a jail term for using a derogatory and racist word. She used the word to insult a group of police officers who were assisting her after she was the victim of a smash and grab incident in Randburg in 2016.
Law experts said the judgment delivered by magistrate Pravina Raghunandan late last year and the sentencing imposed yesterday would be used as a reference in many cases to come be it homophobia, xenophobia or any other hate crimes. This comes only three weeks after the Cabinet approved the Prevention and Combatting of Hate Crime and Hate Speech Bill and sent it to Parliament for processing.

The bill provides for the offence of hate crimes and the offence of hate speech and the prosecution of persons who commit such crimes. It also provides for appropriate sentences to be imposed on persons who commit hate crime and hate speech offences. KP Seabi & Associates senior attorney, Kabelo Seabi said the Constitution was clear in granting everybody the right to dignity and provides for that dignity to be protected.

“It is to be welcomed that in this instance the court has taken a brave step making sure that right is not lessened. Hopefully other courts will follow that outcome as a guiding precedent when they deal with these types of cases in the future,” Seabi said. The South African Human Rights Commission has also welcomed the sentence, saying it reinforces the judgment handed down in the SAHRC’s matter in the Civil Court.

“After being found guilty of hate speech, Momberg failed to comply with the Equality Court order and the SAHRC is pursuing a contempt of court order against Momberg,” the SAHRC’s Gail Smith said. In the past, many cases taken to the Equality Court have ended with a public apology and fines being imposed.

In 2008, four University of Free State students, Roelof Malherbe, Schalk van der Merwe, Johnny Roberts and Danie Grobler forced elderly black university staff to eat meat that had been urinated on. The staff members were also forced to kneel and drink beer while the students gave instructions. The matter was taken to the Equality Court.

The four students were expelled from the institution. In 2016, former South Coast estate agent Penny Sparrow was fined R150000 for referring to black beachgoers as monkeys. Later that year, Matthew Theunissen from Cape Town was ordered to perform community service for sports development in a disadvantaged part of Cape Town as part of a settlement agreement after he used the K-word on Facebook.

Some similar cases that have made headlines include that of former South Gauteng High Court judge Mabel Jansen who wrote on social media that rape was part of black culture. Jansen resigned from the bench and is is yet to face the Judicial Tribunal. Last year Velaphi Khumalo was taken to court by the SAHRC after he posted on Facebook saying black South Africans must do to whites what “Hitler did to the Jews”.

Andre Slade, a guest house owner in Sodwana Bay, KZN, was fined R50000 by the Equality Court for hate speech after he refused to accommodate black people at his guest house and said they were created to be servants.

However, in the case of two Mpumalanga men who forced Victor Mlotshwa into a coffin, although their acts were proven to be racially motivated, the two men were convicted of assault and sentenced to 11 and 15 years in prison. Reading out sentence yesterday, Raghunandan described Momberg as having been out of control.

“There is a chasm between remorse and regret. Whether the offender is remorseful or simply feeling sorry for him or herself are two different things. For remorse to be a valid consideration, the penance must be sincere. “The accused did not appear to be remorseful and to take responsibility for her actions. The accused was out of control,” Raghunandan said.

During aggravation of sentence, a probation officer’s report stated that Momberg, despite having been found guilty in the Equality Court and ordered to pay R100000 before being criminally prosecuted, still did not believe she had done something wrong. She will remain in jail until her application for leave to appeal is heard on Wednesday.

The NPA has welcomed the sentencing with spokesperson Phindi Mjonondwane saying it had set a precedent for other race-related cases.