Getting to grips with the legalities in the Vicki Momberg case

Former real estate agent Vicki Momberg has been denied bail in the Randburg Magistrates Court.

Momberg was sentenced to three years in prison, with one year suspended, for a racist rant caught on camera in 2016.

She was found guilty on four counts of crimen injuria.

Stephen Grootes speaks to visiting associate professor at Wits University Prof. James Grant to get to grips with the legalities of the case and how an appeal process would work.

This will be the first time someone in South Africa will go to prison for racist speech.

Grant agrees that issues around hate speech, freedom of expression, and the Constitution would have been taken into account.

If for instance, it was protected speech, then in terms of the criminal charge, one would have a defence against the charge, by virtue of that speech being lawful in terms of the Constitution. And so the two really feed into each other in that way.

Prof. James Grant, Visiting Associate Professor at Wits University

The two issues can be at odds with one another as they have different purposes, he notes.

Where the Consitution prohibits hate speech but does not necessarily attach to a threat of criminal punishment, he explains.

In this case, it is about saying that under the criminal law, if you do this stuff, and it infringes the dignity of another person, and you do so intentionally, and - and here's the link to the Constitution - you can't make any of the claims to free speech under the Constitution, then you commit a criminal offence, and we will punish you for that.

Prof. James Grant, Visiting Associate Professor at Wits University

And the chances of an appeal?

The first step would be to apply to that magistrate for leave to appeal. If that is granted, then the next step is to a High Court single judge. The Judge President may, however, decide to allocate the case to a single or a three-court bench. He may well in this case because it is a precedent-setting case, allocate it to what we call a full court.

Prof. James Grant, Visiting Associate Professor at Wits University

If that court confirms the decision, she could then appeal further to the Supreme Court of Appeal and from there to the Constitutional Court, funds permitting.

Prof. James Grant, Visiting Associate Professor at Wits University

Click on the link below to hear more from Grant....


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