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[OPINION] SA law needs a zero-tolerance approach to racist utterances

This article first appeared on The Conversation.

A “selfie” video rant has landed a South African man, Kessie Nair, in hot water. Nair faces six counts of crimen injuria and two of incitement to public violence after recording himself spewing racist language at the country’s President Cyril Ramaphosa. He has since apologised to the president.

But what is crimen injuria, and why is it being used in this instance?

Crimen injuria is a supple common law offence that has been applied to a diverse array of conduct. It’s a unique feature of South African criminal law, and focuses on the protection of dignity and privacy, rather than the protection of reputation, which is encompassed by the law of defamation.

It’s defined in South Africa as “unlawfully and intentionally impairing the dignity or privacy of another person”. The early recorded cases tended to involve incidents of private or public indecent exposure and invasions of privacy, especially cases involving what’s colloquially termed “peeping Toms”.

Subsequently, the crime was also applied to demeaning conduct and offending words. This includes the deeply racist and derogatory term “ka*$ir”, which was central to another recent high profile case of crimen injuria. A woman named Vicki Momberg was sentenced to three years in prison (one of which was suspended) for her racist abuse of black police officers at a crime scene. This was caught on camera.

The severity of Momberg’s sentence caught headlines: it’s believed to be the first case resulting in a substantial prison sentence for racist utterances alone. Critics lauded the magistrate in Momberg’s case for taking a zero tolerance approach to racism. In Nair’s case, too, there has been a swift and loud public outcry for a harsh penalty.

But does a zero-tolerance approach necessarily mean harsher penalties? Is it a good precedent to use prison for harmful words alone rather than harmful actions? Momberg’s sentence is being appealed; this is due to be heard in November. The outcome of this appeal is bound to have an impact on Nair’s case, should he be convicted. So what can be learned from previous similar cases?

THE COSTS OF PRISON

Even though the use of the word “ka*$ir” is currently considered one of the most serious forms of verbal crimen injuria, courts have been reluctant to assign prison sentences to such convictions.

In one instance, a prison sentence for a man who directed the word at a black traffic officer was overturned on appeal. Part of the reason for the appeal judge’s decision was that “neither [the Defence] nor [the State] were able to refer us to any decision of the High Court in which an effective term of imprisonment was imposed or confirmed on review or appeal in a case of crimen injuria of this nature”.

Arguably there is sound justification for the court’s reluctance to assign prison terms for verbal crimen injuria. Prison is expensive for society. It costs the taxpayers over R100,000 a year to house an inmate in prison. That money could be going to education, employment initiatives and other social services to help prevent offending in the first place.

Prison also costs society in non-monetary terms. In many respects prison contributes to a cycle of offending and desocialisation that causes widespread damage in communities. So, prison should be reserved for the most serious offences and for offenders who pose a risk to society.

DETERRENCE

Calls to impose harsh prison sentences for verbal crimen injuria are often premised on the need to deter such behaviour. Prison sentences are unlikely to achieve this laudable goal.

There are two aspects to deterrence in criminal justice. The first is called general deterrence. This entails using punishment to deter other would-be offenders from committing similar crimes. The second aspect is called specific deterrence: using the punishment to deter a particular offender from offending again in the future.

Regarding general deterrence, research has shown for many decades that the most important feature in using the criminal justice system to deter would-be offenders is not the severity of punishment. The concepts of “certainty” and “publicity” are far more important. In other words, even if the death penalty could be applied for crimen injuria, if offenders believe they will not be caught it will do little to deter them.

Conversely, a fine that’s believed to be certain, due to the consistency with which it’s applied as well as the publicity of its application, will put far more people off the offensive conduct.

From a specific deterrence perspective, prison is a particularly blunt tool to rid people of racism. Journalist Rebecca Davis’s observations of the Momberg case ring true here:

There are presumably few people who would argue that time in prison will ‘cure’ Momberg of her evidently deeply ingrained racism. A jail term in this case may feel intuitively satisfying to many, but does little to address the wider social problem of racism and its causes.

A SMARTER APPROACH

The frequency of apparent incidences of verbal crimen injuria involving racism displays that the criminal justice system must adopt a zero-tolerance approach. But this approach needs to be a much smarter one than simply throwing these offenders in prison.

It’s too soon to tell if Nair’s case will result in a conviction. Currently it is postponed for him to undergo psychiatric evaluation to determine whether he is mentally fit to stand trial.

If Nair is eventually convicted and punished, the criminal justice system should devise a sentence that has the sophistication, constructiveness and humanity that’s so devoid from his reprehensible behaviour.

Kelly Phelps is a senior lecturer in criminal justice, University of Cape Town.

The Conversation

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