A submission by Clement Mkhondo and the South African Human Rights Commission in their case against Momberg said courts had in recent years recognised the need to act firmly against racist conduct. Damages Equality Courts had awarded had been increasing.
In February last year‚ Momberg‚ who is white‚ launched into an unprovoked tirade of racial abuse peppered with the k-word‚ directed against Mkhondo‚ a black policeman.
Mkhondo and two colleagues were on patrol duty when they drove into a parking lot of a shopping centre in northern Johannesburg after a vehicle driven by Momberg flashed its lights at them.
When Mkhondo got out of the patrol vehicle‚ Momberg — without provocation — pointed at him and called him a “useless k*****”. This happened before Mkhondo had said a word to Momberg.
Momberg used the k-word a number of times‚ a video that went viral last June showed. Mkhondo laid a complaint of crimen injuria.
That criminal case is under way and will resume on Friday at the Randburg Magistrate’s Court.
Mkhondo also approached the Equality Court where he asked for an order declaring Momberg’s statements against him constituted hate speech.
In addition to the R150 000 damages‚ Mkhondo and the commission want Momberg to make an unconditional apology to the policeman and to all black South Africans.
The Equality Court‚ sitting in Randburg‚ heard closing arguments on Monday following testimony in February.
Counsel for Mkhondo and the commission Usha Dayanand-Jugroop said Mkhondo had testified that Momberg should pay damages because her conduct constituted hate speech and that she could not insult people.
Dayanand-Jugroop said the Equality Act enjoined a court adjudicating a hate speech complaint to be mindful of the fact that unfair discrimination remained embedded in practises‚ and attitudes.
She referred to a judgment passed by Chief Justice Mogoeng Mogoeng who said that “the word k***** was meant to visit the worst kind” of insult on another person.
Mogoeng also said the word had been calculated to achieve its set objective of delivering the harshest and most hurtful blow against African people.
Dayanand-Jugroop said Mkhondo had made out a case that his dignity had been infringed and that he had suffered emotionally as a result of Momberg’s tirade.
Momberg’s lawyer Joe Davidovitz said the reason Momberg testified was to allow the court to determine whether there had been intentional hate speech on her part.
“She was a victim of a vicious attempted hijacking and a smash and grab. We must begin there‚” Davidovitz said.
He said Momberg’s case was distinguishable from that of Penny Sparrow‚ a white woman who wrote a racist post about black people on Durban beaches.
Davidovitz said Sparrow wrote her post out of spite and hate without any provocation.
“The provocation in this case was the smash and grab. Momberg suffered and this crime was committed by a black person.”
Davidovitz said Momberg lashed out angrily at Mkhondo because of the trauma she had suffered.
“Ms Momberg’s utterances should not be seen as hateful‚ especially towards black people. Her words were hateful to everybody who was there as a result of her state of mind. She was also a victim‚” Davidovitz said.
The court will pass judgment on June 8.