On Wednesday, the Randburg Magistrate’s Court denied estate agent Vicki Momberg the right to appeal against her three-year prison sentence for crimen injuria. This week also saw the resignation of Imperial CEO Mark Lamberti following his being found to have made offensive comments to employee Adila Chowan. And to round things out, the Judicial Conduct Tribunal has just recommended the impeachment of Judge Nkola Motata for making racist comments while drunk. In all three cases, the concept of dignity – and its impairment – took centre stage in the relevant courts. Is it a sign that the times are a-changing?
The concept of “dignity” is rarely spelled out very clearly. It is often defined in a circumlocutious manner relying on other fairly vague terms, such as “value” and “respect”. But if three recent decisions taken by South African judicial bodies are anything to go by, the notion of dignity is assuming increasing importance in local law.
Infamous estate agent Vicki Momberg was on Wednesday denied an appeal against her conviction for crimen injuria, and its accompanying three-year jail sentence. Momberg, who went on a racist rant against police officers and emergency service protocol who attempted to assist her after a smash-and-grab incident in 2016, was found guilty of the crime of unlawfully, intentionally and seriously impairing another person’s dignity.
Momberg’s trial and conviction took place in a magistrate’s court – but other legal arenas are making similar findings.
On Tuesday, Imperial Holdings CEO Mark Lamberti finally fell on his sword, resigning after the fallout from a March ruling by the South Gauteng High Court that Lamberti had impaired the dignity of employee Adila Chowan. He did so, the court found, after publicly deriding Chowan as an “employment equity employee”.
Both the Lamberti and Momberg cases involved incidents of racist utterances made by white South Africans to South Africans of colour. The Momberg case, in particular, raised questions from groups such as AfriForum as to whether the same principle would apply to offensive remarks made by black South Africans to white South Africans.
That is still an open question, but the release this week of a report by the Judicial Conduct Tribunal suggests that the same principle may indeed apply in at least one context: when the black South African in question is a judge.
The Judicial Conduct Tribunal recommended the impeachment of Judge Nkola Motata following the 2007 incident in which Motata drove drunk into the wall of a private (white-owned) home and then told witnesses: “There is no boer who will criticise me.”
The report – which is still to be considered by the Judicial Service Commission – found that Motata’s remarks were racist.
“‘Racism’ is defined in the Merriman Dictionary as ‘a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race’. The utterances made by the Judge exhibit the traits set out in this definition.”
The report, authored by tribunal chairperson Judge Achmat Jappie, accordingly finds that “racist conduct on the part of a judge constitutes gross misconduct”.
Interestingly, the report determines that the dignity impaired in this context was not that of the white man to whom Judge Motata referred in his comments, but that of the courts.
“This Tribunal has come to the conclusion that Judge Motata’s conduct at scene of his motor accident and the remarks he made were racist and that they impinge on and are prejudicial to the impartiality and dignity of the courts.”
As can be seen, the crucial legal issue at the heart of the Momberg, Lamberti and Motata cases was dignity rather than racism per se. From this perspective, Lamberti was accurate in his resignation letter to Eskom to state that “there were no findings in the judgment of race or gender discrimination against Associated Motor Holdings, Imperial or myself”.
In the March ruling against Lamberti, the judgment quotes case law on the subject of dignity.
“The claim for impairment of dignity comprises both a subjective and an objective element,” it notes.
“The subjective element requires that the plaintiff must in fact feel insulted. To satisfy the objective element our law requires that a reasonable person would feel insulted by the same conduct.”
The judge accepted in the Lamberti case that Adila Chowan felt “extremely upset, humiliated, degraded and objectified in terms of being a female empowerment equity candidate without recognition for the fact that she was a professional qualified chartered accountant with extensive experience and achievements”, and found that a reasonable person would inevitably feel the same way.
But dignity remains a fairly nebulous concept. When the JSC sits to consider the report of the Judicial Conduct Tribunal on Judge Motata, for instance, it will count among its members the likes of EFF leader Julius Malema. Would Malema concur that an impairment of dignity occurred when Motata drunkenly called a white man a “boer”?
While he was ANC Youth League leader, Malema famously led crowds in singing “Kill the Boer”, following which he was warned by Judge Collin Lamont in 2011 that if he sang the song in future he would face jail time.
“Kill the Boer” was a more straightforward case, in that it could be interpreted as violating the constitutional ban on incitement to violence.
The Motata incident is less cut and dried, and it will be interesting to see which way Malema will go on this matter.
"If you try to predict the future know that you will be wrong. The trick is to be as least wrong as possible; and be ready to change when you see how wrong you are!" ~ Sir Michael Howard