Columnist William Saunderson-Meyer writes about the impending hate-speech legislation:
“Social engineers are setting great store in the long-delayed anti-hate legislation, which the cabinet announced will imminently be put before Parliament. They also take encouragement from the recent harsh sentencing for racist abuse, using existing crimen injuria legislation, against the infamous Vicki Momberg. Historically, crimen injuria – the unlawful, intentional and serious impairment of the dignity of a person – rarely drew anything more onerous than a suspended sentence, especially for a verbal offence.”
The best, complete definition of crimen injuria I found is on Wikipedia:
“Crimen injuria is a crime under South African common law, defined to be the act of 'unlawfully, intentionally and seriously impairing the dignity of another'. Although difficult to precisely define, the crime is used in the prosecution of certain instances of road rage, stalking, racially offensive language, emotional or psychological abuse and sexual offences against children. The Truth and Reconciliation Commission heard numerous cases of crimen injuria, usually coupled with assault, committed by intelligence services on both sides of the struggle against apartheid."
It’s an offence I rarely heard used until Momberg was prosecuted and sentenced. (Incidentally, it appears to cover a range of offences against the person, so why is the hate speech law needed?)
In my recent posts about Cape Town’s Director of Public Prosecution's (DPP) unwillingness to prosecute in my mother’s case, I wrote that perhaps I should have laid a charge of “racism”, or crimen injuria like the National Prosecutions Authority did with Momberg, because that’s what South Africa’s criminal justice and human rights organisations are very serious about, mercilessly persecuting and prosecuting alleged (white) offenders. I said so in my recent letter to the DPP.
When it became clear a couple of months ago – before they officially notified me – they were not going to do anything, I thought about it, but not seriously. My mom, family and I were not the victims of racism per se, although my statement mentions how at the time, four noisy white visitors to her Groote Schuur Hospital Trauma Unit ward, visiting another patient, were allowed to do what they wanted as if they owned the place, while the doctor (Dr A---) shouted at and practically ordered us to leave.
“Social engineers are setting great store in the long-delayed anti-hate legislation, which the cabinet announced will imminently be put before Parliament. They also take encouragement from the recent harsh sentencing for racist abuse, using existing crimen injuria legislation, against the infamous Vicki Momberg. Historically, crimen injuria – the unlawful, intentional and serious impairment of the dignity of a person – rarely drew anything more onerous than a suspended sentence, especially for a verbal offence.”
The best, complete definition of crimen injuria I found is on Wikipedia:
“Crimen injuria is a crime under South African common law, defined to be the act of 'unlawfully, intentionally and seriously impairing the dignity of another'. Although difficult to precisely define, the crime is used in the prosecution of certain instances of road rage, stalking, racially offensive language, emotional or psychological abuse and sexual offences against children. The Truth and Reconciliation Commission heard numerous cases of crimen injuria, usually coupled with assault, committed by intelligence services on both sides of the struggle against apartheid."
It’s an offence I rarely heard used until Momberg was prosecuted and sentenced. (Incidentally, it appears to cover a range of offences against the person, so why is the hate speech law needed?)
In my recent posts about Cape Town’s Director of Public Prosecution's (DPP) unwillingness to prosecute in my mother’s case, I wrote that perhaps I should have laid a charge of “racism”, or crimen injuria like the National Prosecutions Authority did with Momberg, because that’s what South Africa’s criminal justice and human rights organisations are very serious about, mercilessly persecuting and prosecuting alleged (white) offenders. I said so in my recent letter to the DPP.
When it became clear a couple of months ago – before they officially notified me – they were not going to do anything, I thought about it, but not seriously. My mom, family and I were not the victims of racism per se, although my statement mentions how at the time, four noisy white visitors to her Groote Schuur Hospital Trauma Unit ward, visiting another patient, were allowed to do what they wanted as if they owned the place, while the doctor (Dr A---) shouted at and practically ordered us to leave.
And I thought crimen injuria was strictly about impairing the dignity of a person and using offensive language.
But when I read its definition after Saunderson-Meyer’s article, two things struck me: “emotional or psychological abuse”, and “usually, coupled with assault”. Although the legal comparison may be tenuous, in a sense it’s like the United States' civil rights statue that has broad ambit including racially motivated crimes, especially, where the legal bar for, say, murder and assault cannot be met.
So, because the DPP declined to prosecute for reasons they won’t explain, I have decided to lay charges this week of crimen injuria against the doctors who treated my mother and removed her life-support. Note these are among the charges they ought to have investigated because although I did not explicitly mention crimen injuria, the circumstances were covered in my September 2017 statement. But neither they nor the police conducted a full and proper investigation.
The NPA has become the laughing stock of the nation, with its head, Shaun Abrahams, disparagingly called “Shaun the Sheep” for his vacillations on the Zuma corruption charges. Given the Zuma corruption debacle, two deputies disbarred for alleged nefarious conduct (they’re on special leave), and the politics the NPA plays regarding prosecutions, it has little credibility. The fact is without the AFF’s threats and having a person like Gerrie Nel at the head of its prosecutions unit, the NPA would not be prosecuting Duduzane Zuma for culpable homicide and not considering prosecuting Malema, cases that otherwise would have gone cold.
So, just as the Momberg’s case made legal history (I suspect, as others do, the sentence and magistrate’s refusal of bail will be reversed on appeal), crimen injuria, if successfully applied in our case, could do so too.
But if the DPP refuses to consider my charges, it will prove what we all suspect – that the law, rather than “serving justice in our society, so people can live in freedom and security” (the NPA’s motto on its letters), as we suspect, is used to serve political ends.
Postscript: I laid the charges on 24/04/2018.
But when I read its definition after Saunderson-Meyer’s article, two things struck me: “emotional or psychological abuse”, and “usually, coupled with assault”. Although the legal comparison may be tenuous, in a sense it’s like the United States' civil rights statue that has broad ambit including racially motivated crimes, especially, where the legal bar for, say, murder and assault cannot be met.
So, because the DPP declined to prosecute for reasons they won’t explain, I have decided to lay charges this week of crimen injuria against the doctors who treated my mother and removed her life-support. Note these are among the charges they ought to have investigated because although I did not explicitly mention crimen injuria, the circumstances were covered in my September 2017 statement. But neither they nor the police conducted a full and proper investigation.
- The Constitution's Bill of Rights section 12(2), affirmed by the National Health Act relating to patients' rights, states "Everyone has the right to bodily and psychological integrity". The three doctors implicated removed my mother's life-support without our informed consent, an act that caused her death whatever her medical condition might have been. Their actions denied my mother's bodily and psychological integrity and dignity. And as her next of kin and proxies, our psychological integrity was impugned by their actions too – their denials and evasion, the stress and strain it caused, and later the hospital's, WC Health Department's and premier's dismissive and evasive way they dealt with the case, was and is emotional and psychological abuse.
- Dr A--- (an Indian national; I don't know if he's still at the hospital) was very rude to me and my sister the night my mother died on 7 July 2017. It was “emotional and psychological” abuse, particularly outrageous because of the already stressful and traumatic circumstances of my mother's very serious and, at the time, possibly terminal condition. Note the Health Professions Act Ethical Code of Conduct section 27A(c) states a practitioner shall at all times, “maintain the highest standards of personal conduct and integrity”. I pointed out this and national health legislation and guidelines to the DPP, which, apparently, they dismissed as irrelevant.
The NPA has become the laughing stock of the nation, with its head, Shaun Abrahams, disparagingly called “Shaun the Sheep” for his vacillations on the Zuma corruption charges. Given the Zuma corruption debacle, two deputies disbarred for alleged nefarious conduct (they’re on special leave), and the politics the NPA plays regarding prosecutions, it has little credibility. The fact is without the AFF’s threats and having a person like Gerrie Nel at the head of its prosecutions unit, the NPA would not be prosecuting Duduzane Zuma for culpable homicide and not considering prosecuting Malema, cases that otherwise would have gone cold.
So, just as the Momberg’s case made legal history (I suspect, as others do, the sentence and magistrate’s refusal of bail will be reversed on appeal), crimen injuria, if successfully applied in our case, could do so too.
But if the DPP refuses to consider my charges, it will prove what we all suspect – that the law, rather than “serving justice in our society, so people can live in freedom and security” (the NPA’s motto on its letters), as we suspect, is used to serve political ends.
Postscript: I laid the charges on 24/04/2018.
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