Abstract

LUBAALE, Emma Charlene. Making the case for mental health expertise in crimen iniuria cases: An issue awakened by the Vicki Momberg sentence. De Jure (Pretoria) [online]. 2019, vol.52, n.1, pp.433-446. ISSN 2225-7160.  http://dx.doi.org/10.17159/2225-7160/2019/v52a22.

Fewer topics have recently divided South African discourse than the controversial sentencing of Vicki Momberg. Ultimately convicted of four counts of crimen iniuria, she was sentenced to an effective two year direct prison sentence as a first time offender, a sentence which is unprecedented as far as South African criminal law is concerned. This sentence has simultaneously been lauded as an effective deterrent for racial hatred and branded an unjust sentence indicative of selective prosecution and the unjust disparity between various judicial platforms. The better part of the criticism stems from the fact that the sentence was unjust. This state of affairs brings sharply into focus practical issues, in particular, the determination of just and proportional sentences in cases relating to crimen iniuria. Notably, to establish that a person's dignity has been impaired, two elements need to be proved. Firstly, the victim should have been aware of what the accused was doing to them. Secondly, the victim should have felt humiliated or degraded as a result of what the accused did to them. The point of departure of this paper is that the legality of the sentence in crimen iniuria is necessarily tied to the harm involved and this cannot be gauged physically, but rather, psychologically. The purpose of this article, therefore, is to underscore the role of expert evidence, in particular, expertise of mental health professionals, in translating the harm caused into quantifiable mitigating and/or aggravating factors with a view to ascertaining an appropriate sentence in terms of the established South African sentencing regime. This paper concludes that just and proportional sentences demand an in-depth evaluation of the "impairment of dignity" element in light of the requirement of fair, just and proportional sentences that satisfy the right to equality. This evaluation makes the role of mental health experts indispensable, yet, thus far, this has not been the case in most crimen iniuria proceedings.

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