Vicki Momberg
Vicki Momberg

Convicted of repeatedly injuring the dignity of black police officials with a racist rant — and sentenced to a landmark two-year jail term — estate agent Vicki Momberg is set to make legal history yet again.

She has won the right to appeal both her conviction and sentence in the High Court in Johannesburg, meaning that once this case is decided by that court it will set a precedent for sentencing in other crimen injuria cases.

But Momberg will also tread new legal ground in terms of her conviction appeal. She will argue that she was wrongly convicted because she was temporarily insane when she used the k-word more than 40 times, marking the first time temporary insanity has been used to defend racist language in the high court.

As a result of this appeal, the Momberg case could set a precedent not only for the sentencing of people who use racist slurs, but also for the kinds of defences they may raise to explain their conduct. She has already served five months of her effective two-year jail term and should be released on parole in the coming months.

Momberg will return to the Randburg Magistrate’s Court on Thursday to argue that she should be granted bail, pending the outcome of her appeal.

Magistrate Pravina Raghoonandan had refused Momberg leave to appeal her conviction and sentence in April, but her lawyers successfully petitioned the high court.

Momberg was caught on camera racially abusing a black police officer after she was the victim of a smash and grab incident. The video went viral, and while Momberg later sought to suggest the video may have been tampered with, it provided evidence of her guilt.

During her trial, Momberg sought to suggest she was so overwhelmed by the trauma of the attack that she suffered from "temporary nonpathological criminal incapacity" — or temporary insanity — and could therefore not be held fully accountable for her actions.

The state believes this is the first time temporary insanity has been used to avoid criminal liability for racism.

This type of temporary insanity defence is typically used in intimate femicide murder cases, where a man accused of murdering his female partner will argue that he attacked her after experiencing extreme stress and then "losing control".