Controversial author Jackie Phamotse has been sentenced to two years of house arrest for defaming former Miss South Africa, Basetsana Kumalo, and her husband, Romeo.
Handing down the sentence on Tuesday afternoon, the Randburg magistrate’s court also fined Phamotse R12 000 on count three or four months imprisonment.
On count four, Phamotse was penalised R18 000 or six months imprisonment.
The court found that a fine and a suspended sentence would be too lenient considering the nature of the case and Phamatso’s conduct post-commission of the offence.
It said correctional supervision is suitable for charges one and two and that on counts three and four, a fine is suitable.
Phamotse told the court that she can only pay R4 000, saying the rest of the fines would be settled on a monthly basis.
During the heads of argument before sentencing, Phamotse’s lawyer, Mpho Mathonsi, told the court: “My client has been left miserable and distressed by this case.”
The defence asked the court to be lenient on Phamotse, saying she is a first-time offender who tends to her siblings and nibbles.
“Prison does not need someone like her, as much as she does not need prison, but society needs her,” Mathonsi said, arguing that Phamotse is a gender-based violence activist, a voice for the voiceless.
Mathonsi also dismissed the state’s version that Phamotse did not show remorse, especially after she published the book titled I Tweet What I Like. So … Sue Me.
“My client is remorseful, as opposed to what the state is saying. She is sad and stressed that she is in this position.”
Kumalos are still wealthy and successful
The magistrate corrected Mathonsi, clarifying that the state’s version that there is a lack of remorse on Phamotse’s part is not based on her plea of not guilty, but on other factors mentioned during arguments.
These include the book and its contents.
Mathonsi submitted that the media has also contributed greatly to Kumalos’ troubles, referring to news articles that were published subsequent to the contentious tweet that landed Phamotse in trouble.
He argued that when Basetsana told the court about how much the case has cost her family over the past five years, she was being untruthful.
“The Kumalos are still successful, they are still wealthy, and they do not have financial problems,” said Mathonsi.
Horrendous nature of prisons
According to Phamotse’s lawyer, prison is not a conducive environment for his client. He referred to a report detailing the horrendous nature of prisons in the country and asked the court to only consider direct imprisonment as a last resort.
“It is my humble request that the court impose a non-custodial sentence in this matter,” pleaded Phamotse’s lawyer.
Replying to the defence’s assertion that the Kumalos did not suffer any financial damage, advocate Yusuf Baba, who represented the Kumalos, argued that they have spent a lot of money to ensure that justice is served.
“They were fighting for their constitutional right to dignity,” Baba said.
Baba further contended that the defense’s closing arguments also displayed no remorse, exacerbating the situation.
The defence and the state spent time arguing on the issue of remorse, however, the magistrate indicated that remorse is not considered an aggravating factor but a mitigating factor.
Charges and background
Phamotse faced several charges, as stipulated in the judgment:
• Crimen Injuria (counts one and two): Phamotse was accused of tweeting on June 5 2018 from her Twitter handle, @JackiePhamotse, referring to an alleged video depicting Romeo engaging in sexual activities with another man and similarly implicating Basetsana. The court held that these tweets were unlawful and intentional, injuring, insulting, and impairing the dignity of the Kumalos.
• Criminal defamation (count three): Phamotse authored and published a book titled I Tweet What I Like: So … Sue Me in February 2019, seemingly related to her case against Basetsana, thus injuring her reputation.
• Contempt of court (count four): Phamotse published the said book, which the court found to be in breach of and resulting in a failure to comply with a court order by the harassment court.
Handing down her judgement in September 2023, magistrate Saras Naidoo relied on several key points.
Naidoo noted that Phamotse failed to prove that she was not referring to the Kumalos, even though she did not explicitly mention their names in the tweets.
Her failure to provide clarity when her followers inquired and her use of laughing emojis were concerning.
Warning from the harassment court
The magistrate stated that Phamotse had received a warning from the harassment court to restrain her from further embarrassing the Kumalos.
However, she later published a book referencing the controversial tweet and case number, demonstrating her lack of remorse.
Phamotse suggested that people Google the tweet, which the court deemed inappropriate and damaging to the Kumalos’ reputation.
She further claimed that her actions were for research purposes, but the court found this assertion unconvincing, especially as she did not go through comments under the tweet.
According to Naidoo, Phamotse was very vague in her testimony during cross-examination.
The magistrate indicated that the accused provided uncompelling responses that were not useful to her defence.
Phamotse’s reluctance to defend herself
The court heard that she also failed to provide all evidence relevant to the case for the sake of her defence, depicting a resistance of some sort.
In her book, Phamotse mentioned a bribe, indicating the existence of a corrupt nature.
Naidoo stated in her judgment that when she was asked to clarify the allegations of bribery, the embattled author showed a reluctance to defend herself.
Naidoo concluded that Phamotse was guilty of defaming the Kumalos after having failed to defend herself beyond a reasonable doubt.
