On 14 March 2023, the first house of Parliament, the National Assembly (NA), approved the Prevention and Combating of Hate Crimes and Hate Speech Bill (commonly known as the “Hate Speech Bill”). Only the Democratic Alliance, Freedom Front Plus and African Christian Democratic Party voted against the Bill.
The Bill aims to make hate speech a statutory crime with a substantial jail sentence as a penalty. The Bill is notorious for its wide definition of “hate speech”, which many consider to be unworkable and unconstitutional, because it fails to define the most crucial element of the proposed crime, namely “hate”. Since the Bill fails to tell anyone what hate is, how will you know if what you are saying is true hate speech or merely speech that some other people hate? The chilling result – particularly in a nation that claims to be a democracy – is that people will be more likely to keep silent and self-censor, rather than run the risk of a charge of hate speech being laid against them with the SAPS and having to face the ordeal of South Africa’s penal machinery.
The Bill’s definition of “hate speech”:
The Bill defines hate speech (in simple terms) as an expression that (1) is harmful or incites harm, and (2) promotes or propagates hatred against (3) a group of people specifically listed in the Bill.
Ironically, the definition of harm for the proposed crime of hate speech is broader than its definition in civil law. This is an important distinction, because in civil law, you are sued and may be fined or forced to apologise etc. However, you do not commit a crime, get a criminal record or go to jail. In criminal law, you are prosecuted by the State and face the full penal machinery – bail applications, jail time, criminal record etc.
Bill’s proposed definition of harm
Civil law’s definition of harm (as per the Constitutional Court’s judgment in the matter of Qwelane)
substantial emotional, psychological, physical, social or economic detriment that objectively and severely undermines the human dignity of the targeted individual or groups
deep emotional and psychological harm that severely undermines the dignity of the targeted group
The Bill encompasses subjective types of harm such as emotional harm (i.e. hurt feelings, which necessarily entails a degree of subjectivity) and nebulous concepts such as social harm, which it defines as “detriment that undermines the social cohesion amongst the people of South Africa”.
When the Bill left Parliament’s first house, the National Assembly (“NA”), it did so with this very wide definition of harm, with hate being undefined, and (bizarrely) increased the jail sentence from three (3) years (as initially proposed by the Department) to a maximum of eight (8) years (despite many public submissions asking for the jail sentence to be scrapped).
Nevertheless, there was hope and expectation that Parliament’s second house, the National Council of Provinces (“NCOP”), would remedy many of these problems - particularly after the numerous public submissions asking them to do just that.
It is worth pointing out that the vast majority of the people (estimated by some at approximately 250 000) who have participated in all three public participation processes addressing this Bill (before the Department, the NA and the NCOP) have submitted that no law should be passed that will shut down what our Constitution sees as protected (even if it is offensive) speech.
Alas. The NCOP failed dismally to give effect to the public’s input that e.g. hate should be defined in a criminal law so that people know when they are breaking it beforehand.
The Bill in front of the NCOP:
The NCOP was entitled to make recommendations to the NA regarding the Bill. The public participated in the NCOP’s call for public comments between 18 April and 25 May 2023, asking overwhelmingly for hate to be defined. This was a simple enough request, given that our own Constitutional Court has relied on case law that defined hatred as “strong and deep-felt emotions of detestation, calumny and vilification”, “the most severe and deeply felt form of opprobrium… an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.” And that “to promote hatred is to instil detestation, enmity, ill-will and malevolence in another.”
Despite the case law readily available in the Qwelane judgment (South Africa’s preeminent piece of case law on hate speech albeit from a civil, not criminal, perspective), hatred – the quintessential element of the Hate Crimes and Hate Speech Bill – continues to remain undefined in the Bill.
The NCOP’s Select Committee on Justice and Security, which was tasked with working on the Bill, adopted a report on 8 November 2023. This makes no recommendations regarding hate speech or its elements. Its only proposal is that the maximum jail sentence should be reduced from eight years to five years.
The way forward:
The Select Committee on Justice and Security’s report was considered by the whole house of the NCOP at its plenary next week Wednesday, 15 November 2023 at 14h00. The House agreed with the Committee and the Bill was sent back to Parliament’s first house, the NA. The NA will now decide if it accepts or rejects the NCOP’s recommendations. If the NA subsequently passes the Bill, it will be sent to the President for his assent, whereupon it will become law.
It is deeply concerning that the Government has failed to make amendments to protect the constitutional rights to religious freedom and freedom of expression – rights it is constitutionally mandated to protect, promote, fulfil and respect. Instead, fundamental rights critical to the lifeblood of a democracy have been unreasonably and justifiably limited. South Africa may well see this legislation come into force before next year’s general elections.
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