PRESS RELEASE: PARLIAMENT’S SECOND HOUSE ADOPTS HATE SPEECH BILL - 15 NOVEMBER 2023

Today Parliament’s second house, the National Council of Provinces (“NCOP”), during its plenary adopted the controversial Prevention and Combating of Hate Crimes and Hate Speech Bill (the “Hate Speech Bill”).

To recap, the Bill proposes criminalising hate speech – which it defines in simple language as an expression that (1) incites harm, and (2) promotes or propagates hatred against (3) a group of people specifically listed in the Bill.

The Hate Speech Bill remains highly problematic, particularly because the NCOP left unchanged the wide definition of “harm” (which includes subjective and vague concepts). They also failed to define “hate”, which is the quintessential element of the crime of hate speech. The exemption clauses in the Bill (for journalists, academics, artists, and religious expression) are self-defeating and offer very little real protection, yet the NCOP also left them unchanged.

“The net effect is that the Bill criminalises what should be constitutionally protected speech.  It indefensibly erodes the fundamental right to freedom of expression, including religious expression”, says Daniela Ellerbeck, Legal Advisor of Freedom of Religion South Africa (FOR SA).

No amendments were made to the clause of the Bill which deals with hate speech. The NCOP has proposed to lower the maximum jail sentence for hate speech from eight years to five years.

“This token amendment is farcical since, contrary to recommendations by the public to reduce or eliminate the three-year jail sentence proposed by the Department of Justice in the original version of the Bill, the National Assembly inexplicably increased it to eight years”, says Michael Swain, Executive Director of FOR SA. “The NCOP Committee has done nothing except reduce this sentence from eight years down to five years, without doing anything to cure the overall problematic nature of the Hate Speech Bill. They have also evidently ignored the vast majority of the inputs from the public participation process to reduce or eliminate the jail sentence.”

Next, the Bill will be sent to Parliament’s first house, the National Assembly (NA) to decide if it accepts or rejects the amendment proposed by the NCOP. If the NA subsequently passes the Bill, it will be sent to the President for his assent, whereupon it will become law.

 ENDS.