Prevention and Combating of Hate Crimes and Hate Speech Bill: deliberations; with Deputy Minister

This premium content has been made freely available

Justice and Correctional Services

08 November 2022
Chairperson: Mr G Magwanishe (ANC)
Share this page:

Meeting Summary

Video

The Portfolio Committee met on a virtual platform with the Department of Justice and Correctional Services to continue its deliberations on the Prevention and Combating of Hate Crimes and Hate Speech Bill.

Two Members of the Committee made submissions on the draft bill. The first drew on various past Constitutional Court cases to caution the Committee that criminal sanctions of certain characteristics contained in the draft bill needed to be reviewed and reconsidered. The other Member made a substantial input on the historical, cultural, and religious bias towards the colour black, which associated blackness with negativity and thus demoralised and oppressed people according to their skin pigmentation.

Some Members held a view that ss9(3) and (4) of the Constitution already provided sufficient grounds for discrimination, and the further expansion of the list would pose a risk to the curtailment of the freedom of expression and speech which was given to individuals by the Constitution. They argued that an intricate balance was required between the limitation of rights and the freedom of speech. 

The Department felt that the current legislation on crimen injuria in relation to hate speech was insufficient to address the level of egregiousness of hate speech and crimes. Its draft bill therefore provided a stricter definition, as it was guided by the Qwelane judgement. The Department also derived reassurance from the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which also referred to criminal sanctions in hate speech and crime cases.

Meeting report

The Chairperson said the agenda for the day’s meeting was to continue with the Committee’s deliberations on the Prevention and Combating of Hate Crimes and Hate Speech Bill. He noted the indications from Mr W Horn (DA) and Ms N Maseko-Jele (ANC) that they wanted to make submissions on the Bill. Mr S Swart (ACDP) had made an initial submission earlier, and had indicated that the ACDP would be making a further submission on the Bill, while Ms Y Yako (EFF) indicated that the EFF would be making a submission on the Bill in due course.

Mr John Jeffrey, Deputy Minister of Justice and Constitutional Developement (DJCD), was on the platform as well. He requested the Department to respond to each submission after each presentation.

Submission from Democratic Alliance

Mr Horn took the Committee through his submission on the Bill. He said the Committee should reconsider the process it must follow in extending s16(2) of the Constitution. Justification should be more solid, and could not be derived simply from the public participation process.

(See attached presentation document)

Ms W Newhoudt-Druchen (ANC) sought clarity on distinguishing the difference between protected speech and unprotected speech.

Mr Swart reminded the Committee that it needed to be cautious and consider the definition of harm and its characteristics more holistically. Although the Constitutional Court had delegated the amendment of the law to Parliament, it was ultimately Parliament that had the power and was the rightful authority to enact the legislation.

Mr Swart noted the Department’s indication that the current measures on hate speech, such as crimen injuria, had not been effective. He also wanted to caution the Committee on striking the right balance between constitutionality and limitations on the right to freedom of speech on the other side, as was shown in the case of Economic Freedom Fighters and Another v Minister of Justice and Correctional Services and Another [2020] ZACC 25. He emphasised that a vast body of laws, such as international law, the African Charter and the Constitution of South Africa, all guaranteed the right to freedom of speech.

Mr Swart pointed out that the Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 case showed that hate speech that required a harsher sentence should exceed the level of harm that was being discussed and contained in the current Bill. Hence, it should be about more than hurtful speeches, and should be extreme vilification. He thus asked Members to bear in mind s16(2) of the Constitution, and s36 which sets out the limitations on the freedom of speech.

Mr Henk Du Preez, State Law Advisor, DJCD, noted all those inputs.

Mr Horn was of the view that the criminalisation of unprotected speeches, as mentioned earlier, should be seen as the last resort. The Constitution was very clear in s61, which protected the freedom of expression, but that freedom did not extend to propaganda to war, incitement of imminent violence, etc. which was given in s62(c).

Mr Du Preez affirmed the Department’s position in taking guidance from the Qwelane case on the matter of the Bill.

He indicated that s16(2)(c) clearly stated that the right to freedom of expression did not extend to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”  He said s9(3) of the Constitution also clearly stated that “the state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.” Given the broader scope of grounds in s9(3), clause 4 of the Bill tightened the definition of harm.

He affirmed the Department’s concern about the number of hate speech cases documented annually. Because of that, the Department had adopted a more forward-thinking manner, as there were some classic examples of hate speech cases that currently could not be prosecuted because some specific grounds were not within the current legislation. Hence, it was important to appreciate the stricter and narrower stance of clause four due to the Qwelane judgement.

Ms Kalay Pillay, Deputy Director-General: Legislative Development and Legal Services, DJCD, affirmed the limitations on the freedom of speech as provided by s16(2). Further, she was of the view that the expansion of the list was permissible subject to s36 of the Constitution, which provided the conditions upon which rights could be limited.

She was also of the view that the current legislation on crimen injuria was insufficient to address the egregious nature of hate speech. In introducing the Bill, the executive had considered the ongoing attacks among the population on several grounds, such as race or sexual orientation. Although the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) provided civil remedies, it did not lead to criminal sanctions.  

Ms Pillay said that the EFF judgment must be read in its context, which was about incitement to commit an offence, with the Riotous Assemblies Act. The Riotous Assemblies Act was still on the Department’s statute book, and had been widely criticised by the public as it was an apartheid piece of legislation.

She reminded the Committee of South Africa’s international obligation to criminalise hate speech, as well as s44(4) of the Constitution, which stated that “when exercising its legislative authority, Parliament was bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.”

Mr Du Preez pointed out that although he was aware that some Members believed that the list of characteristics that constituted the grounds for hate speech and crimes should be confined only to those given in s9(3) and (4) of the Constitution, those grounds given in s9(3) in his view was an open-ended list, and was not a closed list.

Ms Alison Botha, State Law Advisor, quoted paragraph 35 of the Constitutional Court judgment on the  Minister of Home Affairs vs National Institute for Crime Prevention and the Re-Integration of Offenders (Nicro), which stated that “this calls for a different enquiry to that conducted when factual disputes have to be resolved. In a justification analysis, facts and policy are often intertwined. There may, for instance, be cases where the concerns to which the legislation is addressed are subjective and not capable of proof as objective facts. A legislative choice is not always subject to courtroom fact-finding, and may be based on reasonable inferences unsupported by empirical data. When policy is an issue, it may not be possible to prove that a policy directed to a particular concern would be effective. It did not necessarily follow from this, however, that the policy is not reasonable and justifiable. If the concerns are of sufficient importance, the risks associated with them sufficiently high, and there is sufficient connection between means and ends, that may be enough to justify action taken to address them.” Given that neither the National Prosecution Authority (NPA) nor StatsSA could provide any clear data on the number of cases registered on hate speech, the judgment did allow a policy draft to go ahead without the support of empirical evidence.

Deputy Minister Jeffrey acknowledged the importance of the Bill, and warned Committee Members not to unnecessarily delay its passage. He was aware that the chances of the DA supporting the Bill were very slim and that the Bill had become a major point under attack during the local government election, led by the party’s chairperson, Helen Zille.

He indicated that the PEPUDA did envisage criminal action for hate speech and crimes.

Mr Swart sought clarity on the term "incitement" as contained in s16(2) of the Constitution.

Mr Horn emphasised his original point on the need for the Department to provide proper justification for each of the characteristics on the expanded list. The manner in which Parliament handled this Bill should be different from the sexual offences legislation, due to the different circumstances. In the sexual offences legislation, it was evidently clear that no person had a right to sexually offend another person.

He also disagreed with Ms Botha on her interpretation of the case of the Minister of Home Affairs vs NICRO. In terms of paragraphs 35 and 36, he did not think that the principle of drafting legislation without supporting data could be applied in all circumstances. In fact, s36 explicitly stated the need to distinguish those circumstances that required factual material, and those that did not.

Mr Horn said the Deputy Minister was under pressure to box-tick the Bill so that he could report to his political principal. The DA’s view was that it was by no means suggesting that the Bill should be struck off the table, but rather that it wanted the Bill to be constitutionally compliant. He assured the Committee of the DA’s full commitment to working constructively in the drafting process.

Submission from Ms Maseko-Jele

Ms Maseko-Jele took the Committee through her submission. She highlighted that apartheid laws had been legal under the apartheid regime, but had later been recognised and declared a crime against humanity.

(More details can be found in the attached file).

Ms Y Yako (EFF) supported Ms Maseko-Jele’s submission and said that she now fully understood why she had suggested replacing "colour" with "skin colour."

Mr Swart appreciated the sensitivity to the issue of skin colour as opposed to mere race in the Bill. However, he wondered why the drafters of the Constitution seemed to have included race and neglected the sensitive issue of skin colour.

He reminded Ms Maseko-Jele that although he appreciated her referencing the scriptures on the negative portrayal of darkness, there was also the Song of Solomon that suggested darkness as a symbol of positivity.

Ms Maseko-Jele acknowledged that there were indeed many positive references that were made to blackness in the scripture. She only wished to highlight the hurtful nature of such negativity contained in the scriptures, which really hurt black people’s dignity. She maintained the view that people should be called by their nationalities.

The Chairperson asked Ms Maseko-Jele what about those organisations and associations that chose to use the word black, such as black people’s convention etc.

Ms Maseko-Jele responded that it would be their choice, but she wished to emphasise that the current dynamic of categorisation according to skin colour was forced upon people by institutional racism. People subconsciously accepted and internalised such categorisation. Her view was that regardless of skin colour, everyone in the country was South African and should be called and referred to as such.

The Chairperson asked the Department if it had been able to compile a list of activities that were typical of the characteristics that constituted grounds for hate crimes and speeches during the meeting last week. He requested the Department to provide an update on that.

Mr Du Preez responded that the Department had been unable to do that, as it had wanted to study the submissions of Members first. He offered the Department’s apology, which the Chairperson accepted. He asked that it be done by Friday, because it went to the crux of the discussion on the Bill.

He suggested that the meeting on Wednesday next week should include the Cannabis Bill issue.

Members agreed to the adjustment to the Committee programme that he proposed.

Deputy Minister Jeffrey reminded the Chairperson that he had not responded to Mr Swart’s question on s16(2) on incitement. He explained that in the presented Bill and PEPUDA, following the Qwelane judgment, the definition of incitement had been changed. It was now a part -- but not a necessary a part -- of hate speech. Incitement could be referred to as content that is harmful and promotes hatred.

In response to Mr Horn’s remark on the EFF case, he said that that case was about incitement, because the EFF had incited to commit a crime, which was different from hate speech.

The Chairperson thanked the Deputy Minister for his clarification, and indicated that it should be a continuous part of the debate for the meeting on Friday next week.

The meeting was adjourned.

Audio

No related

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: