Prevention and Combating of Hate Crimes and Hate Speech Bill, with Deputy Minister; BRRRs

Meeting report

Deputy Minister’s opening remarks
Deputy Minister John Jeffery informed the Committee that he was in Geneva on the 16 November for the South African periodical review of its human rights record for the United Nations Human Rights Council. South Africa was obliged to produce a national report which was sent to the UNHRC plenary for recommendations to be made by the member states.

The Deputy Minister drew the Committee’s attention to South Africa’s commitment to passing this Bill emanated from its 2018 UNHRC review attendance during which it was one of the recommendations. The recommendation focused on the elimination of hate speech, hate crime, racism and all forms of discrimination. Eleven countries (Sweden, United Kingdom, Austria, Spain, Belgium, Eswatini, Côte d'Ivoire,Ecuador, Sierra Leone) all recommended the South African government pass such a Bill.

Deputy Minister Jeffery clarified that he had noted that there was an insinuation that he was under pressure to finalise the Bill due to political party pressure and indicated that it was untrue. South Africa, under its international obligations and treaties, had a responsibility to pass this Bill as shown by those countries’ strong recommendation.

The Chairperson noted Deputy Minister's comments and indicated that his inputs together with those of the Member States would taken into account as the Committee debated the Bill.

In reply to Mr S Swart (ACDP) asking when the Committee would be able to deal with the letter sent by the Christian media, the Chairperson was unaware of the letter and would get back to Mr Swart in due course and said such matters would better be addressed in closed discussions.

Prevention and Combating of Hate Crimes and Hate Speech Bill
Mr Henk Du Preez, State Law Advisor: Department of Justice, presented the research briefing based on the Committee request in the previous meeting where it had expressed the concern that the “characteristics” and “grounds” are, with reference to section 16(2)(c) of the Constitution, too extensive. The Department was requested to submit a note on:
(i) the basis for the inclusion of the list of “characteristics” and “grounds” applicable to clause 3 and 4 respectively; and
(ii) whether the listed “characteristics” and “grounds” pass the proportionality test and a limitations analysis as contemplated in section 36 of the Constitution

Mr W Horn (DA) indicated that he had only seen the documents this morning and was thus unable to make a thorough engagement, though he was willing to make a preliminary engagement with the Department for now. However, given the importance of the topic, he suggested that more careful consideration is needed before a full engagement with the Department.

Adv G Breytenbach (DA) agreed saying she would need a lot more time to reflect on the documents.

The Chairperson said to Mr Du Preez that the Committee could receive both presentations at once and Members could deliberate on those two documents. He thus invited Ms Botha to proceed.

Ms Alison Botha, State Law Advisor: Department of Justice, took the Committee through Annexure A (see document) which discussed the characteristics and grounds for discrimination referred to in the Constitution, international conventions such as the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and other pieces of legislation, such as Employment Equity Act and the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

The Chairperson thanked Ms Botha and Mr De Preez for the work that they had put into preparing those documents. Those documents put Members in a better position to engage on these matters.

Deputy Minister Jeffery thanked the Chairperson for the appreciation for the Department employees’ work. He would respond after Members had spoken.

Mr Horn said that he would like to put it on record that his comments today should not be seen as a final reaction to the Bill as he had only preliminarily perused the two documents.

Mr Horn made reference to the International Convention on the Elimination of All Forms of Racial Discrimination and specifically asked if South Africa was a signatory state that had a statutory obligation to criminalise those forms of discrimination other than the one on race.

Mr Horn noted the newly-introduced concept of proneness to vulnerability in the Organization for Security and Co-operation in Europe (OSCE) as well as its specific application to hate crimes. However, he was uncertain if it should be equally applicable to hate speech. In his view, it would be inconsistent with paragraphs 133 and 134 of the Qwelane judgement. So he asked the Committee to be more cautious on those narrowly-crafted grounds on which the expansion of criteria were based on.

Mr Horn was under the impression that the document shows that the Department is contemplating to criminalise hate speech. The Committee needed to distinguish the policy consideration and constitutional considerations at play on the issue.

Mr Horn said that he could not make sense of the Department’s statements in point 3.10 and 3.11 of the prepared document and sought further explanation.

Mr Horn commented on the rationale for the criminalisation of hate crime and hate speech. He was certain that all Members are aligned in the position that hate crime and speech must not be tolerated. But they differed on the criminalisation on the several forms of speech and the Department’s defence sounded very circular.

Mr Horn said that point 3.23 of the document would be construed as placing a limitation on freedom of speech. To his understanding, the criminal provisions on certain forms of public demonstration were found to be unconstitutional. Hence, at this stage, in order to legally embark on a public demonstration, the person or organisation should a) inform the relevant authority; b) apply for permission in order for authorities to properly regulate it.

Mr Horn noted Annexure A's criteria on grounds for discrimination but remarked that one or two of those criteria would need further anecdotal evidence to justify those criteria. According to Qwelane’s judgement, the Department should be considering group identity, vulnerability, history of discrimination and immutability before including those characteristics into the list of grounds for discrimination. The Bill in its current version seems to be taking a narrower stance and as long as the ground meets one of those four factors, it would be included in the list.

Mr Horn highlighted paragraph 13 of Annexure A where he found that the inclusion of language which was Afrikaans-related problematic. He made reference to Charlize Theron’s remark on the Afrikaans language and sardonically said that himself was one of the 44 Afrikaans speakers left in the country. He found it unacceptable that only Afrikaans people are found to be discriminating against people of other language groups. He pointed out that those Afrikaans people were only exercising their language rights and it should not be seen as discrimination.

Adv Breytenbach fully agreed with Mr Horn’s views and inputs.

Adv Breytenbach said that the Committee should pass legislation that will be useful to address the issues. She was not at all convinced that the passing of the legislation would address them. In terms of practicality, she did not think this Bill would make prosecution easier for prosecutors nor for the police to investigate those matters. Her view was that a lot still had to be considered before the Committee could finalise the Bill.

Adv Breytenbach said that there were many subject matter experts which the Committee had to consult with before it could form a proper view.

Adv Breytenbach agreed with Mr Horn on the inclusion of only Afrikaans as a ground for discrimination.

Ms W Newhoudt-Druchen (ANC) said that she had not read the documents as yet but would read them. She noted that the figures provided to the United Nations Human Rights Council should have been much higher in reality. There were reports which could support her view. She highlighted that there were people out there who were being discriminated against simply because they used sign language. Further, there was a lack of reporting authority to deal with such matter.

Mr Swart disagreed with point 3.7 which stated that there was no effective remedy in law in the current legislation that could provide harm-preventative or deterrent relief. It was untrue because section 21 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) sets out cases that could be referred for criminal prosecution. In the past, there have been successful precedents where victims had used crimen injuria to successfully prosecute perpetrators such as in the Penny Sparrow case. He wondered why there was no mention of such cases in the document.

Mr Swart pointed out that the United Nations had a longstanding stance that criminal sanctions should be the last resort for hate speech and he did not understand why this point seemed to have been deliberately omitted in the research document.

Mr Swart wanted to know who the interested parties were in point 3(3)(iii) of the document that provided anecdotal information to the Department. The reason for that was he wanted to assess the objectivity and the scope of the Department’s consultation.

Mr Swart noted the Department’s explanation which emphasises the limitations on freedom of expression, but he wished to indicate that there were also judgements that emphasised the freedom of speech and expression such as in Mandela v Falati 1994. All types of freedoms are important and freedom of speech lies at the heart of democracy and is a central tenet that balanced against authoritarianism.

Mr Swart shared his colleagues’ view on the singling out of the Afrikaans language.

Ms N Maseko-Jele (ANC) agreed with her colleagues that the rich information contained in the documents needed to be thoroughly debated and deliberated on.

Ms Maseko-Jele agreed with her colleagues that no single language should be singled out and said that it was not only the Afrikaans language but a Zulu or Sesotho person would also complain about their languages being discriminated against should they come to the Committee.

Ms Maseko-Jele said that South Africa should use it as an opportunity to reverse the ills of Apartheid. She believed that much of the reference in the presentation materials were founded in the South African context because South Africa was the foundation of Apartheid and had a history of discrimination. She described that history to be unparalleled with any others in the world.

Ms Maseko-Jele pointed out that the Constitution should be seen as the founding document which the country’s forebears had left for them as lawmakers. It should be seen as directives on what needed to be done to reverse the ills to build a better democracy and a country which our forefathers had envisaged when they drafted the Constitution.

The Chairperson sought clarity on Ms Maseko-Jele’s choice of ‘forefathers’ and said that he assumed that included the women who had fought for the freedom of this country. Ms Maseko-Jele confirmed that that was what she had meant.

The Chairperson explained that it was safe to assume that it was not the Department’s intention to exclude any language or be biased against any language in its document as the Constitution clearly states that all languages should be treated equally.

Deputy Minister's response
Deputy Minister Jeffery replied to Mr Horn that the International Convention on the Elimination of All Forms of Racial Discrimination was only limited to racism, but there are other international treaties which referred to a broader scope with other forms of discrimination included.

The Deputy Minister noted Mr Swart’s concern on the plan of action and the potential restriction on the freedom of expression. He explained that the Department had been made aware of it by the United Nations Human Rights Council. An expert-level workshop had been held in 2013 on the incitement to national, racial or religious hatred which had also cautioned Member States to be aware of that. In addition, there were many court judgements which served as cautionary notes to the Department on protecting the freedom of expression.

The Deputy Minister explained why there was no mention of the Sparrow case in the document. Since the Sparrow case had been successfully convicted using crimen injuria, it naturally would not be included in the document. The Department had said from the start that it wanted a statutory Bill to exclusively deal with hate speech. He also recalled that when this Committee had passed PEPUDA, the Committee of which Mr Swart was part, had said that there would need to be legislation to deal with hate speech. The Bill in its current form does not refer to crimen injuria but rather aims to independently establish hate speech as a crime which is currently absent in law. This is what the Department tries to do.

The Deputy Minister appealed to Members to not over-complicate things in relation to the Bill.

He noted Adv Breytenbach’s remark that she felt the Bill would make prosecutions more difficult or impossible. He disagreed with that view and questioned Members what was so complicated about hate crimes? Hate crimes, according to this Bill, would be defined as an existing offence, or underlying offence that was motivated by perpetrators because of their hatred or intolerance towards the victim due to the actual existing characteristics. Evidentially, the prosecutor will need to prove the motivation of a perpetrator. The Department was of the view that criminalising hate crimes should not be seen as an infringement on people’s rights. The purpose of establishing this category of crime is to ensure proper recording of the crime as well as ensuring that the voice of victims or the victims’ families, in the case that victims are deceased, are heard. That is why a victim-impact statement is one of the requirements the Department has included in the Bill.

Hate speech was the more contentious one and was a new crime. In the Qwelane case, it shows that there are two elements which must be met before a person should be charged with hate speech. The first element is that the speech itself is harmful or has the potential to incite harm; then the second element is to prove the intention to propagate or to promote hatred. Section 16(2) of the Constitution lists a number of categories to which freedom of expression does not extend, such as propaganda for war; incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. Qwelane’s case indicates that freedom of expression could not be extended into inciting harm to the LTBTQ community which is in line with s16(2).

The Deputy Minister explained that language was not included in the expansion list for hate speech but was put under hate crime because people could be attacked for the language to which they belonged.

On Afrikaans, which several Members had raised, sadly the only cases that there was any jurisprudence on was Afrikaans language cases. Hence, the Department could only include those in the documents. He denied that the Department had any intention to single out the Afrikaans language. Further, he was of the view that if this Bill was passed, the attack on an Afrikaans person who advocates for the Afrikaans language would be considered as hate crime and be protected under the proposed Bill. He believed that the Bill would be beneficial to all people.

To an extent, the Deputy Minister understood some Members’ concern and acknowledged that those grounds could limit freedom of expression, but the Department believed that those were very serious grounds. Although the discrimination trend against people with HIV/AIDS may have receded a bit, the inclusion of it in the expansion emanated from the fact that people had been murdered in the past as a result of that such as the Dlamini case. The Department does make allowances for creative or performance expression, academic or scientific enquiry, fair and accurate reporting, and interpreting any religious teaching. For artists, academics, reporters and religious persons, there is a higher bar but the bottom line is that they cannot advocate content that would spread hatred or cause harm. So the Department follows the wording of s16(2), as Mr Swart had quoted and continuously emphasised.

Deputy Minister Jeffery discussed the lengthy hearings and deliberations which the Committee already had undertaken on this Bill. Since the Bill was first introduced in 2018, it got delayed by the Qwelane case on hate speech. Then the Qwelane judgement was delivered on 31 July 2021. The Committee’s public hearing process on the Bill commenced on 29 March 2022. A number of meetings and discussions had been held on 7, 9, 21, 26 September as well as 4 and 8 November. The key concern here is that the Bill is needed in society and this point was supported by people in civil society. Furthermore, he did not think the Bill was a complicated Bill. He was aware that there were political parties on the platform that truly had no intention of supporting the Bill. For instance, Ms Helen Zille had wanted to hold a press conference attacking this Bill just before the local government election last year. For Mr Swart, he might not be opposed to hate crime, but Deputy Minister noticed his concern on hate speech which could restrict freedom of religion. The Deputy Minister’s view is that this Bill is not going anything further than the ambit of s16(2) of the Constitution.

The Deputy Minister noted all the inputs from Members and understood that those inputs may create an impression that everything in the Bill is problematic. He noted Mr Swart’s enquiry on the Christian media’s concern which he thought might be a suggestion for further consultation on the Bill. This consultation process cannot go on endlessly and he urged the Chairperson to expedite this process and make a decision on the Bill.

On the Afrikaans issue, both Ms Botha and Mr Du Preez were of Afrikaans heritage or had been married to an Afrikaans partner, so he assured the Committee that there is no attempt to undermine the Afrikaans people or the language on the Department’s side. The coincidence is only because the availability of jurisprudence on language is only available where the Afrikaans language was concerned.

The Deputy Minister urged Committee Members to push the Bill through because the country cannot delay the Bill any further. The Committee also has a lot of other work to do such as the Sign Language Bill, Magistrates Bill and so on.

Department response
Mr Du Preez fully committed that the Department and himself would respond to any questions which Members might have on the Bill. But he noted that the questions raised by Mr Swart today went beyond the research notes which the Department had prepared. At one point, he was of the view that this trend could not go on indefinitely. He suggested further questions on the Bill should be submitted via the Committee Chairperson. The continual questions on the Bill were not focused on the Bill and certainly did not help him as a legal person to draft a Bill that is technically correct.

Mr Du Preez also noted the issue on Afrikaans and did not understand why Members had to take offence to that.

Ms Kalayvani Pillay, Deputy Director-General: Legislative Development and Law Reform, clarified the sequence of the research documents which the Department had presented, worded Research Notes 1 and 2. The research notes were done as per the Committee’s request. There are excerpts in the notes from other legislation where the Department tried to draw commonalities such as the Employment Equity Act. She explained that the inclusion of 'colour' in the Bill was because the term was included in a number of international conventions and South Africa’s own legislation.

Ms Pillay reiterated that the Department had cited those latest Constitutional Court cases which were relevant with the intention only to provide better explanations for Members.

Further discussion
Adv Breytenbach expressed her appreciation for the Department’s assistance in helping the Committee with its various pieces of legislation. But she took a mild offence at the Deputy Minister’s remark on how the Committee should do its job. She assured everyone that this Committee is seized with the work on the Bill and is satisfied that it was doing a proper job. She disagreed with Deputy Minister’s view that the Bill needed to get passed quickly and said that it could not be the motivation of the Committee to rush through this Bill.

For instance, as a former prosecutor with experience in the criminal justice system, she found that it would be extremely valuable to consult with experts in the criminal justice system to understand the effect of the Bill. Most particularly, she wanted to know how prosecutors would prove and determine the elements in the Bill. She argued that what the Bill does is elevate what is now a legitimate aggravating circumstance that will have serious consequences within a criminal case to now a criminal offence that must be proven beyond reasonable doubt. It makes the job of the police and prosecutors exceptionally harder because it is difficult to prove a person’s state of mind.

Adv Breytenbach pointed out that there are other elements which are bothering her as well. Hence, the DA will not support this Bill.

Nevertheless, she took offence that the Deputy Minister should suggest the Committee was dragging its feet and deliberately stalling the Bill. She pointed out that it is the job of this Committee to produce good legislation and this Bill is not.

Mr Horn agreed with Adv Breytenbach’s view.

Mr Horn said that in order to criminalise hate speech, the process of doing that is constitutionally a much more complex exercise than looking at the definition provided by the Qwelane judgment. His question in particular that hate speech should meet a higher bar, which he had raised in the previous meeting, had not been responded to in the document.

Mr Horn pointed out that some information contained in the documents was very heavyweight that required Members’ careful consideration.Hence, he disagreed with Deputy Minister Jeffery that Members’ efforts for careful deliberation should be seen as attempts to deliberately stall the Bill.

For instance, on the cases of children being born out of wedlock or adoptive children, he struggled to understand how that could be considered a hate crime and how the exclusion of such family members could lead to criminal prosecution.

He thus believed that all Members should spent more time to think if those criteria in the list could be justified.

Mr Horn cautioned Members that the Committee should not pass a piece of legislation and just leave the Bill for the court to decide as the Deputy Minister had suggested on several occasions. The Committee’s task is to ensure that whatever legislation it passes should be constitutionally sound.

Mr Horn requested the Department to consider – if the Committee addressed hate crimes as proposed in the Bill – would hate speech then be seen as an aggravating circumstance which would result in harsher sanctions. Mr Horn shared Adv Breytenbach’s view that to prove motivation which is based on prejudice to the level of beyond reasonable doubt would be a fairly high hurdle for prosecutors. He questioned what the permissibility of information would be in the event when the motive of the perpetrator is not proven beyond reasonable doubt. His fear is that should the Committee be rushed to settle on this version of the Bill and when the prosecutor is not satisfied that the motive is proven beyond doubt, it could lead to an aggravation of sentence.

Mr Swart reiterated his earlier remark on point 3.7 of the Research Note on the non-existent relief which he disputed to be false. The Department should have been more truthful in the document and stated that there was such relief but its sufficiency needed to be reviewed.

Mr Swart pointed out that the previous Committee of the Fifth Parliament had suggested but not finalised a decision on the splitting of the Bill because it was awaiting the judgement of the Qwelane case.

Mr Swart emphasised that regardless of political parties’ support for the Bill or not, the ultimate purpose for this Committee was to pass legislation that is constitutionally compliant. Hence, he shared the same view as Adv Breytenbach and urged the Department to consult with the National Prosecuting Authority (NPA).

Mr Swart said that he had no intention of suggesting that the whole public participation process must be re-opened again. His question about the Christian media was just to know if the Department was aware of the concern as raised by the stakeholder.

Deputy Minister's response
Deputy Minister Jeffery confirmed that his department had consulted with the NPA. In fact, the Department has been in regular contact with the NPA and sends them the latest developments on the Bill since the Bill was introduced in 2018. He confirmed that the Department recognised the critical role which the NPA would play in the process.

He denied that he had ever suggested to the Committee that it must just pass the Bill and leave it up to courts should problems arise. His point was taken out of context and misconstrued. He was specifically referring to the fact that the court was the ultimate arbiter authority should any issue around the Bill arise and that the Committee cannot carry on and discuss the Bill indefinitely.

The Deputy Minister commented that the current situation for a hate crime is that a hate motive is a matter of aggravation of sentence. He guaranteed Mr Horn that the Department could check with the NPA if the prosecutor does not succeed in prosecuting the perpetrator for a hate crime and the perpetrator faces assault charges, if that will impact on whether the prosecution will no longer need evidence when it comes to sentence.

Deputy Minister Jeffery replied to Mr Swart on his reference to section 10 of PEPUDA which stated the prohibition of hate speech. He clarified that currently the law does not have a definition of hate speech. Crimen injuria is not hate speech so it has been the intention of this government to pass this legislation to deal with hate speech.

Before the Deputy Minister left, the Chairperson pointed out that it would be taken out of context if the Department was counting the days in order to rush the Committee to pass this Bill. He wished to make it clear to the public that it would be misconstrued if the Committee was seen as the culprit in delaying some of the laws that were supposed to have been passed. This misconception could be not further from the truth. Instead, the Committee had been seized with work since early this year. The Committee has had to deal with a lot of issues such as laws that needed to be passed to meet Constitutional Court deadlines. Therefore the Committee was unable to complete the Land Court Bill, international treaties, Department oversight, Office of Chief Justice legislation and so on. The Committee was burdened with a lot of matters with only eleven members having to cope with so much work.

Deputy Minister Jeffery appreciated the Chairperson’s input and said that he was not criticising the Committee or accusing the Committee of being lazy. He was raising the point against specific Members. His comment certainly was not directed at the Committee as a whole and he was referring to the lengthy time which this Bill had taken.

Mr Du Preez expressed his respect for every Member on the Committee. However, the reality is that currently there is great difficulty to prosecute murder and assault as a result of a hate crime because of this legal vacuum. In the case of prosecutors failing to nail the perpetrator, the Department has proposed what is currently 270A be changed to 69B as a competent verdict. If the prosecution of a murderer in a hate crime does not succeed whilst there is sufficient proof of the crime that meets the other crime elements, there would still be a competent verdict for the court to try that person for murder.

Way forward
The Chairperson noted that there was wide-held consensus amongst Members that they would need more time to go through the research notes presented by the Department. He thus suggested that the next meeting be scheduled for 25 November after the Committee met with the National Prosecuting Authority.

The Chairperson sought Members’ inputs on the impact of the extension of programme to the 6 December. The Committee was now aware that it must slot in a session on the 6 December to debate the PhalaPhala issue. Given that, he wondered if the Committee would be able to use some of the time before then to try and push the Cannabis for Private Purposes Bill.

Mr Swart suggested that the Chairperson might have to discuss with the Chair of Committee Chairpersons how to deal with the Committee programme. His understanding was that 6 December was particularly reserved for the debate on the PhalaPhala issue. But he was uncertain how the Committee should handle the time that was reserved for constituency week. The Chairperson might have to request special permission if he wished to slot in meeting then.

The Chairperson said that the matter would be discussed in the workshop if the Committee would use the 25 November meeting as the final engagement on the matter or request further extension.

The Chairperson was certain that Mr Robbertse would have finalised the A list on the Cannabis for Private Purposes Bill by next week. After the Committee has approved the A list, the Chairperson said that the Joint Tagging Mechanism (JTM) would consider changing the tagging of the Bill. This would be out of the Committee’s control and that Members would have no option but to await the outcome from the JTM.

The Chairperson suggested that the Committee just proceed as it went along and then assess how far they would be able to push those two Bills.

Budget Review & Recommendations Reports (BRRR): adoption
The Committee was provided with the BRRR report on Office of the Chief Justice.

The adoption of the report received majority support. The DA and the ACDP reserved their positions on the adoption of the report.

The Committee was presented the BRRR report on Department of Justice and Constitutional Development, National Prosecuting Authority, Information Regulator, Legal Aid South Africa, Special Investigating Unit, South African Human Rights Commission and Public Protector.

Members said that the report should explicitly state that the Committee would give the NPA until 31 January 2023 as the final deadline.

The adoption of the report received majority support.The DA and the ACDP reserved their positions on the adoption of the report.

The Committee was provided with the BRRR report on Department of Correctional Services.

The adoption of the report received majority support. The DA and the ACDP reserved their positions on the adoption of the report.

Committee minutes
The Committee minutes for the following dates were adopted with no objections: 6, 7, 9, 13, 14, 20, 21, 23 September; 12, 13, 14, 18, 19, 20, 25, 26 October; 1, 2, 4, 6, 8, 9, 11, 15, 16 November 2022.

The Chairperson remarked that it was not good for the Committee to adopt so many sets of Committee minutes all at once. The Committee ought to be mindful of that in future and adopt committee minutes after it finished its business of the day.

The Chairperson asked Adv Breytenbach to provide an update on the workshop and she responded that the workshop remained to be held virtually.

The Chairperson adjourned the meeting.