Drugs and Drug Trafficking Amendment Bill: adoption; Prevention and Combating of Hate Crimes and Hate Speech Bill: Department response to submissions; with Deputy Minister

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Justice and Correctional Services

21 September 2022
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video

The Committee considered and adopted the Drugs and Drug Trafficking Amendment Bill in this virtual meeting and the accompanying report.

The purpose of the Bill is to amend the Drugs and Drug Trafficking Act, 1992, to repeal the Minister’s delegated plenary legislative powers to amend Schedules. The effect thereof would be that any amendment to the Schedules of the Drugs Act would in the future be effected in terms of an Act of Parliament. The repeal of section 63 assured that the appropriate constitutional process for the amendment of legislation would be followed in the amendment of the Schedules.

The Committee received a presentation from the Department of Justice and Constitutional Development on its responses to submissions on the Prevention and Combating of Hate Crimes and Hate Speech Bill. This was a supplementary summary to include submissions that had been previously omitted.

The Deputy Minister of Justice and Constitutional Development highlighted the penalties in the Bill: if someone is convicted of hate speech for the first time, there is a fine, which is not specified, and a period of imprisonment not exceeding three years. That was the maximum for the first conviction. Subsequently, the term of imprisonment went up to five years. Other countries had gone for seven years as a maximum sentence, but in South Africa, five years would be the maximum term of imprisonment and not the minimum.

The Department excluded two categories from the hate crimes provision, which were occupation or trade, and that was specifically because the Department was concerned that while sex workers, bus drivers, hawkers, etc. were maybe abused because of their professional trade, it also did not want a situation where politicians could say they could not be criticised and this constituted hate speech. Similarly, with political affiliation or conviction, the Department did not include that on the list because it did not want to restrict people from criticising each other because of their political beliefs.

In line with section 16(1) of the constitution, there is protection from hate speech regarding artistic creativity, academic or scientific inquiry, media reporting, and proselytising or espousing any religious tenets, beliefs, teaching, doctrine or writings. People in those categories could say things that may be harmful; as long as it was not propaganda for war, incitement of imminent violence, or advocacy of hatred that constitutes incitement to cause harm. For the religious people concerned, the intention was to ensure that that law did not limit such people beyond what was already in the Constitution. With the pro bona fide interpretation, proselytising or espousing any religious tenet, belief, teaching, the intention is not that it is limited to (from a religious perspective) the church, the pulpit, the mosque or any other religious place. One can do that door to door. One can do that standing in the streets; one can proselytise standing in the street, as long as one is proselytising, one then has a greater area of protection.

Members raised issues that included the following: If a hate crime could be dealt with via the existing provision for aggravating circumstances; the reasoning behind a five-year prison term for hate speech; the effectiveness of hate crime and/or hate speech legislation in other countries; and whether other countries on the African continent had legislation on hate crimes and/or hate speech, and what the impact of that legislation was in those countries.
The Committee asked the Department to develop a working document based on the discussions and the Committee would begin processing the bill clause-by-clause in the new term.

Meeting report

Drugs and Drug Trafficking Amendment Bill
Mr Sarel Robertse, State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD), presented.

He started with the Jason Smit versus the Minister of Justice and Correctional Services judgement. Currently, section 63 of the Drugs and Drug Trafficking Act (also known as the “Drugs Act”) provided that the Minister may amend the Schedules to the Drugs and Drug Trafficking Act after consultation with the Minister of Health. There had been various amendments effected from 1996 to 2014 to the Schedules. In the Smit case, the Constitutional Court declared section 63 of the Drugs and Drug Trafficking Act to be unconstitutional, because it delegated plenary legislative powers to the Minister. The Court further declared that the amendments that the Minister effected via notice in the Government Gazette in section 63 to the Schedules were invalid, because the Minister did not have any powers from the start to effect the amendments.

The purpose of the Bill is to amend the Drugs and Drug Trafficking Act, 1992, to —
• repeal the Minister’s delegated plenary legislative powers to amend Schedules
1 and 2;
• amend Schedule 1 and Schedule 2; and
• provide for matters connected therewith.

In clause 1, the Bill would repeal section 63 of the Drugs and Drug Trafficking Act 140 of 1992. In clause 2, there would be the substitution of Schedules 1 and 2 to Act 140 of 1992.

The effect thereof would be that any amendment to the Schedules of the Drugs Act would in the future be effected in terms of an Act of Parliament. The repeal of section 63 assured that the appropriate constitutional process for the amendment of legislation would be followed in the amendment of the Schedules.

The Bill would substitute Schedule 1 to insert certain substances in both part 1 (Substances useful for the manufacture of drugs) and part 2 of Schedule 1, as shown by the words underlined in the Bill. The Bill would substitute Schedule 2 to insert certain substances in parts 1 (Dependence-producing substances), 2 (Dangerous dependence-producing substances) and 3 (Undesirable dependence-producing substances) of Schedule 2, as shown by the words underlined in the Bill. 

The Bill, when it was enacted, did not need to be put into operation by a proclamation in the Gazette. The Bill would come into operation as soon as the President assented.

[Please see the attached document for details.]

Adv S Swart (ACDP) moved for the adoption of the Bill, and Dr W Newhoudt-Druchen (ANC) seconded the adoption of the Bill.

Adv G Breytenbach (DA) indicated that the DA reserved its position on the Bill.

There were no objections, and thus the Bill was agreed to.

Draft Committee Report on the Drugs and Drug Trafficking Bill
The Chairperson took the Committee through the Report of the Portfolio Committee on Justice and Correctional Services on the Drugs and Drug Trafficking Amendment Bill [B19 - 2022] (National Assembly – section 75), dated 21 September 2022.

Members checked for corrections.

Dr Newhoudt-Druchen moved for the adoption of the report, and Adv Swart seconded the adoption of the report.

There were no objections, and thus the report was agreed to.

Read: ATC220921: Report of the Portfolio Committee on Justice and Correctional Services on the Drugs and Drug Trafficking Amendment Bill [B19 - 2022] (National Assembly – section 75), dated 21 September 2022

The Chairperson thanked Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, for his attendance and for pushing the Bill forward so that the Committee could try to meet the Constitutional Court deadline. He also thanked Mr Robertse and his team for working hard to ensure that the Committee had a proper Bill and that it was on its way to meeting its 17 December 2022. The Committee knew that if that Bill was not passed, there would have been serious problems in prosecuting people who might be guilty of offences under the Drugs and Drug Trafficking Act.

Summary of submissions to the Portfolio Committee on Justice and Correctional Services: Prevention and Combating of Hate Crimes and Hate Speech Bill, 2018; and Response by the Department of Justice and Constitutional Development

Adv Swart indicated that he was having trouble maintaining connectivity to the platform. He noted that the summary mentioned the ACDP’s inputs. He presumed that the Committee would follow the process as before, where the Department would go through the submissions, and the Committee would engage when it was going through the Bill. He wanted to indicate that the ACDP submission was written prior to the Qwelane judgement.

Mr Henk du Preez, Senior State Law Advisor, DoJ&CD, tendered apologies on behalf of the Deputy Director-General (DDG) and the Chief Director, who were unable to attend that morning’s meeting.

Mr du Preez presented. He reminded the Committee that the first summary that was prepared was presented to the Committee. The Department had now prepared a supplementary summary. The Department was requested to consolidate the two documents into one. Hopefully, by the end of business on Wednesday or the following day, the Department would be able to provide the Committee with the consolidated summary.

Table 1 showed general comments and the DoJ&CD’s response, and Table 2 provided a clause-by-clause summary of the submissions and the DoJ&CD’s response.

Mr du Preez indicated that the ACDP submission was made in February 2019, before the Qwelane judgement came out. The concern raised in that submission would be addressed to a large extent if the Bill was brought into line with the Qwelane judgement.

Mr du Preez observed that the submissions repeated in the supplementary summary were addressed in the first summary in response to the expressed concerns.

Regarding the definition of “harm” in the Bill, Mr du Preez reminded the Committee that the Department would present the Committee with a proposal in that regard.

On clause 1, there were also concerns about the definition of “harm” being broad. Mr du Preez added that that matter had also been addressed in the Qwelane judgement, and the necessary guidance was there. One must also take into account that those cases were usually judged on an objective basis, and not the subjective state of mind of the alleged insulted person.

On clause 3, commenters expressed concern that a “hate crime” is a crime to be committed in addition to the “base line” offence. They expressed concern that “motive” is difficult to prove. The Department would submit a proposal to the Committee for consideration to address the concern.

[Please see the attached document for details.]

Ms Alison Botha, State Law Advisor, DoJ&CD, presented the submission from Nelson Mandela University (NMU). She observed that NMU made some useful submissions, particularly on identifying victim groups. Victim groups were listed in clauses 3 and 4 of the Bill.

[Please see the attached document for details.]

Ms Botha also presented the submissions from: ADF International and the National Association of Broadcasters (NAB).

Mr du Preez presented the submissions on clause 4(1)(a), clause 4(1)(b), clause 4(2).

Ms Botha presented the submissions on clause 4(2) by ADF International and NAB.

Mr du Preez presented the submissions on clause 6(1). He summarised as follows: There were two schools of thought on that clause. One argued for harsher punishment, while the other argued for lesser punishments. The reason why the decision was made to restrict, for example, a second offence of hate speech to a penalty of five years imprisonment was that it was something that would be new in terms of statutory law. It may be more appropriate to start with a lower level than an upper level of punishments to be imposed.

[Please see the attached document for details.]

Discussion

The Chairperson said there would be a general discussion on the Bill so that when Mr du Preez and his team returned to the Department, they could develop a working document on the clauses that might need to be crafted.

After the constituency break, the Committee would use the working document as it processed the Bill clause-by-clause.

Deputy Minister Jeffery observed that the Bill was made up of two provisions and then ancillary actions. It consisted of the offence of a hate crime and the offence of hate speech. On the offence of hate crime, there was particularly a push from civil society from disparate groups of people, such as the Jewish Board of Deputies, to other members of civil society, asking the Government to enact legislation to provide for hate crimes. The Department was attempting to take existing crimes which, because of their motive, then became hate crimes; the conviction that one would be looking for is one of assault as a hate crime. assault as a hate crime is more serious than ordinary assault. Murder as a hate crime is more serious than ordinary murder. That would be assault or murder, and a range of other crimes, where a motive for killing the person was because of the group that they belong to, or was perceived to belong to, or that their family belonged to or that the victim associated with. One could be a South African killed because of one’s association with people of a different race or nationality. For example, one likes hanging out with Nigerians. There is an attack on Nigerians in a particular area, and one gets killed, not because people think one is a Nigerian, but because they know one is friendly with many Nigerians. That was basically the object of the hate crime provision – to make it more of a serious offence, and the charge one would be looking for is that crime as a hate crime. If one took, for example, pregnancy or marital status, that was definitely a factor to offend against one’s right to equality, particularly in the labour market for pregnancy, that pregnant women should not be discriminated against. The Department did not put pregnancy on the list for hate crimes because it was not aware of crimes being committed against women because they are pregnant, or part of a general group of people that are pregnant. There have been cases where a pregnant woman was murdered because she was pregnant. But that was specific to that situation, not against all pregnant women. It could be a situation where the woman was murdered by the father of the unborn child's ex-girlfriend, who “cannot get over the fact that she had lost this man and is even more incensed that he had someone else, and he was now going to have a baby with that woman”.

Similarly, people can be discriminated against based on their marital status, particularly in cultural setups, possibly religious contexts, where a woman in particular who was not married was looked down upon and discriminated against because she was not married. The Department did not see that discrimination as being something that would lead to a hate crime, i.e. an attack on unmarried women, or an attack on married people. That was the rationale for the grouping.

NMU brought up the issue of immutable characteristics. The Department put occupation and trade on that list because people get killed specifically because of their occupation or trade. For example, people selling sex have been killed because they were selling sex. There was a case in Cape Town of a man who murdered a person selling sex because she was a sex worker. There have been situations of hawkers being attacked, taxi drivers and bus drivers, etc. being attacked just because they are bus drivers. On political affiliation, in South Africa’s history, there has been severe political intolerance. People had been attacked, assaulted or killed simply based on their political affiliation. That was why it was put there. The hate crimes provisions would then tell the South African public that if one committed a hate crime, it was a more serious crime, and one therefore should be liable to face more serious penalties for that.

The second provision was the issue of hate speech, which had generated the most disagreement as far as he could tell. He said for the benefit of the Hate Crimes Working Group that it was not what it was originally pushing for. There seemed to be divisions within the Hate Crimes Working Group regarding whether there should be hate speech provisions. Some people said that it was against international law. In the United Kingdom, incitement of racial hatred is an offence under the Public Order Act of 1986, with a maximum sentence of up to seven years imprisonment. South Africa had put down a five-year sentence. Ireland, Germany, Canada, Iceland, Australia, New Zealand, France, Brazil, Sweden, Finland, Denmark, Norway, Serbia, and other countries had similar laws. It was not something at all unique to South Africa and was something that was happening in other parts of the world. Further, the International Committee for the Elimination of Racial Discrimination, which is a subcommittee of the United Nations (UN) Human Rights Council, advised that South Africa should pass hate speech legislation.

On the point that hate speech was already a crime in the sense of crimen injuria, which was a common law crime, the opponents of the hate speech provisions would say to leave it in the common law, but common law develops over time. Crimen injuria was from the Roman-Dutch Roman period. There were disputes as to what the actual elements were. Parliament had the right to make statutory laws for common law crimes. For example, rape was a common law crime.

Regarding the Sexual Offences Act of 2007, Parliament made rape a statutory crime, which broadened the whole ambit of rape. Previously, men could not be raped because the definition of rape required penetration of the vagina. Anything other than penetration of the vagina was not rape, whereas, in terms of the 2007 statutory crime, that had broadened out extensively. The reason for a statutory crime of hate speech was to clarify what that entailed. With the categories, it was categories where there was more likely to be endemic. In adding to the categories, one was further restricting the opportunity for completely free speech. He was not entirely sure about age, specifically whether that should be subject to either a hate crime or hate speech provision, but the rest were all things that indicated that there was abuse going on; i.e. abuse of people based on those categories. He argued that the Committee needed to look very carefully as to whether to add things like pregnancy or marital status. Those were grounds for discrimination, particularly in the workplace, and in other setups. But were people going to be abused because they were pregnant, or they were married or not married? The Department excluded two categories from the hate crimes provision, which were occupation or trade, and that was specifically because the Department was concerned that while sex workers, bus drivers, hawkers, etc. were maybe abused because of their professional trade, it also did not want a situation where politicians could say, “No, you can't criticise me, that's now hate speech because of my occupation”. E.g. as a politician, as a member of parliament, as a government minister or deputy minister. Similarly, with political affiliation or conviction, the Department did not include that on the list because it did not want to restrict people from criticising each other because of their political beliefs.

The Chairperson asked Deputy Minister Jeffery to repeat what he said about occupation, trade, and political affiliation.

Deputy Minister explained that the Department did not include occupation or trade, and political affiliation or conviction on the list of prohibited grounds for hate speech. Occupation or trade were omitted because they feared they may have unintended consequences of limiting speech in particular areas. Sex workers could be abused, could have hatred against them, and could have harmful speech against them as sex workers. The same was true for hawkers and bus drivers. The Department wanted to ensure that politicians, ministers, deputy ministers, members of parliament, councillors, etc. could not claim that people could not criticise them because that was hate speech. Similarly, political affiliation had been a motive for killing people in South Africa. But the Department also did not want to restrict people from political debates, and so that was the rationale for those two not being included. The Constitution specified that propaganda for war, incitement of imminent violence, or advocacy of hatred based on race, ethnicity, gender or religion, and that constituted incitement to cause harm, was not part of the right to freedom of expression. The Bill went further than that, as the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) and the Qwelane judgement allowed.

Deputy Minister Jeffery stated, “With due respect to the Institute of Race Relations (IRR), you may not agree with that judgement, but that is the judgement of the Constitutional Court”. It was a unanimous judgement, so that was the law whether it agreed with it or not. That was the reasoning that was followed. There may be other judgments that one did not think were good, or where one did not necessarily like the reasoning, but one had to follow those judgments. That was where the final decision as to constitutionality was taken. The Department broadened the Bill to include other categories; the Qwelane judgement allowed for the purposes of PEPUDA, homophobia. It broadened the Bill to what was in the Constitution. The Department felt that had been allowed by the Qwelane judgement. However, the Constitution also recognised four specific categories, listed under section 16(1): artistic freedom, freedom of the press and media, academic freedom, and freedom of religion. The intention was that artistic creativity, academic or scientific inquiry, media reporting, and proselytising or espousing any religious tenets, belief, teaching, doctrine or writings should have a wider ambit. People in those categories could say things that may be harmful; as long as it was not propaganda for war, incitement of imminent violence, or advocacy of hatred that constitutes incitement to cause harm. For the religious people concerned about this provision, the intention was to ensure that that law did not limit such people beyond what was already in the Constitution. With the pro bona fide interpretation, proselytising or espousing any religious tenet, belief, teaching, the intention is not that it is limited to (from a religious perspective) the church, the pulpit, the mosque or any other religious place. One can do that door to door. One can do that standing in the streets; one can proselytise standing in the street; as long as one is proselytising, one then has a greater area of protection.

On what would not be covered, the intention was not to cover a minister of religion who was in a pub and having a general discussion with his friends in the pub, and who then starts spouting harmful things about gay people or lesbians. That would be the distinction. The fact that one is a minister of religion does not mean that on any occasion one can claim this exemption. It was specifically proselytising that was protected; e.g. one had gone to somebody's home, knocking on the door and proselytising. Those four exemptions intended to give greater protection. The four exemptions were artistic expression, academic or scientific inquiry, media reporting, proselytising or espousing religious tenets, belief, teaching, etc.

The Bill thus provided for the statutory crime of hate speech. The other provision was on crimes committed because of a motive of not liking the group that the victim belongs to. Then there were other provisions related to both of those crimes, such as victim impact statements, trying to make it a bit easier to get the cases into court, and the penalties or order provisions. Additionally, there was a requirement for the Director of Public Prosecutions, which would be the provincial head of the National Prosecuting Authority (NPA), to authorise a prosecution in terms of both of those crimes. The Department wanted to ensure that those charges could not be abused by the police or by some junior prosecutor deciding that a person must be charged with hate speech. Such a prosecutor could delegate that power, but it was a delegation specifically to a person, and the director still took responsibility for that. The other provisions were victim impact statements, the penalties orders provision, and the directives issue. He noted that there was a proposal from the Department as a result of the hearing to add provisions for the Commissioner of Police concerning how hate crimes and hate speech should be reported at police stations and training. There were provisions for the National Director of Public Prosecutions (NDPP) NDPP, and there was a proposal to include training aspects for staff.

Regarding the implementation of the Act, the Minister of Justice must prescribe the information that must be collected by the police and by the NDPP, so that there can be statistical analysis of the data of those cases. This information must be made available to Parliament, the Human Rights Commission, the Commission for Gender Equality, and the Cultural, Religious and Linguistics Commission. There was also a provision for the prevention of hate crimes and hate speech, and then for broader regulations.

Deputy Minister Jeffery observed that particularly on the hate speech provisions, there would be people who believed in absolute free speech, although South Africa did not have absolute free speech at the moment, through to more empowered groupings who would be against provisions on hate speech. The issue that was raised was that South Africa had PEPUDA; why was a civil remedy needed? PEPUDA was a civil remedy. If something was serious, then it should be a crime and many other countries criminalised it. These other countries were those more empowered groups might relate to as “good countries”, so he was not sure “what the problems were”. He had laid out broadly what the intentions of the Bill were. Whether the wording actually said that were things that the Department needed to look at. It would also be looking at submissions on what should be changed.

The Chairperson observed that these were the initial discussions on the Bill and that the Committee would still have a lot of discussion on the Bill going forward before adoption.

Adv Breytenbach stated that the DA’s view was that this was an important piece of legislation that needed serious consideration. There were many provisions that the DA did not agree with, and others where it would suggest significant changes. The DA needed to consider all the public submissions, which it had not yet done in its own capacity. Before DA Members commented comprehensively on that process, they would want the opportunity to consider all submissions, in order to make meaningful contributions. Bearing in mind the issues raised by religious leaders, in particular, the DA wanted to give more serious consideration to the submissions.

On hate crimes, Adv Breytenbach understood fully what the Deputy Minister was saying about taking a crime and then making it more serious because it was motivated by a particular prejudice. However, she saw no reason why that could not be taken care of with circumstances in aggravation. She did not see that making a big difference in how the matter was dealt with in court. It seemed almost superfluous to her to deal with such matters in the fashion that the Deputy Minister suggested when, if properly dealt with in court, and properly motivated by aggravating circumstances, the same type of sentence would, in all probability, be arrived at without that legislation. Regarding hate speech, the DA had some serious concerns about limiting freedom of speech. It wanted to have a much closer look at those provisions, along with the submissions made by various institutions.

Ms N Maseko-Jele (ANC) observed that the Department considered five years as a punishment, but it was seven years in many other countries. She asked the Department why it chose that number. When the Deputy Minister was presenting, she heard that the reason for this was because it was the first time South Africa was coming up with such a Bill. Perhaps other countries decided to go with seven years after considering their own situation. When comparing other countries to South Africa, it has always been accused of being very violent. There was also the history of the past that South Africa was coming from. Some people did not want to let go of past behaviours, and who continued making discriminatory remarks, and behaviours related to the Bill. Could the Department consider changing the prison term to seven years or give more information on why it chose five years?

On religious freedom, Ms Maseko-Jele observed that the Department was not only concentrating on the issue of sermons. The Minister alluded to door-to-door proselytising and standing in the street while delivering a sermon. In charismatic churches, there would be, for example, an altar call where people were called to come forward. On the street, there were people who, when preaching, were saying that if one did not accept Christianity, one would go to hell. How would those people be protected, in terms of the discussions related to the Bill? [Ms Maseko-Jele’s network became unstable at that point.]

The Chairperson said that if he heard Ms Maseko-Jele correctly, the question was: With those people who were preaching, if they were to be prosecuted, which line of protection would be afforded to them?

The Chairperson observed that the input made by the Deputy Minister, Mr du Preez and Ms Botha was important. He asked the Committee Secretariat if Members could have the recordings of those inputs sent to them, so they could listen to the recordings in preparation for the next meeting. He did not want Members to be left behind, because at any rate, if Members were left behind, the Committee would be forced to go back. In that case, the Committee would not be making any meaningful progress.

Mr Vhonani Ramaano, Committee Secretary, replied that he could download the recording of the meeting and send it to Members.

Adv Swart wanted to indicate that the summary of submissions left out salient issues by very important submitters such as the IRR and FOR SA. Members of Parliament (MPs) needed to look at such submissions. The ACDP did not support the hate speech provisions. If those provisions were inserted, then the ACDP wanted to see them tightened up.

The Chairperson said that the Department had done a service to the Committee by providing a summary for the Committee. That did not detract from the fact that MPs had access to all of the documents and the summary prepared by the Department. Members could still go back to the submissions in their original form. As the Committee discussed the Bill, there was nothing stopping Members from saying how a particular clause needed to be crafted, or saying how a clause was unnecessary, or how their view was influenced by what they read in a particular submission.

Adv Breytenbach agreed.

The Chairperson asked all to allow Members to go through the meeting recording. The Department could start preparing a working document, so when the Committee met again, it could start engaging with that document. Whether the Committee liked the Bill or not, it had to make decisions at the end. It still had to process the Bill. In areas where Members disagreed, they would have discussions and try to persuade one another. In a situation where Members could not persuade each other, the democratic deadlock-breaking mechanism would kick in. He suggested giving space to the Department to produce draft one of the Bill from what it had heard from Members, what was in the Bill currently, and what the Deputy Minister had discussed.

The Chairperson asked about the effectiveness of the legislation. What was the situation concerning those countries with a seven-year prison sentence before the legislation was passed? Was there any improvement during the time the legislation was in operation? Could a comparison be made between before and after the legislation passed, as far as hate crimes and hate speech were concerned?

Department’s response

On the necessity of hate crime provisions, the Bill provided minimum sentences for certain serious hate crimes, e.g. a minimum sentence for murder as a hate crime; a minimum sentence for robbery as a hate crime; or a minimum sentence for rape as a hate crime, etc. That would involve the court having to apply those sentences with a stricter provision unless there were substantial and compelling reasons not to. Currently, it would be at the discretion of the court as to whether to consider the aggravating factor that it was a hate crime. The Bill also made the collection of data easier if it was a statutory crime.

When it came to hate speech, what was put there as penalties were that if someone got convicted of hate speech for the first time, there was a fine, which was not specified, and a period of imprisonment not exceeding three years. That was the maximum for the first conviction. Subsequently, the term of imprisonment went up to five years. In the existing law, there was no maximum sentence, because it was a common law crime. In the case of Vicki Momberg, the court felt that she seemed to be “so unrepentant that she needed to go to jail”. Deputy Minister Jeffery was unsure what happened to the case regarding Ms Momberg’s appeal. With imprisonment, the Department did not want to jail everybody for hate speech. Imprisonment was there as an option. The legislature would have to decide if there was a maximum sentence for the first occasion of being convicted of hate speech. There needed to be a provision that if someone was not learning from what happened, and was still continuing to spout hatred, there should be the potential of a higher penalty if it was the subsequent conviction. Other countries had gone for the higher seven years as a maximum sentence, but in South Africa, five years would be the maximum term of imprisonment, and not the minimum. This was unlike the hate crimes issue, where there were minimum sentences.

There was a Canadian case on religion where a Christian evangelist was proselytising in the street and saying harmful things about people of a different sexual orientation. The lower courts convicted the evangelist, and it went to the higher courts, which then said based on religious freedom, he had a right to say that. The distinction that the Department wanted to make in terms of the Constitution was that with religious freedom, a person may say harmful things and promote hatred against people based on their sexual orientation. That would probably include saying that people with a different sexual orientation, and who practice same-sex relations, would be “going to hell”. But where the line was drawn was that a person cannot incite violence (e.g. physical attacks, murder) against people with a different sexual orientation. The Department felt it was following international law in the way it made that distinction.

Deputy Minister Jeffery said there was a draft working document that the Department had done based on its response to the submissions. For example, there was the issue of how one could not be charged with a hate crime and hate speech. The Department had already done a working draft as a result of further submissions and further discussion. It would need to have another look at the document, but the document would probably be coming out soon. Additionally, while Members did need to read the submissions, he wanted to point out that Members had had the submissions “for some time”. The public hearings were done some time ago. There was pressure from people wanting to ask why Parliament was taking long with either the hate crimes and the hate speech provisions, since it was a 2018 Bill. He urged the Members to prioritise reading the submissions.

The Chairperson observed that there was a question about the impact of the introduction of the Hate Crimes and Hate Speech Bill, and the comparative analysis that the Department had done as to what had been the impact on the ground before and after the Bill was passed.

Deputy Minister Jeffery replied that with hate crimes, it could be taken as an aggravating factor when it came to sentencing. That was already being done in South African law. What the Bill did was to impose minimum sentences for certain crimes, e.g. rape as a hate crime, murder as a hate crime, etc. There was no statutory provision for the sentence of hate speech in terms of crimen injuria. He referred to the Vicki Momberg case, where the court (a magistrate’s court) sentenced her to imprisonment because it felt that she was unrepentant. He could not remember exactly what the penalty was, but he recalled that it was “quite an unusual step”. He did not know what had happened with her appeal. The provisions on hate speech would continue, although it was a new statutory crime, but one would not be able to sentence a person to more than three years imprisonment for the first offence, and for the second and subsequent offence, one would not be able to sentence a person to more than five years.

The Chairperson said that the Deputy Minister gave a comparative analysis of other countries, such as the UK, Canada, Australia, etc. In those countries, before the introduction of the legislation, and after the introduction of the legislation, what had been the impact? The Deputy Minister had indicated that there was an international convention, and that the world was going that way (i.e. having hate crime and/or hate speech legislation).

Deputy Minister Jeffery said the Department would have to consider the impact. In the other countries, the length of prison terms for hate speech varied – in the UK, it was a seven-year maximum, in Germany, it was five years, and in Iceland, it was two years, for example. Some of the laws were quite old – the British law was from 1986, for example.

Mr du Preez said that the Department would have to do additional research, which might take a bit of time.

Ms Botha agreed with Mr du Preez that the Department would have to do a comparative analysis. E.g., it would need to pick a few countries, and see what the statistics were in relation to the impact. It could also look at convictions that had happened in those countries due to the legislation being effected.

The Chairperson asked if there was such legislation in Rwanda, given the unfortunate situation that the country experienced in 1994.

Mr du Preez said that the Department had the files the late Ms Theresa Ross used to prepare the Bill. He could not recall if there was reference to Rwanda legislation in those files, but the Department would check those files as part of further research.

Ms Maseko-Jele had difficulty connecting, so Mr Ramaano repeated her question. Ms Maseko-Jele was expanding on the Chairperson’s question and asked if the Department could also check the hate speech and/or hate crimes legislation in other African countries.

Dr Newhoudt-Druchen observed that the Deputy Minister said that the UN subcommittee asked South Africa to develop legislation. If there were any documents, she wanted to read those documents if the Department or the Committee’s researchers had them.

Mr du Preez said he would look at the UN subcommittee matter as soon as possible and prepare a note for the Committee.

Ms Botha said that Ms Ross had worked on the Bill intensely. She looked at some of Ms Ross’ research concerning the question of whether Rwanda had any legislation of that kind. One of Ms Ross’ documents showed that both Kenya and Sudan had legislation providing for hate speech. There were other African countries which recognised hate speech and hate crimes as offences.

The Chairperson suggested also looking at the impact of the legislation in African countries as well. He asked Mr du Preez and Ms Botha how much time they would need for research.

Mr du Preez said that he and Ms Botha would split the work between them. He would work on finalising the working document on the Bill for the Committee. The Department would be able to do that “fairly quickly”. The research itself could take a bit longer. He estimated that the Department would be able to submit the working document to the Committee by Friday at close of business. The research would follow the working document, hopefully the following week.

Adv Swart asked if the Department could look into the religious exemption, and to see whether that exemption covered exactly what the Deputy Minister said in his explanation. From the ACDP’s side, it would also make proposals in that regard.

Ms Y Yako (EFF) said that the EFF did not have any comments to add.

Other Committee business

The Chairperson noted that the following week, the Committee would be dealing with quarterly reports. He asked the Committee Secretary if it was possible to deal with the working document. The Committee would have a very full programme. It wanted to request the Programming Committee to prioritise the Drugs and Drug Trafficking Amendment Bill that it had just passed the previous day, the Land Court Bill, and to prioritise the two treaties the following week. The Committee might not get time to sit during parliamentary sessions, because it needed to be in Parliament to debate. There would also be questions to the President the following week. For all intents and purposes, the Committee would be able to deal with legislation when the Committee came back from recess. From 3 to 11 October, the Chairperson and Adv Breytenbach would be at the Judicial Service Commission (JSC). He did not think there was anything to be gained by pressuring Mr du Preez and Ms Botha to submit the document by Friday (23 September). The Committee would deal with the Hate Crimes and Hate Speech Bill when it came back from recess. The Committee Secretariat would be able to tell the Department what the Committee’s programme looked like when it came back. The Committee would start with the BRRRs. Perhaps it would deal with the BRRRs in the morning, and deal with legislation in the afternoon. The Committee understood the Deputy Minister’s observation that some parts of civil society were saying that the Bill had been in the offering for some time. The Committee should do whatever was possible to ensure that the Bill was handled reasonably. 

Adv Swart said that the Committee had been waiting for the Qwelane judgement, so it was not at fault for going at its pace. It was incorrect to say that it had been sitting on the Members’ desks since 2018. While the Bill was introduced then, the main reason for the delay was the Qwelane judgement. But that did not detract from the fact that the Bill needed to be finalised, one way or the other.

The Chairperson agreed with Adv Swart. Since the Bill is with the Committee, it would try to pass the Bill as soon as it was practically possible.

The meeting was adjourned.

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