Prevention and Combating of Hate Crimes and Hate Speech Bill: public hearings

Meeting report

Opening Remarks
The Chairperson welcomed Members and all on the platform and began immediately with the public hearing. Presenters had 20 minutes to make a presentation to the Committee, after which Members would be invited to ask questions or make comments.
 
Presentation by Freedom of Religion South Africa (FOR SA)
Ms Daniela Ellerbeck, Legal Advisor, FOR SA, made a presentation on behalf of the organisation. FOR SA started from the premise that Religious Freedom was the right to believe and to publicly live out that belief by words and actions as per section 15 in the Constitution. She stated that Bill’s current definition of hate speech is contrary to the Qwelane judgment and is unconstitutional.
 
The Bill’s definition of ‘harm’ was any “emotional, psychological, physical, social or economic harm” whereas the Constitutional Court defined ‘harmful’ as “deep emotional and psychological harm that severely undermines the dignity of the targeted group.”

The Bill did not protect South Africans’ right to publicly express unpopular opinions, thoughts, and even offensive beliefs, due to its simultaneous wide definitions and narrow grounds for exemption.

The current exemption clause protected religious freedom in the pulpit but not in the public realm and would serve to “stifle ideology, belief or views”.

The Bill criminalised speech contrary to international law. The Bill was unnecessary as the South African crime of crimen injuria and civil sanctions for hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) had already been effectively used to combat instances of hate speech.
 
FOR SA proposed that the hate speech provisions be omitted. Alternatively, it proposed:
-Revise definitions of Harm and Hate Speech
-Revise prohibition of Hate Speech
-Strengthen the religious exemption clause
-Ensure that Bill meets Rabat threshold test – and that this test’s criteria is expressly set out.  Failing to do so, will lead to a violation of the ICCPR.
-Preamble of Bill should include specific references to sections 15 and 31 of the Constitution.

In addition, FOR SA proposed that the Committee replace the current religious exemption clause in 4(2)(d) of the Bill with the following text:
“the bona fide interpretation and proselytizing or espousing of any religious conviction, tenet, belief, teaching, doctrine or writings, by a religious organisation or an individual, in public or in private, to the extent that such interpretation and proselytization does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds referred to in subsection (1)(a).”

(See presentation)

Discussion
Adv S Swart (ACDP) stated that the debate had been about, and would continue to be about whether the hate speech provisions were required, given the PEPUDA provisions that were very clear and had already been enunciated by the courts. There was a strong case that it was not necessary. He asked that FOR SA elaborate on the need to include hate speech provisions in the Bill.
 
Adv Swart suggested to FOR SA that a simple solution to address the problem of religious freedom in clause 4.1 was to replace “or” with “and”, making it conjunctive. Should the hate speech provisions be retained, would that amendment satisfy FOR SA?
 
Mr J Engelbrecht (DA) had a question relating to Ms Ellerbeck’s comment on crimen injuria. He said that there was existing legislation dealing with the same thing and that weak implementation of existing Acts could not be mitigated by adding another piece of legislation. Would it not be more appropriate to amend an existing Act, should there be shortcomings in the provisions dealing with crimen injuria, rather than putting a new piece of legislation on the books? He was concerned that SA was moving down a slippery slope in trying to legislate morality in the country. There was good legislation in place to address the problem. Shortcomings in existing legislation could be amended.
 
Ms Ellerbeck stated that the position of FOR SA that the new law was not necessary as there were existing laws, i.e. the civil sanctions under PEPUDA which had been used very successfully, even under the re-drafted narrow definition. She pointed to the judgement finding Mr Qwelane guilty of hate speech against the LGBT community. The common law crime of crimen injuria had been successfully used to send people to jail for racist comments.
 
She agreed with Mr Engelbrecht that the country did not need 10 laws all preventing the same thing; the country needed one law that was properly implemented. In the view of FOR SA, there was no need for the hate speech provisions which, in their current form, contravened SA’s obligation to protect religious freedom and freedom of expression under international law. The written submission by FOR SA showed that the Bill in its current form failed to meet the Rabat threshold test and, as such, would likely infringe Article 20 of the International Covenant on Civil and Political Rights. SA was party to that Covenant. It would also contravene the African Charter on Human and Peoples’ Rights (the Banjul Charter) that SA had also signed. It would cause problems internationally but it was also against what the Constitutional Court had said was permissible, and not just because of the conjunctive and disjunctive reading, but because the definition of harm was very wide, much wider than what the Constitutional Court had said was permissible.
 
Ms Ellerbeck re-stated that the Bill was unconstitutional. The Hate Speech provisions were unnecessary and caused more problems than any good they could do.
 
Adv Swart asked if FOR SA would support the excision of hate speech provisions in the Bill but leave the clauses relating to Hate Crimes.
 
Ms Ellerbeck responded that FOR SA would support such an amendment to the Bill.
 
South African Jewish Board of Deputies (SAJBD)
Ms Alana Pugh-Jones Baranov, Political and Social Liaison Officer, SAJBD, briefed the Committee on the views of the Jewish Board of Deputies. She was joined by the National Director of the SAJBD, Ms Wendy Khan, for the question session.
 
Ms Baranov noted that incidences of hate crimes, hate speech and bias-motivated violence had grown in recent years. The SAJBD was a steering committee member of the Hate Crimes Working Group (HCWG) and welcomed the publication of the Prevention and Combating of Hate Crimes and Hate Speech Bill. The SAJBD supported and endorsed the submission made by the HCWG on the Bill.
 
Ms Baranov’s presentation unpacked the concept of anti-semitism before examining the issue of hate crimes and hate speech in South Africa, with suggestions on how best to prevent and combat the scourge. She provided a number of examples where individuals had used hate speech against Jews and Jewry and who had come to understand their misconceptions after engaging in restorative justice.
 
Ms Baranov referred to Section 16(2) of the Bill of Rights and the Promotion of Equality and the Prevention of Unfair Discrimination Act (2000) and recommended that the anti-hate speech sections of the Hate Crimes Bill be removed.  She emphasised that there was a need to address the root cause of the problem and change ‘hearts and minds on the issue of tolerance and diversity.
 
The SAJBD recommends bolstering current restorative justice programmes in the county and the expansion of tolerance education, which must indeed be regarded as a crucial component of the school syllabus. Support should be given to practitioners currently engaged in this work and ways to roll out successful programmes should be encouraged.
 
(See submission)
 
Discussion
Adv Swart stated that he opposed antisemitism and stood with the SAJBD. He shared Ms Baranov’s strong sentiments about hate crimes, but when it came to the hate speech part of the Bill, he heard her passion for restorative justice, which was something the Committee had pioneered over the years with the Child Justice Bill. He had heard her cite the Dlamini matter which had been a powerful example of how the victim and offender could sit together and resolve the issues.
 
One of the concerns about the hate speech in the Bill as opposed to the provisions in the PEPUDA was that there was no space for restorative justice whereas the approach in PEPUDA was a civil approach that also had scope for a criminal approach. Had Ms Baranov not thought about enhancing the provisions for the hate speech provisions in PEPUDA, given the court precedence already, and the important point she had made about the resource constraints at the South African Human Rights Commission (SAHRC)?

Adv Swart said that the previous week he had taken issue with someone in Parliament for criticising the Masuku judgement and the SAHRC’s role in that process. Everyone knew the constraints under which the SAHRC was working. He added that perhaps Parliament should be looking at capacitating PEPUDA rather than looking at hate speech provisions in the current Bill. Could she respond to that issue?
 
He asked Ms Baranov about the purely criminal approach in the Bill and suggested that she might wish to propose written improvements to PEPUDA through the Hate Crimes Working Group.
 
Ms Baranov agreed that the SAJBD agreed strongly that restorative justice was essential in dealing with hate in the country and that it should be incorporated into the current Bill on Hate Crimes and Hate Speech. The Board of Deputies agreed that other legislation dealing with hate should be strengthened and that restorative justice should be a key aspect of that legislation. The country had so much at its disposable that was progressive and worked well in theory but a focus on resources and capacity to do the work had to be a focus in the current Bill and in PEPUDA.
 
Ms Khan stated that the SAJBD strongly supported the inclusion of hate speech in the Bill. In the Masuku case, harmful speech as opposed to hurtful speech was the key. The focus on incitement, harmful speech, and threats should be included in Bill.
 
Hate Crimes Working Group (HCWG)
Mr Sibusiso Khasa, Chairperson, HCWG, addressed the Committee. He was accompanied by the Deputy Chairperson, Thozama Njobe, and Sanya Bornman, Coordinator of the Group.

The HCWG noted that the Bill, in its preamble, refers to just two international commitments, namely the Declaration adopted at the United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban (the Durban Declaration), and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). There are many other international instruments that are applicable. The HCWG feels strongly that this appears to create a hierarchy of prejudice and discrimination, prioritising racial discrimination at the top. While the Group appreciates that South Africa is now attempting to meet its obligations under the CERD, we submit that this Bill should not create a hierarchy of prejudice and discrimination and therefore should not refer only to those instruments dealing with racism and racial discrimination.
 
The HCWG expressed concern about a number of definitions, especially the definition of harm which merely contained adjectives and did not actually give a definition. The term “harm” was central to the definition of hate speech. Yet, in consultation with its members, it became clear there is significant confusion about the meaning of the definition as currently formulated.

The presentation referred to the need to use gender-neutral wording throughout the Bill. The Group recommended an express legal obligation on the Director of Public Prosecutions, or their delegate, to automatically provide written reasons when a decision was taken to decline or to prosecute a charge of hate crime. It was believed that the deterrence of hate crime, through criminalisation alone, did not constitute prevention.

HCWG recommended a reframing of clause 8 to provide for the interrelated, but necessarily separate, roles of the Minister of Justice and Correctional Services, National Prosecuting Authority, Minister of Police, and National Commissioner of the South African Police Service in the collection and dissemination of information; and that the levels of data disaggregation required to achieve the objects of the Act be prescribed.

HCWG was disappointed with clause 9 of the Bill and cannot support it in its current iteration. Section 9(1) placed a generic legal duty of the “the state” and only two Chapter 9 institutions. It was nonsensical and impractical to expect every single state institution to play some undefined, generalised role in preventing hate crimes. It was unclear how institutions will be held accountable for such an undefined obligation. Furthermore, it was unclear why SAHRC and the CGE would have a role to play in prevention, while the CRL does not. Clause 9(1), on a plain reading, only created a duty to promote awareness of the criminalisation of hate crimes and hate speech. This was insufficient for the prevention of hate crime in South African society
 
Mr Khasa stated that the Group noted that, while various versions of the Bill had been available since 2016, the Bill remained uncosted. It did not agree with the assertion in the explanatory memorandum to the Bill that suggested that the complicated work of prevention and combating of hate crimes and hate speech could be done within existing departmental budgets.

(See presentation)
 
Discussion
Adv Swart agreed that implementation was a very real issue and the Committee took it very seriously. When the Committee had passed the Gender-based Violence Bills, the Committee had made sure that it asked departments how they were going to implement the Bills. He agreed that it was a concern that the memorandum to the Bill indicated that there would be no additional funding.
 
He understood that a strong criminal process was necessary when it came to hate crimes but asked about the section on hate speech, which was not fully funded, and which was covered in earlier legislation. Would it not be better to put resources into current legislation? He agreed with the point made by the Group that fighting hate crimes and hate speech could not be done by criminalisation. He asked about restorative justice and whether that had been considered by the Hate Crimes Working Group. The SAJBD had testified to the benefits of the restorative justice approach.
 
The Chairperson asked Members to put their questions clearly and not to include several sub-questions.
 
Mr Khasa informed the Committee that the HCWG had previously expressed its concerns about that part of the Bill. He was concerned that the hate speech part of the Bill, which was controversial, would delay the Bill which the Group wanted to be implemented urgently for its focus on hate crimes. His focus, in the presentation, had been on the hate crimes aspect.
 
Ms Bornman agreed with Mr Khasa that the Working Group was concerned that the controversial nature of the hate speech provisions would delay the implementation of the hate crimes aspect of the Bill. People were dying as a result of hate crimes. However, the Group was aware that the Department of Justice and Constitutional Development, and Parliament, preferred consolidating all the legislation on hate speech into a single piece of legislation. It was not an unusual approach and she had seen that in the common law crime of rape that had eventually been codified and updated and included in the Sexual Offences Act. She believed that hate speech was closely linked to hate crimes and that hate speech often turned into hate crimes. Ultimately the two needed to be included, even if that occurred at a later stage.
 
Restorative Justice Centre (RJC)
Mr Mike Batley, CEO, RJC, suggested that the Ministry and the Department were incorrect in thinking that restorative justice did not allow harsher sentencing and simply provided mitigation for crimes. That was a narrow and limited view. He explained that restorative justice was not about offering a soft option: it was primarily a different way of thinking about justice and was a constructive way of thinking about crime and justice issues and holding fairness accountable. There were various processes where parties were brought together with the help of a facilitator, and other interventions that provided life skills or vocational skills without necessitating a meeting between victim and offender. A diversion programme, such as the programmes incorporated in the Child Justice Act, was another restorative justice mechanism for addressing those who were or had been found guilty. It could be applied at any point in the criminal justice system and could run parallel to, or at a different point from, a criminal sentence. Parties did not have to come together. The central obligation was to put right the wrong inflicted on people, but it did not mean that a criminal sentence could not be handed down.
 
He said that restorative justice was as effective in serious crimes, such as rape and murder as it was in more minor cases: they were just different points in the criminal justice system. Restorative justice saw crime as the violation of people and relationships. Obviously, it was also about breaking the law but it was the violations that really mattered and it was about putting those matters right. Crime was about disrespect; justice was about respect. One should respect the life of others, the property of others and the feelings of others. There was an obligation to put things right and there was an obligation to others, i.e. the family or community. Restorative justice concerns about harm meant that the one who had been hurt was central to the process.
 
Mr Batley referred to the organisation’s written submission, noting research and the positive impact of the process, especially on victims. The Bill should focus on prevention and building social fabric. He specifically suggested an amendment to the definition of harm.
 
Mr Batley strongly advocated for restorative justice being included in the current Bill.

(See presentation)

Discussion
Adv Swart noted that the Child Justice Bill went back some years. He asked whether the RJC could consider submitting an amendment to the Bill, particularly in relation to the hate speech, as the Department said that it would consider including restorative justice as a discretionary decision.
 
Ms W Newhoudt-Druchen (ANC) asked about the background of the RJC and whether it had worked with the  Department of Justice and Correctional Services or the SA Police Service on the implementation of restorative justice processes. Maybe hate speech would increase because children took their parents’ views to school and there certainly was an increase in hate speech against LGBTQ persons in schools. She liked restorative justice but did not think that there had been enough engagement on restorative justice in SA and the jails were filling up. What was the background of the Restorative Justice Centre?
 
Mr Batley replied that he would endorse a clause giving discretion to use restorative justice, although he would say that restorative justice should always be considered, even if it were found not always appropriate. In his written submission, he had given some indications of how that could be done, primarily drawing on the Child Justice Act.
 
He informed Ms Newhoudt-Druchen that the RJC had been operating as an NGO in Pretoria, for the past 20 years. The Centre had been involved in over 3 000 cases to date in the courts, mainly relating to the Child Justice Act, but also working with Correctional Services after sentencing of an offender.

The Chairperson asked if Mr Batley had worked with the Association of SA of Law Deans, i.e. the Professors of Law.
 
Mr Batley replied that there had been no engagement with this grouping..
 
Southern African Catholic Bishops Conference (SACBC)
Adv Mike Pothier, Project Co-ordinator: Democracy & Governance Project, SACBC, represented the SACBC. He had no presentation, but he had sent in a written presentation the previous year.
 
Adv Pothier referred to all the terrible crimes motivated by hate and asked if the existing criminal statutes did not address precisely those crimes. Should they not be strengthened as the only difference between a hate crime and any other was motive? The crimes were pre-existing offences and not a new class of crimes that had been recently uncovered, as with cybercrime which presented new offences.
 
It would be easier to amend the Criminal Procedure Act and the Minimum Sentences Act that would indicate to a presiding officer that if a crime had been motivated by hatred, that had to be taken into account when sentencing.

If it were absolutely necessary to proceed with the Bill, Adv Pothier drew the Committee’s attention to clause 3 (1) where the wording was unclear. There were gaps in the clarity of the proposed law, e.g., there was no definition of “family member” and why did the law exclude friends, associates or a romantic partner, etc? It had not been thought through. Terms such as “association” or “support for” were very difficult to define and applied to a group of persons who shared characteristics. Why did that apply only to a group and not to an individual? That did not seem to make sense.
 
Clause 3 (1) (a - q) contained a list of characteristics that were grounds for unfair discrimination as listed in the Constitution, but three from the Constitution had been left out: marital status, conscience and pregnancy. It was possible, even if unusual or strange, to have hatred because of another person’s marital status or conscience, or even pregnancy. Further definition or tightening up was necessary to avoid confusion.
 
The SACBC supported clause 3 (3) that prosecutions should be authorised by the Deputy Public Prosecutor (DPP) as the law should be used sparingly. Similarly, in the Organised Crime Act, the DPP had to agree to prosecute.
 
Hateful speech damaged the social fabric and hurt people but he questioned whether a criminal approach was the way to deal with attitudinal issues because the more legislation enacted, the more the country stamped on other rights. PEPUDA addressed hate speech and the limitations in PEPUDA could be addressed. Could existing statutes not be used?
 
Adv Pothier warned of the chilling effect on a society where people were too scared to open their mouths because whatever they said could be taken as hate speech; ultimately the society lost its free speech rights. It was a question of addressing the balance between personal dignity and freedom of speech.
 
The concept of harm was one definition of hate speech, but harm was defined extremely broadly and even trivial issues could be classified as hate speech. The prohibition of hate speech was being turned into a positive right, but there was no right in the Constitution not to be offended or upset. That appeared to be where the Bill would take the country. The definition had to be revised to take away triviality or to allow certain people to say things that others could not say.

The SACBC strongly supported clause 9 of the Bill.

(See submission)
 
Discussion
Mr Q Dyantyi (ANC) appreciated the probing points that Adv Pothier had made. He had given him a lot of homework so he really appreciated the presentation. He asked which were the one or two critical issues that the SACBC believed had to be included. What were the critical defining features to be addressed?
 
Adv G Breytenbach (DA) agreed with the presentation and was covered by Mr Dyantyi’s question.
 
Ms N Maseko-Jele (ANC) asked for clarity. She noted that there seemed to be a growing issue that it was not necessary to have the Bill, although Adv Pothier had indicated the shortcomings if the Bill were to go forward. Mr Pothier indicated that other legislation covered the issues in the Bill. If that was so, what had brought the matter to the point at which it was? What was it in the courts that had required new legislation? What would need strengthening in current legislation?
 
She added that Adv Pothier had referred to a hate crime or hate speech that could be considered trivial. What would he consider trivial? She had thought that anything hateful was serious for the person to whom it was directed.
 
Adv Pothier replied that he felt strongest about the effect of the Bill in limiting and circumscribing freedom of speech, which was linked to freedom of information and media, political and other debate and the right to criticise, in good faith, other people’s standpoints and so on. Freedom of speech was a wide-ranging and essential right in a democracy. The phenomenon of the “chilling effect” would prevent people from discussing matters, joining in debates, etc. because they were intimidated into thinking anything they might say could be considered hateful. There needed to be a qualification.
 
He responded to the question about the difference between serious and trivial hate speech or harm. The concept used by courts for centuries was known as the De minimis rule which is applied in both criminal and civil matters as it stops the court from dealing with issues that are extremely trivial; the law did not consider trifles. There was jurisprudence that one could consult to find out those things that were so trivial that it might constitute a crime, but the courts would throw it out, for example, stealing a leaf from a neighbour’s tree. It was theft but taking it to court would be wasting the time of the court. The same principle applied to hate speech, but he could not give a set of precise examples. Everyone knew that some people were more sensitive to being called names or having accusations made against them than others were. Most people could understand that something wasn’t quite right but that it had not done any real harm. However, someone else would feel offended and would go to court. How was a court meant to deal with people’s different feelings towards the same thing? One could go back to the Constitution for primary guidance in section 16 which referred to incitement to cause harm, probably physical harm, not hurt feelings. Useful definitions and qualifications were required.
 
In response to the question of how the country had gotten to that point, Adv Pothier agreed that no one could deny that there was a problem in the country of people speaking hatefully of others and violating each other’s dignity. The history of the country, etc. was to blame, but was a sledgehammer and a criminal approach correct? It was a societal problem, not a criminal problem. The problem needed to be addressed through education and awareness campaigns. There were laws in place, such as the common law, crimen injuria, which ensured that a person could be sent to jail for uttering horrible speech and hurting another person. People had been taken to court under the Equality Act and made to pay fines or be sent to jail for using offensive language. It was a satisfactory law. It was not as if there were not adequate laws in place.
 
The Chairperson stated that the other presenters were not yet ready and there would be a break before further presentations. He added that he was considering that the presentations scheduled for the following day be postponed until after the parliamentary recess. He did not want to hold a hearing the following day as Members would be flying into Cape Town for the parliamentary session and attending caucuses before the sitting and would, therefore, not be available to focus on the presentations.
 
He added that on Friday that week, there was no Correctional Services sub-committee meeting and the time would be used for the Committee to privately reflect on the term, the implementation of the Committee strategic plan and to consider the programme for the following term.
 
Institute for Race Relations (IRR)
Dr Anthea Jeffery, Head of Policy Research, IRR, briefed the Committee on behalf of the IRR. She noted the changes that had been made to the Bill since 2018 and insults had been removed, while the definition of hate speech was a little narrower, but not narrow enough. The cutting of prison sentences from a maximum of ten years to five years was a good change. The Constitution gave everyone the right to freedom of speech. The definition of hate speech in the Bill differed from the definition in the Constitution in section 16(2)(c). The words had to be intentional. In the Constitution, hate speech had to include the intention to cause harm or incitement to cause harm. The Bill’s wording was very different from the Constitution and included 15 criteria. The wording in the Bill was taken largely from the judgement by the Supreme Appellate Court in the Qwelane case (2021) as upheld by the Constitutional Court, but Judge Majiedt had failed to follow the preceding ‘lodestar’ case. She reminded Members that the Qwelane case was considered under civil law and not criminal law and the intention was not to incarcerate the offender, as was the case in the Bill. Dr Jeffery analysed the Majiedt judgement.
 
She noted that the Constitutional Court had not followed the same principle in the “Islamic Unity” case where it had found that all speech was protected unless it fell squarely in the realm of hate speech. She supported that view.
 
Dr Jeffery was particularly concerned about the chilling effect of hate speech becoming a criminal offence. The Bill would mean that the offender was facing arrest, remand, prosecution and jail time. She likened it to the situation in Zimbabwe. The Bill should consider the important right of freedom of speech and, secondly, the purpose of the limitation.
 
She did not believe that there was a need for a new law on hate speech. There were other laws that could be used, and even strengthened, such as PEPUDA. She believed that section 10 of PEPUDA could be amended. Following the African Charter on Human and Peoples’ Rights, former Minister Jeff Radebe had said in 2015 that SA would repeal its criminal defamation laws that resulted in criminalisation of the freedom of speech and that no citizen or journalist should have shackles of criminal law hanging over them. That had not happened; instead, the laws were being intensified.
 
Dr Jeffery said there was no need for the hate crime legislation because it would usually be an underlying motive for a greater crime. That the motivation of hate for any criminal action could result in a sentence harsher than that proposed in legislation was worrying.
 
She concluded that a new law for either hate speech or hate crime was unnecessary. PEPUDA should be amended to be in line with the Constitution and it should be applied equally to all races.
 
The IRR had polled citizens in 2001 and from 2015 to 2021 and only 2% of black people had stated that there was a problem with race relations. Other issues proved to be far more pressing. Dr Jeffery added that the ANC should stop promoting race-based policies that had an adverse effect on race relations in the country.

(See presentation)

Discussion
There were no questions for the Institute of Race Relations.
 
Accountability Lab South Africa
Mr Sekoetlane Phamodi, Country Director, Accountability Lab, briefed the Committee on the position of the Accountability Lab which strongly believed that it was marginalised people, who were viewed as outsiders, who were most vulnerable to harm, hate crimes and hate speech. SA generally had a hate crimes and hate speech problem that had to be addressed.
 
Accountability Lab noted the importance of the Bill in helping to give effect to South Africa’s obligations under the Constitution, international law and international human rights instruments. At the same time, it felt that the enactment of such legislation that would place limitations on freedom of expression must be approached with great care so as to prevent any potential conflict with other rights provided for in the Constitution, international law, and international human rights instruments and obligations. To this end, it called on Parliament to conduct and publish the results of a socio-economic impact assessment of the potential implications of the enactment of the Bill.

Looking at the Bill itself, he expressed concern about the definition of “harm”. The definition of harm was self-referential and therefore circular. It did not adequately distinguish between “harm” which might occasion statutory protection and “offense” which did not occasion statutory protection. The proposed definition in the Bill sought to cast a wide net for the various ways in which harm might be experienced, but was, nevertheless, self-referential and circular. The Lab proposed a new definition for “harm”: “Harm” meant any quantifiable emotional, psychological, physical, social, or economic impairment or loss objectively established as being detrimental to the enjoyment of rights, including to property. He said that the reference to hate speech in the Bill had to follow on from the concept of harm and not the speech itself.

The categories of persons contemplated as enjoying protection against the offence of hate speech in line with clause 4 of this Bill is inconsistent with the categories of persons contemplated as enjoying protection against the offence of hate crimes in line with clause 3 of this Bill. The prohibition against the electronic distribution of communications constituting hate speech as contemplated in this Bill is unreasonable, excessive and disproportionate – making the unqualified distribution of the communication itself an offence without providing for any objective inquiry into the intention of the electronic distribution of the communication by a competent court or tribunal.

(See presentation)

Discussion
There were no questions for Accountability Lab South Africa.
 
Access Chapter 2
Mr Mpho Buntse, Communications and Projects, Access Chapter 2, presented on behalf of the organisation.
 
Access Chapter 2 said it is estimated that about 25+ members of the LGBTI+ have been brutally murdered across the country between the years 2020 and 2022. The Hate Crime Study conducted by OUT, AC2, Triangle Project alongside 3 more organisations found that 88% of LGBTI people do not report any incident and attacks against them, making it 1 in 25 LGBTI person only get to report incidents.

This Bill was seen as a cornerstone for protecting the rights and lives of LGBTI+ community. The bill creates the legal definition of Hate crimes which will compel authorities to collect and report details about hate incidents for effective monitoring, analysis of trends, and appropriate intervention needed.

Mr Buntse spoke in detail about the experiences of people in his organisation, especially relating to gender conversion therapy. The intention was to show the need for the Bill in SA. He said that it usually started with hate speech and then moved on to hate crimes. Corrective rape was also driven by the conversion practice and by hate.
 
Mr Patrick Mthombeni, M&E Coordinator Associate, Access Chapter 2, said that justice was not served when it came to crimes against the LGBTQI+ community. They also experienced secondary victimisation if they reported the crime. They supported and welcomed the Bill.

(See presentation)

Discussion
There were no questions for Access Chapter 2.
 
Southern Africa Liaison Office (SALO)
Mr Lawasi Somya, Research, Development and Programmes Coordinator, and his colleague, Ms Busisiwe Nxumalo, made the presentation.
 
Mr Somya said that SALO supported the Bill because it upheld the rights enshrined in the SA Constitution, particularly the Bill of Rights, especially sections 9, 10, 12(1) and 12(2). It reaffirmed SA’s commitment to the protection of vulnerable and marginalised groups. It provided for sentences for offences of hate crimes and hate speech and offered a rehabilitative step for those who conducted hate crimes. SALO realised that there were aspects that needed to be addressed. The Bill should re-affirm commitments made to the international community, including commitments to address racism, racial discrimination and xenophobia, and other forms of discrimination. That would affect SA’s peer reviews, especially in the light of the attacks on migrants and violence against the LGBTQ community. He suggested some changes to the Bill, especially in terms of managing xenophobia.
 
Ms Nxumalo concluded the presentation by recommending specific amendments to the Bill.
 

(See presentation)
                
Discussion
There were no questions for SALO.                                       

Closing Remarks
The Chairperson stated that was the end of only the first leg of the public hearings on the Hate Crimes and Hate Speech Bill. As had been agreed, the second leg would be postponed until after the parliamentary recess. Members and the public would be informed when the next leg would be held.
 
 The meeting was adjourned.