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

Meeting report

The Chairperson acknowledged the presence of Deputy Minister, Mr John Jeffery

Prevention and Combating of Hate Crimes and Hate Speech Bill
Mr Henk Du Preez, State Legal Advisor: Department of Justice and Constitutional Development (DoJ&CD), took the Committee through the 29 November working draft of the Bill looking in clause 1 at the definition of "characteristics" which would constitute a hate crime.

"characteristics"
Mr W Horn (DA) said that it was absolutely imperative to review each one of those characteristics and provide sufficient justifications before those characteristics could be included. Committee members must check if those characteristics were constitutionally compliant and serve the right cause for criminalisation. He described the Department’s justification insufficient.

Mr S Swart (ACDP) agreed on the need to review each characteristic.

Ms N Maseko-Jele (ANC) asked the Department to distinguish the difference between characteristics and grounds in the Bill. She suggested moving some of the characteristics to grounds in the Bill.

Mr Jeffery replied that characteristics were about hate crimes and grounds were about hate speech. Hate crime is an underlying crime which is currently existent that was committed against a person based on the perpetrator’s prejudice or intolerance against that person based on the characteristics on the list.

The Chairperson asked if an ordinary person would be able to distinguish hate crime versus hate speech simply by reading this Bill.

Mr Jeffery explained that the characteristics had been placed under clause 3 in the Bill as introduced. It was now taken out for ease of reading purposes and placed under the definition section. The Bill was not intended for everyone in the general public to understand but he was certain that legally trained personnel such as magistrates, prosecutors, lawyers should be able to understand.

The Chairperson was of the view that the Bill should be easy to read for the people of South Africa not only for academics and lawyers. The Bill should be easily understood by the general public as it was their interests that would be affected if the Bill was passed into law.

Mr Du Preez explained that if a prosecutor decided to charge a person, the prosecutor would have to present a case and explain how a particular characteristic would fit.

Ms Alison Botha, DoJ&CD State Law Adviser, clarified that clause 3 referred exclusively to characteristics whereas clause 4 referred exclusively to grounds.

Mr Du Preez added that the Protected Disclosures Act could offer some insight on the definition of characteristics. They were printed in italics in that Act. Those characteristics were existing ones taken from the Constitution as well as the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). The Department was well aware that offences had been committed towards people who had those characteristics.

Age
Mr Swart asked Mr Du Preez how age could be a characteristic for someone to be the target for hate crimes, although he understood that older people are vulnerable to crimes. He requested the Department to give evidence because he was unsure if he had ever heard of such hate crimes.

Mr Horn agreed and repeated that legislature needed to justify these. Members needed to be convinced and satisfied with the inclusion of every characteristic. There has to be systemic discrimination in place in society before they could be included in the list. Internationally, the practice is that a test had to be run if age should be a characteristic, there had to be systemic in such a manner that old people were forced to adjust their ways of lives in order to not fall prey to that. He was thus unconvinced that age could be included. He questioned if the Department was able to prove that there was systemic intolerance towards old people.

Adv Breytenbach (DA) agreed with Mr Horn and Mr Swart. She maintained her view that the NPA or the Department needed to elaborate how to prosecute a person based on the list. Her view was that it would make prosecutors’ job much harder to prove those specific offences beyond a reasonable doubt. Should prosecutors fail to prosecute a person using this Bill, it might let potential people get off the hook with impunity.

Ms Maseko-Jele disagreed with her colleagues. South Africa was a country of diverse cultures. Her colleagues might not be aware of age as a criterion for hate crimes which happen quite pervasively in other cultures. In saying that, she was specifically referring to the black African culture.

Ms Newhoudt-Druchen (ANC) supported Ms Maseko-Jele’s view. There were certainly issues which the general public was not aware of because they had not seen them in the newspaper, but those incidents are happening. Hence she supported having age included in the list.

Mr Swart stated that he was fully appreciative of the vulnerability of old people. It was an important point and that attacking old people should be an offence. However, he did agree with Adv Breytenbach that it might be very difficult for prosecutors to prove that a crime was committed because of hatred towards old people.

Mr Horn said that no Member would want to see frailty as a characteristic for perpetrators to pick on and lead to attacks on old people. But from a legislative point of view, there is a vast difference between picking a soft target and attacking someone purely because of discrimination. The Department would have to provide more evidence to convince him to justify the inclusion of age.

He cautioned Members against including characteristics in the Bill based on anecdotal information.

Mr Jeffery asked Mr Horn what rights were being limited or affected by including those characteristics. He pointed out that sometimes hate crimes were not driven by hatred but by prejudice and intolerance. Regardless of the motives, they were what this Bill aimed to address. Eventually, it was up to the prosecution to decide if it would prosecute a person or not. There are no statistics on hate crime because the crime does not exist in the legal framework and thus is not documented, so the Department was not in a position to answer the question on what rights are being lost. He again asked what rights would be lost if those characteristics were included and seen as preventative measures. He expressed his frustration and asked how much longer the Committee would still be dwelling on age. It was decided to use a closed list. It provides the prosecutor with a choice. It may never be used but it may be used.

Mr F Mulder (FF Plus) noted the inputs from Members and the Deputy Minister. In the very research document provided by the Department, it states that South Africa’s research on the elderly was very limited and national elderly abuse statistics do not reflect incidents of this nature. He was concerned that passing this Bill would be duplicating legislation. There is legislation already in place that could deal with crimes of such a nature. Thus he did not think it necessary to include age. He gave the example of killers targeting girls between 20 and 24 years of age. He indicated the need for more deliberation on the issue.

Adv Breytenbach felt that the discussion did not result in a fruitful outcome. It would be difficult to prove the state of mind of a person that they did that to old people because of their age. She had almost three decades of prosecution experience. To put age under the characteristics for hate crime made no logical sense because crime perpetrators usually pick on soft targets who are weak, unable to defend themselves, cannot run away – of which old people checked all the boxes. She was satisfied with the provisions in the current legal framework. It was very likely that prosecutors would not even use this Bill because it would be too hard to prove the person's state of mind.

Ms Kalay Pillay, DoJ&CD: Deputy Director-General: Legislative Development and Law Reform, responded to Adv Breytenbach that the aggravating crime would not fall away if a person is not being charged with a hate crime. For a person to be charged with a hate crime, there must also be a base crime.

Ms Botha noted that age is a criterion that has been included in similar hate crime bills in 57 member states the Organization for Security and Cooperation in Europe (OSCE). The research notes had also highlighted that those who were already discriminated against or marginalised were more likely to be hate crime targets.

Mr Jeffery reiterated that it was common that there would be no statistics for a particular common law crime before it became a legislated crime. He did not think that there should be any issue around that. To Adv Breytenbach, he said for a person to be charged with a hate crime, there would be a base crime as well. That crime must be committed against that person also due to intolerance or prejudice against the victim.

Mr Horn asked Ms Botha if any of those 57 countries offered protection for elderly people by specifically earmarking crimes against elderly as hate crimes.

Adv Breytenbach maintained her view that elevating a crime to a hate crime required proof beyond reasonable doubt which was an onerous process. Instead, aggravation of sentence is argued from the bar on the balance of probabilities which is much easier to prove and a requirement which is easier to meet.

Ms Botha replied to Mr Horn by referring to 3.9.2 of the Research Note that 37 OSCE member states identified age as one of the characteristics for hate crimes.

The Chairperson noted Members’ views differed on the inclusion of age in the characteristics list and suggested that the Committee put excluding age under Option 2 in the working draft of the Bill.

Albinism
The Committee had had no objection to its inclusion.

Ethnic or social origin
Mr Horn regained network connection and asked to propose that the Committee should consider combining albinism, ethnic origin and skin colour together under the category of race as race was already included in the Constitution.

Ms Newhoudt-Druchen disagreed and asked why they should be combined because there was no relevance among those criteria.

Mr Jeffery also had a serious issue with Mr Horn’s proposal because albinism had nothing to do with race or ethnic origin. If anything, it would be a disability. It was recognised as a serious issue internationally. Race, colour, albinism should maintain separate criteria.

Ms Y Yako (EFF) agreed that albinism remained sensitive topic and had generated a lot of hate crimes. Hence, this issue cannot be conflated with race.

Mr Horn said that the evidence provided by the Department to support the inclusion of albinism was convincing in nature and thus he did not have an issue with the inclusion of that. Unless the Bill explicitly stated “various forms of discrimination”, he was not convinced that it should be a standalone characteristic. He denied that there were forms of discrimination against an ethnic group or a specific shade of skin colour in South Africa and requested more evidence on that.

Ms Maseko-Jele said that Mr Horn was trying to downplay the issue of skin colour. Regardless of what Mr Horn said, she was convinced because there were so many instances where people say “I hate black people”. We have to understand our origin of discrimination. There was still a lot of work to be done to rectify discrimination. Hence, she could not understand why skin colour could not be a standalone category. There is elements of hate everywhere and in social media. It was systematic in the past that we were discriminated against because of hate.

Mr Jeffery was shocked at Mr Horn’s perspectives or understanding of South Africa that he wants to place race and ethnicity together. They are different concepts. Ethnic conflicts or the potential for ethnic conflict is substantial. The apartheid regime tried to promote ethnic conflict by setting up separate homelands for different ethnic groups. Post-apartheid, ethnicity unfortunately is still an issue that could get into violence. During the xenophobic violence people were asked what elbow or knee was in isiZulu, those could be South Africans who cannot speak isiZulu. That is ethnicity. It is a standalone category. Colour is something else and it comes into play within different ethnic groups. What is the problem of having a more extensive list? Whose rights are being affected? He simply did not understand why some Members would object to having a more extensive list. It is not the same as "grounds" if it is a possibility, let us allow it in.

Mr Horn clarified that Members might have misunderstood his intention. He was not being unsympathetic towards the victims who were being discriminated against. He believed colour would strengthen the category of race. He was actually advocating skin colour because if ethnicity is put alongside race which was in the Constitution, it would strengthen the protection for those victims. Mr Horn did not agree with the Deputy Minister's comment about darker skin colour and xenophobia because then why is the Committee not including xenophobia?

Mr Horn did not find the Deputy Minister's justification sufficed – that just because there was potential for ethnic group conflicts that ethnic group should be included as one of the characteristics. Law makers cannot draft laws because of a potential problem. It must be informed by empirical evidence.

The Chairperson pointed out that there were two international instruments in place which identified colour and race as two standalone criteria. One is the International Convention on the Elimination of All Forms of Racial Discrimination and the other is the Universal Declaration of Human Rights. This Bill not only aimed to address domestic issues in the country but also to honour the international obligations which South Africa was part of.

Mr Du Preez appreciated the Chairperson’s input.

Ms Pillay said that the reason colour and race had to remain independent criteria was because skin colour might be an issue for hate crimes even within the same community. The word colour is being used consistently across international instruments such as the International Covenant on Economic, Social and Cultural Rights drew attention to colour within the treaty as well as the violation of human rights based on colourism.

Ms Maseko-Jele observed that even between Zulus and Sothos there would be insults that could be based on ethnic origin. Hence, she believed it imperative to include ethnic origin in the Bill.

The Chairperson noted the differences among Members on the conflation of skin colour, ethnic origin and race and proposed that there should be two options in the Bill. Option 1 is to leave as independent criterion and Option 2 is to include "race or skin colour".

Language
Mr Horn said that the Department needed to justify the inclusion of language. He was unconvinced because there is insufficient information on systemic discrimination against a specific language group in South Africa. To justify that, there needs to be a causal link between the discrimination and the commission of crimes based on hatred of that specific language.

Mr Swart said that more motivation was needed to justify the criminalisation of this as a hate crime because language was not included in the Equality Act or the Constitution. Discrimination based on language had more of an ethnic basis which could also linked to xenophobia.

Mr Swart appreciated the Deputy Minister’s explanation in distinguishing between characteristics and grounds. Comparing those two, there were only two issues which were excluded under grounds in the Bill.

Mr Jeffery asked Members what harm it would do by adding language if there could be a potential conflict arising from that. He appreciated Members’ input on the intersectionality of ethnicity and language and issues of nationality. He asked if they would recall a time in South Africa's history when people were stopped and interrogated about a particular body part in a particular language and they were beaten up in they could not respond correctly, whether the person was a foreigner or not. That was language used as a factor for motivation for violence.

Mr Jeffery noted the language issue at the tertiary education institutions - the usage of Afrikaans specifically. He was uncertain if the Afrikaans language issue had ever ended up in violence and other crimes because it was more often perceived as a racial issue. He noted Mr Horn’s remark on the importance of the Bill passing constitutional muster, but he asked Mr Horn what constitutional rights would be limited as a result of this Bill.

Ms Maseko-Jele agreed that language was a cause for hate crimes. This even happened at institutions of higher learning. There are people who are discriminated against due to the language they speak and they lose employment opportunities.

Mr Horn found Mr Jeffery’s argument “what harm it would do if it was to be included" insufficient. The inclusion of each characteristic must have specific circumstances which pointed to those characteristics in a systemic way.

Secondly, Mr Horn pointed to government’s intention of excluding Afrikaans people from exercising their language rights as evidenced by Mr Jeffery’s continual remark that Afrikaans remained an issue on campuses.

Thirdly, Mr Horn said that Ms Maseko-Jele’s point related more to equality or labour law issues and could not be used to justify the inclusion of language as a characteristic of a hate crime.

Adv Breytenbach agreed and was very offended by Mr Jeffery describing Afrikaans, one of the eleven official languages, as remaining a problem on campuses. From a prosecutorial perspective, she found Mr Jeffery’s example of a person being maliciously asked to speak a language irrelevant to hate crimes as that would be under the xenophobia category. It would make prosecutors’ job so much harder.

The Chairperson explained to Adv Breytenbach that Mr Jeffery was referring to the time in history where even among South African citizens people would kill each other if the other person belonged to a different tribe. So it was not necessarily referring to South African versus non-South African.

Adv Breytenbach remained adamant that those attacks had nothing to do with the language which one spoke but more because of the tribe one belonged to.

Mr Mulder agreed that the language issue was sensitive and extremely divisive. He shared his concern on Mr Jeffery’s view of Afrikaans. The government should not create double legislation and should not create new divisions.

Ms Maseko-Jele stated that the language issue was about language in general and did not specifically refer to Afrikaans.

Mr Swart said that the concern arose because the Afrikaans language was being singled out in both today’s and the previous meeting.

Mr Swart questioned if ethnicity covered language. If it does, he questioned the necessity of such an inclusion because the Committee would have to justify all those inclusions other than those already explicitly stated in the Constitution and PEPUDA.

Mr Du Preez noted that the Department had in its subsequent written explanatory submission to the Committee that language was included in PEPUDA.

Mr Jeffery said that the government wanted to build a country that appreciated diversity. The Bill would make a small contribution to that vision by penalising those that committed such crimes in those areas which were not being respected. He was really surprised at the backlash from some Members on the Afrikaans issue. He used it as an example. He had previously used the example of where a person could not speak Zulu. He did not mean that Afrikaans was a problem but rather there was potential for conflict at universities over the people who used the language. He did not attack the language because Afrikaans was one of the eleven languages that shared an equal status to all the others. The majority of Afrikaans speakers are not white people. It is because of the conflict of language at former Afrikaans universities that that conflict might end up in violence and one would want to protect them. The inclusion of language would extend to the protection of those students who exercise their language rights including Afrikaans speakers.

Mr Jeffery disagreed with Mr Horn's comment about not legislating for potential crimes. Legislators pass Bills to prevent crimes from taking place. He gave the example of the Cybercrimes Bill which the DA initially did not support – some of those crimes were existing crimes and some were not. We are trying to prevent crimes from taking place by saying it may be a hate crimes so it may be a more serious crime. He was offended at some Members’ suggesting that he was discriminating against the Afrikaans language which he was not.

Mr Swart apologised and said that he had reviewed PEPUDA and found that language had indeed been included.

The Chairperson summed up that the legal team should prepare two options with Option 1 to include language and Option 2 to exclude language.

Occupation or Trade
Mr Horn did not think this would be a sufficient criterion that anyone had been attacked because of their occupation or trade. This is a broad criterion. He noted the sex work evidence provided by the Department. The Committee was aware of the probable decriminalisation of sex work and he meant by no way to say that the country should not decriminalise. However, he was doubtful if a crime could be committed against someone who themselves was committing a crime as sex work is still illegal in South Africa.

Mr Jeffery said that hawkers, Uber and truck drivers, etc. would be attacked because of their occupation. The country is abundant with those examples.

Ms Maseko-Jele supported Mr Jeffery’s view.

Mr Swart questioned if those people were attacked because of their occupation and believed that the Committee still needed to debate. He pointed out that this category did not fall under PEPUDA or the Constitution.

Mr Du Preez pointed to InterCape drivers being attacked merely because they were driving those buses and thus became competition for the local transport industry. Therefore, he affirmed the view that people could be attacked because of their occupation.

Mr Swart said that any additions to the list other than those criteria already included in PEPUDA or the Constitution required thorough justification.

Mr Horn did not think those attacks were targeted because of the person's trade but more driven by business interests. He found they were unable to justify the criteria for hate attacks.

Ms Maseko-Jele said that PEPUDA did not include the criteria that Members were discussing now but since these were newly-discovered issues, she supported the inclusion of trade and occupation.

Mr Jeffery said that those Uber drivers and truck drivers were being attacked not because of who they were but because of the occupation which they belonged to. He added that Members should be well aware of how many people had died, been assaulted or had their houses burnt because of different political affiliation.

The Committee decided to flag this and have Option 1 include the characteristic and Option 2 to exclude it.

Political Affiliation
Mr Horn said that everyone was aware of the political killings in KZN so he understood the initial rationale for its inclusion. He had some sympathy for the inclusion of this criterion. He was however concerned that this could be used to stifle political debate because it would otherwise lead to criminal prosecution.

Mr Jeffery said that 'political affiliation' and 'occupation and trade' were not included under grounds for hate speech but only listed as a characteristic of a hate crime. The countrywide political intolerance he believed was not a ground to curtail free speech.

Ms Maseko-Jele said that if crimes committed due to political affiliation had happened before, then it had the potential to happen again. She supported having political affiliation listed as a characteristic of a hate crime.

Mr Horn highlighted the conflation between hate speech and hate crime in the Bill because hate speech could also be an underlying crime. His concern emanated from the point that this criterion would be deliberately used by politicians to curtail fair political criticism and debates.

Mr Jeffery referred to the definition of hate crime in the Bill and responded to Mr Horn that hate speech can never be an underlying crime.

The Committee decided to flag this and have Option 1 include the characteristic and Option 2 to exclude it.

The Chairperson proposed dealing with the remaining characteristics in the 30 November meeting. The Committee was aware it was the last meeting of 2022. It begins at 9am and finishes at 1pm.

Mr Swart proposed that the Committee adopt its outstanding minutes before receiving the legal opinion on the Bill.

The meeting was adjourned.