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

This premium content has been made freely available

Justice and Correctional Services

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

Meeting Summary

Video

On a virtual platform and with the Deputy Minister present, the Portfolio Committee continued its deliberation on “characteristics” of hate crimes in the working draft of the Prevention and Combating of Hate Crimes and Hate Speech Bill. Members sought clarity to distinguish gender identity, gender expression, sexual orientation. Members differed if birth should be included in the “characteristics” of hate crimes as there was not systemic discrimination or attacks against people based on birth. The Committee agreed to remove birth from the list of characteristics. On the inclusion of culture, some Members were of the view that culture was too broad a term. They also enquired about the difference between culture and ethnic or social origin.

Moving onto the “grounds” that would constitute hate speech, Members asked about the difference between grounds and characteristics. Some Committee members were of the view that the list of grounds should be made narrower otherwise it would hinder people’s freedom of expression. Those Members also stated that there was a need to distinguish between hate speech and offensive speech.

Under grounds for hate speech, Members disagreed on the inclusion of skin colour and the decision to exclude political affiliation. Members discussed the meaning of harm and harmful speech, the determination of bona fide partial exemptions; the effect of the Qwelane judgement that found hate speech need not include incitement but simply be harmful and promote hatred. Members asked if the intention was to abolish crimen injuria with the introduction of the Bill – which it was not. In clause 6, the penalties were discussed and again there were divergent views.

Meeting report

Opening remarks
The Chairperson acknowledged the presence of Deputy Minister John Jeffery.

On the Cannabis for Personal Use Bill, the Chairperson announced that the Committee had been informed that it would have to consult with the Department of Agriculture and that Portfolio Committee because hemp commercialisation was beyond the scope of this Committee’s mandate. Due to that, the Committee would not be able to move directly to the A list. He suggested asking for permission from the House to advertise for public comments on 6 December after the section 89 process. The Committee could use the time in December and January to receive comments.

Deputy Minister Jeffery informed the Committee that Cabinet had approved two Bills today. One is the Constitution 18th Amendment Bill making sign language an official language in the country. The other Bill will repeal the Transkei penal code as it is viewed as unconstitutional in the new democracy.

The Chairperson outlined the matters that the Committee needed to prioritise next year. The first was the oversight visit to Judge President of the Gauteng Division of the High Court, Dunstan Mlambo. The Committee should also aim to make preparations for oversight visits to all outstanding provinces. These would need to be prioritised once every quarter in future.

Prevention and Combating of Hate Crimes and Hate Speech Bill
The Committee continued its deliberations on the definition of “characteristics” of hate crimes.

Clause 1 Definitions

"characteristics"

 
sexual orientation, gender identity or expression or sex characteristics

Mr S Swart (ACDP) sought clarity on the differences of gender identity or gender expression and sex characteristics. He noted they were also under grounds in clause 4. What was gender expression?

Mr Jeffery replied that sexual orientation is who you are sexually attracted to such as lesbians, gays or bisexual. Gender identity or expression refers to transgender people who had been born one sex while they identify with the other gender. Sex characteristics is an internationally recognised term given to intersex people who are born with sex characteristics of both sexes. Gender identity was with gender under (h) before but the correct term is gender identity or gender expression. Intersex was under sex in (o) before but the internationally correct reference is sex characteristics.

Ms Y Yako (EFF) corrected Mr Jeffery’s response and pointed out that that gender identity and expression were not being used exclusively to refer to transgender people. For instance, a heterosexual man dressed in a way that was not of gender norms would also fall under gender identity and expression category.

Ms W Newhoudt-Druchen (ANC) enquired about the use of “or” instead of “and” under (p).

Mr Jeffery affirmed that Ms Yako’s explanation is better because gender identity would include people who identified as gender-neutral. Gender expression included aspects such as the clothes one would wear. The reason that “or” was used was because people tended not to possess all these traits together.

Mr Swart disagreed with the term “gender expression” but said this can be discussed at a later stage.

Ms Yako said that a comma could be inserted instead of using the word “or”.

Mr Jeffery explained that those terms Members had enquired about were international terms. He assured the Committee that the Department would do more research and follow international terminology and practice.

Ms Alison Botha, Department State Law Adviser, replied that in the glossary issued by the Council of Europe, the terminology was “sexual orientation, gender identity or expression and sex characteristics”.

birth
Mr Horn raised his concern about the justification for 'birth' in the list of characteristics. The Department had included in its research document as its justification was two court cases related people who left a will excluding adopted children and children born out of wedlock. He did not believe the cases were sufficient to indicate systemic discrimination to justify the inclusion of 'birth' in the characteristics’ list

Ms Botha pointed out that the cases on birth indicate that there are instances of discrimination based on the birth of a person were well-documented. The cases on birth indicate that One of the victim selection categories is vulnerability. There is an element of vulnerability in birth. Birth was also included in s9(3) of the Constitution as well as in s16(2) of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

Mr Swart fully understood Ms Botha’s justification but disagreed that this group was being targeted for a hate crime and found it difficult to justify its inclusion. It was limited and a grey area like age and the Committee should perhaps flag this. It could be because you are born as part of a ethnic group. He suggested including birth in Option 2 like the Committee did with age.

Mr Jeffery said that discrimination in s9(3) of the Constitution does not necessarily result in a hate crime. Pregnant women get discriminated but are not necessarily targets for hate crimes. He did not have strong feelings about birth.

The Chairperson suggested remove birth from the list of characteristics.

Ms Newhoudt-Druchen objected and preferred keeping birth in the characteristics list because there was the case of a man killing his girlfriend because she was pregnant.

Mr Jeffery clarified that Ms Newhoudt-Druchen referred to the Tshegofatso Pule case where her boyfriend killed her because she would not get an abortion. This was not birth but pregnancy. However, he was not after pregnant women generally. Pregnant women get killed because of a specific case. Other pregnant women are not vulnerable. Hate crime characteristics are, for example, because you are black not because of the person who you are. It was not on the list because the person is not targeting pregnant women but the specific person. He did not believe that such incidents were happening on a broader spectrum.

Ms Newhoudt-Druchen accepted this.

The Committee agreed to remove birth from the list of characteristics.

culture
Mr Horn pointed out that there is no single understanding or definition of culture and that it cannot be treated as a homogenous concept.

Mr Swart did understand the difference between culture and ethnic or social origin. He wanted to know to what degree is culture covered by ethnic or social origin.

Mr Jeffery referred to the dictionary definition on culture which was the ideas, customs, social behaviour of a particular people or society. He believed it was understood what culture meant. In reply to Mr Swart, he recognised the intersectionality of the two concepts between people of a different culture, religion and so on. For instance, a black family may want to slaughter an animal whereas other ethnic groups may disagree with such behaviour which caused cultural conflicts.

Mr Swart said it was another grey area.

"grounds"
Mr Jeffery gave context on the definition of grounds. Hate speech is a person communicating or saying or doing something which could be construed to demonstrate a clear intention to be harmful or to incite harm and promote or propagate hatred based on the grounds which were listed. There is a partial exemption in s16 of the Constitution which are bona fide artistic, academic or scientific enquiry, reporting in the public interest, interpretation and proselytising or espousing a religious tenet. Obviously there is a higher bar for those activities and it is that those activities cannot be undertaken with the objective to advocate or propagate hatred based on the grounds in s16(2) of the Constitution. With 'characteristics', they did not form an impingement on people’s human rights because perpetrators did have to commit an underlying crime. However, with hate speech, it is affecting people’s right of freedom of expression which the Constitution does limit in terms of s16(2) of the Constitution to four grounds and in the Qwelane judgement, it said it is acceptable to add grounds. The Department had limited the grounds to those that were most serious in nature.

Mr Henk Du Preez, State Legal Advisor: Department of Justice and Constitutional Development (DoJ&CD), affirmed the Minister’s view. In this version of the Bill, the definition of 'grounds' was the same as the Bill as introduced with the exclusion of 'occupation and trade' and 'political affiliation'. The list of grounds provided were extreme instances where hate speech could be committed.

The Chairperson said colour had been included in the International Convention on the Elimination of All Forms of Racial Discrimination as well as the Universal Declaration of Human Rights. He asked why colour was not in the list of grounds.

Mr Du Preez replied that s9(3) of the Constitution does list colour as one of the grounds. He did not think that the Department would necessarily exclude skin colour from the list but it would be guided by the Committee.

Mr Jeffery explained that the Department’s approach is to limit the grounds of what constitutes hate speech because as hate speech is a limitation on freedom of speech so one had to be extremely cautious. The Department had to even take out political affiliation from the list even though people get killed due to their political belief. The reason political affiliation was taken out was because the Department had no intention of monitoring or restricting political debates which could get quite robust as Members were aware of. The Department would have no objection to the inclusion of skin colour.

Ms Yako asked who or which authority decided what incitement was in the case of hate speech.

Mr Jeffery responded that the requirements were "incitement to cause harm". The objective test would be for the courts to determine if something which someone had said would incite harm. The partial exemption was also determined by the court. Ms Yako’s question was answered by clause 4 which referenced the Director of Public Prosecutions.

Ms Maseko-Jele asked for confirmation if skin colour was still included in the list.

The Chairperson said to her that he had already enquired about colour. He had recommended that it be included.

Mr Horn was of the view that the definition of hate speech was given in the context of PEPUDA by the Constitutional Court which itself did not criminalise hate speech. The Qwelane judgement stated that criminalisation should be the last resort. He asked if PEPUDA and other measures have been wholly unsuccessful in curbing such unlawful speech. He asked to pay specific attention to all the grounds that go beyond the unprotected speech set out in the Constitution.

Mr Swart said that the Committee is now discussing hate speech which is far more controversial. Qwelane stated that criminalisation of hate speech needed a much higher threshold. Offensive speech is protected by freedom of speech so there is a need to distinguish between hate speech and offensive speech. Although he excludes the K word as there is a particular hurtful connotation attached to that, name calling is offensive rather than being extreme detestation and vilification that incites harm.

Mr Jeffery replied that Mr Swart was referring to clause 4 which the Committee will still get to. The Department had already taken out the word hurt which was contained in PEPUDA. The court had stated in the Qwelane case that it was too vague a concept. At the moment, hate speech was a crimen injuria as a common law crime which the Department wished to see become a statutory crime. He used the example of rape. Before passing the Sexual Offences Act, rape was a crimen injuria crime which had only been recognised in the form of penetration and victims could only be women. That Act changed the definition of that. The recent incident of the pitbull terrier affirms the need for this Bill. The Department had left out age, culture, birth – those gray areas – because of its concern that the inclusion of too many grounds would restrict freedom of speech.

Mr Horn sought confirmation from Mr Jeffery if it was the intention to abolish crimen injuria or to retain it given the Deputy Minister’s conflicting messages on that. He asked if crimen injuria would still be the underlying crime if the proposed hate crime failed to prosecute a crime perpetrator.

Mr Jeffery denied that it was the Department’s intention to repeal the common law. If it had been the intention, then it would have to be explicitly stated in the legislation. He acknowledged the usefulness of crimen injuria because of the broader scope of crimes it covered. Crimen injuria referred to impairing the dignity or privacy of a person whereas hate crime is more specific. He would be concerned if the common law were to be repealed because it would cause some unforeseeable circumstances. He took the point that crimen injuria could be an underlying crime. The removal of hate speech from hate crime was as a result of public submissions. We might have to look at removing crimen injuria as an underlying crime

Mr Swart reiterated his view that the proposed Bill was unnecessary but a policy decision had been made on criminalising hate speech. In the pitbull racist remark incident, the perpetrator had been successfully charged with crimen injuria which demonstrated the effectiveness of this common law element.

Mr Swart noted the partial exemption in the definition of "grounds" for hate speech and asked if that exemption would be applicable in crimen injuria.

Mr Jeffery explained that the Bill is not doing anything to crimen injuria so the partial exemption does not apply to crimen injuria. In proselytising or preaching a person may say something that is harmful or incites hatred against gay or lesbian people. The partial exemption allows a person to do that. However, the person saying this could be subject to crimen injuria. The definition of crimen injuria is impairing the dignity of a person. It is singular. It is not clear if it applies to a group as it has not been tested in court. He hoped that the NPA would use this Bill to charge offenders as it applies to both an individual and a group. There is international jurisprudence that with the freedom of religion aspect limiting restrictions on religious proselytising that it may be unconstitutional to simply use the harm or inciting harm and promoting or propagating hatred for proselytising.

Mr Swart found Mr Jeffery’s response helpful but he said that there was a lack of protection afforded to religious preachers when they speak out of homosexuality or abortion or such issues. The hate speech clause does not have a freedom of religion partial exemption as it does here. He suggested it should be buttressed in clause 4

Mr Horn asked to what extent were justifications provided in the research document on hate speech. They need to be careful in extending the grounds beyond what the Constitution prescribed and those identified in the Qwelane case. Although he appreciated the shortened list, he cautioned the Committee to still be mindful of the constitutionality of each of ground included in the list. For instance, what types of speech would be considered as hate speech on the basis of albinism.

Mr Du Preez appreciated that the definition of grounds was very important but one must be careful. Section 16(2) of the Constitution provides four grounds – included in the definition of grounds in this Bill – where those are unprotected speech. However, additions could be made as long as they are justified in terms of s36 of the Constitution. Apart from grounds, there are specific components associated with clause 4 – the very important definition of harm is to be read into clause 4. The definition of harm in the Bill as introduced was very wide. This had now been substantially restricted. It must be a stricter test to be found guilty of hate speech. It must be objectively shown (not based on subjective feelings) plus the addition of the conjunctive "and" and removal of the disjunctive "or" to qualify as hate speech.

Ms Botha highlighted that the research document provide covered justifications and explanations for both the additional characteristics and grounds. It explained why those specifics were chosen as well as the victim selection categories and methods to show vulnerability, sensitivity and discrimination. She referred to paragraph 3.5 for the rationale. Qwelane allows the addition of analogous grounds if it is limited and the target groups are not overly broad and that is what the Department has aimed to do by shortening the list of grounds.

Ms Newhoudt-Druchen asked why political affiliation was excluded from grounds.

Ms Botha replied that clause 4(1)(a) with the definition of grounds means it is automatically excluded.

Clause 4: Offence of hate speech
Mr Horn asked for an explanation of the concept of harmful speech which was unclear in the Qwelane judgement. The court had stated that a distinction needed to be made between offensive or hurtful versus harmful speech. But the court has not given a clear answer on what types of speech are deemed harmful. Thus he asked the Department to respond on how it would determine the impact of harmful. There is a definition of harm but not harmful.

Mr Swart commented that there were a lot of vague terms and depending on the option chosen the concept of harm will become clearer. The Committee had a debate that the terms social, cultural and economic are very broad. The court has said harm is broader than physical harm and he did acknowledge that. The concept of hatred will also have to be looked at as well.

Mr Jeffery replied that Members could refer to the dictionary definitions for those meanings. Since hate crime and hate speech are international terms and are continually evolving and developing in the courts across the world, they will be following the international standard. The Qwelane judgement dismissed the word hurt because it was too vague but harm was included in the judgement.

Mr Horn found Mr Jeffery’s dictionary explanation unsatisfactory. it was important to have clear provisions in the Bill. If one goes with the dictionary definition, then harmful and to incite harm would be the same meaning. Such duplication could lead to a prosecutorial challenge. He suggested they consider this a bit further.

Mr Jeffery explained to Mr Horn that incitement is not a requirement for hate speech. What the Qwelane case has confirmed was that a type of speech which is harmful can be a sufficient ground for hate speech on its own as Qwelane opinion piece had no intention of inciting harm. On the recent pitbull case, he was unsure if the perpetrator had any intention of inciting harm but the fact remained that it was deeply harmful to people as the perpetrator had made remarks about cutting out black women’s wombs. The Constitution does not limit harm to physical harm. Hence, the use of the K word, although it might not be inciting harm, it is harmful.

On Clause 4(1)(a) the Chairperson suggested an Option 1 as is and an Option 2 to take into account the concerns of Mr Swart and Mr Horn.

Ms Kalay Pillay, DoJ&CD: Deputy Director-General: Legislative Development and Law Reform, said that some critical elements of hate speech would be left out if harm was taken out of the Bill.

Ms Botha said that paragraph 154 of the Qwelane judgement discussed extensively what 'harmful' entailed. She repeated Mr Jeffery’s point that the court had found 'hurtful' was vague and unconstitutional but harmful was not the same and more serious. The court had quoted a Supreme Court of Canada case.

Ms Maseko-Jele supported Option 1 to retain the word 'harm' in the Bill.

Mr Swart reminded Members that Qwelane was a civil case judgement whereas the Committee was deliberating a Bill with criminal sanctions. Section 16(2) of the Constitution guaranteed acceptable exclusions of freedom of expression. Now the definition of hate speech would be based on those grounds that were excluded and be harmful and incite harm. He emphasised the use of “and”. He asked if there is a limit from a constitutional perspective to the usage of “be harmful” as contained in the Qwelane case.

The Chairperson confirmed with Mr Swart and Mr Horn that Option 2 covered both their concerns.

Mr Horn agreed with Mr Swart. It is dealing with a civil case. Is it justifiable to duplicate PEPUDA when we criminalise hate speech? He was of the view for the Committee to pass a Bill that criminalised hate speech, the Committee cannot entirely use the Qwelane judgement as it stated that it is a measure of last resort; other measures having failed. He was thankful that Option 2 at least stay on the table.

Mr Jeffery argued that s16(2) of the Constitution outlines what is not protected under freedom of expression at all. He quoted: "propaganda for war…..advocacy of hatred based on ….incitement to cause harm" – so that is not free speech. What Qwelane said was under the limitation clause you can go wider than that definition. That is what they did: 1) they extended to homophobia which is not one of the grounds in s16(2)(c) and then 2) they said harmful or incite harm and promote or propagate hatred. It is through the limitation clause that we are arguing this Bill and these limitations. Should we criminalise the use of the K word? Yes, we should be. It is hurtful; it is harmful. Is it covered under 16(2)(c). No, because you are not inciting people to commit harm. Thus Qwelane is important because it stated that the word incitement is not a requirement. In the definition, if you have the alternatives: "it is harmful and promotes or propagates hatred – that is sufficient and it does not need incitement. Saying the K word in the Penny Sparrow case did not contain an element of incitement, but causing harm and propagating hatred would qualify it as hate speech. He thinks society agrees that people who do that deserve criminal sanction.

The Chairperson believed that Members had exhausted the issue and asked to proceed.

Mr Swart advocated for more protection for the religious group. He recalled the suggestion he had made in submissions where he suggested that under (d), there needed to be an insertion of “a religious organisation or an individual in private or in public”.

Ms Maseko-Jele raised concern about people using artistic information or creative spaces to hurt people with impunity. She recalled an artist which had painted a picture to depict black people in a very ugly way. She asked how the Bill would determine if the artwork was bona fide artwork or had the intention to hurt people.

Mr Du Preez replied that it was up to the courts to decide if it was bona fide or not.

Mr Jeffery addressed the partial exemption and described it as a balancing act. Members needed to bear in mind the difference between offensive speech and activities from hate speech and crimes. People get offended by artistic activities such as the art piece which involved the former President Zuma. In his view, that incident would not be recognised as hate speech because the artwork targeted only one person which was the former President, it did not target any group. A similar incident which had been taken to the Equality Court was an artistic piece which contained the phrase “F*ck White People” on a T-shirt. The Equality Court found that although the speech was offensive to some people, it was in the context of art. In that context, it was not considered hate speech. It was not the purpose of this Bill to sanitise the arts and creative spaces.

Mr Jeffery replied to Mr Swart that Option 2 referred specifically to crimes by a natural person not a juristic person. He confirmed that no religious organisation would be prosecuted by this Bill.

Ms Pillay added that artistic and creative activities indeed caused a lot of controversial incidents around the globe and were subject to a lot of debate. Often when a controversial event took place, a protest would follow. She cited two international examples which gained global prominence. One was the Danish cartoon perceived as inappropriate to people of a certain religion which led to worldwide condemnation by Muslims. The other was the book Satanic Verses. Often in those incidents, there is a huge division between the Western world on the protection of freedom of speech versus the insult to their religion as perceived by the Muslim world.

Ms Maseko-Jele supported all the listed grounds. Skin colour should be included and retained in the list on its own.

Mr Du Preez replied to her that those paragraphs were formatted disjunctively and assured the Committee that skin colour could stand on its own. The format is conventional practice in the drafting of a Bill.

Mr Horn said that he needed to see the shortened list of grounds and their substantiations to justify the inclusion of every single ground. He was not entirely convinced that the inclusion of skin colour could be justified. He agreed that albinism could be included in the Bill.

Mr Swart asked why social origin, gender identity, expression and sex characteristics were put under grounds for hate speech. He cautioned the Committee to bear in mind that similar legislation aimed at addressing hate speech were becoming problematic in the United States and Europe.

Mr Jeffery explained that ethnic or social origin had been taken from s9 of the Constitution. PEPUDA had only the word 'ethnicity'. He asked Members if the Bill should protect people from hate speech on the basis of social origin.

Mr Jeffery acknowledged that there was obviously a difference between sex and gender. For instance, gender-based violence was attacks which were carried out specifically targeting women.

Mr Jeffery reiterated that sex characteristics referred specifically to intersex people who had both sex organs. Gender identity would be for people of one sex who identify with the other gender. Gender expression referred to people who do not conform to gender norms.

Ms Maseko-Jele was of the view that social origin must be retained in the Bill. There are instances in society that a person is discriminated against or even attacked because they are perceived as not belonging to the suburbs but rather to certain townships.

Clause 3: Offence of hate crime
Mr Du Preez asked if crimen injuria should be excluded from hate crime.

Mr Jeffery confirmed that it was a valid point and that the Department needed to review it. This by no means suggested it would make a decision on the issue now or in this Bill.

Clause 6: Penalties or orders
Ms Maseko-Jele expressed her serious concern that the Bill must ensure the imposition of harsher sentences as courts would often go for lenient options for offenders. She preferred the provisions to be tightened in the penalty clause.

The Chairperson pointed out that determining the length of sentencing should be within the discretion of the court. It was not the intention of the Bill to prescribe minimum sentences. The Committee cannot tamper with the prerogative of the court as provided s279 of the Criminal Procedure Act (CPA).

Mr Swart drew attention to s6(3) and expressed his concern at the eight-year sentencing. He asked Members to seriously consider the submissions it had received that recommended restorative justice. He suggested putting alternative or restorative sentencing in the legislation but doubted if the Department would agree with that.

Mr Jeffery confirmed that there were inclusions of certain hate crimes into the minimum sentencing system in the CPA Schedules. The justice system provided minimum sentencing for serious crimes such as a life sentence. He acknowledged the courts’ discretion in determining the period of sentencing. He also noted that there may be inconsistencies with the judgements of courts on a certain matter. However, there is no sentencing for hate speech in the Schedule.

Mr Jeffery noted Mr Swart’s point on alternative or restorative sentencing. He was aware of the debates on this. Obviously it was not the favoured legal method the Department would hope the courts to take. Further, there is no minimum sentencing for hate speech and the Bill aims to prescribe maximum sentencing. However, nothing would preclude alternative sentencing as it was within the discretion of the courts.

Ms Maseko-Jele said that she preferred the retention of eight years. This had been continually discussed with the researchers before. She hoped that the courts would start to recognise the seriousness of the harmful effects of such incidents. Specifically, she was of the view that unrepentant perpetrators needed harsher sentences.

Mr Swart disagreed with eight years and said that he could not recall the discussion which Ms Maseko-Jele referred to. He described the eight-year sentence as excessive. He also suggested including that the approval of Parliament was required for the Bill's regulations.

Deliberations on the Bill ended for the day.

Committee business
Committee minutes for 18 and 23 November 2022 were adopted.

The Chairperson said that the Committee needed to conduct an assessment of its performance from 2019 evaluating what the Committee had and had not achieved as well as what could be achieved with a bit of extra work. He Chairperson thanked Members for their participation during the year.

Mr Swart, Ms Newhoudt-Druchen, Ms Maseko-Jele and Mr Horn all thanked the Chairperson for his professionalism in chairing the meetings and the Department for its hard work. They also expressed appreciation to the Committee support staff.

The meeting was adjourned.

Audio

No related

Documents

No related documents

Download as PDF

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

See detailed instructions for your browser here.

Share this page: