The Portfolio Committee on Justice and Correctional Services today held public hearings on the Prevention and Combatting of Hate Crimes and Hate Speech Bill.
The purpose of the Bill is to give effect to South Africa’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance, in accordance with international law obligations. It also aims to provide for the offence of hate crime and of hate speech, and the prosecution of persons who commit those offences. It will also provide for appropriate sentences for persons who commit hate crime and hate speech offences. It further aims to provide for the prevention of hate crimes and hate speech and to provide for the reporting on the implementation, application and administration of this Act.
Several organisations made oral presentations via virtual public hearings. These include Freedom of Religion SA (ForSA), the South African Jewish Board of Deputies, the Hate Crimes Working Group (HCWC), the Southern African Catholic Bishops Conference (SACBC) and the Restorative Justice Centre.
Ms Daniella Ellerbeck from ForSA contented that the Bill is unnecessary in light of the South African crime of crimen injuria (the wilful injury to someone’s dignity) and civil sanctions for hate speech under the Promotion of Equality and Prevention of Unfair Discrimination Act.
Alternatively, she advises that the committee should revise the definitions harm and hate speech, revise the prohibition of hate speech, strengthen the religious exemption clause, ensure that Bill meets the Rabat Convention threshold test, as this test’s criteria is expressly set out. Failing to do so will lead to a violation of the ICCPR and that the preamble of Bill should include specific reference to sections 15 and 31 of the Constitution.
The HCWC made several recommendations regarding definitions in the Bill. Mr Sibusiso Khasa said: “We suggest the inclusion of the term ‘associates’ in the definitions section, to be defined as family members, colleagues, friends and other possible connections to a victim. It is important to define the term because it is used in the section on Victim. We are very concerned about the lack of clarity provided by the current definition of the term ‘harm’ in the Bill, and about the uncertainty it may cause in the interpretation of the law. We submit that the definition of ‘intersex’ should be removed from the definitions section of the Bill.”
The SACBC said it was concerned with utterances that can be perceived as hate speech being allowed in certain instances, yet making it a violation. When offensive comments regarding, for example, same sex marriages are made from the pulpit or in church, it would not be seen as a crime, yet when those same comments are made by individuals outside, they would be in breach of the law.
Committee Member Mr Henko Engelbrech was of the opinion that no new laws are needed, as existing common law deals adequately with such matters. He said the weak implementation of existing laws cannot be used as a reason to mitigate a new Bill. Mr Steve Swart, another committee member, wanted to hear from presenters if they felt hate speech was already covered in other legislation.
Committee Chairperson Mr Bulelani Magwanishe said the committee will continue with the hearings next term, as the parliamentary terms ends on Friday.
Rajaa Azzakani
29 March 2022
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