Why the Hate Speech Bill should be withdrawn
The Helen Suzman Foundation (HSF) recommends that the Hate Speech Bill should be withdrawn in its entirety. In this brief, Richard Griffin, summarises the HSF’s submission to the Department of Justice and Constitutional Development regarding the Bill.
The argument for freedom of speech is something we have all encountered. Whether from the days of heavy handed censorship under the apartheid government, or the Voltairian mantra of “I disapprove of what you say, but I will defend to the death your right to say it” found in textbooks, or even in the social media flood of “Je suis Charlie” posts that followed after the Charlie Hebdo massacre in 2015. But while many South Africans are aware of their constitutional right to freedom of expression, few know the extent of that freedom and the laws that limit it.
Protected Expression in South Africa
Freedom of expression is protected under S16(1) of the Constitution. This includes ‘(a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.’ However, S16(2) outlines that protection of expression in S16(1) does not extend to: ‘(a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.  This means that expressions that may be offensive, shocking or even disturbing are still constitutionally protected under S16(1), as long as they are not any of those listed under S16(2).
However, as noted by the Constitutional Court ‘a law of general application may limit freedom of expression.’  This means that government can pass laws which further limit the freedom of expression as long as ‘the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors’. These factors include: ‘(a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.’  These factors must be uttermost in our minds while analysing the draft Prevention and Combating of Hate Crimes and Bill (‘the Bill’), which closed its doors to public comment at the end of January 2017.
Prevention and Combating of Hate Crimes and Hate Speech Bill
The Bill purports to provide for the criminal prosecution of persons who commit the offences of hate crimes and hate speech. It also attempts to provide guidelines to the State for the prevention of such offences. While recognising the need for State intervention in curbing the spread of racism, bigotry and other forms of prejudice, the HSF is concerned over the manner in which the Bill does this in defining ‘hate speech’ as a criminal offence.
The Bill in essence defines hate speech as: an intentional communication (including speech) that advocates hatred or is threatening, abusive or insulting towards any other person or group of persons; and demonstrates a clear intention to incite others to harm or stir up violence against, or bring into contempt or ridicule, any person or group of persons defined by 17 different characteristics, ranging from race and gender to social origin, trade and occupation.
The Bill’s vague and broad wording in attempting to define hate speech, holds considerable dangers for freedom of expression. The phrasing and structure of the Bill allows for potential abuse in curbing speech that is unpopular, critical or politically unwanted. In going as far as criminalising actions that are ‘insulting’, and others that ‘bring into contempt or ridicule’, the Bill fails to differentiate between behaviour which is harmful and behaviour which is offensive, and ends up criminalising both.
Harmful behaviour causes actual or potential damage (which the criminal law should prohibit), whereas offensive behaviour is the act of causing resentment, something which outrages the moral or physical senses . In terms of the Bill, if you were to ridicule someone for clearly laughable behaviour, you and many others such as satirists, comedians, and journalists could potentially face criminal charges, with either a fine and/or a jail sentence up to three years on first conviction. By criminalising aspects of speech that are constitutionally protected under S16(1), the Bill goes beyond the limitations created by the Constitution, by current legislation and by the common law.
Do we need the Bill?
Considering South Africa’s history and the recent instances of racism and bigotry covered in the media there can be no doubt that racism, bigotry and other forms of prejudice in our society need to be addressed. The question is: do we need this Bill to do so?
The fact is that the purposes for which the Bill has ostensibly been drafted are effectively achieved by the existing limitations on freedom of expression found in S16(2) of the Constitution, as well as other existing legislation and the common law.
Over and above the limitations imposed by S16(2) of the Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) ensures the ‘prevention, prohibition and elimination of unfair discrimination, hate speech and harassment’  . S10 of PEPUDA in essence states that no person may communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be understood to demonstrate a clear intention to be hurtful, be harmful or to incite harm, or promote or propagate hatred. It is clear that PEPUDA sufficiently prohibits hate speech in that nobody may ‘disseminate or broadcast any information’ or ‘publish or display any advertisement or notice’ that may be reasonably understood as a clear intention to unfairly discriminate . Note that the broadness and vagueness of ‘hurtful’ in S10 may be subject to constitutional review, but this has yet to be challenged in court.
PEPUDA also specifically established the Equality Courts to deal with hate speech and discrimination. These courts are granted a number of powers and functions. Orders may make include payments of damages to individuals or appropriate organisations. The Equality Court may refer any case dealing with hate speech to the Director of Public Prosecutions for institution of criminal proceedings for crimen injuria under the common law (this is the ‘unlawful, intentional and serious violation of the dignity or privacy of another’  ).
Crimen injuria has been used to prosecute such instances, for example, the cases of Penny Sparrow, Vicki Momberg  , Johannes David Kriel  and Andries Jacbous Vermaak .
If there is any criticism that can be made of the existing remedies, it is a criticism which can be levelled at the State, specifically the NPA. It has not proceeded uniformly in proceeding against individuals who incite hatred and violence.
The Bill is therefore redundant in the face of the existing legal mechanisms provided by both PEPUDA and crimen injuria.
Another purpose of the Bill is to facilitate the preventative measures which impose a duty on the State to ‘promote awareness of the prohibition against hate crimes and hate speech, aimed at the prevention and combating of these offences’. If these preventative and educational aspects were included in PEPUDA and utilised by the Equality Courts, rehabilitative forms of justice could be implemented to eradicate racism, rather than suppress it through retributive measures found in the Bill.
It is claimed that the Bill is required for conformity with international law. In fact, it goes well beyond these requirements. The United Nations Human Rights Office of the High Commissioner recommended there should be a distinction between three types of expression that may be considered hate speech. These are: ‘expression that constitutes a criminal offence; expression that is not criminally punishable but may justify a civil suit or administrative sanctions; expression that does not give rise to criminal, civil or administrative sanctions but still raise concern in terms of tolerance, civility and respect for the rights of others’ . The Bill at it currently stands does not recognise any such distinction, but rather criminalises all forms of hate speech and attracts a penal sanction.
The driving force behind this proposed piece of legislation seems to be the feeling on the part of government that something should be seen to be done on the subject. But this action by government has been taken without recognising the fact that the law already has the necessary framework to deal with these offences. Yet another piece of legislation on the same topic is not going to address the underlying reasons why racism, bigotry and prejudice continue to exist in South Africa. Remnants of South Africa’s deeply painful past will not be fundamentally remedied through criminal sanction: one cannot simply legislate away our society’s problems in the hopes of addressing the causes.
In addition, the Bill’s provisions go so wide as to criminalise communication and actions which are generally recognised as being part and parcel of a free society. In doing so, it lays the foundation for the stifling of unwanted criticism by the State or the limiting of the freedom of expression by groups or individuals who are unable to cope with criticism or views that may be different from their own.
For those reasons, the HSF believes that the Bill should be withdrawn in its entirety.
Helen Suzman Foundation
 The Constitution of the Republic of South Africa, 1996. Section 16
 S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC) at para 41
 The Constitution of the Republic of South Africa, 1996. Section 36
 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 Chapter 2
 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 s 12
 CR Snyman Criminal Law 5th ed 469.
 Kubhkea, T. VICKI MOMBERG TO APPEAR IN COURT FOR CRIMEN INJURIA. 2016.
Masuku, S. You cannot make these comments and say sorry afterwards. 2017.
Tlhabye, G. Magistrate in race attack case objects to proceedings. 2016.
OHCHR Rabat Plan of action on the Prohibition of Advocacy of National, Racial or Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence ( 5 October 2012)