The Hate Speech Bill: A better alternative

Andrew Donaldson on what the legislation really needs to be targeting


VISITING the Charlotte Maxeke Academic Hospital after the hooliganism there on Thursday, an unsympathetic Aaron Motsoaeledi, the health minister, asked of the striking staffers who forced the cancellation of surgery and the closure of the dispensary: “What type of human beings are those?”

It does appear, on one hand, to be a valid line of inquiry. But it is also the type of outburst that may be outlawed should the recently re-tabled Prevention and Combating of Hate Crimes and Hate Speech Bill be passed into law.

The bill has undergone much in the way of remedial surgery, if I may put it that way, since it was first aired for comment in 2016. But it nevertheless remains rather diseased and infirm.

There are those who suggest the bill is superfluous; the Constitution, after all, does protect us from hate speech, and our laws are such that we are able to punish the Vicky Mombergs in our midst, and we certainly do.

But no. The Mombergs are just the tips of the icebergs. 

The malaise, we were told, is deep-rooted. Besides, the Constitution only offered protection for four specific categories: race, ethnicity, religion and gender. The masses were still seeing and hearing stuff they didn’t particularly enjoy.

In order to further shield and cushion South Africans from such unpleasantries, the bill set out to offer specific protection in the added categories of age, albinism, belief, birth, colour, culture, disability, HIV status, language, migrant or refugee status, nationality, occupation, and sex, which includes intersex or sexual orientation.

This naturally bothered the free speech fundamentalists and other liberal troublemakers out there, and there was much chatter that even the pettiest of insults, such as the labelling of politicians as pathological liars or sub-editors as hopeless drunks, would be enough to warrant a prison sentence. 

As Free Market Foundation legal researcher Martin van Staden pointed out, this legislation was so broad that we’d be in trouble for merely insulting someone with the intention of bringing them into contempt.

“If you say, for instance, ‘Racists are scum and should be ostracised,’ you are committing hate speech according to the bill, as racism is a belief and belief is protected,” Van Staden said.

Now however comes the re-tinkered bill and some changes are worth noting. 

The offence of hate speech does not apply to journalists if their reports are fair, accurate and in the public interest. In other words, it would not be permissible for them to suggest the EFF leader Julius Malema is a fat racist. This is because he lost a bit of weight a while back and, touch wood, has so far managed to keep it off. 

Neither will commentators be able to describe the Gupta bogeyman and Black First Land First founder Andile Mngxitama as an intellectual pygmy. This is because pygmies have their dignity, too.

Scientists and academics would also appear to be exempt from hate speech laws as they go about their legitimate business. This has some bearing on the status of the Mahogany Ridge regulars; we’re are all philosophers of some sort here.

Artists, too, are exempt. That is provided, of course, their work doesn’t advocate hatred that constitutes incitement to cause harm. 

There’s no guarantee, however, that this will be enough to save our more provocative cultural workers from extreme violence given the present philistinism. 

Hang a picture, let’s just say, of a former president with his penis exposed and it’s all, “I don’t know much about art, but let’s kill the painter to restore uBaba’s dignity.”

Politicians are not included in the bill’s exemptions. It is clear then, to get back to Motsoaledi, that the minister had greatly impugned the dignity of the health workers by openly questioning and casting doubt on their humanity. 

Should he be jailed for this? A difficult question. But then this is perhaps another example of the problems that come with the best of intentions. As the author Vikram Seth put it, “God save us from people who mean well.”

But what about instead legislation that promotes plain speech? The Prevention and Combating of Waffle and Windbaggery Bill, anyone?  

Jargon will be outlawed. It’s only used by trained liars and the obfuscatory weasels in the human resources department anyway. Radio talk show hosts will be banned from telling their listeners: “We need to start an important conversation going forward. . .” 

Such legislation may be problematic for those learned types responsible for the SA Communist Party’s policy statements, what with all hegemonic didacticism and diverse other iterations of the gestural that foul the paper on which they’re scribbled. 

Let’s just say that when it comes to Gramsci we really should feel Foucault and leave it at that.

A version of this article first appeared in the Weekend Argus.