Justice and Correctional Services Committee chairperson update on Hate Crimes and Hate Speech Bill
6 May 2021
The Chairperson of the Portfolio Committee on Justice and Correctional Services, Mr Bulelani Magwanishe, has noted media and public interest on the Prevention and Combating of Hate Crimes and Hate Speech Bill, and deems it appropriate to update South Africans on the matter.
Mr Magwanishe said the committee has, since it was established at the start of the 6th Parliament in `June 2019, worked around the clock to meet its mandate that includes oversight over the executive, drafting of legislation and facilitation of public participation.
The previous Parliament’s Portfolio Committee on Justice and Correctional Services had called for public comment or input on the Bill up until 31 January 2019. The committee had intended to hold public hearings after the closing date, but due to its heavy workload and the looming National Elections at the time, this could unfortunately not happen and the Bill lapsed at the end of the 5th Parliament.
Furthermore, the committee has been awaiting the Constitutional Court decision in a matter that has direct bearings on this legislation, on 22 September 2020, the Constitutional Court heard arguments in the case of Jonathan Dubula Qwelane v South African Human Rights Commission & Another, regarding hate speech complaints in South Africa. Following the publication of a newspaper article by Mr Jonathan Dubula Qwelane, titled “Call me names – but gay is NOT okay…” – which contained blatantly offensive, discriminatory and critical remarks about homosexuals – the South African Human Rights Commission (“SAHRC”) received 350 complaints about the article from members of the public.
Consequently, the SAHRC instituted proceedings in the Equality Court alleging that the article constituted hate speech as it contravened Section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“PEPUDA”). The court reserved judgement in the matter.
The Constitutional Court further has to decide whether statements made in 2009 by Bongani Masuku of union federation Cosatu — in the aftermath of the brutal conflict in Gaza, known as the Gaza War — amounted to hate speech directed at Jews, or whether they were constitutionally protected political speech. Mr Masuku in the context of strong worldwide reaction that followed military operation launched by the armed forces of the State of Israel on Hamas during December 2008 and January 2009.
Mr Masuku made the following statements online: “As we struggle to liberate Palestine from the racists, fascists and Zionists who belong to the era of their Friend Hitler! We must not apologise, every Zionist must be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine. We must target them, expose them and do all that is needed to subject them to perpetual suffering until they withdraw from the land of others and stop their savage attacks on human dignity. Every Palestinian who suffers is a direct attack on all of us!”
At a gathering held at the University of Witwatersrand, he made the following statements as part of his speech: “‘ . . . COSATU has got members here on this campus, we can make sure that for that side it will be hell . . .”, and “. . . the following things are going to apply: any South African family, I want to repeat it so that it is clear for everyone, any South African family who sends its son or daughter to be part of the Israeli Defence Force must not blame us when something happens to them with immediate effect . . .”, and “. . . COSATU is with you, we will do everything to make sure that whether it is at Wits, whether it is at Orange Grove, anyone who does not support equality and dignity, who does not support the rights of other people must face the consequences even if we will do something that may necessarily be regarded as harm . . .”
Mr Magwanishe said: “We believe as a committee that it is prudent for us to await the Constitutional Court rulings on these matters to give us guidance as to the extend the committee can draft legislation limiting freedom of speech in regulating hate speech.”
Issued by Rajaa Azzakani, Media Officer, Parliamentary Communication Services, 6 May 2021
