Prevention and Combating of Hate Crimes and Hate Speech Bill: public hearings

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Justice and Correctional Services

17 May 2022
Chairperson: Mr B Magwanishe (ANC)
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Meeting Summary

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The Portfolio Committee heard submissions from six organisations on the Prevention of Hate Crimes and Hate Speech Bill.

COSATU proposed amendments to the Bill to strengthen its provisions including an amendment to the definition of ‘harm’ as well as an adjustment of the sentences for those convicted under the Bill.

The Legal Resources Centre proposed an amendment to the Long Title as well as several definitions such as ‘harm’ and ‘intersex’. In clause 3 on the offence of a hate crime, it commended the inclusivity of the list of characteristics. However, LRC recommended that it not be regarded as an exhaustive list and thus it proposed removing the phrase “one or more” from clause 3(1).

Same Love Toti spoke about the lack of legislation available to protect minority communities, including the LGBTQI+ community, against discrimination. They highlighted that some religious organisations preached against non-heterosexual bodies which contributed to hate speech.

The Scalabrini Centre highlighted the importance of the Bill in protecting and providing justice for foreign nationals experiencing xenophobic attacks in South Africa. It believed that the Bill would assist people on the move to seek justice for violent and discriminatory behaviour as they currently faced obstacles when seeking justice. The Bill would assist in creating a mechanism for the recording of xenophobic hate crimes which are currently passed off as generic crimes.

The Centre for Justice noted that social harm was included in the Bill without being defined. This could have people criminally liable for any alleged harm faced by victims and it suggested that it be removed from the Bill entirely. It proposed deleting the two provisos found in the hate speech exemptions in clause 4 which were self defeating.

The Triangle Project brought to light the harm and violence experienced by victims of hate crimes and hate speech, and suggested restorative justice form part of the sentencing.

Committee Members questioned the necessity of legislation against hate speech as various laws already covered this; the sentencing approach and if it would be more beneficial to use only restorative sentencing (community service and sensitisation) for those found guilty of hate crimes.

Members noted the Bill mentioned only HIV and excluded other health matters and asked to what extent the Bill could list certain health matters without excluding others.

Meeting report

Each submission was allocated 20 minutes. At the end of each submission, the Chairperson thanked the presenter and said the submission would be considered during deliberations on the Bill.

COSATU submission
Mr Matthew Parks, COSATU Deputy Parliamentary Coordinator, said that COSATU welcomed the Bill and recognised its importance. It was a critical tool to combat hate crimes and hate speech, but alone it would not be enough to combat these matters.

They proposed two amendments to the Bill to strengthen it which included amending the definition of 'harm' as well as its limitations on sentences.

The definition of 'harm' failed to include cultural harm. Harm experienced by individuals could also materialise culturally and it was important for the Bill to include that as there had been instances of cultural harm suffered by citizens.

The prison sentences in the Bill were limited to five years, which would not always be appropriate as some cases of hate speech could inspire hate crimes and violence. Such cases would require stiffer sentences and the current sentence would be unjust. See submission for more detail.

Discussion
There were no questions from the Committee and the Chairperson mentioned that the Committee had asked a lot of questions since the public hearings had started. Presenters should not take offence if members had no questions as they would have been covered in earlier submissions.

Legal Resources Centre (LRC) submission
Dr Charlene Kreuser, LRC candidate attorney, presented the LRC recommendations. This included changes to the Long Title of the Bill as it currently focused on racism, racial discrimination and xenophobia. LRC recommended that the Long Title include all forms of intolerance instead of mentioning some specifically and excluding others. Alternatively, it suggested replacing "and related intolerances” with "all other forms of intolerances”.

The definition of ‘harm’ currently defines it as including “any mental, psychological, physical or economic harm”. This definition is too vague and ambiguous as it leaves too much room for subjective interpretation of what constitutes mental, psychological, physical or economic harm. ‘Intersex’ needed its definition to be updated in line with the international definition. ‘Gender identity’, ‘sexual orientation’ and ‘transgender’ were not defined in the Bill, and these definitions need to be included.

In clause 3 on the offence of a hate crime, it commended the inclusivity of the list of characteristics. However, LRC recommended that it not be regarded as an exhaustive list and thus it proposed removing the phrase “one or more” from clause 3(1).

Clause 3(k) makes provision for the following characteristics “nationality, migrant or refugee status” and it proposed adding the characteristic “asylum seeker” to ensure that the Bill recognises and protects this group of people residing in South Africa.

In clause 4 on the offence of hate speech, LRC pointed to clause 4(2)(b) stating that the provisions of clause 4(1) do not apply if "it is done in good faith during engagement of in any academic or scientific inquiry". LRC said that the inclusion of less restrictive freedom of scientific research in clause 4(2)(b) does not conform with the freedom of scientific research in section 16(1)(d) of the Constitution.

Further, section 16(2) of the Constitution restricts the application of 16(1)(d) by providing that the right 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”. The inclusion of only a “good faith” restriction requirement for the freedom of scientific research, does not include the restrictions in section 16(2) of the Constitution, and is thus an unreasonable lowering of the standards contained in the freedom of expression provision of the Constitution. LRC was concerned that the inclusion of a “good faith” requirement would create a broad standard of restriction – especially in the highly specialised realm of scientific research – and is therefore not only up for scrutiny over its constitutionality, but also vague and uncertain.

Clause 4(2)(b) should, therefore, correctly reflect the restrictions in Section 16(2) of the Constitution to ensure compliance with the constitutional standard.

In Clause 5, the victim impact statement should include not only the phrase "sworn statement or affirmation" but also "or testimony".

On penalties, despite the reference to correctional supervision, LRC stated that the focus of penalties or orders in the Bill should be on reformative and rehabilitative techniques. It recommended that the list of sanctions include (i) community service at an organisation or government department that works with the affected group and the (ii) completion of a sensitisation course on the affected group. These two sanctions should be the starting point in punishing hate crimes and hate speech.

Discussion
Mr S Swart (ACDP) said many people supported the hate crimes aspect of the Bill, but there were questions about the necessity for the hate speech aspect, given that provisions for this existed in other legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) which had already been interpreted by the courts. Would including hate speech provisions not be adding another unnecessary dimension now needing to be interpreted by the courts?

He referred to the PEPUDA approach towards penalties for hate speech rather than a criminal approach and asked if LRC would prefer a restorative justice approach? He asked how the wording for this approach should be drafted?

Dr Kreuser replied that a hate crime bill needs to deal with hate speech as inevitably hate speech does come into play and does become a crime. This would require the Bill to be read with other legislation that referred to the same crime. The wording of the Bill should be looked at to prevent inconsistency with other legislation so the Bill would add to PEPUDA and does not take away from it.

On penalties, hate speech may require a criminal approach instead of community service or a restorative justice approach. LRC had not recommended a particular wording for the community service aspect of the Bill, but they can consider drafting it. The wording would be based on a recommendation of community service being done at an organisation or government department that works with the affected group, as well as the completion of sensitisation courses.

Mr Henk Du Preez, Department State Law Advisor, referred to the LRC recommendation for Clause 3 to transform the closed list into an open list by removing the phrase "one or more". Would that be in line with the principle of legality?

Dr Kreuser explained that this was considered at length when drafting the recommendations. In Section 9 of the Constitution, the listed discrimination grounds are open-ended. The LRC recommendation is to ensure that the Bill speaks to the Constitution as well as international law in referring to open-ended grounds. This was to ensure that identifiable groups negatively affected by a ground would be protected by the legislation and this would ensure one would not need to amend the legislation each time a new type of hate crime emerged.

Same Love Toti submission
Ms Kim Lithgow, Same Love Toti Director, said there was insufficient legislation to protect members of the LGBTQI+ community against discrimination and hate crimes. Some community leaders contributed to this problem, including church leaders preaching against homosexuality. This led to followers discriminating against members of the LGBTQI+ community around them.

The implementation of the Bill would require funding to ensure more communities were reached, as organisations did not have the capacity to reach all communities in the country. The SAPS would also have to play a role in protecting victims of hate crimes and hate speech.

Discussion
Ms Y Yako (EFF) asked about the laws Same Love Toti thinks should be sponsored to combat abuse and killing of LGBTQ+ bodies. Was there a stance they wanted the South African government to take to advocate for LGBTQ+ rights?

Ms Lithgow replied that the crimes against the LGBTQ+ community were extreme, especially since this was a minority community. It was disgraceful that these crimes were continuing. While other legislation could be applied to these cases, they believed that the Hate Crimes and Hate Speech Bill would advance it further. By taking a strong stand against all forms of hatred, some form of justice could be obtained for victims of hate crimes and hate speech.

The key aspect of the Bill would be the Prevention part of it. They hoped government would step up and take ownership of creating real awareness of LGBTQ+ people and set out to educate the public that being gay, lesbian, transgender or intersex is not wrong.

The World Health Organisation (WHO) had declassified being gay as a mental illness since 1990, yet many people still deemed it an illness. They needed to be educated and the prevention part of the Bill would assist in educating people. In 2018 WHO made it that being transgender would no longer be considered a mental health disorder.
 
While all this information is available, it is frustrating that organisations do not have the funds to reach out to the entire country with this information. The Bill will be very valuable and is much needed.

ANC Women’s League LGBTI Desk submission
Ms Busisiwe Nxumalo, representing the LGBTI Desk, stated that they support the Bill because it allows for the prevention of, recourse and justice to persons affected by:
- Criminal acts motivated hate, prejudice and intolerance
- Speech that is harmful or promotes hatred against a person or a group of people
Therefore, we believe this bill is an important mechanism to prevent and reduce hate crimes and hate speech offences in the future.

They recommended various additions to the Bill's Long Title and Preamble. They provided reasoning for the amendments, including that the United Nations had passed a resolution like this one, yet South Africa had chosen to abstain from voting on it. The recommended changes to the Preamble were to include the increased killings from hate crimes perpetuated against the LGBTI community. Also recommended was an addition of the protection against violence and discrimination based on sexual orientation and gender identity. Corrective rape and murder were also noted.

Government officials dealing with victims need to be conscientised and actions must be taken against them if they turn away victims seeking redress such as at police stations.

Ms S Funda presented the definitions recommended to be added to the Bill.

Scalabrini Centre Advocacy submission
Mr James Chapman, Head of Advocacy and Legal Advisor, highlighted the prevalence of xenophobic attacks in South Africa, and the Bill will help end the culture of impunity. He listed statistics of xenophobic assaults, death and displacement in 2021. The Bill would assist foreign nationals who face obstacles in obtaining justice after being victimised by xenophobic violence. These obstacles included documentation difficulties as well as institutionalised discrimination. The effects caused trauma to the victims as well as their communities. The Centre recommended including asylum seekers when referring to “nationality, migrant or refugee status” in clause 3(k). The Bill would assist in creating a mechanism for the recording of xenophobic hate crimes which are currently passed off as generic crimes.

Ms Samantha Coetzee of the Scalabrini Centre presented on people on the move and why they needed to be protected. These included asylum seekers, migrants and refugees.

Mr Chapman said the Scalabrini Centre believed that this version of the Bill provided a solid foundation for more effective and just responses to hate crimes.

Cause for Justice submission
Mr Ryan Smit, Cause for Justice Executive Director and Legal Counsel, focused on certain aspects of its written submission.

The four exemptions in clauses 4(2)(a) to (d) provide protection from criminal prosecution for bona fide expressions that have artistic, literary, academic or scientific merit, is on a matter of public interest, is part of reporting or providing commentary, or is part of religious or conscientious engagement.

CFJ was concerned about the inclusion of specific provisos in 4(2)(a) and (d) which were self defeating as it rendered the exemption worthless. Clause 4(2)(d) reads “to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds referred to in subclause (1)(a)”. This cancels and defeats the protective exemption. Its proposal was to delete these two provisos which were not found in 4(2)(b) and (c).

The CJS said the definition of ‘harm’ includes “social harm” which was without definition. This was alarming as it carried the risk of having individuals criminally liable for alleged subjective experiences of victims. It was suggested that “social harm” be deleted or a definition of “social harm” should be added to clarify that it is to be assessed objectively.

The word “or” after the phrase “to incite harm" at the end of clause 4(1)(a)(i) should be deleted and replaced with “and”. In the Qwelane judgement, the Constitutional Court interpreted that the reading of hate speech in section 10 of Equality Act should be read conjunctively ("and") and not disjunctively ("or") as it would require the hate speech only to be harmful and not to be propagating or the promotion of hatred.

CFJ proposed that Clause 4(1)(a)(i) should refer only to a clear intention to “incite harm”, but not to “be harmful”.

The Committee should request the Department to provide motivation for expanding the protected grounds for hate crime as 23 characteristics were listed in clause 3 which is longer than the 19 characteristics for hate speech in clause 4(1). CFJ proposed that the list of protected grounds in clauses 3 and 4 be brought in line with section 16(2) or 9(3) "non discrimination clause" of the Constitution or the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). He referenced the CFJ written submission which provided a table of existing grounds not included in the Bill and the new grounds in the Bill which do not have reference to the Constitution and existing legislation. There must be justification for excluding existing grounds or introducing new grounds.

CFJ supported the new narrowed definition of "communication". It stated that it should be public and not private communication.

Discussion
Mr Swart asked about the exemptions and concerns raised in the submission. Clause 4(2) and the difference. He noted that clause 4(2)(c) exemption for 'reporting' and 'commentary' refers specifically to section 16(1) which implies the inclusion of the limitation clause of 16(2)(c) of the Constitution. He requested an expansion on the self-defeating purposes of 4(2)(a) and 4(2)(d). Given CFJ's legislative capacity, would they draft the proposed amendment for the Committee to tie up the proviso and bring it in line with the limitation clause of section 16(2) of the Constitution read with the Qwelane judgement.

Mr Smit explained that CFJ had already included specific drafted proposals in its written submission for curing what they saw as unconstitutionality in 4(2)(a) and (d).

In 4(2)(b) the first element is "in good faith" in academic and scientific inquiry. The exemption stops there and there is no reference to a proviso. The same applies to 4(2)(c). It thus seems that 4(2)(b) and (c) are higher values because there are no provisos. Those seemed to be valued higher and CFJ wanted to understand why the Department was creating that hierarchy. Artistic creativity is a bedrock of expression. The Constitution in 16(2)(c) recognised artistic expression as a value yet the Bill failed to do so in 4(2)(a).

The same applies to 4(2)(d) as section 15 of the Constitution deals with the value of this expression. It was strange to have a proviso about elements of expression that have specific grounding in the Constitution to have their exemption watered down in both 4(2)(a) and 4(2)(d). It was difficult to imagine how those provisos would not completely remove the exemption. Why would these two elements of expression which have a grounding in the Constitution be subverted while the other two elements do not?

Mr Du Preez asked Mr Smit if the Constitutional Court in the Qwelane judgment extended the list to include references to gay individuals in section 16. In this case, did the Court legislate or not? Was section 16(2) the “alpha and omega” or did you still have to comply with section 36 if you extend those lists?

Mr Smit replied that in the Qwelane case one had an exceptional element to the extent that the Constitutional Court found that the hate speech referred to did not form part of the prohibited grounds in section 16(2)(c) which only contained four grounds. the Court found analogous grounds in Equality Act. They found that it violated human dignity and that made it legitimate for the Court to find the journalist, Qwelane, guilty of hate speech in terms of the Equality Act.

The Constitutional Court did legislate for including sexual orientation as a ground for hate speech. The Constitutional Court judgement justified for including 'sexual orientation' as a further ground for hate speech in terms of the Equality Act but gave only two short paragraphs on its reasoning.

Section 16(2)(c) contains a limitation on freedom of expression – that is an internal limitation contained in that section itself. But Section 36 will always apply. To the extent that Parliament creates a law of general application that goes further than section 16(2)(c), then when it comes to a court challenge about a Bill going beyond the limitations of 16(2)(c), Parliament will have to justify that in terms of section 36 of the Constitution.
 
The Triangle Project submission with Women’s Legal Centre
Ms Thozama Njobe, Research Coordinator, presented the various experiences that community members they worked with had with hate crimes and hate speech. Perpetrators had a negative attitude towards the understanding of hate crimes and hate speech, and a restorative justice approach was suggested to help sensitise perpetrators to understand the impact of their actions.

The Triangle Project provides services to LGBTQI+ communities including court support to survivors of hate crimes. There had been 25 known public cases of LGBTQI+ hate crime murders since the lapse of this Bill in 2019. The importance of the Bill was emphasised as many victims were experiencing physical abuse as a result of hate crimes and hate speech. This Bill would be a message to perpetrators that hate crimes would not be tolerated, and the Bill was long overdue.

There were suggestions for amendments to definitions such as "harm" and for additional definitions such as “gender expression”.

On the offence of hate crime in clause 3(1) of the Bill, the Triangle Project and the WLC broadly support the creation of the new offence of hate crime. However, the clause required refining and their draft of proposed amendments were submitted. This included (r) marginalised socio-economic status.

The offence of hate speech in clause 4(1) of the Bill was supported. They strongly support the Qwelane judgement by the Constitutional Court, not only in relation to LGBTQI+ people but for all the listed characteristics and grounds already included in the Bill. Triangle Project spoke of the importance of providing for analogous grounds in the Bill. They believed this should also extend to hate speech, to ensure that the protection of the Bill reaches all marginalised persons in society.

On the exceptions to hate speech in clause 4(2) of the Bill, they appreciated the importance of the right to freedom of speech and the right to freedom of religion as protected by the South African Constitution, and the delicate balance this section attempts to strike. However, prejudice and bigotry cannot hide behind a mask of religious freedom. There was concern about "he many who spread prejudice and hate against the LGBTQI+ communities with impunity in conservative and patriarchal enclaves in South Africa, under the guise of “bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings.” This underscores the importance of providing a substantive, practical, plain language definition of “harm” in the Bill, so there will be clear understanding when religious speech crosses the line into advocating for hatred that constitutes incitement to cause harm as per clause 4(2)(d)

See submission for more detail.

Discussion
Mr X Nqola (ANC) commended the passionate submission made to the Committee.

Mr Du Preez commented that the last few slides were a reminder of how cruel the world can be. The list made references to HIV only. Should they extend it to TB or any other illness that poses a threat to members of the public? Should one go in the direction of including persons who had not been vaccinated against Covid-19? Would that present a problem in the future?

Ms Charlene May, Women’s Legal Centre Attorney, replied that the listed grounds in the Bill sought to be independent of those mentioned in other legislation, and that the list itself was not meant to be exhaustive. The submission demonstrated humanity’s ability for hatred and cruelty toward one another. They accepted that it was difficult for them as well as legislators to imagine how cruel people could be towards each other, and what discrimination grounds could be legislated on in a way that did not exclude anyone from the protection given by the Constitution.

People living with HIV were particularly vulnerable in South African society and within the communities that their organisations served. It was an important distinction, which was why they agreed with its inclusion. It was also why they were asking for possible extension of some of the grounds. Women accessing abortion services suffered discrimination in South Africa and live in fear of psychological reprisals within their community and are often afraid of talking about accessing those services.

While it was important to have listed grounds, it was also important to make it clear that those listed grounds were not a closed list as they recognised society’s ability to come up with new ways of discrimination and forms of hatred.

Mr Du Preez responded that is precisely the conundrum this Committee would be facing. In dealing with the principle of legality, they could not have an open-ended list – and this may be a premature statement as they had not received the final approval yet for the Department's response to the public submissions. The Committee would have to determine where it would draw the line as one could not have an open-ended list.

The Chairperson thanked Mr Du Preez for his input.

The Chairperson thanked the organisations for being part of the public hearings. He announced that the last six submissions would be heard the following day. No other organisation would be allowed to present after the public hearings were closed.

A date change to the committee programme was noted for the Department of Justice briefing on the Master’s Office.

Meeting adjourned.

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