Prevention and Combating of Hate Crimes and Hate Speech Bill: Department response to submissions, with Deputy Minister

Meeting report

The Chairperson welcomed Deputy Minister John Jeffery who was leading the delegation from the Department. The Committee would be dealing with the Prevention and Combating of Hate Crimes and Hate Speech Bill.

The Chairperson welcomed everyone on the virtual platform.

 The Chairperson proposed that the Committee start with the Hate Crimes and Hate Speech Bill and then later the Committee would deal with the adoption of the minutes.

The Chairperson welcomed the delegation from the Department.

Remarks by Deputy Minister of Justice and Constitutional Development

Deputy Minister Jeffery said that this was a 2018 Bill. There was no time to process the Bill in the previous Parliament. It was great that the Committee finally had the time to engage with the Bill. Mr du Preez and Ms Botha would be presenting a summary of the submissions made and the Department’s response to the submissions. There was also a working draft of the Bill which Mr du Preez had also submitted. It was a working draft, so it was a work in progress. Looking at it with the responses helps and makes it easier to follow the issues. It was not a particularly long or complicated Bill. There was a proposal to put the prohibited grounds into the definitions section but that had not been finalised as yet. The Department was playing around with things within the Bill. He wanted to make some general points because he saw that there was a lot of interest, particularly on the Zoom platform. He noted that there were people present from the LGBTQI+ sector and other journalists. There were a wide range of people. This was a controversial Bill. It was controversial because of the hate speech provisions. The issue there was that it was a policy choice. Should there be restrictions on speech or should there not be? The Constitution already defines certain kinds of speech as not being part of freedom of expression. That was propaganda for war, incitement of imminent violence and advocacy of hatred that was based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. The Constitution was specific on those aspects. There was also the limitation clause, which allowed one to go further which was done with the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). This included other categories including homophobia. The Constitution Court accepted that in the Qwelane case. It was basically a policy choice. There were some people advocating complete or as much freedom of speech as possible. Very often, without being accused of scoring low points, those often tended to be the people who were responsible within that sector for some of the hate speech who possibly did not want to be penalised. There were also some religious groups who were concerned about whether the restrictions on propagating homophobia would affect their ability to preach. There were those areas. This was not Government’s attempt to answer racism in South Africa. Racism was a complex problem. Government was not going to solve racism until it resolved the racial nature of poverty and power in South Africa. Government felt that it was important to have penalties for racism and other intolerances. It was not meant to be the sole answer. It was just one of the aspects. People raised that existing laws were sufficient. What there was currently was PEPUDA. But PEPUDA was a civil remedy, so it was dependent on the person aggrieved to go to the Equality Court and become a plaintiff in the Equality Court and take the matter up themselves. Usually, the responsibility by the State was in criminalising matters and then the State took the responsibility for following up the crime that had been committed or allegedly committed. There were already restrictions on speech as a crime, which was crimen injuria. Crimen injuria was a common law crime. This Bill was not trying to replace crimen injuria, but it was trying to set out a statutory crime of hate speech so that there was greater clarity and Parliament could set out what was there. There was some confusion with crimen injuria. If one said something generally against a group of people, would one be guilty of an offense of crimen injuria? The idea was to have a new crime of hate speech. He noted that internationally when it came to South Africa’s report to the Committee on the Elimination of Racial Discrimination, one of the things it welcomed was that South Africa was bringing hate crimes and hate speech legislation. It specifically supported hate speech provisions. A number of countries across the world had different kinds of hate speech provisions. There was a report he had read about Germany where neo-Nazis marched down the street saying that anyone who believed that Jews were gassed was a donkey. Those neo-Nazis were duly prosecuted and convicted, which was the correct thing. The range of places with similar legislation included Western Europe, Scandinavia, Canada, Australia. In Africa, there was Kenya and Rwanda. These were countries with specific hate speech provisions, and it was understandable in those contexts why. He wanted to provide that background.

Discussion

Adv S Swart (ACDP) appreciated the Deputy Minister’s introduction but there were many people who held differing views. He noted that he had to leave and go to another meeting. However, he wanted to put it on record that the ACDP was not in favour of the hate speech provisions. It was in support of the other aspects of the Bill. He appreciated the initial input but noted that the ACDP would be engaging on the Bill further. He thought that the input from the Deputy Minister was simplified. He looked forward to further engagements. He added that there were many who believed it would have a chilling effect on religious freedom, freedom of expression and freedom of journalism. He wanted that put on record.

Ms N Maseko-Jele (ANC) said she wanted clarity. Her understanding is that today’s meeting was for the Committee to receive a presentation on the Bill and then the Members would still get an opportunity to discuss it. She wanted clarity.

The Chairperson replied that she was correct.

Briefing by the Department of Justice and Constitutional Development (DoJ&CD) on the responses to the submissions on the Prevention and Combating of Hate Crimes and Hate Speech Bill

Mr Henk du Preez and Ms Alison Botha, State Law Advisors, DoJ&CD, briefed the Committee on the responses to the submissions on the Prevention and Combating of Hate Crimes and Hate Speech Bill. The presentation detailed submissions made from a number of different organisation and activist groups.

Table 1 of the document reflected the general comments and responses of the Department. Table 2 provided a clause-by-clause summary of the submissions and the Department’s response.

On clause 1, the Accountability Lab South Africa noted that the definition of ‘harm’ was self-referential and circular. It did not adequately distinguish between the terms ‘harm’ and ‘offence’. The Department responded that with reference to the Qwelane judgement it would propose an amendment to the definition of harm. The amendment to be proposed to the definition of ‘harm’ would bring some clarity regarding ‘social harm’ within the context of the definition.

The Legal Resources Centre recommended that the definition of ‘intersex’ be replaced. The Department did not accept this submission. Care should be taken not to include too many definitions in the definitions clause which definitions would amount to nothing else than a confirmation of the dictionary meaning of the terms concerned.

The Triangle Project Women’s Legal Centre recommended the use of non-binary language in the Bill. The Department noted this proposal. The Triangle Project Women’s Legal Centre also said that definitions of ‘hate crime’ and ‘hate speech’ be included in clause 1. It was not helpful to define these terms with reference to clause 3 and 4. The Department responded that it was not necessary to define ‘hate crime’ and ‘hate speech’ because clauses 3 and 4 would define what those offences entail. The presentation detailed submissions and responses on clauses 2, 3, 4(1)(a), 4(1)(b), 4(1)(c), 4(2), 4(3), 5(2), 5(3), 6(1), 6(3), 7, 8(1), 8(2), 9(1), 9(2), 9(3) and 10.

(See Presentation)

Briefing by the Department of Justice and Constitutional Development on the working document of the Prevention and Combating of Hate Crimes and Hate Speech Bill

Adv du Preez and Ms Botha presented the latest working document of the Bill to the Committee. The working document highlighted the amendments and corrections made to the Bill.

(See Presentation)

Discussion

The Chairperson said that that was the working document on the Hate Crimes and Hate Speech Bill. There was a proposal by Adv Breytenbach that the members would need time to digest what they had received today. He proposed that the Committee would meet on Friday to further process the Bill. He asked the members if that was in order?

The members of the Committee agreed with the Chairperson’s proposal.

The Chairperson thanked the drafting team from the Department and the Deputy Minister for being present in the meeting. It was highly appreciated, especially the explanations that were given. It would help the members further digest some of the issues that had been raised so that on Friday the Committee could start processing the Bill and going through the Bill clause by clause. The Committee wanted to finish this Bill as expeditiously as it could. Next week, the Committee would be continuing with the Hate Crimes and Hate Speech Bill and the Land Court Bill.

The Chairperson noted that there was a lot of commitment from the side of Mr du Preez and his team. He stated that if Mr du Preez needed the Committee’s support it would always be available. If Mr du Preez felt it was too much to bear, then he needed to alert the Committee.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 7 June 2022

Dr W Newhoudt-Druchen (ANC) moved for the adoption of the minutes.

Mr W Horn (DA) seconded the adoption of the minutes.

The minutes dated 7 June 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 8 June 2022

Mr J Engelbrecht (DA) moved for the adoption of the minutes.

Ms Maseko-Jele seconded the adoption of the minutes.

The minutes dated 8 June 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 23 August 2022

Mr X Nqola (ANC) moved for the adoption of the minutes.

Mr Horn seconded the adoption of the minutes.

The minutes dated 23 August 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 24 August 2022

Mr Nqola moved for the adoption of the minutes.

Ms Maseko-Jele seconded the adoption of the minutes.

The minutes dated 24 August 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 30 August 2022

Mr Nqola moved for the adoption of the minutes.

Ms Newhoudt-Druchen seconded the adoption of the minutes.

The minutes dated 30 August 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 31 August 2022

Ms Newhoudt-Druchen moved for the adoption of the minutes.

Mr Nqola seconded the adoption of the minutes.

The minutes dated 31 August 2022 was adopted.

Consideration of the draft minutes of the Portfolio Committee on Justice and Correctional Services dated 2 September 2022

Ms Maseko-Jele moved for the adoption of the minutes.

Mr Nqola seconded the adoption of the minutes.

The minutes dated 2 September 2022 was adopted.

The Chairperson noted that the Committee would meet on Friday at 09h30.

The meeting was adjourned.