Prevention and Combating of Hate Crimes and Hate Speech Bill: exclusion of public input from summary of submissions, with Deputy Minister

Meeting report

The Chairperson welcomed everyone and requested that Mr Du Preez take the Committee through the Bill.

Before Mr Du Preez could begin, Adv S Swart (ACDP) addressed the Committee. He apologised for not being present when the Committee discussed the public submissions received. He raised a concern about which organisations were included in the summary of the public submissions. Parliament has to consider all written submissions. There were 100 000 petitions received and there is no reference to that, as well as the very compelling arguments made by Freedom of Religion South Africa (FOR SA). The Deputy Minister engaged with FOR SA, but there is no reference to any of their submissions in the document. He is concerned that there might be other written submissions which have not been included in the summary. What is the explanation for this? Maybe it is Parliament’s duty, and not the Department’s, but the Committee needs to look at the written submissions. This issue was very contentious with the Expropriation of Land without Compensation when certain written submissions were not considered by Parliament. He needs an explanation as to why these submissions were not included, particularly with regards to FOR SA, which represents six million people in South Africa. There is not one reference to their suggestions, whether one agrees with their view or not.

The Chairperson asked if any other Members had a response to this.

Mr Gerbrand Gildenhuys, a representative of the South African Institute of Race Relations (SAIRR), said he was going to raise this same issue.

The Chairperson replied that the time for public hearings is over. Only Members of Parliament and the Department may speak.

Adv G Breytenbach (DA) supports Adv Swart. There are submissions that have not been fully shared and considered. This piece of legislation is complicated and quite controversial. There is a lot of material that they need to work through. After this meeting, she would like some time to work through all the documents on this. She would like to sit with Mr Horn and Mr Engelbrecht and work through the documents properly before they make their own submission. The process is going to be long and they will need access to all the available documents and submissions made.

Mr W Horn (DA) said that Members are often sent emails saying the same thing about certain pieces of legislation, as a result of campaigns done by certain organisations. Even if a large number of the submissions are exact copies of one another, Members still need to consider these submissions fully. For example, if 50 000 submissions are exact copies of one another, then the submission, and how many people felt motivated enough to send in the submission, must still be considered. Adv Swart referred to the Section 25 process, in which it was argued that the strength of the submission is not made stronger by the number of times it is sent in. There is value in that argument. However, in order for Parliament to act responsibly, they must form an overall picture of how important this issue is, and the specific comment, to members of society. They went through the trouble of contacting their elected representatives and this needs to be considered when thinking about the importance of the issue to these people. If the submissions were received at Parliament and not filtered through to the Department, could the Committee Secretary inform the Members whether these submissions are available? Would it be possible to give Members a synopsis of, and access to, these submissions? All of the submissions received need to be taken into account by the Committee.

Ms Y Yako (EFF) said that the EFF would have liked to send in their own submission with regards to race and reparation. That could have been a way to use the Hate Crimes Bill to push this issue. Some might think that this is political. They have a proposal that they would also like to submit. This is very important as it needs to be considered before they adopt the Bill.

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, said that Mr Du Preez alerted him that morning that he had received the SAIRR submission from the Committee Section earlier that day or the day before. It had not been included in the summary of submissions. The public hearings were conducted and submissions were made to Parliament. There was a break in communication with the Committee Section sending all of the submissions through to the Department. There could have been problems with the Department’s email and it’s not clear which side had the problem. The Department and Committee Section is looking at compiling a list of all of the submissions so that they can make sure that they got everything. They will be working through the SAIRR submission as it is extensive. FOR SA may not have been included and there could be others.

The Department has only been asked to comment on the substantive submissions. The process of trying to lobby support and get signatories, and sending in word-for-word copied submissions, does not help the Parliamentary process. This needs to be taken note of. However, there are complicated issues and they need to continue working through the Bill at this stage. They can come back if there are new issues that have been brought up.

Deputy Minister Jeffery was surprised by Ms Yako’s remarks because the time for submissions is specifically set out. Political parties have the opportunity to make submissions during the public participation process. One of the ANC branches made a submission and in other public hearings, parties have made submissions. A party that wanted to make a submission should have made it already, and then that party can raise issues during the deliberations.

Adv Swart said that they saw a lot of campaigning during the Section 25 hearings. A group can campaign as much as they want to. He disagreed with the Deputy Minister. It does help Parliament and anyone is entitled to campaign. It is up to Parliament to decide what weight is afforded to those kinds of submissions. Ms Yako is fully entitled to make a written submission at any given point. The ACDP made a submission in the previous Parliament. Yes, there was a time period for submissions, but as they continue working on the Bill, the ability of a party to make a submission should not be denied. She is a member of the Committee and there should be a latitude that comes with this when it comes to submissions and sharing her view. It is distinct from a political party making a formal submission at the time when formal submissions were invited.

The Chairperson thought that Ms Yako said that the EFF should be given an opportunity to make a formal submission. If this is correct, then the Deputy Minister is right in saying that the period for formal written submissions has passed. There is nothing wrong with her, as a Member of the Committee, raising issues in the meetings. They will not be reopening the opportunity to send in formal submissions. Initially, they thought that it was only the SAIRR submission that was not considered. However, it is clear now that it is more than one organisation. There was a breakdown of communication between the Committee and the Department. This needs to be rectified because the process of public hearings is an important Constitutional imperative and is crucial for law-making. Nothing should be done to circumvent that process. It is a very important tenant of South Africa’s democratic dispensation. All submissions in possession of the Committee should be sent to the Department. It will not result in any additional expense if they circulate the submissions to Members like Adv Breytenbach who want to read them for themselves. Initially, he agreed with the Deputy Minister. However, now that he has listened to the other Members, his view is that it would be difficult to proceed with the meeting when other views have not been considered by the Department. The unread submissions could change the Department or the Committee’s views. The Department should go through these outstanding submissions and provide the Committee with a working document of the Bill after this has occurred. Members can still give input on behalf of their parties and it is not necessary to open up the public process again so that political parties can make formal submissions.

Ms Yako said that Adv Swart was correct in his interpretation of her earlier contribution.

Adv Swart agreed with the Chairperson’s approach. It is very important that Department received all submissions so that they can consider possibly adding those submissions to the summary. There are very important points made by various organisations in the excluded submissions, such as SAIRR and FOR SA. It is also important for Members to have access to all of the documentation. The Department then needs to be given time to respond, given that this is a complex and controversial Bill, particularly when it comes to hate speech. Giving the Department time is also important because they are under pressure because of other Bills. Members also need time to look at the original submissions, not just the summary.

Mr Henk Du Preez, State Law Advisor, Department of Justice and Constitutional Development, said that with the Unlawful Entry on Premises Bill, the Department had received 5000 submissions over two days. He was one of three officials that worked through these over a period of one day. The officials were unable to focus on other duties as a result. He is not complaining, and he humbly apologises to the Committee for the breakdown of communication. He takes full responsibility for that. He inherited this Bill because a colleague who was working on this Bill and had extensive knowledge about this Bill, sadly passed away. He will meet any deadline that the Chairperson provides him. It came to his knowledge that they did not see the SAIRR submission. However, the summary is not the be-all and end-all of Committee work. The Members receive the comments and work through them, and then receive the Department’s response. The document presented at the previous meeting contains merely technical amendments proposed to the Committee. It won’t be a waste of time if the Committee proceeds with the meeting. There is still value in the Committee working through the working document that day. He would like to proceed with going through the Bill. The amendments do not affect any outstanding comments that the Committee hasn’t seen or considered. They should remain productive. However, he will follow the Chairperson’s lead.

The Chairperson asked Mr Du Preez whether he has read the SAIRR’s submission.

Mr Du Preez said that he has started working through it, but because it is a very extensive submission, he has not finished it. He had not read the FOR SA submission. He apologises for that.

The Chairperson said that he is not blaming anyone. The changes that he has made in the Bill were done without these submissions being taken into consideration.

Mr Du Preez acknowledged that strictly speaking, that is the case. However, the Department has picked up some technical issues that it would like to present to the Committee.

The Chairperson said that the Committee is not going to be blaming anyone. There was a communication problem one way or the other. Everybody is under pressure, especially the law advisors. They are dealing with a lot of Bills that have deadlines. It is understandable that under these circumstances, something like this would happen. There were no ill intentions. It is important that their response is consistent with the values of South Africa’s constitutional democracy. They need to go through the responses, give them the necessary attention, and then proceed with the Bill.

The Deputy Minister said that they don’t know how many submissions have not been received by the Department. It is difficult to say how much time they will need. He agrees with the Chairperson about not proceeding with the meeting. The state law advisors need to go through the submissions and see how long it will take them to include them in the working document and consider whether changes are needed. He suggests that they don’t set a time at this point. This is disappointing, as it is a 2018 Bill and sections of civil society have been calling for this Bill to be worked on for some time. He hopes it won’t take too long and that they will be able to have a meeting on this the following week.

The Committee Secretary should inform the Members of the number of submissions that were made and what they were about. If there aren’t any substantial amendments, the Committee Section can inform the Department. There is an organisation called Dear South Africa, which promotes public participation. They request submissions on their website, with different response options. Unfortunately, sometimes the responses aren’t clear. The Dear SA submissions are not all the same. People have different options. The problem that they had with the Criminal Procedure Amendment Bill is that there were only a few submissions when it was in the National Assembly. It was processed quickly. When it went to the NCOP, Dear SA put it on their website and there was a large number of submissions which the Department had to go through. These submissions didn’t say anything substantial. He had wanted to engage with Dear SA as the information that was given was not entirely correct. The Department does want to encourage public participation, but at the same time, they also need to be looking at substantive submissions and amendments.

Mr Horn said that it has been raised in multiple meetings that this is a 2018 Bill. If not properly contextualised, Parliament will be seen as having failed to deal with the Bill in a timely manner. That is not the case. When the Qwelane v South African Human Rights Commission and Another case was at the Constitutional Court, the Committee made a conscious decision. Given the fact that the definition of hate speech was at the heart of that case, and that this Bill sought to amend the definition, they thought that it would be prudent to await the outcome. It was not irresponsible. This is an Executive Bill. There was an option where, as they had previously done with the Cybercrime Bill, they could have split the Bill and moved forward with the Hate Crime portion. This was not done. They should be mindful of the fact that this Bill has come a long way and it has caused some distress in civil society. It is important that they do not drag their feet with the processing of this Bill. However, the perception that they’ve been sitting on their thumbs since 2018 is false.

The Chairperson agreed that the context is very important. Last year, there were a lot of attacks on the Committee. They could not proceed with the Bill while there is an outstanding judgement of the Constitutional Court on the same issue. They did not want to proceed, only to find that the judgement of the Court is contrary to the Committee’s amendments to the Bill. They needed to produce a Constitutionally-compliant Bill.

Ms N Maseko-Jele (ANC) noted Mr Du Preez said that three people worked on thousands of submissions in one day. This is a very sensitive Bill and Mr Du Preez’s statement made her very worried. If there are only three people working on thousands of submissions, how long will it take for them to return to the Committee?

The Chairperson said that the Deputy Minister had made a suggestion that once the team has assessed how many submissions need to be included, they then provide the Committee with a time frame. They do not know how long it will take because they don’t know the extent of the work that needs to be done. In the next week’s meeting, they would give the Committee a timeline as to how long they would need. It is not sustainable for three people to work on thousands of submissions in one day. They could be prone to making mistakes because of this. With Justice work, there is constant pressure. It is not a cyclical process. It is important that they work in a way where Bills get processed efficiently, without running their staff into the ground. People shouldn’t face burnout. The Deputy Minister’s suggestion is valid. They should take into account that Mr Du Preez and his team are also working on the Land Court Bill.

Deputy Minister Jeffery agreed with the Chairperson. The 5000 figure that Mr Preez was referring to was mass submissions. It is usually a petition by email indicating support or disapproval of a Bill. It was not in reference to this Bill. That is why the Committee Section could share the submissions with the Members via email. It would not include any paper costs, only data. It would only inform Members whether the public agrees or disagrees with the Bill. It isn’t substantive submissions. Sometimes these submissions don’t even address anything specific about the Bill, besides saying that they don’t like it. They should let the team work out how many substantial submissions they are. The Committee Section can deal with the non-substantial ones, i.e. informing the Members of the numbers and making them accessible to Members. They will speak at the beginning of next week about how long it will take.

The Chairperson said that the Department and Committee Section will meet and work out a working programme and provide the Members with this the following Tuesday. The Members will also be given the numbers regarding the number of people that made submissions. The Department will be working on the substantive submissions. After Tuesday, they will be able to determine the way forward with processing the Bill.

The meeting was adjourned.