Prevention and Combating of Hate Crimes and Hate Speech Bill: Department comparative research briefing; with Deputy Minister

Meeting report

The meeting was scheduled to begin at 9:00am, but due to the absence of the Chairperson, Committee Members and officials were on the platform and waited for half an hour.

Mr S Swart (ACDP) indicated that he could not wait any longer because he still had to attend a finance committee meeting, and suggested that an acting Chairperson should be elected in the interim for the meeting to proceed.

The Committee Secretary responded that he was trying to get hold of the Chairperson, and suggested that Members may elect an acting Chairperson at 9:25am.

The Chairperson logged on to the platform and apologised after being made aware of his being late for the meeting. He explained that he mistakenly thought that the meeting would begin at 9:30am.

The Chairperson acknowledged the presence of Deputy Minister, Mr John Jefferey. He then invited the Department to brief the Committee on its research note in response to the Portfolio Committee Chairperson’s enquiry dated 21 September on the efficacy and impact of similar hate crime and hate speech legislation in other jurisdictions.

Briefing on research note

Mr Henk du Preez, Senior State Law Adviser, Department of Justice and Constitutional Development, said that due to the length of the research note, he would not be going through it page by page, since he assumed that Committee Members had already familiarised themselves with the contents.

The details of the research note can be found in the attached file.

To sum up, Mr Du Preez said it would be impossible to provide a uniform or simplistic answer to the Chairperson’s question. That was because of the complexity of the definitions of hate crimes in different jurisdictions.

The Chairperson sought Members’ inputs on the Department’s response.

Mr W Horn (DA) asked Mr Du Preez whether the Department’s research had explored and assessed which option was the best practice in other jurisdictions effective for crimes that were already committed, such as assault. In particular, he wanted to know whether pursuing a criminal law route for those crimes was the more effective approach, or if pursuing a hate crime approach would be more effective in deterring those crimes.

Ms N Maseko-Jele (ANC) expressed her appreciation for the given information. She noted the Department’s indication that hate crimes were context-specific, so she believed South Africa could use this opportunity to examine the hate crime and speech situation at home and do justice in this area. She understood that the completion of the Bill would not be satisfactory to everyone, but was firm that this Bill was necessary to deal with the social ills in our society.

Mr Swart was of the view that South Africa had much to learn from other foreign jurisdictions. He expressed his support for combating hate crimes. Mr Swart was concerned about the part on hate speech which the research note had not dealt with in detail. He referred to page 10 of the note, and suggested that the criminalisation of hate crimes may sometimes be perceived as being in direct contradiction to freedom of speech. He believed that the Committee needed to deliberate on that. Ultimately, it was about striking an optimal balance between combating hate speech and protecting people’s rights of freedom, expression and religions.

Ms W Newhoudt-Druchen (ANC) expressed her surprise that only two African countries -- Kenya and Sudan -- had been cited in the Department’s research note. Had the Department left any other African countries out, or were there only two African countries that had legislation of such a nature?

Ms Alison Botha, State Law Adviser, Department of Justice and Constitutional Development, explained to Ms Newhoudt-Druchen that given the limited time, it had been impossible for the Department to conduct research into all African countries.

Due to Ms Botha’s poor connectivity, the Chairperson asked Mr Du Preez to respond to Members’ questions in her place.

Mr Du Preez responded to Mr Horn that the Department had not focused decisively on the question of which option could lead to the optimal outcome of reducing hate crimes, because there were a good number of factors that needed to be taken into consideration. However, the Department was of the view that it was important to have a hate speech and crime offence, as it would then send a strong message across society that those types of behaviours would not be tolerated and would be penalised.

The Chairperson noted the responses and indicated that the Department may move on to reading the working document on the Bill - see attached document.

Clause 1

In the definitions part of the Bill, Members specifically deliberated on the characteristics which should be identified as factors that caused hate crimes.

It was noted that the Department took out “gender identity” from (h). The Deputy Minister explained that although “gender identity” had been taken out, what had been inserted in (q) was sexual orientation, which covered gender identity or expression or sex characteristics, such as the lesbian, gay, bisexual, transgender, queer and questioning, intersex (LGBTQI) communities.

Mr Horn requested the Deputy Minister to justify the long list of characteristics and to clearly state the rationale why each characteristic was being included. In the Qwelane v South African Human Rights Commission and Another, he was aware of and understood that the Constitutional Court had expressed the approval of the expanded list. However, he cautioned the Committee about the criminalisation approach towards hate speech. Many of those characteristics included in this list were already included in the Bill of Rights, and he expressed his concern that this list would be a limitation on free speech.

Mr Horn drew the Committee’s and the Deputy Minister’s attention to the two characteristics in the list -- birth and language. He asked the Deputy Minister what hateful activities and speeches would be motivated by birth and language.

Ms Maseko-Jele stressed the necessity of having this Bill passed into law. The history of South Africa strengthened her view that this law was essential for nation building. She sought clarity from the Department whether pictures would be included in data messages for electronic communication.

She agreed with the insertion of "cultural" in the definition of harm, and highlighted that these characteristics were reflections of the country’s unique apartheid history. She suggested replacing the word "colour" with "skin colour," because skin colour had been the cause of many social ills in the country. South Africa’s history was different from those of any other country. In the history of this country, some laws had been enacted during apartheid because of the hate towards a certain grouping or race. The country should therefore not shy away from those facts.

Ms Y Yako (EFF) found it very encouraging that the Department was steering towards the same mindset of criminalising some of the characteristics on the list. She supported Ms Maseko-Jele’s view, and agreed that the characteristics had to be very specific to protect the people.

Adv G Breytenbach (DA) agreed with Mr Horn’s view on the Bill. She asked the Department why the definition of harm was wider than the definition set out in the Qwelane case.

The Chairperson remarked that he did not see major disagreements among Members. He also shared the view of the importance of definitions in any bills. He agreed that the Department would have to justify why each characteristic was being included in the Bill so that Members were equipped to explain those to their constituencies.

Deputy Minister Jeffery said prejudice would lead perpetrators to commit crimes of such nature. He assured Mr Horn that there was prejudice for each of those characteristics on the list, and harm was caused by people to that victim group in South African society.

• Age

There was prejudice against older people that was initiated by young people, but Deputy Minister Jeffery admitted that he personally was not aware of any crimes that had been committed on those grounds.

 

• Albinism.

Deputy Minister Jeffery affirmed that it was a common discriminatory ground that people with albinism often suffered from, such as being killed and assaulted in South Africa.

 

• Birth

This factor often came into play when crimes were being committed against victims over where they were born. Deputy Minister Jeffery said that it was more of a borderline factor.

 

• Colour

Deputy Minister Jeffery totally agreed with Ms Maseko-Jele’s suggestion to replace colour with skin colour, since victims had often been attacked for their skin colour throughout the country’s history.

 

• Culture

Similarly, people could be attacked on the basis of their culture.

 

• Disability

There were cases in society where attacks were carried out on people who had some forms of disabilities. For instance, he used the example of a child with Down Syndrome.

 

• Language

Deputy Minister Jeffery confirmed that there were cases in South Africa where victims were being attacked for the languages that they spoke.

 

• Marital status

He conceded that whilst there was discrimination against single people, he personally did not think marital status would lead to attacks.

 

• Occupation

In some occupations, such as sex workers, bus drivers, etc, people were often being stigmatised or even attacked for working in those industries.

 

• Pregnancy

Deputy Minister Jeffery was uncertain, and remained doubtful whether pregnancy would be a ground for discrimination and hate crime.

 

Deputy Minister Jeffery confirmed that ethnic, social, gender, HIV and AIDs status, nationality, race, religion, sex and sexual orientation were all common grounds that motivated perpetrators’ hate crimes and speeches.

He rejected Mr Horn’s view that those characteristics would cause potential restrictions on the freedom of speech.

Ms Yako wanted the Department to elaborate on the processes of how those characteristics could be used to protect potential victims.

Ms Maseko-Jele agreed that there were people who were killed for being old. The common discriminatory ground was the unfounded rumour that old people, especially old women, were witches in communities.

Mr Horn expressed his unease at how Deputy Minister Jeffery could not justify all the characteristics that were on the list. This Bill had been brought forward to the Committee by the executive branch of the government to consider. He expected that the Department would have done its due diligence exercise in order to respond to the Committee on clarity-seeking questions. He felt it uncalled for that the Committee would now have to commission its own investigation to examine whether any of those characteristics were warranted.

Deputy Minister Jeffery responded that he did not think it required as much extensive research as Mr Horn had just suggested. South African people were attacked and abused because of sharing one or more of the listed characteristics.

Mr Du Preez responded to Adv Breytenbach’s question on why the definition of harm in the Bill was wider than that in the Qwelane judgement. He reminded the Committee that the Bill had been introduced to Parliament before the Qwelane judgment had been handed down. He suggested that Members read the definition together with clause 4 of the draft bill. The proposed definition of harm was the one that had been submitted by interested parties.

He guaranteed that pictures would be included in the Bill, and clarified that data messages referred to those that were sent, received and stored by electronic means.

The Chairperson said Members were welcome to send any other characteristics that could possibly be grounds for discrimination and hate crimes to Mr Du Preez. He accepted Deputy Minister Jeffery’s explanation, and said the Committee would return to deliberation on those characteristics once it had completed the process of including the characteristics suggested by Members.

Clause 3

The Chairperson asked for Members’ preliminary views on the two options for what constituted hate crimes.

Ms Maseko-Jele requested a legal explanation for those two options before Members came to their conclusions.

Deputy Minister Jeffery explained that option 3(1) in the draft bill was largely the same as the one in the introduced Bill, but it had been put out there to make it easier to follow. The intention was to get something that read better.

Mr Du Preez understood that it was difficult to understand the meaning of a hate crime, considering it included the whole list as well.

Ms Maseko-Jele and Ms Yako both indicated that Members might need more time to apply their minds before they could decide which option they would go for.

Clause 4

Ms Maseko-Jele reminded the Department and the Committee of the potential victims of hate crime and speech due to creative work. She recalled the controversial artwork that had negatively affected former President Jacob Zuma. She pointed out that communities had been enraged by that piece of creative work. She therefore wanted to ensure that this Bill would protect people from similar situations.

Mr Horn noted that the definition of hate speech had been amended to comply with the Qwelane judgment. However, that judgment had been dealt with in a civil case context, with the judgment having made reference to the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA). However, the Department needed to clarify in the Bill which types of offences would qualify in a criminal context, bearing in mind that the criminal offence should have a higher threshold than those found in a civil case.

He highlighted the purported grounds of exception for religious activities, as outlined in s4(2)(d), and questioned whether this would contradict the right to religion. Religious groups who were based on their teachings and faiths often found certain actions or ways of life that were against their own teachings. Those religions would often ask those who did not follow their teachings to be castigated or removed from society.

Deputy Minister Jeffery referred to the Bill for the definition of the general offence of hate speech. What constituted hate speech was if someone said something that would incite or propagate hate.

He responded to Ms Maseko-Jele that the rights in society to artistic creativity and academic freedom were not bound by or could be construed as inciting harm. Hence, the matter in which the artist had been involved had not targeted a particular group of people but rather an individual, and could not be categorised as hate crime or speech.

He interpreted the definition of harm, and said that the Constitution also set limitations on freedom of speech and expression. For instance, a person could say that right-handed people were not good people, as it was within their right to freedom of speech, but it would be a hate crime if that person promoted or said that right-handed people must be killed or beaten up.

He said that s10 of the PEPUDA referred to the prohibition of hate speech but did not provide for criminal sanctions. S10(2) states that the court may refer hate speech cases to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law, or relevant legislation.

Ms Maseko-Jele referred to s4(1) of the draft bill. She emphasised that the section explicitly stated that it was “one or more persons,” so she sought clarity on that in relation to the Zuma case and whether it would constitute hate speech under this new Bill.

Deputy Minister Jeffery responded that hate speech differed from throwing insults at an individual. He clarified that the issue of hate speech focused on the content the perpetrator had said, which would fall in the list of those characteristics.

Clause 5

Deputy Minister Jeffery explained that the section made it obligatory that victims of hate crimes must make a victim impact statement. In this scenario, if a victim was deceased due to a hate crime, the victim’s family member or an organisation would be able to make the victim impact statement on the victim’s behalf.

Clause 6

Ms Maseko-Jele found that the punishment of a fine or a three-year imprisonment was too lenient. She highlighted the severity of hate crimes and speeches. She recalled that Deputy Minister Jeffery had indicated that there were seven or eight-year imprisonments practised in other jurisdictions. She thus proposed that first-time offenders should have a minimum of five-year imprisonment, and second-time offenders should be given a harsher sentence, such as ten years.

Ms Yako fully supported Ms Maseko-Jele’s proposal.

Mr Du Preez clarified that sub-sections 6(1) and 6(2) dealt exclusively with hate crimes, whilst the clause to which Ms Maseko-Jele and Ms Yako had referred was sub-clause 3, which dealt with hate speech. He had noted the Members’ concerns, and would amend the document accordingly.

Mr Horn urged Members to contemplate the characteristics that constituted hate speech further. He supported harsh sanctions for hate crimes regarding a limited number of characteristics, for which the Department should provide clear justifications. He cautioned Members against being too emotional in the drafting process of this Bill. He emphasised that as lawmakers, they needed to align those identified characteristics with the values and visions during the Constitution-making process. In the absence of a clear justification of those characteristics, he could not support the Bill as it was.

Adv Breytenbach also expressed her reservations on the draft bill. She said that penalties such as setting out sentences should remain within the discretion of the courts, and the Committee could not fetter that, regardless of Members’ inputs.

Deputy Minister Jeffery explained to Mr Horn that the list of characteristics derived from the Constitution and PEPUDA were generally accepted as grounds that would incite discrimination. He admitted that the new one that had just been added was marital status, of which he himself was uncertain. He did not understand what Mr Horn’s problem was.

He assured the Committee that the draft bill only set up a maximum sentencing period, and the discretion was still left to the courts to decide.

Mr Horn commented that it had been unhelpful of the Deputy Minister to remark that he could not understand the issue regarding the criminalisation of something that had already been regulated by PEPUDA, the Equality Court, etc. He did not think it would be correct for the Committee to pass a law regulating something that had already been regulated. He believed that the equality legislation offered a less invasive approach to dealing with such cases. To apply criminalisation, the Committee must be in possession of all the facts. 

The Chairperson noted the points raised in the discussion, and said that Members would need time to apply their minds to each clause before the Committee could decide on the Bill. He asked Mr Du Preez to identify those derived from the Constitution, PEPUDA and the public consultation process.

Clause 9

Ms Newhoudt-Druchen asked why “public officials” had been removed from the training courses.

Mr Du Preez explained that there were now specific requirements in respect of the obligations of the National Commissioner of the South African Police Service (SAPS) to develop those training courses.

The Chairperson said that the briefing should end at Schedule 1.

He thanked the Department and the Deputy Minister.

RICA Bill

The Chairperson advised the Department that the Constitutional Court had given the Committee 36 months to amend the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) Bill, which meant the Committee was currently left with 12 months. He urged the Department to expedite the Bill, and asked how far it was in the Cabinet process. He hoped the Bill would be passed early next year, and suggested they should begin with the public comments for now.

The Department responded that three Cabinet Ministers had already signed off on the RICA Bill, and that it was ready to be submitted to Parliament for approval.

That brought an end to the day’s meeting. Due to time constraints, the Department’s briefing on the draft bill ended at the amendment of section 18 of the Criminal Procedure Act, 1977.

The meeting was adjourned.