Deliberations on Prevention and Combating of Hate Crimes and Hate Speech Bill; with Deputy Minister

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Justice and Correctional Services

04 November 2022
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

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Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002

The Portfolio Committee on Justice and Correctional Services continued deliberations on the Prevention and Combating of Hate Crimes and Hate Speech Bill. A sticking point in the meeting was the categories against which hate can be shown.  

A Member of the DA raised a concern that Parliament was trying to legislate morality and held the view that one could not legislate morality. The Members needed to carefully interrogate this long list of categories that appeared to have been plucked from various sources and did not fit into the limitations clause. The categories would make the Committee fall foul of the limitations clause. Many of the categories were repetitious and controversial. This legislation was a long way from being finalised. The Members would have to interrogate each and every category very carefully.

A Member of the ACDP noted that one of the areas focused on in the research document that the Department provided related to hate speech. It highlighted that the issue of criminalisation of hate speech was problematic. That was something that the Committee needed to grapple with. A concern was that the wide range of characteristics and the wide definition of harm would result in a very wide definition of hate speech. Given the fact that the Committee was criminalising a very controversial aspect of hate speech, the ACDP argued that the Committee should limit it to the four aspects of race, ethnicity, gender and religion as detailed in section 16(2)(c) of the Constitution. The ACDPs view was that the characteristics and grounds should be limited to those four aspects.

It was noted that any Member who wanted to make further submissions to the Department and the Committee would be allowed to do so. The Committee would deliberate on the Bill, taking into account the Members written submissions and the Departments responses. The Committee would then move towards finalising the A and B Lists.

Meeting report

Deliberations on the Prevention and Combating of Hate Crimes and Hate Speech Bill

Definition of harm
Mr Henk Du Preez, State Law Advisor, Department of Justice and Constitutional Development, took the Committee through a departmental note and a working document on the Prevention and Combating of Hate Crimes and Hate Speech Bill.

Mr Du Preez took the Committee through the definition of the word datain the Bill. It was submitted that the use of the word representationtogether with the words of information in any formmakes it clear that picturesare also included within the definition of data.

The Chairperson asked Ms Maseko-Jele if her question had been answered.

Ms N Maseko-Jele (ANC) asked Mr Du Preez if how the Committee put the definition in the Bill was clear according to the law. The law said that when the Committee considered these laws, there needed to be clarity for the court on exactly what the Committee meant. Was the understanding of representationsgoing to be clear? She was not sure. Was it clear for the court? For the court to understand this, it needed to go to the dictionary and come out with that information.

The Chairperson said that the Bill had been passed in 2002. He asked if there was a situation where it had been applied. Was there case law?

Mr Du Preez was not aware [of such]. He doubted whether it would have posed any problems. It was a standard operating procedure that if there was a term in which there was doubt about its meaning and it was not defined, then the Interpretation Act guided the courts to use the dictionary meaning of the term.

The Chairperson said that generally, all presiding officers had done interpretation of statutes.

Mr Du Preez agreed.

Clause 3: Offence of Hate Crime
Mr Du Preez read through the characteristicsand groundscontained in the Bill, as introduced.

Clause 4: Offence of Hate Speech
Mr Du Preez read through the characteristicsand groundscontained in the Bill, as introduced.

The Chairperson said that this arose out of an engagement with Mr Horn.

He asked Mr Horn if he had any comment.

Mr W Horn (DA) said that last time it was agreed that he would also attempt to distil his views on this in writing for both Members and the Department to deal constructively with his concerns. Unfortunately, he was out of circulation until yesterday. He had taken up the task and had made some headway. Unfortunately, it was not yet in writing. He was in a position to verbally share one or two concerns. He would be able to finalise the document that he was working on by next week Tuesday. He was also able to give initial verbal input.

The Chairperson said that Mr Horn could make the verbal input and then the Committee could take it from there.

Mr Horn discussed the hate crimes concept and the criteria.

Internationally there was an understanding that for something to be deemed a hate crime—specifically speaking to the characteristics—there needed to be three hurdles that needed to be passed.

The first was that the victim or victims of the crime had to be affected and that the designated group identified by their characteristics must be affected.

The further requirement was that the reasonable part of society also needed to be affected. Mr Horn noted that this was now criminalising something that the Constitution up until now dealt with via civil remedies. For Members to be satisfied that this would pass constitutional muster, the Committee needed to be informed that the Department was convinced for various reasons that if an old person was attacked or if property of an old person was damaged, for that to qualify as a hate crime, then all old people should experience some emotional distress. If he understood the international benchmark correctly, that emotional distress or reaction should change their behaviour or make them think differently of themselves. That was a fairly high benchmark but also for good reason.

Internationally the roots of hate crime were found in a systemic pattern of behaviour in which specific designated groups were targeted by criminal activity. That led to the necessity to deal with something as a hate crime. The Members understood where the list came from. Given the fact that behaviour was being criminalised, the Members needed to go around this with greater circumspection than when legislation was passed that aimed to root out discrimination.

He discussed hate speech.

He believed that there was a recent Constitutional Court case which actually set out how courts would look towards the possible criminalisation of hate speech as well as hate crimes. He noted that hate speech was a limitation to the right to freedom of expression. That was the case of the Economic Freedom Fighters and Mr Julius Malema of 2019 in the Constitutional Court. In this case, the court made very express remarks about the manner in which the limitation test should be applied when freedom of expression was at issue through legislation. He believed the Committee should be guided by the test set out in this case even when the laws were made. The Constitutional Court noted that this was the test that the courts would apply but the aim was to see whether the legislature had overreached. The legislature should also then be guided by this test when making laws.

He discussed the characteristics of hate speech.

If the Members read that case carefully, then for everything that went beyond the Constitution, the Committee needed to have careful deliberation. The Department must also show the Committee why there was a need for criminalisation, specifically in respect to the court's very apt remarks around proportionality. The court also made the very pertinent point that it was not for the government to just decide and then the duty was on whoever challenged it to come and prove that this was a disproportional limitation of rights. Government's duty was to prove that it was not disproportionate. He urged the Members to be guided by those remarks of the court and specifically that test before the Committee included any characteristics that went beyond the Constitution. He reminded the Members that this was because the Committee was now criminalising.

Even going about this in a narrow manner in that specific case, the court made it very clear that it was not second-guessing the need to criminalise, for example, incitement. He noted that he was not advocating for using this case as a yardstick or guiding the Committee in terms of process just because the DA wanted this to be taken off the table. He made a strong plea for the Committee to go about this rationally and for Parliament to pass a law that would pass the limitation test. Specifically, the proportionality aspect around this. It was unfortunately not as simple as saying that this was where it had been sourced. Especially, where it had been sourced in legislation which did not constitute criminal offences. That was as far as he could take it at the moment. He would be able to spend some time over the weekend and early next week to distil his concerns in writing.

The Chairperson said that the Committee understood the reasons why he could not furnish the Committee with a written document. He suggested that Mr Horn submit a written document by Tuesday to both Members and the Department so they could engage with it. The Department would be able to do research based on the case law that Mr Horn had outlined. The Committee would await Mr Horns written submission by Tuesday.

Mr S Swart (ACDP) appreciated what Mr Horn had said. Mr Horn had added the element applicable to hate crimes. The ACDPs main concerns related to the hate speech aspect.

He noted the wide range of characteristics applicable to hate crimes.

The Members needed to have a full discussion about the inclusion of every item regarding different elements. Mr Du Preez went through the different elements, where they were inserted, and further discussions. Who were the discussions taking place with? He presumed that it was part of the public submissions. He discussed the research document that the Department provided. A lot of it was focused on hate crimes.

One aspect related to hate speech highlighted that the criminalisation of hate speech was problematic. That was something that the Committee needed to grapple with.

At the end of the day, Parliament needed to accept what it was legislating.

The Committee received inputs from the Department, but the Members were the ones that passed the laws.

His concern was that when the Committee took the wide range of characteristics, with the additional characteristics, and coupled that with the wide definition of harm, this resulted in a very wide definition of hate speech. He believed that this went beyond the limitation clause. Particularly, that this was now a criminalisation. He noted that when using examples from the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), those were civil remedies. This could fail the limitations test of section 36.

He agreed with Mr Horn.

He looked forward to Mr Horns inputs on this aspect.

The issues the Committee was grappling with were issues of the wide range of characteristics, the wide definition of harm resulting in a wide definition of hate speech and the wide hate crimes.

Mr Swart said his main concern was hate speech and the limitation that had and whether that would pass a constitutional test, given the issues related to section 16(2)(c) and read together with the equality clause of section 9. That was what the Committee was grappling with.

The Members needed to take time to go through each of these elements. Why was the Committee adding each one of these characteristics? Was it justifiable to say that because it was in PEPUDA, which was a civil remedy, it would pass a constitutional threshold regarding criminalisation?

He noted that internationally the criminalisation of hate speech was problematic when balanced with the rights of freedom of expression. That was the ACDPs broad input at this stage. It would be engaging on certain elements as the Committee went through the note.

The Chairperson asked Mr Horn to submit his written submission by Monday so that the Committee could engage with what he submitted on Tuesday. If Mr Horn submitted it on Tuesday, the Committee would only be able to engage with it on Wednesday.

He asked Mr Horn if it was possible for him to submit it on Monday?

Mr Horn responded that he would try his best. He would alert the Chairperson well in advance if he was not able to finalise the written submission by Monday.
 
Ms Maseko-Jele said that before the Committee closed the matter of the characteristics for Monday or Tuesday, she wanted to check something with the Department.

She agreed with Mr Horn that the Committee should not look at this aspect of PEPUDA but should concentrate on the Constitution. The Committee could not find itself in a situation where the legislation was not in line with the Constitution in the end. PEPUDA also covered those characteristics.

She discussed the Departments approach to the finalisation of the characteristics.

She wanted the Committee to discuss three characteristics so that the Members had a deeper understanding. The characteristics were race, religion and colour. She wanted to find out about the format the Committee was going to follow. If the Committee was going to put it this way as the characteristics and not providing the meaning of one or two of those for the Committee to understand why it reached the punishment that would be agreed upon. It was going to lessen or increase the punishment and make it tough. When the Committee discussed this, it also needed to discuss the issues of race, religion and colour in detail and provide definitions.

Today, the Committee was not getting into that discussion in detail.

She noted the concern of Mr Swart on the issue of religion.

When one considered the definition, there were other issues on religion that would be highlighted by the Committee. She wanted to leave the matter there because today, the Committee was just being given the presentation by the Department.

The Committee would come back and discuss this issue.

Adv G Breytenbach (DA) said that she agreed with the inputs of Mr Horn.

Parliament was trying to legislate morality which had not been a successful recipe. What Parliament was trying to address here was a different issue and criminalising it was not the most effective way of dealing with it. However, the Committee had this piece of legislation and needed to deal with it. She held the view that one could not legislate morality. The Committee needed to legislate very carefully when it legislated for criminal offences for what had been up to now civil offences.

Members needed to carefully interrogate this long list of categories that appeared to have been plucked from various sources and did not fit into the limitations clause. The categories would make the Committee fall foul of the limitations clause. Many of the categories were repetitious and controversial. This legislation was a long way from being finalised. The Members would have to interrogate each and every category very carefully and satisfy themselves that it was the responsible thing to do, to include them.

Members were not legislating for themselves or for a pretty piece of legislation. The Committee was legislating for the citizens of South Africa, which needed to be taken very carefully into account. The Committee always needed to legislate for the worst possible case scenario and not the best. She emphasised what Mr Horn had said. The Members needed to be very careful when they interrogated these categories.

The Committee was a long way off from finishing that.

The Chairperson asked the Deputy Minister if he had any response?

Deputy Minister of Justice, Mr John Jeffery, responded that the Bill dealt with hate crimes and hate speech.

Hate crimes were existing crimes, which because of the motive, then became that crime as a hate crime. It was not particularly criminalising because it already had to be a crime. It was an issue of exacerbating the crime and then there were consequences of it being a hate crime. It had to be recorded and there needed to be a victim impact statement. In the hearing, there was not too much input on this point. The characteristics did relate to hate crimes. It detailed what a hate crime was and the characteristics of it.

The Department would look at Mr Horns input.

The case Mr Horn was speaking about was the Riotous Assembly case in the EFF versus the Minister of Justice.

The court did deal with the issue of expression.

He discussed the list of characteristics. Some of them were in the Constitution.

Pregnancy and marital status were in the Constitution and PEPUDA but were not included in the Bill. The view was that people were not attacked because they were pregnant. They were part of a group of pregnant people. There were attacks on pregnant women because they were pregnant, but it had been specific to those women. He agreed that Members needed to interrogate each characteristic, but these were aggravating factors effectively. HIV or AIDS was not in the Constitution. It was around during the time the Constitution was being finalised but maybe it was not seen as that serious at the time.

Albinism, which kept coming up in international treaties, was not in the Constitution or in PEPUDA. It was straightforward. There were hate crimes against people on the basis of them having albinism. Those crimes needed to be made more serious, which was effectively what the hate crimes aspect was doing.

He discussed the issue of hate speech. He agreed that that was criminalising. The Committee needed to be careful concerning the limitations clause. The Committee needed to look at the purpose of the limitation, the nature and the extent, and the relationship between the limitation and its purpose. The Committee also needed to examine whether there were less restrictive means in section 36.

He discussed the Qwelane case.

The court had quoted the United Nations Rabat Plan of Action, which related to criminal sanctions related to unlawful forms of expression should be seen as last resort measures to be applied only in strictly justifiable situations. That was what the court quoted as authority in the Qwelane case. He disagreed with Adv Breytenbach. He did not think that it was a morality issue. It was an issue of harm caused to a particular people. Primary was race. He did not think it was a moral issue that a black person gets harmed by the fact that what had been said about them, not as an individual but as part of a group, was offensive. He did not think that was a moral issue.

The Department had made proposals to the definition of harm. Harm related only to hate speech. He asked Members to look at those additions and changes to the definition of harm. For it to be hate speech, it had to cause harm.

The Department had also made proposals on the grounds. Under that proposal there was a more limited set of grounds which would qualify as hate speech. Mr Horn was asking earlier about what the statistics of the cases were. Unfortunately, the NPA did not keep a record of that. The Department could not say that there were so many cases involving murders of people with albinism or so on. Those were the grounds that the Department was proposing as the most serious ones that would become hate speech.

He discussed political affiliation or conviction.

It could lead to a person being killed as a hate crime. The Department had excluded them from the grounds because it might possibly infringe on freedom of speech and might curtail debate.

The same applied to occupational trade. Some people were attacked because of their occupation and not because of the individual of who they were. However, if that was a ground for hate speech, it may also curtail criticism of politicians and lawyers. That was why that was not included.

He appealed to Mr Horn that he has his submission ready by Monday. The Department could then move the process forward.

He asked the Members to go through the changes that Mr Du Preez would go through now on harmand groundswhich were the requirements for hate speech. He disputed that the hate crimes aspect was criminalising something new. A hate crime was an existing crime, which was made a hate crime and exacerbated by the motive that it was committed for. He agreed that the Members and the Department needed to interrogate those characteristics.

The Chairperson said that the issue of the characteristicsversus the groundssounded very similar. Most of the categories were similar, except that the grounds had excluded some. What were the characteristics, in terms of definition, versus the grounds?

Deputy Minister Jeffery said that the characteristicswould be the full list for hate crimes. A person would commit this crime because they did not like the age, birth, or culture issues relating to the victim. With the grounds, the Department took the characteristicslist and excluded some. The Department proposed increasing the number of exclusions and keeping the grounds, in terms of the limitation clause, to issues that could clearly be justified. That the harm caused by hate speech was so serious that society needed to be protected from it. Mr Du Preez would go through the issues. They were issues that caused extreme harm and could cause people to die.

HIV/AIDS status had not been in the Constitution, but people were killed when they came out and said they were HIV positive. That would be a hate crime. From a speech point of view, any attack on people because of their HIV status or their age status could cause severe harm. That was why that was there. The groundswere taken from the characteristics. The Department felt that those were the more serious issues that a limitation of free speech in terms of the limitations clause would be reasonable and justifiable.

Adv Breytenbach asked the Chairperson if she may be allowed to engage with the Deputy Minister.

The Chairperson responded that she could.

Adv Breytenbach said that she agreed with the Ministers interpretation of moral as he set it out. She was not approaching it from that point of view.

Her difficulty was that people initiated these actions in the first place. She had no problem with people being offended due to hate speech or hate crimes. The morality issue was the other way around. The person committing them was what the Committee was trying to legislate. In her view, this was a morality issue.

The examples the Minister had quoted were all already crimes. If someone murdered another person because that person had HIV, that was murder. It was already a crime. It was a serious offence. It carried a minimum sentence. If one had to provide, as would need to be done with this crime, that it was motivated by particular discriminatory views concerning someone with HIV, then that would be a serious aggravating circumstance, which would then attract serious consequences. That applied to many of the categories in this Bill. They were already serious crimes and already attracted serious sentences. What was being spoken about here were aggravating circumstances which, when applied in a criminal trial, would have the effect of an even more serious sentence. It would be taken care of there. That was something that the Members could debate at the next sitting.

Mr Horn said that he also wanted to engage with the Deputy Minister.

Adv Breytenbach had covered the first issue.

He added that one of the things the Committee needed to wrestle with was whether it wanted hate crimes to be a crime in itself or whether it was aggravating in nature. The current situation was that it was a separate crime. Mr Du Preez had previously stated how the crime would be reported on in terms of the criminal record of somebody who was found guilty.

He agreed with the Deputy Minister and Adv Breytenbach that the Committee should also consider whether this should not act only as penalty enhancement factors. Had the Deputy Minister, through his input now, advocated for a slight change in the wording to include something around serious harm? That was a term he had repeatedly used in his input to the Committee but currently, it was not necessarily part of the requirements. It would make a vast difference if the benchmark was ultimately serious harm rather than just harm, as currently defined.

The Chairperson noted that the Deputy Minister had to leave early and asked that the questions that required responses be as brief as possible.

Ms Maseko-Jele said that the Deputy Minister had omitted some of the terms in characteristicsand grounds. She discussed the issues of equality, clause 9(3).

On the characteristicsit included the issues of culture and colour.

On the groundsthose had been omitted. If the groundswere going to be the ones that carried weight, the Constitution covered the ones that were omitted.

She asked the Deputy Minister to explain why the Department also omitted those ones.

Mr Swart said the discussion around the hate crimes aspect was interesting, although it had not been a big focus.

He discussed the issue of the creation of a separate crime as opposed to the existing crime with aggravating circumstances. Did the Minister foresee there being a separate crime plus aggravating circumstances possibly? This was an interesting debate on the hate crimes aspect.

Regarding the hate speech aspect, it was important to lift the bar when it came to harmand those broad definitions. He already had a problem with using the PEPUDA which was a civil remedy. Even the Constitutional Courts definition of harmful based on the civil, PEPUDA, it had a higher bar as opposed to the Bill. The Bill said harmmeant any emotional, psychological. The Constitution said harmfulcould be understood as deep emotional and psychological effects. There was already a qualification there. There needed to be some qualification in the Bill like serious or deep. There needed to be those types of qualifications when it came to the controversial hate speech element.

Deputy Minister Jeffery responded that hate crime was an existing crime which became a hate crime because of its motive. The idea listed in the Bill was that an individual committed murder because the person murdered, the individual did not like the group that that person belonged to. Adv Breytenbach raised the objection of why this was needed because it was aggravating circumstances.

Internationally there was a growing trend in hate crimes. Crimes committed not because of the subject dislike of the person but because of the dislike of the group that the person belonged to. Those crimes should be recorded. Rape was a hate crime. Murder was a hate crime. Arson was a hate crime. There were hate crimes if one was able to prove the motive of the crime. There would also be issues relating to victim impact statements being compulsory. If they could not be given, then the prosecutor needed to give reasons to the court why not. There were provisions relating to training and sentencing.

Internationally, countries were instituting more and more hate crime legislation as it became more of a problem. Deputy Minister Jeffery discussed the hate speech issue. One might say something negative about a particular group of migrants. If those migrants or refugees were attacked, then a causal link had to be proved. In contrast, the hate speech provision was making it a crime on its own to say these things. He discussed the issue of race. It was not necessarily at this stage promoting violence against a race. It was going to cause extreme unhappiness from affected people and damage the feelings of the race that the person who committed the crime was coming from and feelings from the race that had been insulted. That would be the motivation for hate speech as a separate crime.

With the characteristicsthe Department would not have seen it so much as limiting rights and therefore that list was wider. The hate speech issue very much was, and it needed to be justified in terms of the limitation clause. Those were the factors that the Department brought in. The issue of colour could be debated. The proposal from the last meeting was on skin colour. The crime could be that in some cultures, it was better to be seen as lighter and worse to be darker. If there were offences committed against a person because they were particularly of a darker skin colour, that would be covered as a potential hate crime. With hate speech, the Department felt that race was more inclusive than colour. Colour could fit within race. That could be debated.

He discussed the definition of harm, which was key to the question of what hate speech was. What the Department had put in was, undermines the human dignity of the targeted individual or groups. Harm on its own becomes that. The Department could look at qualifying the emotional, psychological, social, cultural or economic detriment suffered. That was something that could be looked at. The key debates were around the definition of harmand the list of characteristics.

The Chairperson thanked the Minister for his responses. The Chairperson noted that there was a serious thunderstorm in his area. He asked for a ten-minute break so that the thunder could pass. He asked if that was in order.

The Committee agreed to the Chairpersons request.

Clause 3: Offence of hate crime
Mr Du Preez took the Committee through the proposed amendments to clause 3. There was a proposed redraft of sub-clause (1) and (2).

Clause 4: Offence of hate speech
Mr Du Preez took the Committee through the proposed and technical amendments to clause 4.

Clause 5: Victim impact statement
Mr Du Preez took the Committee through the proposed amendments to clause 5.

Clause 6: Penalties or orders
Mr Du Preez took the Committee through the proposed amendments to clause 6.

Clause 7: National instructions and Directives
Mr Du Preez took the Committee through the proposed amendments to clause 7.

Clause 8: Reporting on implementation of Act
Mr Du Preez took the Committee through the proposed amendments to clause 8.

Clause 9: Prevention of hate crimes and hate speech
Mr Du Preez took the Committee through the proposed amendments to clause 9.

Clause 10: Regulations
Mr Du Preez noted that there were no proposed amendments.

Clause 11: Laws amended
Mr Du Preez noted that there were no proposed amendments.

Clause 12: Short title and commencement
Mr Du Preez noted that there were no proposed amendments.

Schedule amendments
Mr Du Preez took the Committee through the technical amendments to the schedule of the Bill.

Definition of harm
Mr Du Preez took the Committee through the proposed amendments to the definition of harm.

The Chairperson said that Mr Swart raised a concern on the definition of harm. Mr Swart had said that the Committee might need to include a higher test. Mr Swart referred to deep emotional, psychological, physical, social or economic detriment. That might be one area the Committee would want to debate.

Mr Swart said that followed from the Qwelane judgement where there was   reference to harmful being understood as deep emotional, psychological harm. It should be added as an option. The word ‘deep’ should be inserted as opposed to' any'. He asked that that be inserted as an option.

Ms Maseko-Jele said that she wanted to emphasise what Mr Swart said.

The Chairperson told Mr Du Preez to look into that matter. 

Definition of characteristics
Mr Du Preez took the Committee through the proposed amendments to the definition of characteristics.

The Chairperson said there might be a need for a document, like the one that was prepared for this meeting, to discuss the groundsand the characteristicsand explain deeper in terms of the limitation clause and the issue of proportionality.

Mr Du Preez said that that discussion would stand over to the next meeting of the Committee after the Department received the written submission from Mr Horn.

Ms Maseko-Jele said that she heard the Deputy Ministers response on removing pregnancy and marital status. She wanted more explanation. Maybe when the Committee returned to discuss again, the Members would find out more. When she looked at the Constitution, pregnancy was listed. She wanted to know the motivation for removing pregnancy from the list of characteristics. Why was it removed?

The Chairperson said that all of the characteristicswould be explained and motivated in terms of the two tests of proportionality and the limitation clause. Then the Committee could have a fuller discussion on each one of the characteristicson whether they should exclude or not exclude. The constitutionality of the Bill could be attacked based on the definitions, characteristicsand grounds. That could be the main attacks so the Committee would need to have deeper discussions on each and every definition.

Definition of grounds
Mr Du Preez took the Committee through the proposed amendments to the definition of grounds.

The Chairperson said that as things stood, the difference between characteristicsand groundswas a bit arbitrary. Once the Members were able to motivate then there could be a test as to what would constitute groundsand what would constitute characteristics.

Ms Maseko-Jele agreed with the Chairperson.

Mr Du Preez asked his colleagues from the Department if they had anything to add at this preliminary stage, pending the submission that would be made.

Ms Alison Botha, Principal State Law Adviser, Department of Justice and Constitutional Development, said that when the Department received the written submission, it would be much easier to address some of the questions in writing. The Department could then dig into some of the issues the Committee had raised.

Mr Swart said that he appreciated the direction that the Committee was heading.

He appreciated that the Department was going to prepare a note. However, the starting point was clearly section 16(2)(c). Those four points of race, ethnicity, gender or religion. Given the fact that the Committee was criminalising a very controversial aspect of hate speech, the ACDP argued that the Committee should limit it to those four aspects.

He noted section 9, which was the equality clause, did not address itself to hate speech. Why equality provisions would be added under hate speech would need to be justified. One would also need to justify the PEPUDA aspects because that was a civil remedy when considering the limitations clause and the least restrictive methods. It was critical for the Committee to understand that there were already criminal remedies in common law.

When considering the test of constitutionality, one had to limit the grounds as much as possible to the aspects of section 16(2)(c). That would need to be opened up for debate. His view was that it should be limited to those few grounds.

He looked forward to the discussion around the characteristics. However, if the Department kept adding, then it was opening itself up to broader constitutional challenge given the fact that this was a very controversial hate speech issue, which the research document said was internationally very problematic. He was reemphasising what he had already said.

Mr Du Preez said that the Department’s response document answered some of the criticism received from the comments of interested parties.

The Department had indicated from the beginning that there were two aspects. Hate speech was a very serious offence. It did not prevent the legislature from supplementing the common law because there was still a bit of doubt whether crimen injuria was only committed against an individual or a group. There was reference to one court case where it was indicated that crimen injuria was applied to groups. In essence, the legislature was now going to give that offence that would be created a name. It was going to be hate speech. That was the broad overview behind the proposed hate speech provision.

Ms Maseko-Jele said that she wanted to hear the conclusion because, from the input of Mr Swart, it was like the Bill needed to be limited to those issues he mentioned on the matter of groundsand characteristics. Was the Committee still going to ask the Department to go through every definition so that the Members could get more clarity?

The Chairperson said that the document was going to expand and motivate on each characteristicsand ground. Based on the motivations, the Committee could decide whether it was excluded or included. The Chairperson said that the Committee had come to the end of its deliberations on the Bill for today. The Committee would give time to Mr Du Preez to work on the document.

Mr Horn and any other Member who wanted to make further submissions to the Department and the Committee needed to circulate their views by Monday so that on Tuesday, the Committee could deliberate on the Bill. The Committee would see how far its discussion took it on Tuesday. The Committee would then move towards the A and B Lists. The Committee was not rushing but would be guided by the discussions as it deliberated.

Mr Swart said that he would like to make submissions on some of the exemptions. He would start working on a document. He appreciated the fact that the Committee was not rushing and that there were opportunities for additional submissions.

The Chairperson thanked Mr Du Preez and his team for the work done. He had done a very good job of guiding the Committee. There would be a lot of to and fro as the Committee did the Bill. The Committee was happy with what the Department had presented. He noted that there was a lot of hard work that the Department put in.

Consideration of the report on oversight visits to the Department of Justice
The Chairperson went through the report of the Portfolio Committee on Justice and Correctional Services on oversight visits to courts and justice-service points in the Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga and the Western Cape, dated 4 November 2022.

The Chairperson said that the Committee should read the two reports in preparation for the meeting with the two Ministers.

He appealed to the leaders of the delegations to make phone calls to check in the areas that the Members had visited to see if there had been any improvement in the undertakings made by both Justice and Public Works on the areas identified by the Committee.

In Mpumalanga, it was Mr Horn who had already visited it.

In Limpopo it was Ms Ramolobeng.

Before the meeting, she should call to see if there had been any improvement.

Ms Maseko-Jele was responsible for Gauteng.

The Committee had not yet visited the North West.

Adv Breytenbach and Mr Dyantyi would do the same for the coastal group. So that the Committee had up to date information for the engagement with the Minister of Public Works and the Minister of Justice and Correctional Services.

The Chairperson put the report before the Committee.

The Chairperson asked if there was any mover for the report as corrected.

Ms Maseko-Jele moved for the adoption of the report with corrections.

Mr X Nqola (ANC) seconded the adoption of the report with corrections.

The report was adopted with corrections.

Deliberations on the workshop with JICS
The Chairperson said that as agreed last week, Adv Breytenbach and Mr Dyantyi would take the Committee through the preparations for the workshop.

Adv Breytenbach said that the workshop would be on a virtual platform.

It had been left to JICS to decide what they wanted to present to the Committee in the workshop.

She told them that they should come up with the most salient points they wished to have addressed by the Committee to address the issues they had. They also needed to raise what they thought would be workable solutions in the short, medium and long term. The Members would then have the opportunity to engage with JICS per category.

Everything was under control. She had spoken to Judge Cameron. Everything was on track.

The Chairperson asked the Members if they had any questions.

The Chairperson asked if the Committee had invited the Deputy Minister of Justice and Correctional Services. He thought that both Justice and Correctional Services should take part because there was a direct impact on court sentences.

A particular clause in the Correctional Services Act was not being used.

Adv Breytenbach responded that they had not been invited. She thought it would be best not to invite them.

She thought that this should be an open, honest and deal with the real issues situated between the Committee and JICS.

As a Committee, these issues could be raised at a different meeting with the other stakeholders and the Committee could then invite JICS back to that meeting.

For the purposes of the workshop, she thought it would be most constructive if it was Members of the Committee and JICS presenting with no other roleplayers involved. So, the Committee did not get sidetracked and pursue other issues. This workshop was to deal with issues that JICS was finding insurmountable in the carrying out of their mandate and the oversight body over them finding ways to deal with those issues and take the matter forward. She held the view that the Committee should take it up with other stakeholders at the appropriate time. She was not sure that the workshop was the appropriate time. If the Chairperson wanted JICS there, then they would be invited.

The Chairperson said that the Committee would have its first discussion with JICS and then the workshop would decide on how to take the issue forward.

The Chairperson asked if there were any other issues of clarity concerning logistics of the workshop.

Ms Maseko-Jele asked if a date had already been decided on.

The Chairperson said that the two workshops were reflected in the programme. He asked Adv Breytenbach when the workshops would be.

Adv Breytenbach said the workshops would be on 11 November and 23 November.

The Chairperson said that the Committee would have two workshops. One with JICS and then one be a workshop with Prof Muntingh, which would deal with issues relating to the NPA. The workshop with JICS might have some emphasis on the minimum sentences.

The Chairperson asked if there were any other questions.

Mr Swart asked if it would be the whole day. He wanted clarity on time for the workshop.

Adv Breytenbach said that it was planned for the whole day. She assumed that the starting time was 09h30.

The Committee Secretariat said the workshop would be virtual on Friday next week starting at 09h30. He would create the meeting link and share it with the Members and the judge.

JICS would use about an hour to start the presentations. Then engagements would flow from there.

The Chairperson said that the workshop would start at 09h30. There would be one hour given for the presentation by JICS. Engagements would follow that. The Committee was preparing for a whole day meeting.

Ms Maseko-Jele asked if the Committee was going to receive a presentation before that day. Was there anything that the Committee needed to prepare?

The Chairperson said that the Members should not approach it as a Committee meeting of just questions and answers. It would be a workshop where the Members would come with open minds.

JICS would make a presentation just as a guide.

The Committee should come to the workshop to see what worked, what was not working and how to take issues forward.

Sometimes it was beneficial to challenge the views that the Members held for a very long time. He noted the link between the views that the Members might have and the reality on the ground. The Members should come with an open mind as it would be a workshop. The Members should view it as a Committee meeting. Adv Breytenbach and Mr Dyantyi would be facilitators of the workshop.

Adv Breytenbach said that the Chairperson was correct.

She suggested that in preparation for the workshop, the Members should refresh their memories on the issues that JICS and the Committee had raised to see how it could mend things and improve them.

She also noted the experience of Members on oversight visits.

The Members could also research international best practices with similar institutions in other countries, both in Africa and elsewhere. So, that the Members could engage meaningfully with the presentation. She had not asked for the presentation upfront because it was a workshop so the Members were not tempted to come to the workshop with preconceived ideas instead of grappling with the issues as they arose.

The Committee Secretariat said that the judge committed to sending his presentation and overview before the day of the meeting. The documentation would be sent before Friday.

The Chairperson noted that the Committee Secretariat wanted to discuss the other workshop. 

The Committee Secretariat said that when he spoke to Prof Muntingh, who would be hosting the second workshop, he said he would send the range of topics he could present to the Members. The Members would be able to make those selections and then the Committee Secretariat would send it back to him. Prof Muntingh had asked if the meeting would be in-person or on a virtual platform. He emphasised that the in-person meeting would be more informative. The Committee Secretariat said that there would be House sittings on both days. The sittings were hybrid. The Committee needed to decide whether the meeting would be in-person or virtual. Where would the Committee like the venue to be if it was in person?

Adv Breytenbach said that she had discussions with Prof Muntingh and asked him to supply a list of the most pressing topics he would like to discuss.

She urged Members to think about the Committee engagements, oversight visits and the problems experienced in various Departments, particularly DCS.

The Members should also look at international best practice. In that way, the Members should prepare. When Prof Muntingh sent the list, it would be distributed so that the Members could mark those that would be the most important matters. It was a two-day workshop.

The Committee should be able to traverse most matters. It would be very beneficial for it to be an in-person workshop. If there was no possibility of space at Parliament, then she was sure Prof Muntingh would be able to find accommodation at the university. It should not be too much of a problem.

The Chairperson said that there would be logistical issues if there were sittings. He was not sure what the problem was with virtual. Between the view and Parliament, it could become a nightmare.

Adv Breytenbach said that if the Members preferred a virtual meeting, then that was what the Committee would do. She thought that the Committee would possibly get more out of an in-person workshop. It was up to the Members.

The Chairperson asked what the view of other Members was.

Ms Maseko-Jele said that a virtual meeting would be best. There would be fewer logistic problems.

The Chairperson said that before next year, the Members could get together and have something without House sittings where they could meet in-person to plan for the year.

The House sitting provided some challenges for the Committee.

The Chairperson asked if the Committee could try and make it virtual. At some point, the Members did need to meet one another in person.

He noted the issue of international best practices.

The two workshops would assist in informing the oversight areas that the Committee might need to do in terms of a study tour early next year to look at international best practices. These two workshops would help assist the Committee in finding those areas and countries that the Committee might need to visit.

The Chairperson had received correspondence which would be circulated to the Members from the Speakers Office.

The Committee needed to nominate a person who would sit on the Review Committee who would be advising the Minister of Justice on issues of equality. The person nominated last time was Ms Sithole who sat on that panel. Since her term came to an end with the Fifth Parliament, the Committee needed to nominate a person. He suggested that next week the Committee would nominate a person who would represent the National Assembly in that Committee.

The meeting was adjourned.
 

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