Prevention and Combating of Hate Crimes and Hate Speech Bill: deliberations; with Deputy Minister

Meeting report

The Chairperson informed the Committee that Ms A Ramolobeng (ANC) was in Musina and Polokwane doing her oversight work in Limpopo as a follow-up visit. Mr R Dyantyi (ANC) and Mr X Nqola (ANC) both submitted their apologies, as they were on the s194 Committee.

Discussion on Deputy Minister’s conduct in the preceding meeting

Mr F Mulder (FF+) said that although he appreciated the arguments and concerns that the Bill intended to address, the FF+ maintained its view that the task that the Committee was engaging in was double legislating.

His concern was regarding some of the comments that Deputy Minister John Jeffery had made in yesterday’s meeting about the constituencies of the FF+. He described those comments as concerning, and did not set the proper climate for conducive work. As lawmakers, Members were legislating for future generations, which required responsible legislation. He and his other colleagues were deliberating on this matter because of this significant responsibility. He thus asked Deputy Minister Jeffery to refrain from making comments as he had.

Adv G Breytenbach (DA) supported Mr Mulder’s concern that Deputy Minister Jeffery had made some unfair comments about the constituencies of the DA and FF+. She recommended that Deputy Minister Jeffery refrain from doing such things in future.

Ms Y Yako (EFF) understood that what Deputy Minister Jeffery had said had rubbed the FF+ up the wrong way.

Mr Swart (ACDP) supported his colleagues’ view, and highlighted the function of the Committee, which was to pass good legislation.

Ms Maseko-Jele (ANC) wanted to know what the comment had been about. When Mr Mulder spoke about the ANC and the apartheid struggle, she felt the same as Mr Mulder was feeling right now. She said that Mr Mulder did not appreciate what apartheid had done to some of the South African population.

Mr G Hendricks (Al Jamah-Ah) said that it was important to be clear about what the Deputy Minister had said that had offended some of his colleagues. The country certainly did not want to return to apartheid.

Deputy Minister Jeffery wanted to know what specific things he had said that had caused Members to take offence.

Mr Mulder said he had merely used the struggle as an example. This was not about politics, but about legislating for the future. Since he had background noise and Members could not hear what he was saying, he asked to be excused from the platform.

Mr W Horn (DA) assured Ms Maseko-Jele that no one denied the pain of apartheid in South African history. He and his colleagues were asking only for a bit more sensitivity on the part of Deputy Minister Jeffery, given that their constitutional democracy afforded everyone an opportunity to demonstrate their commitment to the country. He found it ironic that despite that in the Constitution, Deputy Minister Jeffery could still make such remarks such as “ultimately FF plus and DA would oppose the bill because their supporters were perpetrators.” Those holding political power and processes seemed to believe that only people with a certain pigmentation could draft a bill against hate crimes. As long as that remained the attitude, this Bill would be problematic.

Adv Breytenbach remarked that Deputy Minister Jeffery knew exactly what he had said, and it was unnecessary of him to even ask. Other Members were in the Committee and had heard what he had said. She reminded Deputy Minister Jeffery that he had said just before adjournment yesterday that “the DA, to a lesser extent, the FF+, which does not surprise him at all because it was largely their constituents that were usually being charged with such offences.” She said that there was no scientific data to support that claim and it was a disparaging thing to say. It precisely explained why the DA was cautious about the Bill, because it would be exceptionally difficult to prove the state of mind.

Deputy Minister Jeffery noted the concern, and said that the deliberation on the Bill was a political process. He was a politician sent here by the ANC with political objectives. His reference was taken out of context -- that there was a problem of racism in South Africa. His remark, which offended, was referring to the fact that very often, white Afrikaners were reported as perpetrators in the media. It by no means suggested that all white Afrikaners shared the same view. He was saying that those perpetrators generally supported the FF+. His point was that even white Afrikaners would benefit from this Bill if they were being cast over. He would refrain from making such comments in future.

The Chairperson asked for unity and focus on the Committee’s work given its importance to society. Deputy Minister Jeffery’s response was noted. The matter was concluded.

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

Mr Henk du Preez, State Law Advisor, took the Committee through the draft bill.

On clause six, where it concerned penalties, he clarified that the eight-year imprisonment did not mean that a person who committed whichever crime should be sentenced to eight years in jail.

Ms Maseko-Jele opted for option 2, which retained the eight-year maximum imprisonment.

Mr Swart distinguished the vast difference between three years and eight years. He found eight years to be excessive. While appreciating that it was the maximum period, he remained cautious and opted for the penalties proposed in the original Bill, which stated that first-time offenders should be given a maximum of three years imprisonment, and second-time offenders a five-year term of imprisonment.

Adv Breytenbach shared Mr Swart’s view, and indicated her support to retain option 1.

Mr Hendricks said he was inspired by the restorative justice system in Zambia. He was of the view that Members should look at guidance from the Constitution. Offenders should be educated rather than put in jail. South Africa's prisons were full.

Deputy Minister Jeffery agreed that when the Bill was first introduced, it did come with option 1. He also agreed with Mr Hendricks that he did not want to imprison people unnecessarily and would rather want to correct their behaviour. However, since the Bill was for everyone in the country, having a maximum imprisonment sentence was needed in egregious cases, such as the one involving Vicky Momberg. He pointed out that the imposition of sentences was carried out by the courts -- the Bill only stated that this was the maximum sentencing period that a court could give. For instance, hypothetically, if someone said something about a religious, ethnic, or foreign national group, and shortly after that statement being made, there was considerable damage done to that group and there was not enough evidence to charge that person of incitement, but it was undeniable that that person’s remark was certainly a contributing factor to the destruction of the targeted group, in this scenario, what kind of sentence should that person get? He questioned Members as to whether three or five years would be enough.

Ms Maseko-Jele persuaded the Committee to treat the matter more seriously, as communities were paying attention to the progress of the Bill. She pointed out that colleagues should understand the Bill in the context of both hate speech and hate crimes. The intensity of the matter was not felt the same way when the Bill was first introduced.

Although she understood Mr Hendricks’s point on campaigning and education, this should be done on different platforms. She was firm that government must send a message to those who refused to conform to the harsher sentencing. The Maselspoort swimming pool incident showed the necessity for that. She was of the view that the intention had been to kill the child when the child was pushed into the pool.

Ms Maseko-Jele was also concerned about the fine issue as a penalty. It would not be fair to poor people, because rich people could get away with paying a fine.

The Chairperson asked Mr Du Preez to clarify if the sentencing applied only to hate crimes, but not to hate speech.

He reiterated that the Committee had to determine a maximum sentencing period. The matter should not be left to the discretion of the courts.

Mr Du Preez said that the Chairperson’s understanding was correct. The principle of legality states that prescribing sentences should be the last resort. The determining of a sentencing period should be left to the discretion of the court.

Mr Hendricks indicated that courts were guided by what was in the law. He was of the view that the point that “a judge must review an incident properly and treats imprisonment as the last resort” should be included in the Bill. He suggested reviewing the law and looking at clauses that could easily send people to jail because of legislature’s drafting problem. He did not think that enough education and campaigns had been done on the matter to re-educate people on the issue of racism.

Ms Yako supported option 2, which was a period not exceeding eight years. She distinguished hate speech versus hate crime. Given the history of the country and what was happening, an incident such as what a teacher said to a learner impacted that learner for a long time. One should never minimise the impact of hate speech on a person’s mind. She remarked that in most cases of hate speech in South Africa, white people made racist statements because of the inequality status. Her ten-year-old son had had a hate speech issue back in 2022.

Mr Swart agreed that one should never minimise the impact of hate speech on its intended victims, but there was confusion around hate crime and hate speech.

He agreed with Mr Hendricks, and fully appreciated the restorative justice input.

He pointed out that Option 2 did not distinguish between first-time and second-time offenders. He thus suggested that the sentencing should be left to the discretion of the courts, as the discussed examples were all related to hate crimes.

Ms W Newhoudt-Druchen (ANC) said that sometimes a person may utter a hate speech without realising the consequences of what that person said. In that circumstance, how should that person be held accountable if another person committed a crime based on that hate speech utterance? For instance, a person may get off lightly for making hate speech utterances against the lesbian, gay, bisexual, transgender, queer and questioning, intersex (LGBTQI) community, such as calling for lesbian women to be murdered, but the person who committed the crime was being punished severely. In her view, both parties should be punished equally. Hence, she supported option 2.

Mr Horn supported option 1.

Mr Horn noted the passion that his colleagues had shown on the effects of bearing the brunt of racist speeches, and agreed that the Committee could not turn a blind eye to that. The difficulty was that the characteristics included in the list extended beyond racist speech. Using a broad brush and categorising other characteristics as if they all carried the same historical injustice was untrue and was not supported. He reiterated the argument made by the Constitutional Court, that it must be proven that other measures had failed in addressing a widespread occurrence of that type of speech before criminalisation of hate speech could be considered. He appealed to Members and highlighted the importance of responsible law-making. Vengeance and punishment should not be the Committee’s overriding consideration. He supported the view of exploring other rehabilitative methods, because harsher punishment was not deemed effective in deterring such incidents.

The Chairperson indicated that Members’ preferred options were quite clear, and that they would return to vote on the options at the next meeting.

Ms Newhoudt-Druchen highlighted the words “withdraw” versus “discontinue.” Similar to sexual offences, she pointed out that there may be cases where hate speech victims withdrew their cases. It was therefore necessary to distinguish between those two terms in the Bill.

Mr Du Preez responded that the criticism against the Sexual Offences Act was that sometimes there would be situations where police officers at stations decided not to proceed with an investigation because they decided that the cases were too easily withdrawn. The provision intended to empower the South African Police Service (SAPS) national commissioner to guide officials on the one side and prosecutors on the other, to make sure that if there was a prima facie case, the perpetrator must be prosecuted.

There was no comment made on clauses 7 and 8 and 9.

On clause 10, Mr Swart supported option one, which retained Parliament’s rights in considering subsidiary legislation and regulations. Given the sensitivity and contentiousness around hate speech, and that the empowering provision allowed the executive to make a number of regulations, he felt option one would be the right approach to keep the executive in check.

No input was made on clauses 11 and 12.

Deputy Minister Jeffery asked Committee Members if option two under clause ten should be deleted.

Ms Maseko-Jele requested the Department not to delete anything to allow Members to apply their minds until the final stage. She expressed her support for option 1.

Ms Yako agreed with Deputy Minister Jeffery’s point.

Mr Horn also agreed with Deputy Minister Jeffery, and specifically indicated that the 60 days had to be contextualised to when Parliament was in session.

Adv Breytenbach agreed with Mr Horn. So did Ms Maseko-Jele.

The Committee resolved that option two should be deleted from clause ten as an option.

Mr Du Preez asked the Committee why the Minister still had to report to the Committee for approval if the legislature assigned subordinate legislative power to the Minister.

The Chairperson explained that in English law, the legislature retains the right of approval to subordinate legislation. For instance, on the Cannabis Bill, there was a clause that enabled the executive to draft regulations, but the legislature must always keep that power in check.

Mr Horn agreed, and pointed out that the Committee should carefully consider a number of cases where the manner in which power to make regulations had been assigned to the executive, were unconstitutional. A number of court cases had affirmed that Parliament could not delegate legislative power to the executive branch of the government unless the regulations were administrative in nature, when the executive could have the power to make regulations without the oversight of Parliament.

Mr Du Preez thanked him for that explanation.

There was no input made to clauses 11 and 12.

On clause 11, Mr Swart said that it was important to consider that should the Bill be passed, there would be consequential amendments that the Committee should bear in mind.

Mr Du Preez indicated that the proposed amendments to the Criminal Procedure Act were consequential amendments. Details of those amendments may refer to the attached document.

As Members did not have any input on the Schedule, the Chairperson asked Mr Du Preez to brief the Committee on the meaning of “social harm”.

Definition of "social harm"

Ms Ina Botha, State Law Adviser, explained to the Committee the definition of “social harm” in the context of hate crime and hate speech. Social harm existed at two levels. Firstly, it existed as a type of harm to a direct victim or the targeted group. Secondly, social harm was a harm in itself as a result of hate crime and hate speech. She acknowledged the difficulty in assessing the impact of social harm, as it was a rather nebulous concept, unlike the tangible outcomes which could easily be seen in physical and economic harms. However, she did recognise its existence and highlighted that crimes resulting from hate crimes existed at three levels. One was the harm caused to direct victim; the second type of harm was to the targeted group, and the third type of harm was its impact on the wider community and society. Within those three levels of harm, the first two levels of social harm could be felt. Social harm, as a type of harm, could be a type of direct harm to a victim, but it could also be a type of harm to a targeted group or community. Academic studies done to illustrate the effect on social behaviours of direct victims of hate crime and speech showed the changes in social behaviour of the targeted groups of hate crimes and hate speech. In addition, social harm could also be a harm in itself.

Hate crime struck at the heart of societal value. It offended society’s collective moral code. Hate crimes negatively affect society as a whole. Incidents of hate crimes exacerbated the existing inter-group tensions and would lead to cyclical retaliatory violence. Academics have observed that minority groups would be able to achieve their full potential and participate meaningfully in society if they were more protected. Their fears towards a system that did not value them ultimately made society lose out. In the South African context, academics had noted that in light of the racial discrimination history and the bitter and protected struggle for equality in South Africa, the right to equality and non-discrimination were the cornerstones of its democracy and was enshrined in the Constitution. In the country's diverse and multicultural society, social fissures between racial and ethnic groups have always existed. Perpetration of hate crimes and hate speech was likely to exacerbate the simmering tensions that already existed. It was based on that, that social harm was defined as harm that impacted social cohesion.

Deputy Minister Jeffery proposed retaining “social,” but changing the definition of social harm in the draft bill. The definition made in the case of the South African Human Rights Commission v Khumalo was the harm to social cohesion in South African society.

Mr Swart asked Ms Botha if what she suggested pertained to hate crimes, but not necessarily hate speech. His understanding of what Members were dealing with currently was related to s4, which was hate speech. The broadness of the application of the concept of social harm made him wonder whether there had been an agreement already that culture was not going to be included in the Bill.

The Chairperson remarked that he thought it had been agreed that there was not enough motivation for cultural harm to be included in the Bill. What Ms Botha had explained was why social harm should be included.

Mr Horn commented that it made more sense to include social harm if culture was excluded, although he was not convinced by the absolute necessity to include it in the Bill. If one looked at the current draft definition, it was possible that somebody might suffer emotional harm without necessarily suffering from psychological, physical or financial harm. He was uncertain if social harm could be suffered without any other forms of harm being suffered. He wondered whether that would affect the change in the definitional aspect.

Adv Breytenbach said she supported Mr Horn’s view, and would need to see the elaboration of the harm suffered by victims.

She asked for Ms Botha’s research document to be circulated.

Ms Yako struggled to understand from Ms Botha how social harm could be translated into reality, as she had not given a proper example to illustrate that form of harm.

Ms Maseko-Jele endorsed including social harms, and pointed out that it had covered many areas. By excluding it, it would be socially impacted, given the importance of social cohesion. Further, she asked Members not to dwell on those smaller issues, as they were delaying the impact of democracy.

Mr J Engelbrecht (DA) suggested including social harm in the context of social cohesion, and remarked that it would be better to include that with the understanding of social cohesion in the nation-building process of South Africa. Hence, there should be three elements to define hate crimes and hate speech, including promoting and propagating hatred, inciting harm and undermining social cohesion.

Deputy Minister Jeffery responded that in South African Human Rights Commission v Khumalo, the case showed three types of harm, specifically highlighting that the third type of harm was harm to social cohesion in South African society. In Qwelane v South African Human Rights Commission and Another, the case demonstrated the type of harm which undermined the nation-building project. That was the definition of social harm- the harm caused which upsets the country's social cohesion between different groups and people. In many cases, such harm would lead to possibly individuals or those who belonged to those groups being targeted for hate crimes. For instance, the Penny Sparrow case caused huge outrage and social harm. The Maselspoort Resort incident was before the court. Should the Act come into effect, the two boys would not only be the subject of assault, but it would also be seen as an incident that had caused severe disruption of social cohesion in South Africa. Cultural harm was seen as part of social cohesion, so it was included in social harm.

The Chairperson enquired if a person was a strong republican calling for an end to monarchies in South Africa, such as calling for the abolition of the Zulu and AmaMpondo monarchies, would that be seen as an attack on the Zulu or AmaMpondo population?

Deputy Minister Jeffery replied that the grounds for hate speech did not include culture. However, it might be bordering on ethnic origin, but he found it a difficult question to respond to. He questioned if an attack on the monarchy would be sufficient ground for hate speech towards an ethnic group. He did not think so, if the context was in the United Kingdom. A similar question that could be asked was to what extent criticisms against the state of Israel and its policies should be seen as anti-Semitism. It was not the Deputy Minister’s intention that criticism against a particular form of governance, such as the monarchy, should be seen as hate speech, and he hoped it would be excluded. His view was that one should be able to criticise the policy of Israel without being charged with hate speech because of anti-Semitism.

Ms Maseko-Jele enquired about the term “white monopoly capital must be dealt with” and whether it would be seen as hate speech under the Act.

Deputy Minister Jeffery did not think that would be rendered as hate speech because white monopoly capital was a sociological construct. It was undeniable that there was racial monopolisation in the economy. Only criticism against a particular racial group would be rendered as hate speech.

Ms Botha referred to her earlier explanation on social harm, which stated that “hate crimes strike at societal value and offends society’s collective moral code.” Social harm should therefore refer to the most egregious type of harm which was so widespread that it would cause collective moral repulsion. Because it was nebulous in concept, it was more difficult to explain the concept than tangible forms of harm, but it did exist.

Mr Swart asked Ms Botha whether she referred to hate crime as including hate speech, or whether she conflated those two concepts.

Ms Botha replied that social harm was being referred to in the context of both hate crime and hate speech.

On the definition of harm, Ms Maseko-Jele sought clarity on the word “severely” or “substantially”.

Mr Du Preez reminded Ms Maseko-Jele that the Department had recommended in the meeting yesterday that they should rather replace “severely” with “substantially.”

The Chairperson recalled that resolution, as Deputy Minister Jeffery had said, "substantial” should be used in the beginning, as it would not make sense if “substantial” was used in the same definition. It would be more elegantly done if “severely” was deleted. Furthermore, the combination of options 2 and 4 had been supported by Mr Swart and others.  

Ms Yako asked why “substantial” was there in the first place. She asked if the Department should rather change it to “harm means substantial emotional, psychological, physical, social harm that objectively and severely undermines the human dignity of the targeted individuals or groups.” She complained about why the Department had to make Members choose between “substantial” or “severe.” It should not have been there in the first place.

The Chairperson explained that it was normal that drafting was not an easy process. Members would have to refine things as they went along. It was a very technical process.

Ms Maseko-Jele supported removing the second “substantially” from the Bill. She also supported option 1, which included “social, cultural and economic” aspects of harm in the definition.

Mr Swart supported the suggestion to remove the first “substantially.”

Deputy Minister Jeffery sought clarity as to whether the Committee had resolved to leave out “cultural” from the definition of harm. The Chairperson confirmed that it had.

Mr Swart raised the issue of partial exemption, and wanted a complete exemption on the “freedom of religion and expression”. Further, he sought clarity on the meaning of “private.” He questioned whether it was unnecessary to insert the word “private” because the exemption would also apply to private places.

Mr Swart said that Freedom of Religion South Africa (FORSA) represented many different faiths in South Africa and many other faith-based societies and organisations, all of which were in support of a full exemption. Given that religious groups would often comment on controversial topics such as abortion, the Roman Catholic Church might have a view that might be offensive to those who had or planned to have an abortion. Hence, it was absolutely necessary for religious exemption to be inserted so that people making speeches in a faith-based context would not be prosecuted under the Act.

He also asked if the exemption would apply to religious organisations such as churches as well. He asked if there would be any harm if a church promoted a certain view on issues such as prostitution, sin, adultery, etc. -- would it land the church in hot water under the Act?

Mr Swart firmly believed in the right to freedom of expression and belief. As the courts had affirmed on various occasions, the expression of religion, such as a church speaking out against homosexuality, should be permissible.

Mr Horn agreed with Mr Swart, and supported the view that exemptions should cover a wider group of people, including journalists, academics and artists, as long as it was a bona fide act. His concern was that the moment an act was deemed to meet the basic elements of hate speech, it could not be exempted for those populations. For instance, should a religious community condemn homosexuality and express the opinion that people involved in such acts should be excommunicated, even though it was a bona fide act, the interpretation of the Bible itself would get the church into trouble. It would fall prey under the provision. He suggested that harm must be defined differently for groups such as journalists, academics, religious groups, etc.

Ms Maseko-Jele cautioned the Committee that a prolonged discussion on exemptions would delay the Bill and lead everyone to start afresh on the process. She highlighted the urgency to conclude this process, because bigger and more important issues such as hate crimes and hate speech, needed to be attended to.

She commented on the exemption of artists, and expressed her wish to see examples of bona fide artistic work being exempted. The harm that the same artist caused in her presentation was also saying not-so-nice things about people with skin colour. She reminded Members that they were discussing the issue because of the country’s past and current situation, so she did not think they should entertain the issue of exemption. Everyone must be subject to the law, and the rest should be left to the courts' discretion.

The Chairperson pointed out that the Committee should not leave those questions to the courts, and Members should strive to do their best to pass legislation.

Ms Maseko-Jele commented on the exemption of religious groups, and highlighted that it was impossible for any bill to fit everyone’s needs. For instance, the issue of abortion was frowned upon in African communities, but people should still obey the law should the Bill be passed and go into effect. She did not support any form of exemption.

Adv Breytenbach indicated that Mr Horn had adequately covered her point.

Deputy Minister Jeffery indicated that s16(2) of the Constitution sets out the limitations of freedom of speech. This Bill created the offence of hate speech through that limitation clause and specifically defined it as “harmful or incite harm or promote or propagate hatred based on one or more grounds,” which was a lower bar than the requirement of s16(2).

To protect freedom of artistic, religious, academic, reporting and publication, partial exemption would apply, which was an application of s16(2). In this case, a higher bar was applied because the act itself had to meet the requirement of not advocating hatred that constituted incitement of harm. Therefore a person that made nasty remarks about gay or lesbian people in a church -- as long as that remark did not incite harm -- would not be prosecuted because of this partial exemption. A similar exemption would also apply to bona fide reporting.

Deputy Minister Jeffery indicated to Mr Swart that the definition of conviction in the dictionary was “firmly held belief of opinion,” which should include tenet belief.

He clarified that the Bill dealt with natural and juristic persons, so should a church be in hot water because of a hate speech remark, the individual who made the remark would be prosecuted, not the organisation. If a religious organisation advocated racial superiority, it would be that person that would be prosecuted.

Deputy Minister Jeffery clarified the question about whether a church that advocated against abortion out of its religious tenets would be prosecuted. He responded that it would depend on the grounds that came into play, and referred Members to the Bill. It was government’s position to encourage more freedom of speech and ensure that limitations were in line with the Constitution.

Ms Yako expressed her concern about religious convictions. As a queer person, she was very concerned with that narrative. Many things that were in the Bible are being done today by religious people. Hence, queer people's convictions did not muster for her.

Mr Swart reminded Deputy Minister Jeffery to clarify his question about the meaning of “private” in the Bill. He felt it was important to apply partial exemption to issues such as homosexuality. Whilst he fully appreciated Ms Yako’s argument, various courts had declared people’s right to religious freedom and to declare or believe openly without fear of reprisal. The Constitutional Court upheld the importance of religious communities. The courts had emphasised and guaranteed the right to verbalise beliefs which some may find offensive.

The Chairperson commented that it might be useful to review what constituted “incitement,” as it was a legal term.

Deputy Minister Jeffery shared Ms Yako’s dislike of people who said that about queer people, and agreed that it did cause severe distress. In reality, many people of different faiths were not well exposed to the queer population. The exemption had been included because of the issue of religious freedom, which the Act had to recognise and protect. One could say not nice things about queer people, but those things could not constitute incitement of harm, such as those words in Leviticus -- that queers should be stoned to death.

Ms Yako pointed out that religious freedom was too broad a concept. All she was trying to say was that lawmakers should not be using the queer community as an example, understanding how gay and lesbian people were being prejudiced and killed, not normalising it in any context of the law.

The Chairperson informed the Committee that Members would formally vote the next time they met. This process would then be concluded before the Committee adopted the report and referred it to the House.

Mr Swart asked Mr Du Preez to assist on the issue of "private."

Mr Du Preez replied that the Prince judgment demonstrated that what people smoke in private was a person’s own prerogative, and the law could not criminalise. Hence, it was a similar approach to criminalising thoughts or speeches made in private. For instance, if one met friends at a braai at home and said a few bad things, that person would not be prosecuted. However, that would change if someone made a WhatsApp video and circulated it online, because the issue had now been transmitted into the public arena.

Ms Newhoudt-Druchen requested the Department to provide a cleaned-up version of this document before next week, and requested that the document related to social harm be sent to the Committee.

The Committee’s next meeting would be on 21 February.

Briefing on legislative programme for 2023

Deputy Minister Jeffery flighted a letter dated 4 January 2023, which detailed the review of the 2022-2024 legislative programme. In total, eight bills needed to be reviewed by the Committee in 2023.

Bills with constitutional Court declarations of constitutional invalidity were as follows:

1. The Regulation of Interception of Communications and Provision of Communication Related Information Amendment Bill (RICA);
2. The Correctional Services Amendment Bill; and
3. The Judicial Matters Amendment Bill (to make the required amendments to the Maintenance of Surviving Spouses Act, the Matrimonial Property Act and the Promotion of Equality and Prevention of Unfair Discrimination Act).

He highlighted that the RICA bill was to deal with the amaBhungane case.

The Decriminalisation of Sex Work Bill -- to be called Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill -- had been published for public comments.

The International Co-operation in Criminal Matters Amendment Bill would be expected at the next Cabinet Committee meeting.

The Extradition Bill had been advertised for public comments.

(For details of the programme, refer to the attached letter).

Discussion

Mr Swart commented that it was a short year, with a huge number of bills that the Committee had to process. Given the heavy programme, he was uncertain if Members would be prepared to make any meaningful input on the Bill. He was doubtful if the current laws at hand could be finished on time. He asked how the Committee should prioritise legislation.

Ms Maseko-Jele was concerned with the limited time concerning the capacity of the Department. She recalled that when this Committee had been sworn in, it had to deal with the issue of a backlog from the previous Committee, and now it seemed like this Committee would be leaving legacy issues to the succeeding Committee as well.

Ms Yako was concerned with the administrative part of the Bill. On the Decriminalising of Sex Work Bill, she asked the Department why Members had not been involved in the public comments process beforehand.

The Chairperson clarified that the public comments process to which the Department had referred, was on the executive part. When bills come to the Committee, the legislature also holds its own public comments and hearings. However, he did caution the Department that it would not be possible for the Committee to work on any bills that came later than June. Hence, the prioritisation of bills must be focused on which bills should be introduced on time. Also, he pointed out that the length of a bill would affect the time it would require. The shorter the Bill was, the easier it was to process, and the longer it was, the more time it took to process it, such as the Cannabis bill.

Deputy Minister Jeffery said that all the bills except the Extradition Bill were amendment bills. The Extradition Bill might be the most difficult and extensive Bill that would require the most work. He considered the deadline for June reasonable.

He stressed that the Decriminalisation of Sex Work Bill was fairly urgent because of gender-based violence and the recent GBV summit.

Mr Tsietsi Sebelemetja, Director: Legal Drafting, confirmed that the longest Bill would be the Extradition Bill.

The International Co-operation in Criminal Matters Amendment Bill would be re-tabled in thCabinet Committee.

The draft of the National Prosecuting Authority Amendment Bill was being prepared and was ready to be taken to the cluster.

The Department’s aim was that all the bills should be taken to the Cabinet by March or April at the latest.

The Chairperson asked the Department how urgent the Extradition Bill was.

Mr Sebelemetja replied that the Department aimed to present it, along with the International Co-operation in Criminal Matters Amendment Bill. The Department had to re-discuss the urgency internally as well.

Deputy Minister Jeffery indicated that the Extradition Bill was a more complex process, involving South Africa extraditing to another country. Although it was preferable to process the Bill, the Department would not view it as the end of the world if the Committee could not, as everyone had been living in the system for some time now.

Ms Kalayvani Pillay, Deputy Director-General: Legislative Development and Law Reform, DoJ, commented that although it was a long bill, it had already been developed by a task team with the relevant government departments. The issues which the Bill itself addressed were not controversial. The Department had not got any input on the draft of the Bill. It was a bill which sought to address South Africa’s cooperation with international entities and the prosecution of crimes that happen elsewhere in the world.

She commented that the Department was bringing a Regulation of Interception of Communication Act (RICA) amendment bill to address the constitutional flaws of the Bill. There were elements of amendments of the Bill which would lead to consequential amendments.

The Chairperson enquired about the Constitutional Court deadline that was set aside for the RICA bill.  

Ms Pillay replied that the deadline was 3 February 2024.

The Chairperson replied that it meant that the RICA bill needed to be finalised this year, as 3 February 2024 would be in the midst of elections at that time. When parties came back after the elections around May or June, that would be budget time, which meant that the Committee would start working only in August or September. The Chairperson suggested that the whole National Assembly process should be concluded by July. Then the Bill could go to the National Council of Provinces before the President assents to the Bill to meet that deadline. Therefore, the RICA bill must be finished by July.

Ms Pillay responded that other bills were much shorter bills, and RICA was the only one that needed to be dealt with which had a Constitutional Court deadline.

The Chairperson noted that the Correctional Services Amendment bill involved the Department of Correctional Services as well, and indicated that the 12-month deadline ended in November.

In addition to the legislative programmes, the Committee was also burdened with heavy oversight work, such as the Master’s Office infrastructural issue. He therefore urged the Committee to be much more efficient in using time. They might have to think of the programmes much differently after their return in March.

The meeting was adjourned.