Salaries of Judges and Magistrates; Prevention and Combating of Hate Crimes and Hate Speech Bill: Department response & deliberation; with Deputy Minister

Meeting report

Opening Remarks

The Chairperson welcomed Members back after a lengthy period of organisational work. There were four agenda items to be covered in the meeting. Agenda items one and two dealt largely with judges’ and magistrates’ allowances and benefits. Agenda item three dealt with the Hate Crime and Hate Speech Bill.

Concerning agenda item one, the Committee dealt with this matter annually in terms of section 2(4) of the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act No 47 of 2001), as it relates to judges, and section 12(1) of the Magistrates Act, 1993 (Act No 90 of 1993), as it relates to magistrates.

The Chairperson handed over to Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, to brief the Committee on the matter.      

Salaries and benefits of judges and magistrates

Deputy Minister Jeffery said this was the process regarding judiciary officials entitled to such remuneration, salaries, allowances and benefits, as determined by the President by notice in the Gazette. The President’s notice must be submitted to Parliament for approval or disapproval, whether in whole or in part. The determination by the President was with effect from 1 April of last year for the 2022/23 financial year.

The Independent Remuneration Commission (IRC), having considered the various submissions of stakeholders, the fiscal condition of the state, the state’s wage bill, previous determinations, the impact of the increment on public office bearers on the fiscus, and the general economic status of the country as it recovers from the effects of the COVID pandemic, recommended to the President a 3.8% salary increase for all office bearers for the 2022/23 financial year, with effect from 1 April. Having considered the recommendations of the IRC and the serious economic challenges facing the country, the President had determined a 3% increase, not 3.8%, for all public office bearers. This included all judges and magistrates.

Discussion

The Chairperson asked if there were any questions or comments that the Members would like to make. In essence, the President had chosen a three percent increase for all magistrates and judges. She assumed that the briefing was pretty clear to Members, as there had been no questions or comments regarding the briefing.

She asked if the Committee could move on to the second item on the agenda as it pertained to the reports on both notices. Also, they needed to do it in today’s meeting as it was a very short term, and they would not be able to do it next week.

Salaries and benefits payable to Constitutional Court judges and judges

The Chairperson tabled the first report in relation to the judges’ remuneration and conditions of employment. The report had been circulated to Members prior to this meeting. The Select Committee on Security and Justice, having considered the draft notice and schedule determining the rate, with effect from 1 April 2022, at which salaries, allowances and benefits were payable to Constitutional Court judges and judges annually, for approval by Parliament in terms of section 2(4) of the Judges’ Remuneration and Conditions of Employment Act, 2001 (Act No 47 of 2001), referred to the Committee on 6 July 2023, recommends that the Council approve the said draft notice and schedule.

The Chairperson asked Members if they would move for adoption of the draft.

Mr T Dodovu (ANC, North West) said that they had received the report and had considered it. He moved to adopt the draft.

Ms M Bartlett (ANC, Northern Cape) seconded the adoption of the draft.

Draft notice and schedule determining salaries payable to magistrates

The Chairperson tabled the second report as it related to magistrates. The Select Committee on Security and Justice, having considered the draft notice and schedule determining the rate, with effect from 1 April 2022, at which salaries, allowances and benefits were payable to magistrates annually, for approval by Parliament in terms of section 12(3) of the Magistrates Act, 1993 (Act No 90 of 1993), referred to the Committee on 6 July 2023, recommends that the Council approve the said draft notice and schedule.

The Chairperson asked Members if they were happy with the report, and would like to move to adopt the draft.

Ms Bartlett moved to adopt the draft.

Mr K Motsamai (EFF, Gauteng) seconded.

The report was duly adopted.

Prevention and Combating of Hate Crimes and Hate Speech Bill

The Chairperson said the Committee had received a briefing on the Hate Crime Bill on 19 April, and questions had been raised by Members in that meeting. At the time, the Deputy Minister had tendered an apology for the meeting. She had indicated to Members then that the Executive would respond to specific questions in a future meeting. The Deputy Minister’s office has received a list of the questions raised, and Mr Jeffery would like to respond today.

Minister's response to questions raised by Members on the Prevention and Combating of Hate Crimes and Hate Speech Bill [B9B-2018]

Deputy Minister Jeffery apologised for not being able to attend the previous meeting. He provided some background to the Bill, and noted that the Department had published it in 2016. In that process, the Deputy Minister had engaged with a number of groups, particularly with religious leaders, on the ‘hate crime’ aspect. The Bill created the offence of ‘hate crime,’ which was an existing crime committed by a person who was motivated by their prejudice or intolerance towards the victim, their family, or a victim’s association with or support of a group of persons who shared one or more of the characteristics.

The ‘definition’ section of the Bill contained a list of characteristics. These included age, albinism, culture, disability, ethnic/social origin, gender, HIV/Aids status, language, nationality, migrant or refugee status, asylum seekers, occupation/trade, political affiliation or conviction, race, religion, sex, sexual orientation, gender identity or expression, sex characteristics, or skin colour. The Bill took existing crimes and made them hate crimes, so they were regarded more seriously. It was also so they may be properly recorded.

Regarding Hate Speech, current laws constituted the Roman/Dutch crime of crimen injuria, which had been used to prosecute people. The view of government was that a statuary crime specific to South Africa was required. The other remedy for Hate Speech was that of the Promotion of Equality and Prevention of Unfair Discrimination Act (POEPUDA). However, where there were horrific incidents of harmfulness or incitement to harm or promoting hatred against a particular group, the state had a duty to prosecute.

The grounds for hate speech were more limited than the characteristics of a hate crime. The grounds were limited to categories that faced a real probability of harm. For instance, people with albinism were threatened by some members of society, and therefore needed to be protected. The requirement of hate speech was communicating something that could be construed to be harmful or incite harm and promote or propagate hatred. Certain categories had a ‘higher bar’ for proving hate speech. Those were artistic/creative/performance/expression, academic/scientific inquiry, fair and accurate reporting in the public interest, and interpretation and espousing of any religious conviction.

Some concerns were raised about the maximum sentence of eight years for hate speech. This was not in the introduced Bill, but was amended by the National Assembly. This was a Section 75 Bill, which means the National Council of Provinces (NCOP) was limited in making recommendations for amendments which could be accepted or rejected by the National Assembly.

There were also concerns about cultural language being regarded as hate speech, particularly the ‘struggle songs’ which had been in the media and were more controversial recently. As mentioned, the requirements for hate speech were harm or incitement to harm and promoting or propagating hatred. Courts had tended to see the historical context of ‘struggle songs’. Political affiliation or conviction was not included as a ground for hate speech, on the basis of not curtailing the criticism of politicians.     

Discussion

The Chairperson thanked the Deputy Minister for the opening inputs on the Bill and responding to the questions raised by Members. She asked Members not to ask follow-up questions, as they still needed to deal with public inputs on the Bill. In that process, they would be able to cover any other issue Members might have. She asked if Members had any questions or comments before they moved on to the next agenda item.

Mr G Michalakis (DA, Free State) asked if the Committee would have an opportunity to engage with the Department after the public submissions were made.

The Chairperson confirmed they would be engaging the Department further regarding the Bill.

Mr R Badenhorst (DA, Western Cape) asked if the Committee would receive further oral submissions regarding the Bill.

The Chairperson said that was a procedural matter that would be dealt with in the next agenda item. Regarding the public participation process, the Committee received a document from the Content Advisor on the substantive submissions received regarding the Hate Crime Bill. There had been a lot of interest in this process, and the Committee had advertised this Bill on all media platforms from 18 April to 25 May.

In addition to substantive submissions, they had received submissions from individuals. Ordinarily, they would make their submissions to DearSA. Unfortunately, when DearSA deals with this process, they tend to extract whatever they want to test peoples’ opinions on, and forward it to the Committee’s mailbox. She said the mailbox got a bit inundated with many emails from them. They had agreed with DearSA that they would make their submissions as an input in this process, and they would run their own surveys and mailbox.

In the past, many of their submissions came to the Committee and caused a lot of administrative delays, especially in consolidating and compiling submissions. The Committee had also received petitions, but they were more interested in the more substantive issues. People must tell the Committee whether they agree or disagree, or have any comment or proposal.

Freedom of Religion South Africa (FOR-SA) would normally make their submissions after consulting their members, but this time, they also got their members to send submissions directly to the Committee. That had also caused delays to the consolidations. They had also provided the Committee with boxes of individual submissions from their members. The petitions they had received were reflected in the summary document.

The Chairperson allowed the Content Advisor to take them through the submissions they had received, and thereafter, the Committee could look at whether to open it up to oral submissions.

Summary of written submissions received on the Bill

Ms Anthea van der Burg, Committee Content Advisor, said the Committee had received thousands of submissions from individuals via DearSA. The majority of submissions were opposed to the Bill, mainly because of the view that the Bill sought to suppress freedom of religion. Several thousands of petitions were received from individuals and faith-based organisations online. In addition, the Committee received approximately 10 000 individual submissions through FOR-SA that were delivered to Parliament on the day of the deadline for the Hate Crimes Bill. The main petition was reflected in the summary under ‘Individuals and Faith-Based Organisations’. In addition, 40 substantive submissions were received, which were reflected in the summary.

Preamble

The Association of Christian Media, FOR-SA, and the Hate Crimes Working Group, stated that the preamble was unbalanced and referred to some rights but not all. Suggestions were made that the preamble should cite sections 15,19 and 31 of the Constitution, section 16 of the Universal Declaration of Human Rights (Protection of the family), and the inclusion of international human rights instruments.

Clause 1 – Definitions

The Western Cape Government said the use of the words "substantial" and "severe" in the definition of "harm" would pose problems of interpretation.

Lombard Forensic Accountants said the definition of what was “hate” was not defined. Terms like “social cohesion” were dangerous. Due to the above, they rejected the proposed legislation.

FOR-SA said the definition of “harm” failed to meet the Rabat threshold test.

The South African Human Rights Commission (SAHRC) and the Association of Christian Media recommended that the prohibited grounds should mirror those of Section 16(2)(c) of the Constitution. The Commission further recommended that the Bill be synergised with PEPUDA to avoid three different sets of grounds relating to prohibited speech.

The Hate Crimes Working Group and FOR-SA suggested including the term “associates” in the definitions section, defined as family members, colleagues, friends and other possible connections to a victim.

The Professional Association for Transgender Health South Africa (Pathsa) welcomed the inclusion of the grounds “gender identity or expression or sex characteristics” as a basis for a hate crime or hate speech, noting that transgender non-binary (TGNB) people were particularly affected by stigma and discrimination because their gender presentation did not conform to social expectations and norms.

The Association of Christian Media said the list of proposed ten lines of grounds should be narrower regarding media.

The Democratic Alliance, the  FW de Klerk Foundation, the Free Speech Union of SA (FSU), the Association of Muslim Advocates and Lawyers, and the Islamic Forum Azaadville, said the definition of harm as contained in the Bill was both vague and broad. “Victim” also needed to be properly defined in order to address the broad and vague nature of the Bill. “Hate” should also be clearly defined in the Bill. It was not good law to leave such a fundamental element of the crime open to interpretation by courts or through legal precedent if it could be clearly defined within the Bill itself.

The FW De Klerk Foundation was concerned over the lack of definitions for key elements, such as “prejudice” and “intolerance”. Protected characteristics should relate to a natural person’s “unchangeable characteristics” and should not include characteristics such as “political affiliation or conviction” and “occupation or trade”. It recommends that the definition of a “victim” should not include juristic persons, because hate crimes were motivated by aversion to characteristics -- such as race, gender, religion or sexual orientation -- inherent in natural persons.

The African Christian Democratic Party (ACDP) recommended that the definition of “grounds” should be limited to those mentioned under section 16 (2).

Media Monitoring Africa (MMA), Google and the Catholic Parliamentary Liaison Office commented that the Bill did not currently include the following grounds: pregnancy, marital status, conscience, belief, and birth. The MMA supported the inclusion of “sex worker” as a specific category in this provision.

Alliance Defending Freedom (ADF) International said ‘hate speech’ was not strictly defined, and lacked objectively determinable criteria.

The Aurum Institute said there had been numerous incidents of "corrective" rape of lesbians in recent years in South Africa. However, the Bill was not clear and did not mention or categorise corrective rape.

The Congress of South African Trade Unions (COSATU) supported the definition of harm in the Bill as referred to currently, but was concerned that it omitted cultural harm.

Google said section 1 defined "intersex" as "a congenital sexual differentiation which was atypical to whatever degree." The meaning of intersex was adequately provided for by the inclusion of "gender identity" in section 3(1)(h). The definition of intersex should be deleted in its entirety from the Bill.

Scalabrini Centre Cape Town said in Section 1, under the definitions of the grounds point (e) and characteristics point (i), they appreciated the inclusion of asylum seekers. However, it may serve to expand the ground and characteristics to include undocumented people.

Clause 3 – Offence of hate crime

Google said the hate crime section set out in section 3(1) of the Bill did not include all of the grounds on which unfair discrimination was prohibited in terms of section 9 of the Constitution of South Africa. In their view, the grounds should be amended to include pregnancy, marital status, conscience and belief, as grounds in section 3(1).

The Hate Crimes Working Group said there should be an express legal obligation on the Directorate of Public Prosecutions, or their delegate, to provide written reasons to a complainant or their associates within three working days when a decision had been taken to decline to prosecute a charge of hate crime.

The Western Cape Government said this clause was poorly drafted. The definition of "hate crime" was convoluted, with the elements of the offence set out into sub-paragraphs in an attempt to simplify the definition, but this served only to complicate the definition.

The Sunni Ulama Council Gauteng and the FW de Klerk Foundation said an important element of a hate crime was the understanding of what hatred was. The misinterpretation of this Bill through its vagueness not only criminalised irrationally, but also suppressed legitimate speech.

The Centre for Social Justice said that considering that xenophobic violence had erupted in South African communities over the past years, it should be explicitly listed as an offence under hate crimes.

The Catholic Parliamentary Liaison Office said words in clause 3(1) were difficult to define, or could result in uncertainty and vagueness.

Clause 4 – Offence of hate speech

The Cultural, Religious and Linguistic (CRL) Rights Commission, the International Religious Freedom Roundtable (Africa), the FW de Klerk Foundation, the Association of Muslim Advocates and Lawyers, FOR-SA, the Ecumenical Leadership Council, the South African Jewish Board of Directors, the African Christian Democratic Party (ACDP) and the SAHRC, said there were already laws such as the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), which deal with hate speech. All of them had recourse in civil law, not criminal law, and perhaps criminalising some of these acts could achieve the purpose the other laws had failed to achieve, as the cases relating to hatred, discrimination and intolerance were increasing in South Africa.

The Western Cape Government recommended that the question of alignment between the Bill and the hate speech prohibition under PEPUDA must be considered, particularly concerning the grounds forming the basis of hate speech.

The Film and Publication Board acknowledged that the Films and Publications Act, 1996 (Act No. 65 of 1996), as amended, defined hate speech as “…any speech, gesture, conduct, writing, display or publication, made using the internet, which was prohibited in terms of section 16 (2) of the Constitution of the Republic of South Africa, 1996, which propagates, advocates or communicates words against any person or identifiable group, which words could reasonably be construed to demonstrate a clear intention to be harmful, to incite harm and promote or propagate hatred against the said person or identifiable group.” It said one may argue that there was an element of similarity between the two provisions.

Ilita Labantu welcomed the definition of hate speech, as this had been a problematic issue in this age of technology, which presented unique challenges in terms of print and widespread use of the internet and social media platforms. However, they submitted that it was challenging to draw a clear line between hateful speech and protected expression, given the fact that it was a subjective and context-dependent test. South Africa was very diverse in terms of culture, religion, politics and race, among others, which therefore needed a balance to safeguard the limitations placed under hate speech.

The Islamic Forum Azaadville, the Sunni Ulama Council Gauteng, the International Religious Freedom Roundtable (Africa) and Heartlines said that for it to comply with the provisions of the Constitution, the proviso to the exemption must be removed. There was a need to establish a causal link, and the need to establish intent. Both of these requirements were standard requirements of the United Nations.

The Democratic Alliance said the creation of a new crime of hate speech, and the harsh prison penalties attached to it, may result in increased self-regulation of the journalistic profession and the public at large, even when the speech may not fall foul of the provisions of the Bill.

Heartlines said that given that the Bill served, amongst other things, to criminalise hate speech, a higher standard of proof was required than there would be in a civil case.

FOR-SA said only harmful speech was excluded. However, since the Bill’s definition of harm was vague and overbroad, hatred was undefined, and as the extended list of persons was wider than the grounds listed in the Constitution and PEPUDA, the exemption clause offered very little (if any) practical protection.

The Association of Christian Media said that in 4(1)(a)(i), the words ‘be harmful’ inferred the direct harmful impact of the words themselves, as separate and different from ‘incite harm’ in the second part of the same sentence.

The Catholic Parliamentary Liaison Office said clause 4(1)(a)(i) referred to communications that had a clear intention to be harmful or to incite harm. In turn, ‘harm’ was defined in clause 1 as “any emotional, psychological, physical, social or economic harm”. The word ‘any’ in this definition indicated that even very minor or trivial degrees of harm would qualify as hate speech.

The Association of Muslim Advocates and Lawyers, and the United Ulama Council of South Africa, said that after careful consideration of section 4(1) of the Bill, they saw that the usage of the word ‘harm’ was not only layered and patterned, but it was also amplified multiple times in the Bill. Any scholar of constitutional law, however, would be loath to confine the term ‘harm’ to a specific category. The following forms of harm have been considered:, emotional harm, psychological harm, physical harm, and social and economic harm.

Google said the hate speech provision in section 4(1)(a) did not include definitions of “publish”, “propagate” and “advocate”. They submitted that definitions of these terms should be included in the Bill for certainty and clarity.

The Ecumenical Leadership Council (ELC) contended that the definition of hate speech provided by the Bill was too broad and unjustified, and that the Bill should be substantially amended because the offence of hate speech it contemplated did not comply with the requirements of section 16 of the Constitution.

The Centre for Social Justice said that in the list of grounds that were considered as hate speech, there ought to be inclusion of gender in its broad interpretation to capture potential victims and grounds that were harmful within the context of gender equality and gender justice. Further to that, as reiterated under the offence of hate crimes, xenophobia should be included as a potential ground for hate speech.

The FW De Klerk Foundation found that clause 4(1)(a) unreasonably and unjustifiably limited the right to freedom of expression and submitted that the subsequent clauses - to the extent that they relied on clause 4(1)(a) -- were also unconstitutional. They submitted that the current version of the offence of hate speech should be removed from the Bill, so that the criminalisation of hate crimes as a distinct crime was not further delayed.

We Are Tomorrow Global Partnership proposed the inclusion of online hate speech and the recognition of intersectionality.

The ACDP said the Bill’s definition of hate speech was far wider than that set out in the Qwelane judgment.

The Free Speech Union of South Africa said the Bill’s wider definition of ‘hate speech’ must be replaced by terms contained in section 16(2)(c) of the Constitution, verbatim preferred.

The ACDP was concerned that the religious exemption in section 4(2)(d) did not go far enough, and recommended the insertion of the words, “by a religious organisation or an individual, in public or in private”.

Media Monitoring Africa (MMA) submitted that the extension of the prohibition to the private sphere was an excessive limitation on the right to privacy that was incongruent with its purpose.

ADF International said hate speech, as defined in the Bill, did not provide any clarity as to what type of speech was limited and what was acceptable.

The Campaign for Free Expression (CFE) contended as its main submission that clause four should be deleted in its entirety. The offences in clause 4 were not necessary to curb hate speech, and there were less restrictive means of effectively dealing with hate speech that already existed in South African law.

The SAHRC recommended that the Director of Public Prosecutions (DPP) should be guided in his or her decision whether to approve criminal prosecution in such matters by some guidance and reference to the seriousness of the hate speech offence in question.

The MMA recommended that Clause 4(2)(d) -- the “religious exemption clause” -- be strengthened.

Clause 5 – Victim impact statement

The Centre for Social Justice said community grassroots organisations that worked in communities on issues related to violence and its prevention should be recognised as having the ability to assist victims in the preparation of statements on crimes of hate, including hate speech.

The Western Cape Government suggested that clause five be broadened, and that consideration be given to a set of possible circumstances where the victim was unable to authorise the making of a victim impact statement.

The Scalibrini Centre Cape Town were encouraged by the provision for victim impact statements (VIS) and the requirement for the victim’s authorisation when a person other than the victim was making a VIS. However, hate crimes, in general, and in the context of vulnerable migrants, often led to the death of the victim.

The South African Jewish Board of Directors suggested the inclusion of a ‘community impact statement,’ in addition to the victim impact statement.

The Hate Crimes Working Group submitted that section 5(1) should be reworded as provided below:

5. (1) For purposes of this section, a victim impact statement means a sworn statement or affirmation by one or more of the following persons:

(i) the victim;

(ii) someone authorised by the victim to make a such statement on behalf of the victim, and in the event of the victim’s death, the victim’s associate(s);

(iii) an organisation or institution with expert knowledge or experience of the group to which the victim belonged, or was perceived to belong, which contained the physical, psychological, social, economic or any other consequences of the offence for the victim and their associate(s).

Clause 6 – Penalties or orders

Ilita Labantu welcomed the penalties and orders that courts may impose on offenders of hate crimes and hate speech, because this would discourage potential offenders from engaging in acts that were harmful not only to the individual concerned, but also made a mockery of the provisions set out in the Bill of Rights and other laws which give effect to the Constitution.

The South African Jewish Board of Deputies supported the separate minimum framework for hate crimes.

The Ecumenical Leadership Council said the Bill established offences for hate crimes and hate speech. By requiring that the hatred of people due to shared characteristics should be regarded as an aggravating factor in sentencing, and by prescribing minimum sentences for such crimes -- despite hatred already being considered an aggravating factor for statutory or common law offences -- introduced harsher punishment for crimes motivated by hatred.

The Film and Publication Board said the offences and penalties listed in the Films and Publications Act, 1996 (Act No. 65 of 1996), as amended, appeared to be more detailed, noting the lack of provision of the maximum fine that may be imposed under the Prevention and Combating of Hate Crimes and Hate Speech (PCHCHS).

FOR-SA, Heartlines, the Sunni Ulama Council Gauteng, the Democratic Alliance, the Association of Muslim Advocates and Lawyers, the Council of Charismatic Churches and the ACDP, said the current version of the Bill proposed a maximum jail sentence of eight years for a first offence of hate speech. This was a very harsh sentence for a first offence of hate speech.

Google and the ACDP said the proposed penalties under the Bill were unlikely to address the vulnerability of groups often subjected to hate crimes and hate speech. They were of the view that section 6 of the Bill included references to restorative and rehabilitative justice in the form of financial, emotional and community reparations.

The Association of Christian Media said the maximum penalty did not differentiate between a person inciting violence and a person expressing an opinion with which someone else disagreed. Punishment should prioritise life, then property, then emotions.

The Centre for Social Justice said the concern in this section was related to the absence of the recognition of African traditional conflict resolution methods in resolving hate crimes and hate speech.

We Are Tomorrow Global Partnership said the penalties for hate crimes and hate speech in the Bill should be strengthened in order to serve as a stronger deterrent.

COSATU welcomed the increase in penalties to up to eight years in prison.

Afriforum, the Democratic Alliance and the Association of Muslim Advocates and Lawyers, argued that the prohibition in the Bill was a severe infringement on rights because of the penalty imposed and the perturbing effect it had on freedom of expression.

The Council of Charismatic Churches said it could not be appropriate for a pure hate speech offence to bear the same weight of hate crime, if hate speech and hate crime were differently defined by this proposed Bill.

Clause 7 – National instructions and directives

The Western Cape Government said there was a typographical error in this sentence: "(i) The manner in which cases..." The Bill contained certain drafting, grammatical and typographical errors.

Google and the South African Jewish Board of Directors said Section 7 of the Bill should be amended to include a time period in which the National Director of Public Prosecutions should issue directives in terms of the Bill.

Ilita Labantu welcomed the coordination and collaboration among the South African Police Service (SAPS), the Department of Justice (DOJ) and the NPA to align efforts and work together on issuing instructions and directives that would ensure clarity and consistency in the implementation of the hate crime and hate speech laws, policies and procedures, so that there was consistency.

The Centre for Social Justice said prosecutorial directives were provided for as a possibility by the National Director of Public Prosecutions regarding approaches to prosecuting hate crimes and speech. Special education, similar to Equality Court prescriptions, was not included.

Clause 8 – Reporting on implementation of the Act

The South African Jewish Board of Deputies supported the provisions, stating that the Minister of Justice and Correctional Services must liaise with the SAPS and the NPA to decide how to gather and report on hate crimes statistics. However, it submitted that introducing a time frame for making these regulations was necessary to ensure the effective implementation of the Bill.

The Hate Crimes Working Group and Centre for Social Justice supported the provisions of section 8. However, they submitted that due to the public interest nature of hate crimes and hate speech in South Africa, section 8 (2) must be equally extended to the public. Therefore, the information contemplated by section 8 (1) must be available to the South African public.

Clause 9 – Prevention of hate crime and hate speech

The South African Jewish Board of Deputies and Ilita Labantu welcomed the introduction of a positive duty on the state to prevent and combat hate crimes. However, they noted that key departments had not been expressly listed. They also submitted that the duty to “cause programmes to be developed” was too vague.

The Hate Crimes Working Group supported the provisions of section 9, and suggested that adequate funding be allocated to strengthen the work of the awareness campaigns and training of officials. Experts in sexual orientation, gender identity and sex characteristics should be consulted, along with civil society organisations with experience in these areas.

Cause for Justice was especially concerned regarding “social context training”. The Bill did not provide any definition for this highly ambiguous and controversial concept. It therefore submitted that keeping any references to social context training in the Bill would be irresponsible. All references to “social context training” should be deleted.

The Centre for Social Justice said education on hate crimes was mandated as a measure aimed at the prevention and appropriate handling of such matters by responsible prosecutorial and other officials, but it was not made mandatory that only appropriately trained officers and officials should handle such matters.

Clause 10 – Regulations

The Association of Christian Media and FOR-SA said the Bill made provision for regulations to be deemed approved within 60 days after having been referred to Parliament. This would grant the Executive the power to make regulations without Parliament having the opportunity to consider and approve them. This oversight should be remedied, to allow Parliament an adequate opportunity to provide the necessary oversight over regulations.

See full summary attached

Discussion

The Chairperson thanked Ms Van der Burg for the presentation. She said this was just a summary of the substantive submissions, but that Members had received the original submissions and should go through them in their own time. She said they would not be taking any questions, as this was just a summary of submissions that had already been received.

The Chairperson said they would then move on to the matter of oral submissions. She knew this was a Section 75 Bill and that the NCOP would only make recommendations to the National Assembly. Nonetheless, there was a feeling they should open up the Bill for oral submissions. She said if Members were in agreement with that, then the administrative team could take that process forward.

Mr Michalakis said the emails they had received were in five batches, indicating there was quite a lot of interest from the public. However, there were a few issues they needed to clarify. He had questions both for the Department and the organisations who had made the submissions. The opportunity to engage with them would be very important for the process.

The Chairperson said she thought there were no objections to opening up the Bill for oral submissions. They would inform Members when the administrative process was done.

She reminded Members that next week, they were on provincial week. The following week, they should be able to deal with the oral submissions, so they could take this very important Bill forward.

The Chairperson said they had come to the end of the meeting. She thanked the Deputy Minister and Ms Van der Burg for the presentations. She thanked the staff and the legal teams from the Department and Parliament for attending the meeting.

The meeting was adjourned.