Prevention and Combating of Hate Crimes and Hate Speech Bill: public hearings day 1

Meeting report

Shemah Koleinu submission
Jacqui Benson-Mabombo, Shemah Koleinu co-founder, said that Shemah Koleinu, a Jewish-led organisation, aims to combat homophobia, transphobia, and antisemitism within diverse communities. Shemah Koleinu believes that the Bill will provide protection against hate crimes, combat antisemitism, and ensure the safety and well-being of Jewish and queer individuals and communities who face unique challenges. While South African law provides general protection against discrimination, there is a lack of specific legislation to protect victims of hate crimes and enable them to seek justice. This results in a dearth of reliable statistics on hate crimes, hampering the development of effective prevention strategies.

Association of Muslim Accountants and Lawyers (AMAL) submission
Ashraf Parker, an attorney representing AMAL, submitted that the Prevention and Combating of Hate Crimes and Hate Speech Bill has raised concerns among the Islamic community regarding the LGBTQIA+ community. The Quran explains that homosexuality is explicitly prohibited. Muslims should be able to express their religious views about homosexuality to their co religionists and family without fear. The Bill may limit freedom of speech and silence religious communities. Islam emphasizes the preservation of traditional family structures and procreation, and the Bill may impose undue limits on the right to preach, teach, and disseminate teachings of Muslims and deny the right to freedom of religion.

The submission argued that the Bill should not be passed as it is unconstitutional and restrictive. Clause 3 of the Bill explains that hate crime occurs when individuals or groups are driven by their own bias or lack of acceptance towards the targeted individual or group. AMAL claims that Muslims can coexist in a pluralist society in harmony, but there are limitations placed upon them as Muslims, such as the prohibition of homosexual acts in the Islamic faith.

Ilitha Labantu submission
Natsai Chakapfava, Senior Legal Advisor, said Ilitha Labantu, a Cape Town-based social justice community organisation, supports the Prevention and Combating of Hate Crimes and Hate Speech Amendment Bill. The organisation provides psycho-social services, legal advocacy, educational services, and community nutrition and development services. Ilitha Labantu believes the Bill aims to address violence against women, children, and vulnerable groups by creating criminal offences for hate crimes and hate speech. Ilitha Labantu believes the Bill aims to fulfill constitutional obligations and international human rights instruments concerning racism, racial discrimination, xenophobia, and related intolerance. The Bill also addresses hate speech, particularly in the age of technology, which can have significant impacts on individuals and communities.

New Beginnings Christian Family Church (NBCFC) submission
Dr Nicky van der Westhuizen, NBCFC Founder and Senior Pastor, said NBCFC, a faith-based organisation with around 2 000 members, opposes the Prevention and Combating of Hate Crimes and Hate Speech Bill [B9B-2018]. They believe the Bill violates constitutional rights for religious individuals to express their beliefs without fear of persecution and will undermine South Africa's social cohesion. The organisation opposes the Bill's wide definition of "harm," failure to define "hatred," and the creation of the crime of "hate speech." They also question the Bill's constitutionality and unnecessariness, asking for the scrapping of "hate speech" clauses or strengthening the "religious exemption clause" to allow the expression of a religious conviction, tenet, belief, teaching, doctrine, or writings by a religious organisation or individual, as long as it does not actively support extreme detestation, vilification, enmity, ill-will, and malevolence.

South African Jewish Board of Deputies submission
Alana Pugh-Jones Baranov, representing the South African Jewish Board of Deputies (SAJBD), addressed the rise in hate crimes, hate speech, and bias-motivated violence in the country. The SAJBD, a founding member of the Hate Crimes Working Group, supports the Bill; the inclusion of hate crimes in the minimum sentencing framework and the creation of a separate minimum framework for hate crimes. They also urged the Minister of Justice and Correctional Services to collaborate with the South African Police Services and the National Prosecuting Authority to gather and report on hate crime statistics.

Centre for Social Justice at Stellenbosch University submission
Prof Thulisile Madonsela, Centre for Social Justice Director, said that the Centre for Social Justice supported the Prevention and Combating of Hate Crimes and Hate Speech Bill (B9B-2018), which aims to contribute to ending poverty and equalising opportunities by 2030. The CSJ stated the Bill aims to prohibit harmful words and actions based on identity, similar to the Promotion of Equality and Prevention of Unfair Discrimination Act. It also aims to address hate crimes involving speech, freedom of expression, and religious freedoms. The CSJ acknowledged challenges in analysing the Bill, but the Bill aims to ensure fair treatment in society.

Ecumenical Leadership Council of South Africa submission
Dr Sipho Mahlangu, President of the Ecumenical Leadership Council, criticised the Bill arguing that it fails to accurately define hate speech and violates the right to freedom of expression. The Council believes the Bill's broad definition of hate speech was unjustified and should be substantially amended to comply with section 16 of the Constitution. The Council also highlighted the potential impact of the Bill on freedom of religion. The Bill increases the number of protected characteristics from four to ten and defines "harm" in a broader manner, potentially causing subjective and biased considerations.

Discussion
Mr G Michalakis (DA, Free State) spoke about urgency and bringing the best possible version of a Bill taking time and requiring a thorough review of the legislation. As lawmakers, they also address the concerns of organisations that argue that most crimes are already covered in the law. Merely promulgating the law is not enough to address societal issues, particularly for the LGBTQI community. Mr Michalakis questioned Shemah Koleinu on how they can balance freedom of expression and also respect the LGBTQI community.

Mr C Smit (DA, Northwest) reported that as lawmakers they struggle to balance between freedom of speech and hate speech. He asked Shemah Koleinu how one can differentiate between being offended by a statement and hate speech.

Mr T Dodovu (ANC, Northwest) said that he shares the same sentiments as Mr Michalakis. Mr Parker criticised the current bill for not clearly defining harm and hatred, arguing that it does not accurately describe what hatred is. However, he did not make any propositions or suggestions.  

Mr Dodovu asked if the answer lies in enacting more laws or addressing social issues. He asked SAJBD to comment on the harshness of the proposed eight-year sentence, as some argued it is too harsh and should be reconsidered.

Mr Michalakis said the SAJBD discusses areas not adequately covered such as anti-semitism tendencies and hatred against Jews. He asked for clarification on the difference between the two.

Mr R Badenhorst (DA, Western Cape) discussed the importance of clause 4(1)(a) and the definition of hate, specifically the element of hate and hatred. The Bill does not define hatred, which could be problematic as it leaves it to the courts. He asked Prof Madonsela for insight into the absence of a definition in the Bill.

Mr Michalakis stated Prof Madonsela preferred a broad definition of harm, which courts can interpret. However, she raised concerns about the objectivity test for measuring harm and the inclusion of social and economic detriment in the definition. The current definition of harm does not clearly define hate, which is problematic when dealing with criminal offences. Clause 4 does cover people who do something in good faith, but it does not cover those who share specific elements or sentiments. This could be problematic, as it excludes certain individuals from the Bill. The maximum sentence for a first offence in the initial Bill was three years, but the National Assembly increased it to eight years. Mr Michalakis argued that this is extremely high, especially considering lesser crimes and alternative sanctions. The final question is whether the definitions should be defined more narrowly in criminal law.

Mr Dodovu asked about the severity of hate crimes and hate speech, as they are not one-size-fits-all. He asked for the opinion of Prof Madonsela on justice and mentioned two main approaches: retributive justice, which involves a one-size-fits-all approach, and restorative justice, which involves reconciliation or mediation between the victim and the offender. He was interested in hearing her perspective on these.

Mr K Mmoiemang (ANC Northern Cape) asked Prof Madonsela about the balance between religious freedoms and protecting victims of discrimination. He emphasized the need for a clear definition of what constitutes hate speech, and the definition of hate speech in clause 4 and its implications for the legal system.

Mr Michalakis asked Dr van der Westhuizen’s opinion on the eight-year maximum sentence for first offenders. Does clause 4(2) still prevent the ministry from exercising its constitutional right to freedom of religion? Is Dr van der Westhuizen currently concerned with both hate crimes and hate speech or is hate speech the main concern at this stage?

Mr Dodovu asked Dr van der Westhuizen; the current Bill extends to all religious groups, but does it have enough checks and balances to ensure its effectiveness?

Mr Dodovu and Mr Michalakis asked Dr Mahlangu to make a proposition on how to define hate speech and to elaborate on the concern about proselytizing.

Responses
In response, Jacqui Benson-Mabombo of Shemah Koleinu emphasized the importance of preventing hate speech and fostering love and kindness in the world. They believe that the LGBT community, particularly the Jewish community, needs a framework of accountability from the government to hold people accountable for their actions. They believe that holding people accountable allows them to focus on the work that needs to be done at the ground level.

In response, Mr Parker of AMAL requested to make further submissions on the matters raised by the Members.

In response, Alana Pugh-Jones Baranov said the SAJBD welcomed the Bill, particularly targeting foreign nationals and the LGBTIQ community. The SAJBD also emphasized the need for comprehensive education and awareness around hate crimes and hate speech, and the importance of engaging with society and changing attitudes towards bigotry and intolerance, particularly targeting the youth.

Prof Madonsela of Centre for Social Justice explained that the United Nations Strategy and Plan on Hate Speech defines hate speech as any form of communication that attacks or uses discriminatory language against a person or group based on their identity factors. Key elements of hate speech include communication, whether in writing or behaviour, and discriminatory language. Hate crime is defined in the Equality Act as an ordinary crime with an additional element of hatred and discrimination against that group. The Department of Justice may develop a list of indicators for this spectrum of crimes. However, there is no distinction in our brain between being hit with an object and feeling pain and being hit with words. The debate over the maximum sentence for hate crimes raises questions about the balance between freedoms and the duty to protect everyone from hate speech and crimes.

Dr van der Westhuizen from NBCFC explained the potential for hate speech to lead to broader restrictions on free speech, including what can be preached, said and taught from the pulpit. He believes that hate crime is the biggest issue and that it is essential to clarify the definition of hate crime. He used an example of counselling a couple in a divorce case to illustrate how a minister of the gospel can help people out of marital problems, relationship problems, and gender-based violence. However, he warned that the Bill can lead to the criminalisation of ministering, making it crucial to be cautious about what they say. He aims to support the government and people in defining and addressing hate crimes, ensuring that everyone can help and strengthen the community. He believes that as a minister, he wants to be supportive of the government and people in this matter.

Dr Mahlangu from ELC asked to respond in writing to the Committee.

The Chairperson thanked the representatives from the organisations and Committee members. He confirmed that the public hearings will resume on 20 September 2023 and adjourned the meeting.