Prevention and Combating of Hate Crimes and Hate Speech Bill: public hearings day 2

Meeting report

Campaign for Free Expression (CFE) submission
Mr Kenan Petersen, CFE attorney, stated that the Bill in its present form was unconstitutional and right to freedom of expression was limited in a manner that failed to meet the requirements of limitation clause in section 36 of the Constitution. The organisation noted that the answer to the societal scourge that is hate speech is not to criminalise such speech.

CFE was supportive of clause 3 on hate crimes but contended that clause 4 on hate speech should be deleted in its entirety. It was concerned that instead of suppressing hate speech, the Bill will merely force it underground and the fact that hate speech is criminalised will encourage its dissemination.

The criminal offences the Bill creates will inevitably restrict the right to freedom of expression and, in doing so, threaten the lifeblood of South Africa's democracy. CFE suggested that only extreme forms of speech should be met with criminal sanction.

Discussion
Campaign for Free Expression
Mr R Badenhorst (DA, Western Cape) thanked Mr Petersen for the submission on behalf of the CFE and appreciated the time and effort that went into the submission. The Committee would like to get his view on some public comments. The one issue that came up is that there are two elements in clause 4(1)(a).

There is an element of harm and an element of hatred. 'Harm' is defined but this Bill fails to define the term 'hatred'. You referred to a test that needs to be objective for the crime of hate speech. But what are we testing? What is your comment about there being no definition for hate in this Bill. You referred to the eight years maximum sentence being a bridge too far. He asked him to elaborate.

Mr T Dodovu (ANC, North West) asked Mr Petersen to explain the extent to which clause 4 of the Bill goes beyond section 36 of the Constitution, which limits the rights in the Bill of Rights.

Mr G Michalakis (DA, Free State) asked Mr Petersen's opinion on clause 4(2). As it stands, it is self-defeating. Also it goes to some extent to protect only certain individuals that are mentioned there. His worry is, for example, if you share artwork that was created by an artist, it is only the artist that is protected by that clause and not someone who perhaps shares artwork on a platform like Facebook. Does he understand it correctly? Are the people who share what was communicated protected by that clause? The way he reads it, the public that takes it further is not. So it is not only a question of satire and comedy not being protected. You cannot then go further as a member of the public and share it.

He also asked about the eight-year proposed sanction. It has been pointed out by the Department and organizations that this is the maximum sentence. The argument being used is wouldo not worry, it is not that bad; it is only a maximum sanction'. What would your response to that in light of your submission stating that it is a too harsh and needs to be revised? The sanction was changed in the National Assembly for reasons that perhaps were not based in law. He would like to hear his opinion on that. Then on existing legislation, through our current law we have seen well known examples that were referred to in the submissions yesterday about people being successfully prosecuted for similar deeds that the Bill is intended to cover. His question is if this Bill is passed, what effect will it have on the existing law? Is it not so that the current law is sufficient to deal with these cases and that the solution should rather be sought at a social level?

Mr K Motsamai (EFF, Gauteng) spoke in Setswana. Most of the right wing take people to court who sing the “kill the boers, kill the farmers” song. There are many things that as African people we do as part of our culture. Will it not be a problem that the prisons will now be full of people who sing these songs that they used to sing during the oppression era due to being found guilty of hate speech?

Mr Dodovu asked to interpret what Mr Motsamai said. Mr Motsamai said that firstly in some instances organizations like AfriForum take people to court because they sing revolutionary songs like kill the boer or the farmer. In the African tradition we used to sing and we sing a lot. Now is the presenter not concerned that if this is the line is pursued, the prisons will be full of such people and it will burden the prison authorities and the system generally?

Mr Petersen replied that the points on sentencing, existing legislation and section 36 can be responded to conjunctively. The crux about section 36 is primarily the "the least restrictive means" facet. When we look at "least restrictive means", CFE is saying there is appropriate existing legislation and legal avenues. The existing mechanisms all function to combat or curb hate speech. Under crimen injuria, the sentencing is typically six months or less and that speaks to the notion of "least restrictive means" that is existing to achieve the function that clause 4 is seeking to realise.

On clause 4(2) and the potential danger of re-dissemination, the understanding is that the clause wording refers to the dissemination being "done in good faith in the course of engagement in any bona fide artistic creativity…" et cetera. So that phrase "in the course of engagement" is quite broad. It would not only include dissemination of that content in the first instance, but any sort of engagement with it or any sort of reposting. But of course the judiciary would need to have a definitive interpretation of that wording but it lends itself to that sort of interpretation.

On the concern raised about the potential for over prosecution of the offence of hate speech, it links again to our submission on "least restrictive means". There are appropriate avenues that embody the constitutional notion that these rights need to be restricted narrowly and that it is only in the extreme instances that need to face criminal sanction. The Equality Act, the offences of assault and crimen injuria create a sufficient basis that strikes the right balance there.

Therefore, allowing potentially over-broad criminalisation of hate speech definitely does create the risk that we could have a lot of people being prosecuted for these sorts of crimes. What we say is that the least restrictive means currently at play are preferable.

SAHRC submission
Ms Fatima Chohan, SAHRC Commissioner, noted the potential limitation of right to freedom of expression through the introduction of additional grounds to those already contained in Section 16(2) of the Constitution. SAHRC had raised concern that the current drafting of the Bill’s clause on prohibited grounds may go beyond what is constitutionally justifiable. It is therefore recommended that the prohibited grounds under definitions should mirror those of Section 16(2)(c) of the Constitution. Section 16 (2) (c) prohibits “advocacy of hatred based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.” In line with the Qwelane Constitutional Court judgment, this would also include sexual orientation.

In Clause 4(3) it recommended that the Bill stipulates that the criminal route would be reserved for egregious or serious cases relating to hate speech which ought to be proven beyond reasonable doubt: "which authorisation should only be granted in the event that the alleged offence is of a serious nature and has caused material harm.” It is suggested that clause 4 should also provide for the referral of matters to the DPP that involve repeat offenders.

The constitutional right to freedom of expression should be strenuously defended. It is an essential prerequisite for democratic governance to ensure “accountability, responsiveness and openness”.

It would like to warn against the danger of the proposed legislation in a multi-racial, multi-linguistic and multi-faith country, where much of the legitimate political debate centres on widely differing, but sincerely held, views on race, culture, language and religion. It was for this reason that the Constitution drafted very limited exceptions to the right to freedom of expression in section 16(2).

Discussion
Mr Michalakis did not see any mention about the lack of definitions and clearly defined concepts in the Bill in the SAHRC submission. Can the SAHRC give its opinion on that as it is something other stakeholders have raised.

Mr Michalakis said that SAHRC proposed that the maximum penalty should be amended to five years. The Bill started out as three years; the current amendment is eight years. Also it does not seem to make a distinction between the sanction for hate crimes and that for hate speech. Should one not consider making a clear distinction between the two crimes and their sanctions? What would be the SAHRC propose for the sanctions for the two different crimes.

Thirdly, hate speech is currently covered by existing legislation as well. Should the Bill not be split and we deal with hate crimes now and take more time in considering hate speech which is a lot more controversial and is already covered by a lot of other legislation [connection lost for 1.50 minutes]

Mr Allan Tumbo replied [continuation from the time the connection was lost]…that we can deal with hate speech more consistently seeing that it already exists. We already have a civil remedy through PEPUDA. So we felt that they should be split so SAHRC would agree that they should be split. However, we do not know how practical that is at this point. There is obviously pressure and he thought it would be satisfactory for South Africa's country report on the Convention on the Elimination of Racial Discrimination (CERD), to submit that South Africa has undertaken a process to legislate for hate crimes, but is still undergoing a process to deal with hate speech. that would not be in conflict with what is required by the CERD and the Committee in its report back this year.

On the definition of hate speech, SAHRC had made a submission on the Bill to the Portfolio Committee on the definition of harm suggesting that the 'harm' definition as it stands was acceptable but an additional threshold of 'substantial' was required which takes it to an additional ground that you need. We requested that it read: ‘‘harm’’ means substantial emotional, psychological, physical, social or economic detriment

On penalties, SAHRC had suggested five years as an alternative to the very extreme eight-year mark. In our studies of other countries, there was only one country that had seven years as a penalty which was Canada and the United Kingdom. They had a maximum seven years imprisonment or fine. The rest on average had two years. Canada has two years; Germany five years; Uganda and Kenya three years, and Australia three years. SAHRC suggested five years as a middle ground between the original three years or now the extreme of eight years. SAHRC would definitely be in support of a much smaller time frame as a penalty.

Ms Chohan added that the SAHRC submission is trying to accommodate both PEPUDA and the Bill to live in a harmonious relationship in our jurisprudence. There is a very disjunctive relationship between what exists in PEPUDA on hate speech and what the Bill in its current form is attempting to address. The primary goal is to ensure that the two pieces of legislation dovetail with each other in our jurisprudence and there is no confusion and no injustice visited on people who might be prosecuted as a matter of first instance in terms of the Bill, vis a vis those who might be taken to the Equality Court. The fact of the matter is our purpose as a country in transition is to transform first and foremost and not to penalize as a measure of first resort.

The Chairperson said the SAHRC pointed out that the grounds in the Bill are much broader than what is contained in section 16(2) of the Constitution. But obviously if you look at the list of grounds, it is a list of very vulnerable groups that bear the brunt of hate crimes and hate speech. Obviously this has also to pass the section 36 limitation test as well. Some of these groups, not all of them, are contained in PEPUDA. What would be the South African Human Rights Commission comment be on that?

Ms Chohan replied that the mandate as the South African Human Rights Commission is to promote the rights and clearly the right to freedom of expression has been delicately balanced in the Constitution. Her sense is that the courts obviously would have discretion as they have done in the past. [lost connection for 21 seconds]. Her view was that it would be more appropriate that this legislation should be consistent with the Bill of Rights and the specific grounds contained in section 16(2)(c).

If there are further grounds that the courts would want to read into those existing grounds that is a separate issue altogether. For now she believed that you will get a great deal of litigation challenging the constitutionality of the Bill and that might even jeopardize this extended form of PEPUDA. The SAHRC view is to rather stick with the limitation in the limitations clause that is built into the right to freedom of expression and then try and widen the grounds through litigation and the courts address those.

FW De Klerk Foundation submission
Ms Tyla Dallas, Foundation Manager: Constitutional Programmes, said that although the Foundation is in favour of distinguishing hate crimes from ordinary crimes to allow proper data collection, reporting and prosecution, it is concerned over the lack of definitions for the key elements, such as “prejudice” and “intolerance”. In the Foundation’s opinion, 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”. We recommend that the definition of a “victim” should not include juristic persons, because hate crimes are motivated by aversion to characteristics - such as race, gender, religion or sexual orientation - inherent in natural persons.

The provisions in the Bill on hate speech are unacceptable for the following reasons.
- They are unconstitutional. They go far beyond the limitations on freedom of expression in section 16(2) of the Constitution. The definition of hate speech in the Bill seriously limits the core right to freedom of expression.
- The Bill is unnecessary. Adequate provision for the punishment of hate speech is already available via Promotion of Equality and the Prohibition of Unfair Discrimination Act (PEPUDA) and crimen injuria. For this reason the Bill fails the test in section 36(e) of the Constitution because there already exist less restrictive means to achieve its ostensible purpose.
- The Bill does not meet the requirements of the rule of law in section 1(c) of the Constitution because there are no clear or adequate definitions for “hate”, “the promotion and propagation of hatred”, “social disruption” and “harm”. Without such definitions the Bill falls far short of the requirement for legal clarity which is an essential element of the rule of law.
- There is inadequate consideration of international law as required by section 39(b) of the Constitution.
- It does not provide the right to equality before the law and to equal protection as required by section 9(1) of the Constitution.
- The Bill would affect private communication to other individuals – contrary to the Qwelane judgement and the recommendations of the Rabat Plan of Action and ICERD
- The eight-year prison term for transgressing the broadly and uncertainly defined offence of hate speech, would have a crippling effect on people’s willingness to express themselves openly on controversial issues.

Its recommendations were:
- The offence of hate speech should be removed so that hate crimes as a distinct crime can be addressed in terms of our criminal law without further delay.
- A working group on hate speech should be established – which should include members from civil society organisations and academia – to conduct a proper review on current legislative remedies to hate speech. It should also investigate if there is a pressing societal need to address hate speech within criminal law and report back to the Committee.
- Urgent reform of the Equality Act to align it with section 16(2)(c) of the Constitution and that appropriate remedies are provided such as administrative fines and/or civil liability.
- Only as a last resort should statutory criminal measures be considered to address hate speech.
- If such an offence is created then it must reflect the prohibition expressed in section 16(2)(c) of the Constitution. It must contain both the elements of “advocacy of hatred” and “constitute incitement to cause harm”. Clear definitions should be provided for “advocacy”, “hatred” and “incitement to cause harm”, with reference to international law guidelines.

Discussion
Mr Michalakis asked if he understood correctly its suggestion that we split hate crimes and hate speech and pass the hate crimes part of the Bill but spend more time on hate speech which is a bit more controversial and already covered in other legislation.

On the inclusion of social cohesion in the definition of harm, what would be the effect on criticism within the political spectrum? For example, would criticising the governing party if it is a strong liberation movement, be interpreted as affecting social cohesion negatively? Would you say that we also need to come up with a definition of what social cohesion actually means? He was quite uncomfortable not only that harm is so broadly defined, but also that those terms and concepts within the definition are unclear.

On the clause 4 exemption of certain parties, you mention that those making comments in the political sphere should be excluded. He agreed with her but would like to hear her motivation on why it is important that this be included. Other submissions have noted certain groups have been excluded from these. Who else has been excluded from 4(2) which is problematic? If it is going to be included, we need to ensure that the best possible version is included. There are also submissions that state that the clause is self-defeating in many ways. Would you agree with that? How would you propose that it be amended so that it does to some extent ensure the relative freedom of speech?

Mr Dodovu noted that since yesterday, this is the first time we get a submission that distinctively separates hate crime from hate speech and he clearly understand the presenters in respect of that distinction. But the difficulty he has is that this country has a very serious problem of hate speeches that impinge on the rights of people whether it is religion, language, culture, and all of that. Now, if you say to us, criminalize hate speech as a last resort, how do you think that we must best handle all these hate speech cases that are very serious.

His second question was to ask her view on retributive justice and restorative justice. What are you saying about using the offence of hate speech as a measure of last resort?

Mr Badenhorst added that obviously we agree that hate crimes needs to be punished and he had taken note of her submission that the 8-year sentence might be excessive. He noted the submission states that there is urgent reform required of the Equality Act. He asked what the efficacy would be of restorative justice as opposed to the sanctions of imprisonment and fines.

Ms Dallas replied that hate crimes must be distinguished and split from the hate speech portion of the Bill. For that reason, we say that the hate crimes part of the Bill needs to be passed as there needs to be proper data collection and prosecution in terms of that portion of the Bill. This will allow the HCWG to then carefully consider the hate speech aspect, which is where most of the contention has come and from the public submissions such as the comments we had about 'political affiliation' and 'trade and occupation' being removed.

Secondly, when it comes to the inclusion of social cohesion under the definition of harm, that is definitely something we are opposed to. Again, we believe that the rights freedom of expression is essential for a young democracy like ours. You need to be able to have debates on social issues on political decision making. And we do believe that the inclusion of social detriment, which would be any detriment to social cohesion in the country, is far too broad with the definition of harm already being too broad. And it would stifle political debates.

She believed that even though the intention may not be that, with the criminal sanction of eight years, people will self-censor. They will be too nervous to express any view that might undermine a very broadly defined social cohesion term thus we do not support that inclusion in the definition of harm. We think harm should be much more narrowly defined in line with the Constitution and with the international law guidance.

Finally, the exclusion or the exemptions in clause 4(2) and her point that why do we give more protection to religious practitioners, media, academics, than we do to ordinary citizens and politicians? Everyone has the right to freedom of expression as long as it does not fall into the very, very narrowly drafted section 16(2) of the Constitution. For this Bill to limit that right even further and offer an exemption to only specific types of individual is unconstitutional by its very nature.

The second point to that was the self-defeating nature of the drafting of that exemption as the last line reads you are not guilty of hate speech so long as you are not guilty of hate speech, and renders it ineffective and superfluous.

She noted the serious problem that South Africa has about hate speech. There are already legal remedies that exist and have been successfully relied on such as the Vicki Momberg case, which was dealt with under the common law offence of criminal injuria. She was sentenced to three years in prison with a one year suspended sentence in 2018. So it is not a case of saying, hate speech should not be dealt with or it is not serious enough. Of course, we know that there are instances where individuals really take hate speech to the next level and should face sanction. But we are asking for different degrees of severity to be built into whatever state action is intended to take place. The criminal offence of hate speech should be a last resort based on a pressing societal need that is evidenced by, for example, a hate crimes working group constituting the stakeholders in this meeting currently, the department, the media, and reviewing what we have already, the criminal injuria common law offence as well as the Equality Act to see where the gaps we have now identified through this participation process can be filled.

Our submission stated that we already have overburdened and under resourced correctional facilities. To try and put non-violent offenders into the mix for hate speech is going to do nothing more than churn out hardened criminals. Our belief is in restorative justice. The Equality Act specifically makes provision for that. Of course, there are degrees of severity of hate speech where maybe that is impossible. We would like to see that built in and considered in any type of criminalization of hate speech.

FOR SA submission
Ms Daniela Ellerbeck noted the concerns of FOR SA. The Bill is unnecessary as existing laws already effectively prohibit hate speech. It is overbroad in its listed grounds and in its going further than the definition of hate speech in the Constitution and in PEPUDA as confirmed in the Qwelane case.  It is unclear, vague and ambiguous as evidenced by its definition of 'harm' and 'victim' and by the lack of definition of 'hate' and 'social cohesion'.  Other concerns were with the self-defeating exemptions; harsh sentences; criminalising distribution and failure to provide for parliamentary oversight. The submission explained how the Bill contravenes the rule of law and fails the justification analysis of section 36 of the Constitution. It further noted the reasons that the Bill is unconstitutional such as it does not meet South Africa's international law obligations.

The religious exemption clause has also been open to multiple interpretations. Thus the current religious exemption is not strong enough as it does not serve to protect religious freedom in the public realm. Given that the religious exemption clause is self-defeating and its meaning ambiguous, it must be clarified and strengthened to provide proper protection of religious freedom in the public realm and “not stifle ideology, belief or views” (as stated in the Qwelane judgment). In addition, section 15 of the Constitution entrenches the right to religious freedom, which right includes the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. The right to freedom of religion also includes the right to verbalise beliefs which some may find offensive – for example, “those persons who for reasons of religious belief disagree with or condemn homosexual conduct, are free to hold and articulate such beliefs” as stated in National Coalition for Gay and Lesbian Equality And Another v Minister Of Justice and Others 1999.

FOR SA believed the Bill would have  a chilling effect on freedom of expression and freedom of religion. It provided detailed recommendations.

Discussion
Mr Michalakis recalled that yesterday Prof Madonsela indicated that our civil law and criminal law for hate speech should ideally be comparable or similar; it is just in the case of criminal law that there should be a sanction. Would you agree with that? The elements of the crime – what constitutes hate speech and hate crimes – should be similar but it is just the sanction that comes in with a crime. Would you agree with that?

Another thing that she said, which you differ from her is that she said that the definition of hate speech should be as broad as possible, and it should be left to the courts to flesh out. However, you indicated that we are effectively abdicating our legislative duty to the courts. What would your response be to Professor Madonsela's argument that it should be fleshed out by the courts? What would be the dangers in doing that?

He thanked her for the proposed amendments to the definitions. It really does help us to have something concrete that we can look at and work from. In the definitions of harm and hate she deliberately excluded the individual. Can she give the reasoning for that? In clause 4(2), she asked to expand it to include all people. His question would be there might be a fear that persons can use religion as an easy excuse to make any utterances and then say this is a religious belief. What would be her argument if that were to be raised? She is opening it up to an individual randomly saying this is his religious belief and on those grounds, exempt.

Finally, she stated that the regulations are problematic because the minister could make regulations that ultimately bind without Parliament's approval. Is that the argument?

He did ask this question to the FW de Klerk Foundation as well. He feared the inclusion of social cohesion might to a large extent limit freedom of speech on the basis of political opinion. Would you agree with that? And if you do, in what way would you recommend that we then ensure that we also not only protect the right to freedom of religion, but also political expression as well? He was very worried that the inclusion of social cohesion might be misused at some point to curtail the freedom of political opinion as well.

Mr E Mthethwa (ANC, KZN) said that firstly, he heard the presenter saying that they might be a problem in terms of the proposed sentence that the maximum must be eight years. Can you give us some more clarity why and how that she came to that proposal and what is it that she suggests the payment should be? And second, the chair, he know there is a current legislation law that we are using. What are the main fundamental gap that the presenter may give it to us to say for consideration so that this Bill can be also be part of the, in case when we need to revamp it, it must have those data. What are the issues that he thinks that are more and more likely and even in terms of the sentence of this current Bill?

Mr Badenhorst said you started the submission by saying that it is a very complex Bill and meaningful public participation needs to be followed and is required, specifically if we are talking about the hate speech part of the Bill. he would like to know from ForSA's point of view, what would constitute then a meaningful public participation process? Because to me it feels like you are saying that the current process is slightly flawed.

Ms Daniella Ellerbeck, FOR SA Legal Advisor and Parliamentary Liaison, replied that the elements of hate speech in civil law such as the Equality Act and criminal law such as this Bill should be similar. Firstly one needs to take cognizance of the purpose of civil law and the purpose of criminal law. They are very different, so the standard that needs to be made in civil law is allowed to be lower because it should not be so hard to prove that someone should apologize or pay a fine, but it should be harder to prove that someone should beyond reasonable doubt go to jail.

She did not listen to Prof Madonsela's submission but she can understand what she says that the elements at least should have similar meanings. You cannot have hate being defined one way in civil law and defined differently in criminal law, but she would argue that because of the purposes and that a highest standard is required, this does need to be reflected in the Bill. It cannot just copy and paste the computer definition, expand on the computer definition and then criminalize it, which is what we are seeing happening here.

Now again when it comes to the goal, remember that in terms of civil law, it is reconciliatory, so we have seen it being wonderfully used in hate speech cases such as Velaphi Khumalo, to really change mindsets and heal people, whereas the goal of this Bill should it become law is punitive.

You are not going to change anyone's views by sending them to jail; you are probably just going to make them more hardened in them and more hateful. Also you run the risk of driving these views underground where they can come cancerous, as opposed to being open to public debate where people can speak truth and also be exposed to public censure and that they need to recalibrate their views. When it comes to the purposes of civil and criminal law and the court being to decide on some of the definitions, the rule of law requires that the law to be clear.

This is especially so when it comes to a crime. The rule of law is one of the founding values of our Constitution in 1 and it also needs to be used when interpreting the Bill of Rights, so when you look at rights such as the freedom of expression and religious freedom. People need to know what the law says and when they are committing a crime. Now Parliament fails deliberately to define hate, the core element of the crime, and the proposed crime of hate speech. That is neglecting and abdicating the legislative responsibility to another arm of government, which interferes with the separation of powers and goes against the rule of law because you end up with the law being unclear and people will not know if they are committing a crime or not proactively. It is not sufficient to say the courts will define it when you are the one in the box being tried for hate speech and you have no idea if what you said was actually even hateful because then what we are criminalising is not hate speech but criminalising speech that people hate.

Now, turning to the regulations, yes, that is her reading of it as [network connection lost].

Ms Liesl Pretorious (ForSA Legal Advisor / Researcher) …..[connection regained] referred to the first part: "Any person who intentionally publishes, propagates communicates to one or more persons in a manner that could reasonably be construed to demonstrate". Note those words "in a manner that could reasonably be construed to demonstrate". That echoes the Equality Act. The Constitutional Court in the Qwelane case said that suggests an objective test, the 'reasonable person' test in the Equality Act. But what does the Rabat Plan say? The Rabat Plan which is about hate speech is not the same as PEPUDA. It is about criminal hate speech. The International Covenant on Civil and Political Rights anticipates intent. Fault is an essential element of any crime, either in the form of intent or in the form of negligence. So if you look at crimen injuria under which hate speech has been criminally prosecuted, it requires intent, it is not negligence. It is intent at least in the form of dolus eventualis.

If you look at the Rabat Plan, it says it anticipates intent, negligence and recklessness are not sufficient for an act to be an offence under Article 20 of Covenant. That is a very big difference and that is why the definition of civil hate speech and criminal hate speech will be similar but they definitely cannot be the same because you have to be…. [livestream ended for eight minutes].

Free Speech Union (FSU) of South Africa submission
Ms Sara Gon said that the Free Speech Union of South Africa (FSU SA) is a non-profit organisation that promotes freedom of speech and opinion. Two major problems were identified – too many protected grounds and too wide a definition of harm which could have a chilling effect on dynamic civil and political engagement. Hate speech can be anything from a political statement to a braai rant.

The Bill's test for hate speech is well beyond what the Constitution envisions. It limits freedom of expression to a much greater degree than what the Constitution allows. The Bill’s wider definition of ‘hate speech’ must be replaced by terms contained in section 16(2)(c) of the Constitution, verbatim preferred. Hate speech under the Constitution also involves the intentional advocacy of hatred that constitutes incitement, which incitement must be to cause harm. However, unlike the Bill, it may only be based on the four grounds in 16(2)(c), so it is much less restrictive. The Bill does not simply outlaw hate speech based on the four constitutional grounds of race, ethnicity, gender, and religion, but on an additional six grounds. The Constitution sets the parameters of a government’s legislative power. If government then prohibits more than those four listed grounds, it would be unconstitutional.

The Department has submitted in writing that ‘the grounds in section 16(2)(c) of the Constitution are restricted and society has evolved beyond these grounds. As a result, “analogous” grounds may be included’. The FSU SA refuted this. If it were correct, the Bill would demote the constitutional text from a supreme law to the status of a guide. To suppose that a society can “evolve” beyond the parameters of a supreme constitution, and in so doing government may simply disregard the constitutional limits on its powers, is to suppose that constitutional supremacy is at an end. The FSU SA argued that the constitutional grounds are limited to ensure that freedom of speech is limited as little as possible.

The Bill introduces four exemptions from the hate speech prohibition. In formulating these, another constitutional law error has occurred. The error is that section 16(1) refers to a general right to freedom of expression, which simply “includes” the listed types. These items were not intended to be exhaustive of freedom of expression, so the Bill’s codification of them is misguided.

The exemptions are not exemptions at all when the proviso – to not advocate hatred that constitutes incitement to cause harm – is included. The offence of hate speech applies to each excepted activity with that proviso. The proviso should be redrafted to allow all the contemplated good-faith exemptions except those that amount to incitement to cause physical harm.

The addition of a “juristic person” to the definition of “victim” suggests that the Bill could provide the cover for eliminating freedom of speech when one criticises a political party.

Discussion
Mr Michalakis thanked Ms Gon for her involvement in the founding of the Johannesburg Philharmonic Orchestra and the work she does for the arts. On the clause 4(2) exemptions, he recently listened to a debate on the exemption of artistic expression that she participated in. She had noted that comedy and satire is not included under that exemption. We heard earlier that the Department had denied that and said that comedy and satire are included under that. Why would she say that specifically satire and comedy are not included under 'artistic expression'? Do you agree with clause 4(2)? If this artistic expression is then shared further, is that covered by the exemption? For example, if a work of art that might cause offence is shared on Facebook, would the person sharing it be exempt? Under those circumstances, then that should probably also be included?.

Do you have an issue specifically with hate crimes or hate speech or is it the entirety of the Bill? Earlier today, it was noted that the hate crimes part is not so much the issue; it is more the hate speech part that affects the right to freedom of expression. This also relates to the sanction because if a hate crime is considered the heavier crime, hate speech can be addressed more easily through restorative justice and this must be differentiated in the clause on sanctions.

Mr Michalakis asked for her thoughts on the inclusion of juristic persons in the definition of harm. We do not yet have a definition for hate, which he thinks we should be looking to include. She did touch on it in the submission but he would like to hear a bit more about why juristic persons, either as the offender or the victim, should be excluded from that definition?

Mr Michalakis said that Prof Madonsela yesterday had said that she would like the definition of harm to be as broad as possible and that the courts can add flesh to it. But we have also heard concerns from other organisations that state that Parliament is then abdicating its legislative duty. He would like to hear her position on that. Did she think there is a real danger of stifling debate within our democratic society, specifically on political debate? How would you recommend that we can ensure that we strengthen the possibility of continuing robust political debate? Some have proposed including politicians under clause 4(2), but politicians are not the only ones who have political debate. We need to have a serious look at ensuring that we do not only limit the freedom of religion and expression, but also political debate, which is quite important in a democracy as young as ours.

Mr Dodovu thanked her about the great deal of work she does in various areas including restorative justice. Have you thought of including some form of rehabilitation or mediation body to facilitate the work on hate crimes and hate speech? He has not heard anyone talking about it but given the work that she does, does she not think there is a need for a permanent body that trains, mediates and facilitates to deal with this particular problem?

Ms Gon spoke about the danger of stifling debate. She has had a lot of contact with other free speech organizations in Europe and the UK and ironically South Africa has an incredibly high level of unrestricted debate. Obviously, we see it mostly in the political sphere, but it is not confined to politicians. If you listen to any radio programme where people phone it to express their views.

One of the beauties of that is that we have come to expect the right to express ourselves robustly, perhaps because of our past, and we do. She thinks that is incredibly healthy. As a result, we do not have some of the issues that these sophisticated Western countries have, where they are watching their free speech sort of really narrow extraordinarily. To some extent, our brief is to watch the space. Our concern is mostly that there is a temptation to reduce free speech or to limit free speech as the political environment changes, and as we move away possibly to the world of coalitions, those temptations might increase one way or the other. However, we actually have an extraordinary level of debate. That is something we should be encouraged by. She also thinks that because we have that high level of free debate, to a large extent we can deal with hateful speech without resorting to criminalizing it.

Going back to the question of artistic expression. Perhaps she should say very clearly that she has a very strong feeling about how broad artistic expression should be. This includes comedy because comedy is really your test as it is largely about offence, or highlighting weaknesses and foibles. All those sorts of things that we can theoretically take offence at, and the extent to which people are free to say it, and either find a receptive audience and it is seen as funny, or people understand that what was said is not funny, and will attract opprobrium.

That has got to be stated because as South Africans we can actually tolerate very much more "offence" than perhaps a lot of other people can. It is a sign of our increased understanding of each other, not absolute understanding, and our ability to see the absurdity of much of what South African life is about, and absurdity is an expression of offence. Artistic expression has to be given a very broad remit. She would be very concerned if any protection or stifling of it would be expanded through social media, because that effect is one of the biggest problems we deal with. It is so easy to broadcast widely our foibles and our dislikes and our opposition to things, and then you get into the question of how does someone interpret that as hate, do they perhaps just tackle it as offensive or as an anathema to them?

Artistic expression cannot be limited but she think it should not be limited any more than any other expression of speech should be limited. Obviously, one of the issues of artistic expression that comes to mind, that may very much be up for grabs, is what happened with The Spear some years ago. Some people said it is artistic expression, other people said it was hate. It certainly attracted opposition in the streets. That is the risk the artist takes, and should it be said that outside expression of dissatisfaction by groupings may result in a work being taken down or removed, that is part of the debate, that is part of the risk.

She does see there is a difference between hate crime and crime. She would not want to elaborate on that. Hate speech is different, and whether it reaches criminal proportions or must be regarded as unacceptable, should be confined by the Constitution alone. She is not arguing against existing legislation or trying to turn that around, because it can perhaps be used differently to the way it is used now, but then that will go into the issue of restorative justice.

Juristic persons is an interesting questions because as she pointed out in her submission this raises the issue of power. Here is the conundrum between a very powerful entity taking on a matter theoretically on behalf of South Africa – which might be a little bit over the top. In the case where a juristic person takes on an issue that may affect a more confined community such as a religious community, it could be Christian, Muslim or Jewish, this is quite a tricky one. However, she generally would fall in favour of making it an issue that offends an individual or group of individuals rather than an organisation. Organisations can express their outrage and their disagreement over issues but again they have a certain authority by virtue of having organisational status in society. The request for justice should really be from the view of the individual or group of individuals, but not necessarily organised. The problem with organisations taking it on is at a level in the political sense where power is so considerable. But there are ways to deal with it that can get it done and being sort of pragmatic and strategic.

On the inclusion of rehabilitation or mediation, she does not know why it did not occur to her to make more of this in our written submissions because in her previous pre-orchestral life, she was a labour lawyer, mediator and arbitrator. She understands very keenly the value of mediation. It is particularly important at the point of restorative justice in obtaining the understanding and perhaps the diminution of hate that can be done where a third party gets the two parties together and looks at a way of reaching an accord. This can certainly be built into the process. It may not necessarily be confined to being done by a state organ. There are civic institutions that could perform this function and could be authorised by the Human Rights Commission or the appropriate body to undertake this work. This is seriously where understanding and misunderstanding can be dealt with and can be grown. It has potentially huge value and she should flesh it out in an article or submission at a later stage. Hate is essentially about the intent dislike of someone and it very seldom goes without a certain level of misunderstanding or failure to understand or absence of information. Mediation can be a huge opportunity to improve that in the context of the communities from where the perpetrators come.

Afriforum submission
Mr Ernst van Zyl, AfriForum Campaign Officer, said that AfriForum supports the imposing of sanctions on actual hate speech. Vulnerable groups deserve protection from those who incite harm and violence against them through hateful language. However, the current Bill radically distorts the ordinary meaning of the term hate speech and effectively criminalises constitutionally protected speech and infringes on the right to freedom of expression.

The submission examined the extent of the constitutional right to freedom of expression; public policy reasons for protecting free speech; the constitutional limits on freedom of expression; the current regulation of hate speech in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and how the Act has been modified by the Qwelane judgment.

The submission highlighted four issues of the Bill that are unconstitutional or otherwise ill advised:
- The Bill’s definition of harm is overly broad.
- The threshold for determining what constitutes hate speech is incorrect.
- The Bill affords the National Director of Public Prosecutions the power to decide when to prosecute people for hate speech, without setting out the circumstances when it would or would not be appropriate to do so.
- The use of imprisonment for hate speech should be narrowed to cases where a speaker incites harm against a protected group and the members of that group suffer actual harm as a result.

Given that the Bill introduces criminal sanctions, there is less room to limit the right to freedom of expression than may be allowable under PEPUDA. A legitimate purpose of the Bill would be to protect people from imminent violence and incitement to cause harm. This can be achieved without infringing the right to freedom of expression by using the limitations set out in section 16(2) of the Constitution to define hate speech.

Afriforum recommended:
- changing the definitions of harm and hate speech that are used in the Bill to render it constitutional. The definition of “harm” means a deep emotional and psychological harm that severely undermines the dignity of the targeted group, or a physical, or an economic harm. For definition of hate speech it include "the incitement of imminent violence."
- addressing the problem of arbitrary prosecutions under the Bill;
- using restorative justice measures to deal with hate speech and reserving three-year imprisonment only in cases where the offender incited harm against another who suffered actual harm.

Discussion
Mr Dodovu noted Mr Van Zyl said that the Bill must go for a serious review and asked if it is on the basis of the issues he raised. If it proposed that it must be totally scrapped, what must this country do to address all the hate crimes and hate speech that are daily perpetuated by certain sections of our communities? We cannot close our eyes and pretend as if these are not happening. The majority of the people are subjected to hate speech and hate crime on a daily basis. If we were to agree with him that this Bill must be scrapped, do we allow the status quo to continue without putting in measures to stop these things that negatively impact on building cohesion and nation building in our country?

Mr Badenhorst said this Bill basically is written to criminalize hate speech. If one looks at the definition of hate speech in clause 4(1)(a), there are three elements. One is harm, the second is hatred and the third is the groups of people listed. We do get a definition of harm but there is no definition of hatred. Does this leave a gap in the Bill in your opinion? The penalties in the Bill started at three years maximum and it was amended to eight years maximum for a first offence. What are your thoughts about the penalties in the Bill and on restorative justice?

Mr Van Zyl replied that Afriforum takes the stance that the existing legislation is sufficient to deal with hate speech and hate crimes. Now the question then arises, why are not they being sufficiently dealt with? Well, the problem there is that the existing legislation is not being properly used and applied.

Another element that is exacerbating the racial tension, hate speech, and hatred overall within South African society stems from the absolutely horrible double standards that we have seen come to the fore. Some politicians can chant about murdering minorities in South Africa, and that is brushed off as a loud speech. But a mere offence is criminalized if it comes from a particular minority group or from anyone that does not seem to have special treatment. Unless existing legislation is applied consistently to combat incitement of violence and hate speech no matter who the person is, the political temperature will only increase that is not what anybody wants.

It seems the more these double standards are enforced, the more blatant they become. Unfortunately he has to make the prediction that the levels of hateful and violent rhetoric that causes division and targets people based on identity, is only going to increase. This is because a certain section of the population seem to be allowed to incite violence without consequence. All minorities want to see consequences when violence is incited against them. But it does not seem to be the case and that unfortunately is the root of many of societal problems we see today. The bottom line on what has to be done is that the current legislation in place needs to be applied properly and consistently without giving special privileges to certain individuals.

Yes, the definition of hatred is not properly defined and it leaves a lot of room open for just broadening the definition of hate speech far beyond what it should be. Bottom line: the Afriforum stance is very clear and concise – hate speech should be defined according to the constitutional standard which is speech that directs hatred against the designated groups of people but also in conjunction with an incitement to violence. That is the definition that should be used.

Without getting too much into the particular details of penalties, Mr Van Zyl replied that that he would simply say it would have to be on a case by case basis. What was the incident? What was done? What was the severity of the incident? On what the penalty should be for hate speech in general gets a bit complicated and is almost a conversation on its own.

ACDP submission
Mr Steven Swart, Member of Parliament for the African Christian Democratic Party(ACDP) said that legislation that seeks to limit freedoms of expression and freedom of religion must be approached with great circumspection in order to pass the test laid down in section 36 of the Constitution.

It is important to note that the Qwelane judgement dealt with civil remedies for hate speech. A far higher bar is required when criminalising hate speech as the Bill intends doing. It must also be a very last resort.

ACDP recommended that the definition of “grounds” should be limited to those mentioned under section 16(2) of the Constitution. While this definition has been improved, it is still too broad and vague. What does social, economic or emotional harm mean? The definition of “harm” is still far too widely defined, and when taken with other broad definitions, results in the purported crime of hate speech being too broad and vague – broader than what is intended by section 16 of the Constitution. It recommended that one or more of the words “emotional, social or economic” should be deleted from the definition of “harm.”

There is no definition of hatred in the Bill. Given the centrality of this concept, a definition of hatred should be inserted. It suggested “extreme detestation, vilification, enmity, ill-will and malevolence against a person or group of people and not merely strong or offensive disagreement with an idea".

The Bill’s definition of hate speech is far wider than set out in the Qwelane judgement and it is easier to be convicted of the crime of hate speech than the civil offence of hate speech. The Constitutional Court's definition in the Qwelane judgment deals with PEPUDA, a civil law. The Bill is a criminal law, which needs to have a far narrower definition of hate speech as well as a higher threshold to meet the requirements of hate speech as a crime as opposed to PEPUDA’s mere civil offence of hate speech

Criminalising “offensive” behaviour will not in itself bring change. What is required is a multi-sectoral approach, including raising public awareness and providing education on these sensitive issues. PEPUDA follows a restorative justice approach in its civil remedies. There should be a similar approach in this Bill.

Clause 6 provides for a maximum eight years imprisonment which is a severe penalty, and has been significantly increased from the three years in the Bill as introduced. It suggested that the penalty be returned to three years or a fine.

ACDP believed that existing common law and legislation are sufficient to deal with perpetrators of hate speech. PEPUDA allow for civil remedies and possible criminal prosecution for hate speech. The common law crime of crimen iniuria or criminal defamation which has been successfully used to convict racist speech such as Penny Sparrow and Vicky Momberg. They were both found guilty of crimen iniuria for making racist statements. Sparrow was fined R5 000 and sentenced to two years’ imprisonment, suspended for five years. In addition, under PEPUDA she was ordered to pay R150 000 in compensation to the Oliver and Adelaide Tambo Trust. Momberg was sentenced to three years’ imprisonment, of which one year was suspended.

However the Judicial Matters Amendment Bill [B7-2023] was introduced in Parliament which seeks to repeal the common law crime of criminal defamation. This is regrettable given the well-established case law covering criminal defamation.

ACDP is concerned that the religious exemption in section 4(2)(d) does not go far enough, and recommended a strengthening of the clause during the National Assembly process, which was sadly rejected. It recommends again the insertion of the words, “by a religious organisation or an individual, in public or in private”. It is also concerned that the proviso to section 4(2) which states “does not advocate hatred that constitutes incitement to cause harm based on one or more of the grounds”, results in the exemption being self-defeating. It recommended that this proviso either be deleted, or that the word “physical” be inserted before the word “harm” in the proviso.

The Bill’s current definition of “hate speech” is so broad, vague and ambiguous that it will violate other constitutional rights, including freedom of expression and religious freedom. This may undermine the very democratic values of the Constitution that also celebrates the diversity of South Africa’s people.

The ACDP also believed the Bill contravenes section 36 of the Constitution by unreasonably and unjustifiably limiting various constitutional rights, specifically freedom of (religious) expression, and being unnecessary due to other existing laws that have been used successfully to combat hate speech both civilly and criminally (that is, the less restrictive means test in section 36). It requested these recommendations for improving the Bill be considered in order for it to pass constitutional muster.

Discussion
Mr Michalakis noted that the eight year maximum sentence was not in the Bill introduced by the Department but it was an amendment made by the Portfolio Committee and passed by the National Assembly. Mr Swart as a committee member should have firsthand knowledge of what happened there. Can you explain the reasoning of the National Assembly committee in changing the sanction from three years to eight years maximum?

Mr C Smit (DA, North West) asked about the clause that states "against a group or individual". Do you believe that hate speech can be directed at an individual and where is that border between Bullying and hate speech? The LGBTQI+ community has legitimate fears, especially when it comes to some religious scriptures. How do you suggest we deal with this as a society in a legislative way? There are certain religious scriptures that say that people must be stoned to death and all that.

Mr Dodovu said he can see throughout the engagement with this Bill even in the National Assembly the ACDP has been very consistent in the issues raised on sentencing, religious exemption as well as broadening the definitions. However, in your statement after the National Assembly had passed the Bill, you welcomed the partial religious exemption contained in the Bill. What exactly is it that you need as an extra to ensure it satisfies your wishes?

Mr Swart replied about the increased eight-year term, that understandably, given South Africa's history, a lot of emotions were expressed during the discussions and public hearings in the Portfolio Committee. He thinks those emotions were then expressed in wanting a more severe punishment meted out and that was obviously suggested by members from the majority party.

Bear in mind this Bill process has been going on for a number of years. The Bill was tabled previously in the Fifth Parliament and the decision of the Justice Portfolio Committee was to wait for the Qwelane judgment so the Bill was not continued in the previous parliament. However, there was a lot of discussion and of course, there have been ongoing hate speech utterances that the ACDP condemns. Clearly what happened in the discussions was there were a lot of emotions around this matter. It was then suggested that the penalty should in fact be increased. He had concerns about this as the longest serving member on the Justice Portfolio Committee. His concerns were expressed by the Human Rights Commission about the overburdened criminal justice system that is struggling to deal with horrendous murders and rapes, and now to have the possibility of an eight-year jail sentence for a person that utters hate speech. It would have to be very severe hate speech. But it is words; it is not hate crimes; it is not murder. That would be his big concern. So to give you that context, he think there were a lot of emotions involved and that resulted in more than doubling the proposed three years, which in itself is a significant jail sentence. A first offender could be sentenced to then three years. Now a first offender could be sentenced to eight years. So he thinks that that is too harsh and he would suggest returning to the three years.

On whether hate speech can be directed at an individual and the border between bullying and hate speech is a more complicated question. Of course, in the past criminal injuria was always directed at the individual. The utterance would be to an individual and that individual would lay charges or bring a dilictual civil action against the person that used hate speech. Now with the broadening to groups, you might make an utterance such as preaching a sermon as a Roman Catholic against abortion. There could be people that have had abortions that take umbrage to that. It could then be that you are guilty of hate speech. The group or people in general – you are not saying a specific person – a group in general could take offence. That is a very difficult balancing act. What the Bill has done is moved from the individual to a group. That is why you have the groups identified in clause 4.

The LGBTQI+ group, yes, understandably, this issue has come up over many years. When you use scripture about stoning to death – that is a perfect example because that brings in the element of incitement which is a requirement of section 16(2) and that clearly would be illegal. But it works both ways. One of the concerns raised by the ACDP and ForSA when this Bill was still with the Department was the fact that faith based organizations were increasingly being taken to the Equality Court for what would not be considered hate speech. The Qwelane judgment is a prime example of that. That was not even a religious person; it was a journalist that made an utterance and led to the development of the jurisprudence.

 It has now come very clear what the civil remedy should be for hate speech. Now we are dealing with the higher threshold of criminalization. In a civil case, you have to prove your case on a balance of probabilities which is a much lower threshold. In a criminal case, it is beyond a reasonable doubt, which is a very high threshold. Yes, he can understand that LGBT groups might have a concern. But similarly, faith based organizations have a concern. That is why the religious exemption was built in after the engagement of the ACDP and ForSA with the Minister – but we feel that it can be strengthened.

Their submission to the National Assembly pointed out how to strengthen it. Regrettably that clause was not strengthened sufficiently and the proviso in the exemption is self defeating. He still believed that the essence which is incitement has not been dealt which is a crucial part of section 16(2). If that element is not dealt with, the Bill will be found to be unconstitutional. Sadly whilst we all want to deal with hate speech and hate crimes, the Bill could end up with so much litigation on its constitutionality that in fact the transformative aspect that the SAHRC spoke about would be misaligned if it is too broad. He also asked that one bears in mind the impact on the criminal justice system which is already overburdened.

Southern African Catholic Bishops Conference
On hate crimes, Adv Mike Pothier stated that no persuasive argument has been put forward why it is necessary to create a special class of crime – ‘hate crimes’ – when the only difference between these crimes and existing common-law and statutory crimes is the question of motive. The punishments provided do not differ from those already available for the underlying offences. It submited that there is no need to create this new class of crime, with all the administrative and prosecutorial burdens that it occasions. All that is necessary is to amend the Criminal Procedure Act and Criminal Law Amendment Act to require courts to consider the motives of prejudice or intolerance as being aggravating factors for purposes of sentence.

On hate speech in clause 4, SACBC asked if criminal legislation is an appropriate or effective way of combating what is essentially an attitudinal problem. In addition, it risks violating fundamental freedoms such as freedom of belief and opinion, and freedom of expression. Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and section 16(2) of the Constitution already outlaw speech which advocates hatred or which is intended to be harmful or to incite violence. PEPUDA refers to hate speech based on limited grounds (race, gender, disability), but this could easily be remedied by an amendment as could the criminal sanctions. There have already been a number of successful convictions under the Equality Act. There is no reason why this statute should not be used more aggressively in the battle against hate speech.

It is well known that even fairly narrow prohibitions can have far-reaching and unintended consequences known as the ‘chilling effect.’ People will shy away from expressing controversial ideas or thoughts that may be open to misinterpretation, for fear of being accused of hate speech. This will undermine the fundamental rights contained in Section 16 of the Constitution crucial for the health of any democracy.

Apart from the chilling effect, clause 4 may well be directly unconstitutional, since it clearly limits the right to freedom of expression contained in Section 16 of the Constitution, without at the same time satisfying the conditions for such limitation set out in Section 36 of the Constitution. Section 36(1)(e) of the Constitution implies that the limitation of a right is only justifiable if there are no other, less restrictive, means to achieve the purpose. This requirement could be satisfied by qualifying the word ‘harm’ in such a way that excludes minor or trivial instances; and which makes it clear that the fact that someone takes offence at the words of another is not sufficient to establish harm or harmfulness.

On the four exceptions of hate speech, this kind of exception might violate Section 9(1) of the Constitution, since it makes different categories of people unequal before the law. There is no reason for selecting only these four exemptions. The selection is in fact arbitrary. The only answer to the problem is to subject all speech, regardless of who utters it, to the test set out in Section 16(2) of the Constitution. To do this, clause 4(1)(a) could simply be re-written as follows: Any person who intentionally publishes or propagates anything or communicates [anything] to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to advocate hatred that constitutes incitement to cause harm, based on one or more of the following grounds: (aa) age; …..”

Discussion
Mr Michalakis said that he must say upfront that his upbringing is Catholic and he noted the work of the Justice and Peace Commission over years on this subject. He thanked the presenter for sharing the Catholic perspective of the Bishop's Conference and for a very insightful submission. On the four exemptions in the Bill, does he have a specific exemption that he wants to place on the table, other than the religious one, for the people who do not subscribe to any religion? Secondly, the Bill's definition of hate speech has two main elements: the one is harm; the other is hatred. This Bill does not define hatred. Do you see that as problematic?

Adv Pothier thanked him for the kind words. He used to work for the Justice and Peace Commission and SACBC has had a long interest about these issues. On suggesting specific exemptions, he does not have another exemption that he wants to place on the table. He thinks that the task before Parliament if one is going to stick with these exemptions is to ensure that it is not so much about categories of people that are exempted but the intention behind the speech that is exempted. There is no constitutional basis on which you can say if a priest says XYZ about the gay community, we do not like it but we have to exempt him because he is a priest whereas not for a lay person or an atheist. There has to be respect for equality before the law which is consistent.

One way of looking at it perhaps is that the first three exempted groups – that is your artistic performers, your academics and people in the media – are all in a way talking about a particular thing, examining it, reporting on it. They do not necessarily identify personally with the subject matter. if someone says exactly the same thing. You do not get exempted because you are not in the religious community. That is not constitutionally viable. If you are going to have exemptions, you have to word them in a way that respects equality before the law, which is consistent and so on. What does he mean? An actor on a stage in a performance may say something racist, for example, because the play is trying to bring out or explore racism. We have many such dramatic pieces in our own history. One would be stupid to say, well, that person uttered some racist words on the stage and therefore we can hit them with hate speech. Clearly we understand it is an actor acting a part. If the media the next day repeated those words in a report on how that play was performed, we understand the journalist is not identifying with those words. It is merely repeating them as a way of reviewing the play. Similarly with academic and scientific inquiry, it is done at a certain distance.

The problem with the religious exemption is that the words being uttered, these sentiments being expressed, are very much held and believed in by the person expressing those sentiments. So that is different. What is he saying? The first three of those exemptions are constitutionally defensible but (d) he does not think is. Clause 4(2)(d) is saying if you hold and express hateful sentiments, and you hold them sincerely, we are going to hit you with this law and may send you to jail for eight years. But not if you are doing so as part of your religious beliefs. Whereas if you are doing so as part of your philosophical or political or just non-religious beliefs, you do not get that protection. That is what he finds objectionable about clause 4(2)(d). He does not want to add any exemptions. If anything, he simply wants to see that one removed.

On the definition of hatred, as was noted earlier, he simply does not think that one can come up with a legally useful definition of hatred any more than you could probably come up with a legally useful definition of love. It is one of those things which we know we probably have a strong sense of what it is – we know it when we see it. To write it down in a statute, in a way that is going to meet the requirements of the principles of legality and clarity and accessibility is exceptionally difficult. He is not aware that it has been done elsewhere. He may be wrong on this – others study this much more than he does – but he doubts if it is feasible.

He does want to bring attention back to the fact that we now have a much more useful and restricted definition of harm. Clause 4(1)(a)(i) and (ii) unites the harm and the hatred. You have to now demonstrate a clear intention (i) to be harmful or to incite harm and (ii) to promote or propagate hatred. These narrow down the danger that we were worried about in earlier versions of the Bill, where harm and hatred floated around as kind of alternatives and as long as one fell under one of those two, you could be hit with the full force of the Bill. He thinks that good work has been done to narrow those down. But ultimately, he thinks we are going to have to rely on jurisprudence to give us guidance as it develops over the years as to what the limits of hatred are. He cannot see a way that it can be written down in a legally useful set of rules.

Session 2

Alliance Defending Freedom (ADF) International submission
Dr Georgia du Plessis, ADF Legal officer, and Mr Paul Coleman, ADF Executive Director presented. ADF International, a faith-based legal advocacy organization that protects fundamental freedoms, believed that the Bill violates to the right to freedom of expression as contained within international human rights law. It is also an unjustifiable limitation of this right as it does not meet the grounds required for the proportional limitation of the right to freedom of expression. - The absence of a firm definition of the crimes and the lack of traditional criminal elements such as criminal intent and state of mind, result in the fact that the policing of hate speech and hate crimes will be a difficult and unjustifiable task for law enforcers. The Bill will chill public and private debate amongst South African citizens from different philosophical, historical and religious contexts stifling the right to freedom of expression. It asked for the reconsideration and eventual dismissal of the Bill.

Discussion
Mr Michalakis noted that the previous speaker indicated that the concept of hate is almost impossible to define. Would you agree or would you say that in the legislation of other countries there is a definition of hate that would be suitable to include in this Bill? We know if you have criminal law that is vaguely defined it actually makes things much more difficult than if it is clearly defined. If Parliament does decide to go down the route of keeping the Bill it should at least have the elements of the crime at least very clearly defined. Has it been possible in other legislation to define this concept properly and what would you propose?

ADF said as a last point that clause 4 should be properly cleaned up and defined quite clearly. Has it been possible in other legislation to define this concept properly and what would you propose?

When you say that the current version of clause 4 needs amending, what amendments would you suggest? Do you have proposed wording that could give effect to that for the Committee to at least consider as a basis to work from. He requested clarity on what you have in mind when you make that proposal.

The Chairperson asked in his experience and engagement in some of these cases, what has been some of the difficulties in identifying if there is sufficient evidence to present. It is an issue that he did raise in the submission as well. If he could just elaborate a bit on that matter.

Mr Paul Coleman replied that there is no universally agreed definition of hate or hate speech so that is not just his opinion. However, if you search for one, many documents written on this subject begin by saying there is no universally agreed definition of hate or hate speech. From his perspective, it is not only undefined, but it is undefinable in law and certainly criminal law when we are looking for the tightest wording possible so people can regulate their behaviour and know if they are on the right or the wrong side of the law. Hate is by its nature subjective. In the case of Päivi Räsänen, she finds it offensive that what she said is referred to as hatred because from her perspective she is acting out of love and from someone else's perspective they consider it to be hate. Now, who decides? Who adjudicates that? Of course, then it is left to the courts, it is left to the police, it is left to the prosecutors to decide. But what one person considers hate, someone else might consider to be love or any number of other things. So it is impossible to narrow down a tight definition of it.

What we see in other legislation is to side-step the definition completely. And in this Bill, the clause 1 definition is referring to clause 4(1) and essentially creating a circular definition that hate speech is propagating hatred. This is something that we see is quite common. Or the other thing that we see is various synonyms used in lieu of a definition. But again, synonyms for hatred does not get one further towards a definition.

In the clause 1 definition, there is nothing about intentionality. That could certainly be introduced. The wording from Article 20(2) of the ICCPR and also the International Covenant on Eradication of Racial Discrimination (ICERD) both include the concept of incitement. And he think incitement could be included here as well. So that would be two things that would tighten the wording. And the third would be clause 4(2) which essentially is a clarifying section within the Bill explaining what is not going to be caught by this. And again, the wording there could be tightened to support and strengthen freedom of expression. We would be very happy to make those submissions in a written form, if it would be helpful by way of follow up.

Finally, on evidence to convict, the reality is the way that most of these hate speech cases are litigated do not involve a victim and they do not involve evidence. He sat through four years of the Päivi Räsänen trial, and there are no witnesses; there is no victim as such. What happens is the state prosecutor is the one who determines whether or not certain words are offensive and brings the prosecution even without a victim.

Dr Georgia du Plessis, ADF Legal Officer, added in response to if such a definition exists, that the United Nations Strategy and Plan of Action on Hate Speech clearly states and she quoted, "There is no international legal definition of hate speech and the characterization of what is hateful is controversial and disputed". Further from a European Union level, we do find one attempt at a definition in Article 1 of the Framework Decision defines hate speech as "publicly inciting incitement to violence or hatred". Again that circular argument: hate speech is incitement to hatred which is a very broad and undefined attempt at a definition. In our research from an international law perspective, there is a clear acknowledgement from the United Nations that there is no universal definition, there is no clear definition of hate speech. Secondly, when an attempt is made, it is similar to what happens in South Africa's Bill which is this circular argument that hate speech is incitement to hatred. What that means is open to subjective interpretation.

Hate Crimes Working Group (HCWG) submission
Ms Katlego Sepotokele, HCWG Chairperson, said the HCWG is a multi-sectoral network of civil society organisations and individuals set up to spearhead advocacy and reform initiatives on hate crimes in South Africa and the region. The HCWG supported the Bill. It made the following recommendations:
- The Preamble of the Bill include all relevant international law instruments on non-discrimination to which South Africa is a signatory, and not only the CERD and the Durban Declaration as it sets up a hierarchy of prejudice and discrimination.
- In clause 1, it suggested the inclusion of the definitions of the terms “associates” and “bona fide”.
- In clauses 3(3) and 4(3), where the Director of Public Prosecutions declines to prosecute a charge of hate crime or hate speech, written reasons for this decision should be provided to the complainant within three working days.
- In clause 5, the victim impact statement must not be limited to the victim but can extend to: someone authorised by the victim to make such a statement on behalf of the victim; in the event of the victim’s death, the victim’s associate(s); an organisation or institution with expert knowledge or experience of the group to which the victim belongs or is perceived to belong

Discussion
Mr Badenhorst said one of the main objects of this Bill is to criminalise hate speech. But in the definitions of this Bill, it only has a definition for harm and it does not have any definition for hate or hatred. Did the HCWG have a viewpoint on whether that makes this Bill a legitimate Bill or not?

Ms Katlego Sepotokele, HCWG Chairperson, replied that it is very much on the balance. The Bill is relevant in the South African context and it is important that this Bill gets passed so that we test its utility, particularly with the growing climate of intolerance in South Africa. It can create a mechanism in which we are able to deal with hate-related crimes. Even though in legal technical terms, it might be difficult for us to come to a particular agreement on what constitutes hate and be happy with a very pure universal declaration, she thinks that the Bill should be passed and be tested in practice because the climate of intolerance and hate does necessitate that we do something about it.

International Religious Freedom (IRF) Roundtable submission
Judge Rollin Van Broekhoven noted the concern that the B-version of the Prevention of Hate Crimes and Combatting of Hate Speech Bill poses a real and direct threat to South Africans’ right to religious freedom, particularly with its proposed maximum jail sentence of eight years, even for first offences. The Constitution and various binding international legal instruments require South Africa to uphold the right to freedom of expression and the right to freedom of religion. The Bill is so wide that it will result in South Africa failing to meet and even contravene its important constitutional and international legal obligations. South Africa’s international law obligation to prohibit hate speech is already met through existing common law crime of crimen iniuria and civil law through the Equality Act. South Africa is not required to criminalise hate speech – civil sanctions are sufficient. It expressed concern about the wide definition of “hate speech” and of ‘harm’; the failure to define novel and/or controversial grounds; the failure to define ‘hatred’ and the self-defeating exemption clause. It asked for the religious exemption clause to be strengthened to ensure that bona fide expressions of religious belief and opinion are fully protected from the threat of criminal sanction.

Discussion
Mr Michalakis said that he was not quite sure if the legal system in the United States is comparable to South Africa in the same way that the UK is. We have heard from earlier speakers that it is difficult to define the concept of hate, and if it cannot be defined, some would argue that if you cannot define a concept in a criminal statute, that it becomes either uninterpretable, so no one would know before they are in trouble that they have actually committed a crime, or that it would be left open to the courts to interpret it, which according to some submissions we have heard is also problematic. The same goes for the current definition for harm. We heard yesterday from a university professor who said that she would prefer the definition of harm to be as wide as possible so that the courts can add flesh to it. His own opinion is that when criminal law is made, the definitions have to be very, very clear beforehand so that everyone knows exactly what it is that they can and cannot do. It cannot be decided when you are in court only. What is his opinion?

Secondly, there is the argument on the eight-year maximum sanction that it is only a maximum sanction and that it can be much, much less so we need not worry about an eight-year maximum sanction that is only reserved for the most serious cases. He would like to hear his opinion on that as well. His third question is that we have heard earlier argument that clause 4(2)(d) gives exemption to persons on the basis of religion. One of the arguments made was that on a constitutional basis it is questionable because rights like that should not only be afforded to persons based on their religion, but also to persons who might not be religious. They should be afforded the same right to express themselves in that way. Therefore, since that exemption excludes a big segment of society, it should be considered unconstitutional. He would like to hear his perspective on that as well.

Judge van Broekhoven replied that he thinks to a certain extent, he addressed one or two of them in his initial remarks, although very briefly. He is an originalist and he believe that words in statutes or regulations mean something. When they do not mean what they purport to mean, people in the general public are prone to be subject to criminal prosecution or criminal procedures. To that extent, he as an originalist, he does not think that judges have complete discretion to decide what words mean or what they do not mean in a constitution or in statutes. He thinks there is probably a little more discretion in regulatory language. However, for the most part, he agrees that if somebody is to be held accountable for violating a law, that law should be clear enough for them to know that they are violating it.

He believes we all have these rights and they are applied equally. That is why he mentioned the sociological studies of religious beliefs and opinions on the basis of the term 'none'. There are a lot of people in the United States that do not want to declare themselves as non-believers. So they simply identify themselves as not holding to a particular religion or belief. Those have been generally described as 'nones'. His sense is that the nones are entitled to all the rights that those of any religious group adhere to. He thinks that is part of humanists. It is part of the dignity of the human person. His personal belief is unless speech is openly harmful, it is not something that should be prosecuted criminally. If there is an issue with it, there are civil laws in most countries that address that.

Mr Michalakis asked about the eight-year maximum sentence and the argument from some that it is only the maximum sentence.

Judge van Broekhoven replied that may very well be. He is not really knowledgeable either about the workings of South Africa's judicial system, but his guess is that if one leaves it up to judges, we tend to be arbitrary. Some of our arbitrariness comes from public views. Frequently the sentence depends on more than what one's belief system is. It may apply to issues of ethnicity, background, history. If one is prone to have a judge that is arbitrary and has not completely emotionally and intellectually moved away from that history, the punishments would be uneven. Notwithstanding the fact that it is an eight-year maximum. Whether that becomes a maximum for a first offence or becomes a maximum on other grounds such as political pressure, he did not know. His guess is that it is a bit of a red herring for those that are interested in pushing the Bill. He respects South Africa's ability to promote its own law consistent with its history and background. Anything he says is not critical about that. But we as humans tend to do what we do without regard to what our background is. So he would say that the eight-year maximum may or may not be a true picture of the law.

Aurum Institute submission
Aurum Institute's senior technical advisor, Maria Sibanyoni, said that there have been numerous incidents of corrective rape of lesbians in South Africa where a woman is raped to 'cure' her of her lesbianism. However, the Bill is not clear and does not mention or categorise corrective rape. It is a serious violent crime and may qualify as a hate crime. The South African legal framework needs to adequately address this scourge and ask if it needs to be classified as a hate crime.

Same Love Toti submission
Ms Kim Lithgow, Director of Same Love Toti, a human-rights based LGBTI organisation in KwaZulu-Natal, said South Africa desperately needs this Bill. PEPUDA and crimen injuria have been civil remedies that have been used to address hate crime and hate speech but there is no legislation that sanctions the state to provide justice for its victims. South Africa has a constitutional obligation to prohibit discrimination, especially considering our heinous past. The organisation asked for a commitment for adequate funding to effectively implement this Bill as it would require awareness campaigns, teaching in schools, sensitisation of government officials, SAPS and medical staff.

Discussion
Mr Michalakis said that it is important to state that hate speech is not okay, bigotry and homophobia are also not okay. We are lawmakers and it is our duty to ensure the law passed by Parliament is the best law out there. Bad law has serious negative consequences ultimately and does not go any far to come up with solutions to serious social problems that we are facing and this is a very serious social problem. And especially when you are dealing with criminal law, it needs to be very clearly defined so that everyone knows what is allowed and what is not, so part of the questioning is very much based on trying to find a solution so we can put the best version of this Bill out there

You indicated that Qwelane was used in Constitutional Court to put certain definitions or concepts Would you say that the Bill needs to be brought in line with what was stated in Qwelane? That it should bring that legal certainty? That would be his first question. His second one is he am going to carry on about the definition of hate. He understands completely the argument that you made, but for purposes of the Bill, we need to define it in his opinion. And he would like to know, do you have some form of a definition that we can look at and to try to bring that legal certainty when we look at it? The definition of hate, he understands completely the argument that you made, but for purposes of the Bill, we need to define it, in his opinion. And he would like to know, do you have some form of a definition that we can look at and use to try to bring that legal certainty when we look at the final version of the Bill?

Mr Dodovu asked the presenter for her view on the maximum sentence in the Bill.

Ms Lithgow replied that she does believe that the Constitutional Court did a good job in defining hate speech in the Jon Qwelane case. Yes, she does feel that that is what we should be aiming for. She also thinks that it is sufficiently laid out in the Bill as it stands although it might be not 100% what we want. But when will it be 100%? We have been working on this since 2009. If we are just going to sit and nitpick, we are going to get very far. We have worked on this Bill, even if it is not what everybody can agree on, she still feels that it is sufficient to be enacted now. She agrees that if it is possible to enact the hate crime part now and the hate speech part at a later date, then that would be an option. So maybe that is a solution. However, we need to get this done sooner rather than later because lives have been lost. Yes, it is not perfect, but it is time for us to pass this law now.

As far as the definition of hate goes, she still thinks it is really simple. We are trying to make it so complicated, where it is really simple. The definition of hate would simply be something that takes away the rights of others, that encroaches on their dignity, their equality, and their freedoms. What we are aiming to build in a democratic country. We are aiming for social inclusion. We are aiming for people to be able to live their lives fully. When it comes to human rights, if the human rights of somebody have been taken away, there is a good chance that it is going to be classified as hate, especially when we look at hate crime victims. That simplifies it superbly.

On whether the maximum sentence is excessive or not, she did not think it matters too much because she thinks the courts would rather go for minimum sentencing anyway. It is not something to be overly concerned about. In conclusion, this Bill needs to be passed. It will help in the fight against hate crime and hate speech. It is long overdue and this needs to happen now.

Film and Publication Board (FPB) submission
Dr Mashilo Boloka, FPB CEO and Mr Andrew Sebapu, FPB Legal Officer presented. The FPB said it is imperative that the freedom of expression and the rights of the media must be protected to maintain the required proportionality and balance between respecting the freedom of expression and protecting the rights of persons. The FPB challenges with the Bill were noted:
- FPB pointed out the similarity of provisions and duplication of offences in the Bill and the Films and Publications Act (FPA)
- Need for the Bill not to infringe on the freedom of expression which can stifle public discourse, countering efforts of the FPA instead of strengthening them.
- Reference should be made to the FPB and the Bill should entrust more powers to the FPB as an enforcement statutory entity, particularly on online platforms where hate speech is so prevalent. This will ensure practical realisation of the Bill's constitutional obligations.
- Ensure that the Bill is not overly broad and vague in its definitions which may lead to potential abuse and misinterpretation.
- The Bill may grant excessive power to law enforcement agencies and the prosecuting authority to target individuals or groups based on subjective interpretations of hate speech.
- The Bill should avoid ambiguity which may lead to selective enforcement to suppress political viewpoints if those in power can influence how hate speech is prosecuted.
- The Bill in its current form may limit open debate and discussion on contentious topics and thereby discourage dissenting opinions.
- The Bill needs to include provisions to address the root causes of hate crimes and foster social harmony through advocacy and awareness raising to address underlying social issues

Discussion
Mr Michalakis said he realized that there is another Bill that also covers aspects of what we are dealing. We have heard of PEPUDA and there is also the FPB Act as well. What is the maximum sentence that the FPB Act imposes? Is our criminal justice system currently geared to deal with such crimes in terms of the FPB Act? Is it at all capable of effectively dealing with this? What we want is for the issue to be addressed more effectively through existing law than just adding more laws and none of these laws can actually be effected. Considering the current Act, is the criminal justice system able to give effect to what we already have on the statute books?

The Chairperson followed up about the criminal justice system and asked what have been the challenges around prosecuting in some of these matters. Has it been easy, what have been the difficulties? How many cases have actually been prosecuted?

Mr Dodovu asked for the volume of cases FPB handles. How many cases have been brought to its attention since inception and how long does it take to finalize the cases? He heard Dr Boloka say that the FPB is not proactive but reactive, which means it only acts on the basis of the submissions sent to it. The FPB cannot of its own volition when there is a violation approach the perpetrators about the transgressions committed. Is this how the law is? Why are they not acting proactively?

The FPB identifies two conflicting areas between this Bill and the FPB Act. What interaction has the Board had with this legislative process since the National Assembly to date? What interventions did the Board try to make to address the identified conflicting areas?

Dr Boloka replied that the Act specifies in section 24 the sentence of R150 000 fine or imprisonment not exceeding two years. Two years is the maximum. Is that a deterrent or something else? The FPB recently commented to the Portfolio Committee on Communications about the danger of specifying the fine amount. The Act was introduced into Parliament in 2015 and only passed in 2019. The Presidential proclamation brought the Act into operation on 1 March 2022. Nowadays what is R150 000 especially if you are dealing with multinationals? It is nothing. We said that in future the lesson from this is that you do not put the maximum penalty for fines because we are dealing with companies that are transacting in dollars. R150 000 is nothing.

On whether the justice system has the capacity to deal with the problem, one knows that it will take a long time. Think about the Jon Qwelane case, how long it took. Therefore, whether the length that it takes brings justice or if it is a deterrent, that is something else.

However, the FPB mechanisms provided by law may deal with matters quite speedily in the sense that the procedure takes 60 days. Why is it 60 days? First, there must be investigation or let us start with the takedown. That is where we request an entity to take the matter down from circulation while we do the investigation to when we present the matter before the enforcement committee which can also hold public hearings to hear the different sides.

If it were to go to the court, then that takes a longer time and it can be a very expensive process. However, with the FPB, it is largely funded by the state. It does not involve money so a poor person can have the matter heard, unlike a court procedure with lawyers. That is the advantage of the process built into the FPB Act to deal with that challenge.

The FPB Amendment Act was brought into operation on 1 March 2022. The FPB was a narrow classification authority in existence since 1963 and it never had the capacity to make regulations. When you do regulations, you have to consult the public so what we have done since the Act was brought into operation is to develop regulations. We appointed the enforcement committee late last year. It is only now we have just finalized the public complaint system. We have been putting in systems so we are yet to deal with any cases. But there are cases that we are taking to the enforcement committee before the end of September. That will be the test. Those are really a number of cases that will be dealing with for the very first time. So we will see the challenges when we start implementing.

Adv Makhosazana Lindhorst. FPB Regulatory Development and Enforcement Executive, spoke about the FPB's efforts to educate the public and its discussions with the police and courts about the new Act. This is the first submission it brings about the FPB Act since it became operational in 2022.

Whilst the Act came into effect last year, it is not known by members of the public. We have realized that there is a need for us to be more proactive about the Act. We are trying to strengthen education and awareness. We have also a plan to make prosecutors and the police aware. This is the first time we have made a submission on the Bill to ensure awareness of the existence of our Act.

The Chairperson thanked the FPB. The Committee is now aware of this Act and she is sure that the Department is aware of it.

Professional Association for Transgender Health South Africa (PATHSA) submission
Mr Pierre Brouard, Board member of PATHSA, a health professional organisation promoting the health, wellbeing and self-actualisation of transgender and gender diverse people, made the following comments:
- It welcomed the Bill that may prevent or address harms aimed at transgender, gender diverse or non-binary (TGDNB) people. TGDNB is an umbrella term for those whose gender identity is not aligned with their sex assigned at birth.
- It welcomed the inclusion of the ground “gender identity or expression or sex characteristics” as a basis for a hate crime or hate speech as TGDNB people are particularly affected by discrimination because their gender presentation does not conform to social expectations and norms.
- It welcomed the emphasis in the Bill on prevention, not just prosecution, and called for resources to be made available to create a social and cultural climate of acceptance towards TGDNB people.
- On resources, it called for meaningful data collection on hate crimes and hate speech, to better inform prevention work.
- It noted that the school is a particular context where harm can be aimed at TGDNB children and teenagers and it would like to see protection aimed at young people specifically.
- It asked if hate crimes or hate speech, aimed at a child of a TGDNB person because that person is TGDNB is recognised by the Bill
- It asked if deliberately misgendering someone or refusing to use that person’s preferred pronoun, title, or name, in the commission of another offence, is considered a hate crime, or if these acts fall under the category of crimen injuria, which is excluded from the Bill.
- It requested more explicit mention of intersex people who are under-protected.
- To include in discussions the matter of public bathrooms as possible hate crime aimed at TGDNB people.
- While acknowledging religious freedom, it is in these very religious spaces where stigma and discrimination happen and call for vigilance in monitoring religious spaces.
- Bureaucratic inertia, misinterpretation of the law and frank stigma by government frontline staff such as Department of Home Affairs when making name and sex marker changes.
- In sum, it called for reassurance that TGDNB people are protected by this Bill as this community is deeply affected by high levels of stigma in health, educational, occupational and social settings.

Discussion
Mr Dodovu noted that PATHSA does not have a problem with the current Bill but wants it to be expedited as the people in the sector he represented need to be protected. The presenter was asked to share the magnitude of the problem he is raised. Is it widespread – does it happen frequently to a whole number of people or is it a limited problem?

The Chairperson asked if PATHSA was happy with the definition and the exclusions.

Mr Brouard replied that he is not a lawyer but a psychologist so sometimes the legal niceties can be quite obscure. Psychologists recognise that distinguishing between something that is an unpleasant opinion versus something that crosses the threshold of inciting harm and hatred is sometimes difficult to discern. Our view would be that people are entitled to their personal views. It becomes more problematic when those views are put out on social media platforms, or they occur in spaces where a large number of persons can be on the receiving end of those views and it might reasonably be assumed that they take those utterances as some kind of incitement to do harm. It is a tricky terrain but for someone on a social media platform or in safe spaces state "these people are evil and should be exterminated from society" – that kind of statement would easily in our view meet the requirements of hate speech. We do recognize the exclusions around being able to make certain scientific or academic pronouncements. We recognize that the Bill must make allowance for discourse and allow people to have their opinions. It is where it crosses over into hate, we would find it is challenging. In the case of rape, assault or murder, if they cite that the person's transgenderness in the commission of the crime, we would like to see that as an exacerbating factor.

On numbers, the lack of data is a challenge in South Africa. We have had a hate crimes working group in the LGBTQ sector for a number of years and it has been challenged by gathering good data. It is not easy partly because many people who experience hate crimes or forms of discrimination do not come forward. Quite often it is because they do not have faith in some of our institutions to bring those cases forward. So we probably have underreporting. Again we would make a case that it is not necessarily the numbers that we should only be interested in but the fact that these happen at all is of concern, and therefore we are asking to be recognized.

Scalabrini Centre of Cape Town (SCCT) submission
Mr James Chapman, SCCT Head of Advocacy & Legal Advisor, said that to date, there has been a lack of justice for the victims of xenophobia motivated hate crimes and speech, and a lack of recognition of these crimes which demonstrated the importance and urgency of this Bill. There is a culture of impunity for perpetrators of xenophobic hate crimes plus institutional discrimination making it difficult for victims to seek and obtain recourse. The Bill will hopefully ensure increased sensitivity to and awareness of the duty of the South African Police Service to protect migrants and their property and not neglect to do so. The adoption of the Bill is necessary to assist in the prosecution of xenophobic hate crimes and hate speech, aggravation of sentence and rehabilitation of sentenced individuals; and allow for the reporting and quantifying of such crimes to allow for adequate prevention programs.

On the provision for Victim Impact Statements (VIS) in clause 5, a deceased migrant would neither be able to give a VIS nor authorise another person to do so on their behalf. There must be a mechanism for their voice, or the voice of others like them, to be heard. This is necessary, given that hate crimes as “message crimes'' spread fear and affect the equality and dignity of entire groups of people and for the successful recognition that the motive for the crime is hate. The prosecutor should be required to obtain expert input either from the group to which the victim belonged or from organizations which work directly with the group to which the victim belonged. The prosecutor should be required to explain the absence of such a statement in the case of the death of the victim.

In Clause 1 definitions of the grounds 1(e) and characteristics 1(i) SCCT appreciated the inclusion of asylum seekers. However, it requested that undocumented people are provided for as a separate characteristic and ground. Violence in xenophobic attacks escalates where victims were not able to produce documentation’. Migrants and South Africans alike if not in possession of documentation have additional vulnerability. The fact that 1/3 of the victims of xenophobic violence in 2008 were South African speaks to the impact of documentation.

Discussion
Mr Badenhorst thanked the Scalabrini Centre for the very necessary work that it does. The Committee noted that while the Bill criminalizes hate speech, if one looks at the definitions, it defines harm but it fails to define hate or hatred. Some presenters have said it is not possible to define hatred, as much as it is not possible to define love. What was his view? Was finding a definition for hatred a crucial element in the Bill? Secondly, what was his view on the maximum penalty of eight years for a first offence?

Mr Chapman replied that it might well be best suited for the courts to canvass what is covered by hate. The absence of a definition should not be a stumbling block. There are things that obviously would constitute hate or hatred. If for example the action is based on a person's ethnicity or their nationality, something that is an immutable characteristic, something about an individual that they cannot change about themselves, then he thinks that would be covered by hate. But the courts are well positioned to flesh this out through jurisprudence.

When it comes to the maximum penalty of eight years. he did speak to the fact that there is scope for rehabilitation. He does not think that the penal system is as effective as it purports to be. There are other crucial aspects that need to be taken into account and there must be an opportunity for reform. He would not rest too heavily on that as he does not have a particular gripe or misgiving about the maximum penalty.

Democratic Alliance
Mr Mathew Cuthbert, DA Member of Parliament, said that given South Africa’s past, and the continuing prevalence of racial hateful prejudices, the DA supports the need to take strong action against hate crimes and hate speech in our society. However, it cannot support this Bill in its current format as it has an inadequate definition of ‘harm’, fails to address the root causes of prejudice in our society and opens up the potential for abuse of its provisions to silence views which the government may find objectionable. The DA

submits the following comments:
 

- Definitions of Harm, Victim and Hate
The definition of harm in the Bill is both vague and broad. It will have to be improved to provide greater certainty as to what will constitute a harm. “Victim” needs to be properly defined and if both natural and juristic persons should be included. The DA strongly believes that it include only natural persons to prevent the abuse of clamping down on criticism aimed at companies, political parties, governments and groups of elected politicians. “Hate” should be clearly defined. It is not good law to leave such a fundamental element to the crime open to interpretation by courts if it can be clearly defined in the Bill.

- Threat of self-regulation of speech and a subsequent chilling effect on freedom of expression.
The new crime of hate speech and the harsh prison penalties attached to it, may result in self-censorship, thereby reducing freedom of expression. This will result in a poorer marketplace of ideas, resulting in reduced debate and quality of idea exchanges.

- Lack of justification for the included characteristics and grounds
A limitation on freedom of expression on grounds not already included in the Constitution, must during a section 36 rights limitation analysis give consideration to less restrictive means to achieve the purpose of curbing hate speech and hate crimes. As the grounds extend beyond what is included in the Constitution, as exceptions to the section 16 right to freedom of expression, clear justification should be provided.

- Lack of justification for the Bill
Justification has not been provided on the inadequacy of existing remedies and legislation. This Bill is seeking to double legislate for hate crimes. The addition of the ‘hate’ element should instead be used as an aggravating factor during the sentencing stage as opposed to creating a new crime.

- Penalties
The sentencing provisions require a greater focus on rehabilitative mechanisms as opposed to only imprisonment and the payment of fines. The eight-year jail term, even as a maximum sanction, is unreasonable and disproportionate and should be reconsidered.

The DA recognises that the stated objectives of this Bill are laudable, given the history of South Africa, and the effects this history continues to have. However, the Bill contains a multitude of flaws which require correction. Preferably, this Bill should be abandoned and ‘hatred’ instead be used as an aggravating factor in sentencing under existing crimes. Policies which aim to rehabilitate and educate are preferable to the crude criminalisation of hate crimes and hate speech, which address only the symptoms rather than the cause of crimes motivated by hatred.

We do believe that this particular Bill is fatally flawed, and should ideally be in abandoned in favour of hatred being used as an aggravating factor in the sentencing of existing crimes, and the utilization of existing laws to combat hate speech. The hate speech provisions will have a chilling effect on freedom of expression, and the exchange of ideas in society. Policies which aim to rehabilitate and educate people are preferable to criminalization, which addresses the symptoms, rather than the cause of crimes motivated by hatred.

Discussion
Mr Dodovu noted the DA submission states that the maximum sentence for hate speech is harsh. Does it have an alternative proposal for that? Secondly, the DA is critical that hate is not clearly defined. It explains that the definition of harm and victim are not clearly defined. Do they mean the juristic person in that respect or not?

The Chairperson referred to the Constitutional Court judgment on the Qwelane matter on the exceptions of freedom of expression, what came out of that judgment is the issue of sexual orientation. Now, similarly, there are other grounds that are identified in the Bill, obviously if it is passed section 36 should be a consideration. Your view on that?

Mr Dodovu added that some of the submissions say that the Bill in its current form will not pass constitutional muster because it infringes on section 36 of the Constitution that deals with the limitation of rights. The DA also expresses this view. Does it seem that the Bill infringes or impugns the limitation of rights in terms of section 36 of the Constitution?

Mr Cuthbert replied that the first question is expanded on in the submission on the harsh sentence. We disagree about the lack of justification in the first instance. We believe that one needs rehabilitative and re-education programmes to try and address the root cause. Penalizing people with jail time is not a consideration for the Democratic Alliance. We would look at the more restorative justice approach.

On the victim, that is well explained in the existing jurisprudence and it is clear what a victim would be the person who the crime has been perpetrated against. That is well established in the law itself. However, in the case of the definition of hate, how do we attribute the action of one person to another to constitute hate and what kind of factors are included? It is important that a Bill that deals with hate speech, as well as hate crimes, is able to define it. We had better understand how the perpetrator would be infringing on the rights of the victim.

On section 36, we do hold the view that if this went to the Constitutional Court, considering the limited use of the limitation of rights analysis in Section 36, that the Constitutional Court, by virtue of it being very confined to section 16, and this being an exceptional circumstance, that on those grounds, it may be unconstitutional. We therefore have a concern about what this Bill would entail for freedom of expression, and expanding those grounds beyond what is in the Constitution.

Dr Dale Wallace submission
Dr Dale Wallace, a UKZN Religion Studies researcher, fully supported the Bill and referred to incidents of hate crimes and hate speech that have increased alarmingly. The fundamentalist evangelical Christian movement is in opposition to the Bill. The right to preach beyond churches in public spaces and online is deemed a right of religious freedom. However, churches and church leadership that employ discriminatory rhetoric cannot be seen as the voice and opinion of all Christians. This is not the Christian position as no support has been given outside of that fundamentalist sector by vast swathes of the Christian community.

In May 2023 Pastor Rooies Strauss stated on Facebook that "No one is born homosexual, there are demonic elements involved." His right to freedom of expression must be questioned when the scale of persons reached by sharing his comment has unforeseen consequences, let aside its dehumanising impact on individuals and its contravention of a constitutionally protected category for non-discrimination. In a recent interview with Dr Arno van Niekerk, Zandile Vilakazi speaks about legalising homosexuality which is an abomination and stated we are being ruled by the ungodly. This has consequences and Dr Wallace gave the example of the systemic abuse of LGBTQ+ individuals in the healthcare system.

Our nation cannot take the rights to equality and human dignity lightly. Any religious right must be limited when it encroaches on the rights of others. This is most critical when minorities, the marginalised and the vulnerable are negatively impacted. The correlation between discriminatory rhetoric and adverse outcomes is without question. She fully endorse Deputy Minister John Jeffery who said that existing laws have proven ineffective in stemming what he believed to be an increase in crimes motivated by hate. It applies to everyone equally and it provides broader protection to everyone in society." He added that that civil remedies have proven insufficient to prosecute hate crimes.

The legal advocacy organisation representing this sector is Freedom of Religion SA (FOR SA). It has a strong sociopolitical agenda to transform all SA society in accordance with biblical law and limiting freedom of speech and expression is seen as the work of the devil. It is modelled on the Alliance Defending Freedom (ADF) in the US and teaches spiritual warfare as battles to be fought, demons and enemies to be conquered to destroy the onslaught of the liberal agenda.

Discussion
Mr Badenhorst asked if she thought the existing law makes ample provision for the successful prosecution of hate speech and hate crimes. As for sanctions, what were her feelings about restorative justice?

The Chairperson noted that Dr Wallace made quite profound statement saying that she did not think that religious freedom is under threat in South Africa, given our constitutional framework. Some comments that have come through in the submissions about the Bill is that some people see it almost similar to what happened during Apartheid where people were restricted and not allowed to speak about this and that. Obviously, given our constitutional framework, we are nothing like what was there in the past. She asked her comment on that.

Dr Wallace replied that she has long been an advocate of religious freedom, freedom of expression, freedom of speech. Part of the research she has done has been painful to witness. Where we have protection against non discrimination for various categories – race, religion, gender, sexual orientation, disabilities – are there sufficient laws? What she has seen over the years, and she could give many examples, such as in the health care system, how does one penalize people sharing information on social media, and being able to track the impact of that speech. She believed that Vilakazi was guilty of hate speech as in her research she can see certainly what impact that has on human life.

Race has been addressed much more swiftly and much quicker. We still live in a country where we have a lag from Apartheid. We cannot put our heads in the sand and say that the values, attitudes and prejudices were changed in 1994. Because they are latent and they went to bed under our rainbow years but they have certainly resurfaced. She have not yet seen laws. As the Deputy Minister said, these laws have just proved ineffective. When a sector within a majority religion is talking about 'God told me' and 'we are mandated by God'. When on earth would that be addressed? She has not seen yet the response that we have seen for cases of discrimination on race and disability. There has been a much greater response whereas the response to sexual orientation and gender issues has been much more tardy. Religion as a freedom is not under threat in South Africa.

On the Apartheid question, yes, there is this difficult balance – of how to balance and not be retrogressive but one cannot balance freedom of speech against what is a non-derogable right to equality when real harm is being committed. Religious freedom has been weaponised. Even the term freedom of speech is part of this as it is not referred to as the freedom to discriminate. This is a complex socio political agenda, but it is definitely causing impacts on our society, so do we leave it alone? Can Pastor Strauss and Ms Vilakazi speak about a community that is protected from discrimination and yet say homosexuality is an abomination?

Meeting adjourned.