Prevention and Combating of Hate Crimes and Hate Speech Bill: public hearings day 3

Meeting report

The Chairperson said the Committee continued to hear from organisations and individuals that had made substantive written submissions.

United Ulama Council of South Africa submission
Islamic law prohibited homosexual conduct. It did not prohibit homosexual thoughts or feelings. Islamic theology held that a Muslim who denied this law in Islam had, by operation of law apostatised from Islam. UUCSA was of the view that the current Bill coerced Muslims to act in a manner that was contrary to their religion and constrained Muslims from the full manifestation and expression of their religion and religious rights under the Constitution. Its objection surrounded the vagueness and ambiguity of the words ‘harm’ and ‘hatred’ and the weak and circular nature of the religious exclusion in subclause 4(2)(d). It proposed clearer definitions for these words and that the expression and religious exemptions in clauses 4(2)(a) and 4(2)(d) be redrafted to be in line with the exemptions in clauses 4(2)(b) and 4(2)(c). The clauses did not adequately define what types of conduct qualified as good faith. This was a criminal law statute and the principle of good faith was not a clearly defined concept in criminal law. Therefore, if the Act was intended to regulate citizen conduct and impose criminal sanctions then it would require increased precision and clarity.

At the heart of unfair discrimination investigation, was the right to equality and dignity of the victim. This statute balanced the rights of Muslims to believe as they pleased and express such beliefs freely and openly without hindrance or reprisal while the LGBTQIA+ community not be discriminated against. The Fourie court said ‘the fact that the State may impose orthodoxies of belief systems on the whole of society has two consequences. The first is that gays and lesbians cannot be forced to conform to heterosexual norms; they can now break out of their invisibility and live as full and free citizens of South Africa. The second is that those persons who for reasons of religious or other belief disagree with or condemn homosexual conduct are free to hold and articulate such beliefs. Yet, while the Constitution protects the right of people to continue with such beliefs, it does not allow the State to turn these beliefs - even in moderate or gentle versions - into dogma imposed on the whole of society.’ Society and particularly the LGBTQIA+ community was evolving a hypersensitivity to the views of critics. This was developing into an intolerance. An unjustifiable intolerance. The legislation facilitated the domination of one group over the others – the domination of secularism over religion.

Discussion
Mr C Smit (DA, North West) asked what the UUCSA definitions would look like as it said certain words were not sufficiently defined.

Mr T Dodovu (ANC, North West) added to this question for more efficient definitions for words such as “harm”, “hate”, and “victim”. The presenter could also comment on the maximum sentence.

Mr G Michalakis (DA, Free State) said on clause 4(2) the presenter spent some time speaking about the exclusion of religious freedom as an act of good faith. The clause was specifically included to ensure it protected the right of freedom of religion. In what way would you say the clause is insufficient to protect your freedom of religion? Specifically it excludes statements only made outside of a place of worship and those made in bad faith. In what way is it not sufficient?

Is your concern with the Bill only with hate speech or also with hate crimes, in other words the whole Bill? In yesterday's hearings, stakeholders said the hate crimes part of the Bill was necessary and the hate speech part of the Bill was already sufficiently covered by other legislation. Would you agree with that? He did not hear the presenter's opinion, if he had one, on the eight-year maximum sentence for a first sentence. He asked for comment on that.

Some of the concerns raised by those who felt the Bill was urgently needed were valid. It was a fear of people being victimised for who they were. How would you propose that we as a society deal with what the LGBTQI+ community faces in terms of hate crimes and hate speech? If the Bill in its totality is undesirable, how should we as a society ensure we protect their freedoms as we protect the freedom of religion as well?

United Ulama Council of South Africa response
Mr Mohamed replied that the question of defining hate speech was not easily answered. The Constitutional Court and the United Nations admitted this. The Constitutional Court said the line of free speech was exceeded when the speech made out the victim to be less than human. It was also when free speech made the victim feel like they were not entitled to the protection of human rights or the protection of law. This was essentially what he read in the Qwelane case. Another manifestation of how difficult it was to define hate speech was that over the last 10 years a several cases came before the court with what could be perceived as strange judgments. The reason these judgments were strange was because the courts gave conflicting judgments on hate speech. In the Qwelane case, the court spent a lot of time on the definition of hate speech and right at the end it said the accused was guilty of hate speech because of one or two reasons. It did not actually apply the definition it created itself. That definition said free speech crossed the line into hate speech when it made out the victim to be less than human and not worthy of protection.

On the minimum sentence, he found it to be quite heavy. It was similar to the minimum sentencing for murder and attempted murder. He did not practice criminal law so he was not good on sentencing.

The Chairperson corrected him and said it was a maximum sentence of eight years.

Mr Mohamed agreed and said it was similar to the minimum sentence for murder or attempted murder. It seemed like hate speech was regarded as something so abominable that it would be equated with those kinds of crimes. Given South Africa’s past it should rather take a educational approach to its sentencing instead of a punitive one. South Africa’s communities still had to learn how not to hate each other. It was not going to teach its communities this by creating more hate. For instance if an Imam go into pulpit and said in Islam homosexual conduct was a sin and then face the court and be sentenced, something like that would create more hatred between communities instead of the opposite. It would create more of a bully instead of a conciliatory type of conduct by the government.

It can be seen that in the UUCSA submission hate crimes were not dealt with. Essentially, there was no problem with the hate crimes part except for the two words in the hate crime clause, which were not sufficiently defined. Those words were pivotal in what constituted a hate crime. Those were “prejudice” and “intolerance”. It was hard to know what constituted prejudice or intolerance. Will simple intolerance amount to a hate crime or not? Those two words were central in the determination of a hate crime. Other than that, he did not have a problem with that clause.

Coming back to clause 4(2)(d), this was a huge problem because 4(1) said a person would be guilty of a hate crime if he did certain conduct. The exclusion under clause 4 said that the person would not be guilty of the crimes mentioned in clause 4(1) if he did what he did for artistic creativity, performance or expression; 4(2)(b) academic or scientific inquiry and 4(2)(c) reporting in the public interest or publication of any information. Then the exclusion treated religion differently from the first three. The first three were absolute exclusions, but religion had a different type of exclusion. Religion said that clause 4(1) would not apply if the conduct was done in good faith in the course of engagement in bona fide interpretation and proselytising or espousing of any religious conviction tenet, belief, teaching, doctrine, or writing. Who will decide what is a bona fide interpretation of a religious tenet? The Constitutional Court already said nobody had the right to decide that except that individual who had the right to decide what he did and did not believe in. The Constitutional Court decided the courts could not get involved in what constituted a religious belief or tenet. However, the Bill said the court, a policeman or National Prosecuting Authority (NPA) had the right to decide what was bona fide.

The LGBTQI+ community was mentioned by the Committee member. Islam regarded homosexual conduct as a sin. Does that mean that from now onwards, Muslims cannot now say so? He drew attention to the Muslim Judicial Council issuing a religious edict in June 2022 which explained Islam's stance towards homosexual conduct. A number of articles from non-governmental organisations (NGOs) and highly placed academics around the country were published in newspapers castigating the MJC and Islam in general. A very highly regarded NGO in Cape Town said that Islam was based on archaic law and documentation and it should modernise. This was the type of conduct Muslims had to deal with. He did not know which one of the two would be regarded as hate speech: Muslims saying LGBTQI+ conduct was a sin in Islam, or the NGO telling Muslims that what they believed in was archaic and Islam should modernise. This was what had to be endured last year for simply saying what people believed in. The Bill said the police, NPA and the courts would have the right to decide what was a bona fide interpretation of a religion. This was not allowed by the law. He could not understand how it could be in the Bill. Why is the religion exclusion treated differently from the first three exclusions? The other three exclusions were absolute, except for religious exclusion. Clause 4(2)(d) ended stating that 4(1) would not apply for anything done in good faith as a religious tenet, but it still could not advocate hatred or cause harm. The exclusion did not make sense. It was an exclusion, then it excluded itself from the exclusion. This was a circular argument. It contradicted itself.

Cosatu submission
Cosatu welcomed the Bill. Given South Africa’s history, it was long overdue. The Bill would be a critical tool in combating hate crimes and hate speech, but it alone would not be enough. There needed to be additional socio-economic interventions to address the legacies of discrimination. Whilst Cosatu supported the Bill, it believed one amendment was needed to strengthen its provisions on the definition of harm. The history of hate crimes and the consequences of hate speech were well-known internationally. These included the Rwanda genocide in 1994; the civil war in former Yugoslavia in the 1990s; the Holocaust in World War II. While South Africa became a democratic nation in 1994 and adopted its progressive Constitution prohibiting unfair discrimination in 1996, there were still cases of hate speech and hate crimes. Cosatu believed it was important for the Bill to achieve the correct balance between prohibiting hate speech and simultaneously recognising and not infringing unfairly on the constitutional rights to freedom of speech and political belief. The removal of 'political affiliation or conviction' as well as 'occupation or trade' from cover from hate speech helped provide this balance.

Cosatu supported the definition of 'harm' which meant ‘any emotional, psychological, physical, social or economic harm’. It was concerned that the definition omitted cultural harm. The Bill recognised hate speech and hate crimes that impacted on culture. However, this was not carried through to the recognition of harm. The harm experienced by people or communities because of hate speech and hate crimes could also materialise culturally. Harm often came as a result of certain individuals mobilising communities through hate speech against cultural practices. This had a massive impact on the affected individuals culturally and otherwise. Cosatu proposed the insertion of the word ‘cultural’ after ‘social’ before ‘or economic harm’ in the definition of harm in Clause 1 of the Bill.

Discussion
Mr Dodovu asked if the definition of harm were to be expanded to incorporate cultural harm, is there any other expansion requested. There were critics who said this Bill as it stood would not pass constitutional muster because it encroached on section 38 of the Constitution, which deals with the limitation of rights. What is Cosatu's view on this?

There were forms of justice that people proposed. One was retributive justice and those who perpetuated hate crimes or hate speech had to be punished. Restorative justice was the other form, where the perpetrator and the victim would sit down and engage. What is Cosatu's view on that and also on economic harm that privileged people in this country must support this initiative to ensure there is a redistribution of wealth and resources to the people? What is your view of that? What is its view about the maximum sentence of eight years?

Mr R Badenhorst (DA, Western Cape) appreciated the submission. The presenter concentrated on the element of harm. There was another element that was quite important, hate. Over the past two days, many submissions alerted the Committee that the Bill criminalised hate speech but failed to to define hate or hatred. This was problematic because Parliament would give its responsibility to the courts to decide what hate or hateful action is. It made this Bill unclear to the public, who would not know when they were breaking the law in the absence of a clear definition of hatred. He asked for comment on that absence of definition.

Mr Smit asked how the suggested insertion of cultural harm would be balanced between different cultures. What is harmful to one culture might not be harmful to another. How does one balance those two? Also where does he see the line between being offensive towards a culture and being harmful to where it translates to hate speech?

Cosatu response
Mr Matthew Parks, Cosatu Parliamentary Coordinator, said the questions were really helpful and positive, because it indicated that everyone recognised the challenge they collectively faced, which they needed to try to address. Guiding what people said was not an easy thing. It was important to include culture harm as well as economic, social and psychological harm. All of these had many instances where people suffered as a society, community or individual. Cosatu thought there was a need to include cultural harm. It accepted that the Bill could not be open-ended and cover a million things, but given the stronger linkage between culture and identity, language and racial groups in the history of South Africa, there was a need to do so. Sadly, this had not completely ended post-1994. There were instances where Muslim families in Centurion would be harassed because of the call to prayer by a mosque.

Mr Parks thought that the Bill would pass constitutional muster. The Chief State Law Advisor had given the Bill a constitutional certificate before it was introduced into Parliament. The Constitution was not a blank cheque. Yes, ever one had rights, but all rights came with responsibilities. The right to freedom of speech was critical and should not be tampered with lightly. However, there were limitations, e.g. one could not go to a crowded cinema and shout “fire!” This was because there was a risk of stampede with lethal consequences. A policeman or prosecutor would have to weigh this up based on the situation or the broader impact on society. This was why the sentencing provision said “up to eight years,” so the law enforcement institutions would have to check the damage, intent and the offence. It was not going to be an easy thing. It was not as clear-cut as assault or theft, it was significant nonetheless. If this was not dealt with in society, there could be dangerous consequences which could be much more harmful. During the July 2021 unrest, there were instances like this in Durban.  

The Constitutional Court looked at whether discrimination was allowed, which is was not. People had the right to dignity. The Constitution compelled government to use legislation to advance the cause of equality and equity and look at redress for historical issues. There were limits to all rights.

On the sanctions, the Committee did not want to fill the prisons with people. The restorative route was ideal, a warning and counselling. However, for those who committed significant offences, something had to be done. Examples would have to be made of punishing people to send a message to society that certain things could not be tolerated in society. One should not place the rights of an individual to be offensive above the right of society to dignity. Other people’s rights had to be respected. Even if people held different beliefs and religions, they should respect each other. There was enough space in a democracy for people to do so. In some European countries, governments would want to interfere with the way Muslim women wanted or needed to dress. Mr Dodovu was right, the Committee did not want everyone going to prison, only if the matter was serious enough. Ideally, the route of restorative justice was the way forward and where possible, it would want to change culture and ensure the educational system helped guide society in the right direction. Parents had an obligation to raise their children correctly to embrace each other. The socio-economic divisions of society had to be addressed. There were wealthy suburbs like Constantia, which were predominantly White, poor working-class Coloured communities like Manenberg, and poor working-class African communities like Khayelitsha. These displayed the socio-economic disparities of poverty, where gender-based violence amongst other crimes, hit poorer communities proportionally harder. It hit African, Coloured, and working-class women of colour the hardest. These issues needed to be addressed. So far, they were only addressed on a. superficial level. Fundamental was how to rebuild a non-racial society in our economy. Sadly, this would take a long time. Cosatu believed the eight-year sentencing was appropriate. The prosecutor would decide the appropriate sentencing based on the level of offence, the intention and the impact of the offence. There was concern about the initial Bill, where the sentencing was believed to be too light with a three- to five-year sentence. Hate crimes and hate speech could not be taken lightly. Someone could die because of this. He gave the example of Rwanda where people at radio stations, who did not kill anybody themselves, mobilised society to go and kill a million people in 90 days.

On the definition of hate, clauses 3 and 4 spoke about offensive hate crimes and hate speech. It went into a fair amount of detail and linked it to harm. The Committee may have felt it needed to be strengthened further, but Cosatu found it sufficient in defining a hate crime and hate speech, and linking it to definitions of discrimination and harm.

Cosatu appreciated that this was difficult. People had different religions and values, but they needed to be sensitive to one another. People should be sensitive to people of different ethnic groups and religion. There was a need for legal framework to guide what was acceptable and what was not. If it was simply left as a blank slate, people could choose how they wanted to conduct themselves, then things would get out of control. People could be attacked because of their religion. This would cause conflict. The point was to try to prevent this as stated in the title of the Bill and to provide education. The instance of the cow being slaughtered on the beach in Cape Town amongst many others showed that there was a ticking time bomb and there was a need for government to be much more comprehensive and give clear legal guidelines.

It was also difficult for the police. The police would ask if freedom of speech was a crime. The Act would assist the police by being told what types of incidents constituted a crime and how to define and deal with them. The same could be done with the NPA and the judges. They could not just charge, prosecute, or convict based on feelings. Now there would be a law that dictated how these instances would be managed. The police, NPA, and judges would always have to consider the intention of the offence and its consequences to society. If one mobilised people to engage in violence, then they should be met with heavy consequences. He thought this provided the right balance, it was not an easy one, but Cosatu believed this provided the correct balance on a very sensitive and complicated issue. It would help move things in the right direction over the long-term. The first year or two would be a learning curve, but society would be better off. South Africa was not alone in this journey, it was a global issue. Many other countries went through a similar journey. The issues needed to be addressed and this was a positive step in the right direction.

National Gender Diversity Coalition submission
The National Gender Diversity Coalition welcomed the Bill and that it should be expedited. They voiced their concern that transgender, intersex and gender non-conforming individuals were confronted daily with threats of transphobic and intersex phobic harm, hate crimes and hate speech. These crimes ranged from harmful hate speech and often escalated to physical abuse, rape, assault, violence and murder. These were crimes based on bias that dehumanised and demonised gender minority groups. There was an existing stigma in communities and families, which meant that transgender and gender diverse youth and adults were targeted for violence and often did not have the resources to seek protection from those in authority. This included schools, clinics or communities. Once a hate crime was committed, transgender or gender diverse people were reluctant to report it because of secondary victimisation at the hands of the police or medical staff. The lack of knowledge, widespread misinformation and misunderstanding lead to the bias that could turn into violence.

There was no legislation protecting transgender and gender diverse people from harm. There needed to be a strong stance against discrimination and violence to ensure the safety of minority groups. Freedom of speech did not mean that someone could engage in hate speech. Transgender and gender diverse people were continually subjected to hate speech. Even after hate crimes were committed, perpetrators were heard to verbalise their hatred without remorse. There were 21 hate crimes in 2021 which was almost one hate crime every second weekend. These individuals are being disproportionately assaulted, violated and murdered,. They were ostracised, bullied and humiliated in schools across the country. This forced many to drop out.

Discussion
Mr Dodovu welcomed the submission. The Coalition wanted the Bill expedited but there were some issues to resolve such as those who transgressed faced a possible maximum sentence of eight years. What is the presenter's comment on this? Secondly, the presenter mentioned representing 14 organisations. Are these organisations national? Are they found in all provinces? If there are those that want to reach out to you, how do you facilitate that process?

National Gender Diversity Coalition response
Ms Belinda Qaqamba Ka-Fassie replied that the 13 organisations formed part of the Gender Diversity Coalition and were specific organisations that came from all across South Africa. The Triangle Project was based in Cape Town with Gender Dynamics, Trans Hope was based in Durban with Same Love Toti. There were also Johannesburg-based organisations like Be True To Me, Access Chapter 2. Trans Wellness was an organisation that did rural work for rural transgender persons. There was a wide spread of associated organisations in South Africa. The Gender Diversity Coalition had legal partners, which formed part of the coalition. Those organisations were the Legal Resource Centre, Lawyers for Human Rights and Women’s Legal Centre. These organisations provided the technical support to the Gender Diversity Coalition. Some of the organisations within the coalition provided direct services to transgender persons; some documented human rights violations and others advocated for systemic change in South Africa. All these organisations were South African-based.

The presenter replied that the National Gender Diversity Coalition supported the contents of the Bill. It had read and understood the Bill and supported it in its current form. The Coalition was asking for this process to be fast-tracked, not for the Bill's nuances to be undermined but because it understood there were lives at stake and wanted it to be looked at from this vantage point. It welcomed the eight-year maximum sentence.

Media Monitoring Africa submission
The Constitution provided the key obligations which this Bill had to harmonise: the rights of everyone to equality, dignity, freedom from discrimination and freedom of expression. While the right to freedom of expression was protected in section 16 of the Constitution. Section 16(2) provided that this right did not extend to propaganda for war, incitement of imminent violence, or advocacy of hatred based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm. There were also certain types of speech that could overlap with hate speech which were already criminalised. Hate speech has also been criminalised in the Films and Publications Amendment Act of 2022 in a variety of different ways. Although these provisions were somewhat convoluted, they demonstrated that South Africa had a comprehensive criminal prohibition on hate speech. South Africa was also bound by several international and regional instruments which guided freedom of expression and the prohibition of hate speech.

MMA believed it was crucial and long overdue for there to be clear legal framework for government to properly address hate crimes. In its current form, the Bill would establish hate crimes as a new category of offences for actions that were already offences under existing law. MMA submitted that the Bill should establish hateful intent as a compulsory aggravating factor in sentencing for existing offences, rather than make separate offences. This would enable the state to pursue its existing criminal remedies for violent acts while ensuring hateful intent at the core of a crime was considered in sentencing an individual. It believed that this solution would ensure appropriate consequences for these serious offences, but also greatly simplify the legal framework. It would also bring the Bill in line with international best practice and minimise the additional burden on the criminal justice system by streamlining investigations and prosecutions.

MMA believed that there was a vital need for a legal framework to address hate crimes and hate speech. However, it remained concerned that aspects of the Bill required further adjustment to bring the legislation in line with international best practice, and to ensure it would be effective in combating these serious offences. It urged the Committee to take all the necessary steps to ensure the Bill was narrowly focussed and carefully crafted to deepen efforts to protect the marginalised and promote equality, justice, and social cohesion.

Discussion
Mr Michalakis said that the previous day some submissions were saying that hate was a concept that could not be defined in law. Would MMA agree with that? What would it suggest would be an appropriate definition for hate? Currently, that element of the crime was not defined, which was quite worrying for obvious reasons. Prof Madonsela said harm should be defined as broadly as possible and then left to the courts to flesh it out. Did MMA agree with her? If not, what would its arguments be for not defining it as broadly as possible? He did not agree with her but wanted to know what the MMA reasons were if it disagreed with her.

There was another interesting argument the Committee heard that he wanted the MMA opinion on. Clause 4(2) exempted those from certain forms of hate speech who adhered to certain religious views. This exemption was unconstitutional on the basis that it afforded a right to religious groups that it would not afford to non-believers. Can it be argued that you cannot allow exemption only to persons who adhere to some form of religion?

He asked for the MMA view on the eight-year maximum sentence for a first offence. When the Bill was introduced in Parliament, it had a three-year maximum sentence which was then increased to eight years by the Portfolio Committee. In other jurisdictions, in some instances the sentence was two years. He asked if the Bill would pass constitutional muster in its current form with minor amendments. He asked what MMA thought would be reasonable and the reasons for saying so.

The Chairperson noted that MMA monitored hate speech online. How do you determine what is hate speech online? She asked for details on how it determined the legal framework on this.

Media Monitoring Africa response
Adv Ben Winks (independent legal counsel for MMA) replied that he did not agree that hate could not be defined because the Constitutional Court defined it. In the Qwelane case many paragraphs were devoted to defining what was hatred. The Constitutional Court took a great deal of information from Canadian jurisprudence where hatred was defined as extreme ill-will, detestation and vilification. The Constitutional Court in Qwelane case applied those concepts to the article that was published by the late John Qwelane and found that it met the descriptions. It was impossible to define every term to exhaustion to cover every possible thing that could be hateful. Parliament did have to trust the citizens and the courts to interpret laws reasonably. The term “hatred” was capable of legal definition; there were books written about it in international law. He thought it was more of a philosophical question about what hate was, rather than a legal question, because the law had definitions for it. The Equality Courts had been applying it for years without a great deal of difficulty. The more difficult question was usually determining what the objective meaning of a particular thing was, rather than determining the meaning and then seeing whether it was hateful. If it degraded people’s human dignity and equality, then it was hateful. That was his shorthand definition. The Constitutional Court authorities were fairly consistent with that. Qwelane was the place to look for the definition.

Harm ought to be defined widely. The Constitutional Court and international law contended that harm should not be restricted to physical violence. The clue for that was in section 16(2) of the Constitution itself. Section 16(2)(b) spoke about free speech not extending to incitement of imminent violence and 16(2)(c) spoke about incitement or advocacy of hatred that constituted incitement to cause harm. There was a distinction between harm and violence, with violence being a broader concept. The Constitutional Court held that harm should extend to serious and psychological harm. There would be the de minimis rule that the law did not concern itself with trivialities. If it was a trifling degree of harm that people were being oversensitive and a reasonable person would not feel harmed, then that was covered by the existing definition in the Equality Act that a reasonable person would find it to be harmful. It did extend beyond physical harm to serious emotional and psychological harm. He did not think it necessary to try and define it in any more detail than that.

As for religious exemption, this fell outside the scope of Media Monitoring Africa. Personally, he did not like the exemption. He thought it was potentially discriminatory. He understood why it was included. It was included because otherwise the Bible could be criminal hate speech, among other religious texts. He would have to give a lot more careful consideration before offering his view on whether it was necessarily unconstitutional. He thought there was a risk that it was discriminatory. Whether it was a justifiable discrimination based on the extent and depth of belief, this was something Parliament would be given some latitude to consider, but it was definitely an issue that needed to be considered.

He thought the maximum sentence of eight years was manifestly excessive. In comparative countries there were two-year maximum sentences. In Europe there were quite serious sentences in some cases for Holocaust denial, which was obviously for promoting Nazism or other fascist organisations. This was because of their history. He thought lessons were learned since then about the unique chilling effect on speech of these heavy sentences. He implored the Committee to look at the case of Lohe Issa Konate vs Burkina Faso in the African Court of Human and People’s Rights, which was decided in 2014. A number of international authorities were referred to and the court found that custodial sentences were generally not necessary to combat harmful speech and that non-custodial sentences like fines or other forms of rehabilitation should rather be ordered. There were different considerations for extreme hate speech. Speech did not necessarily physically endanger people, unless it rises to an incitement of violence. It was risky imposing custodial sentences.

Mr William Bird (MMA Director) said he completely agreed with those answers. Media Monitoring Africa ran a platform called Real411, which was a public complaints platform to combat digital disinformation. It was originally built for the 2019 elections and had looked at disinformation but has added hate speech as an additional online harm. It dealt with hate speech by using the criteria as defined by the Constitutional Court to determine if something constituted hate speech or not. Mr Bird described the complaints process and its review by a Digital Complaints Committee and the action taken thereafter. He would send a link after the meeting and include a screenshot displaying the precise criteria used. Very often speech contained elements of hate speech so it could be particularly offensive and vile, but not constitute direct incitement to cause harm. It used this definition because it was in line with the Constitutional Court ruling as opposed to the definitions on social media platforms, which varied significantly.

Association of Christian Media (ACM) submission
The term ‘hate speech’ was defined in the Bill in an overly broad manner and would probably lead to criminal charges and threats by special interest groups. ACM contended that hate speech should not be defined any more broadly than unprotected speech in Clause 16(2) of the Bill of Rights. The political philosophy that allowed for free speech came from Biblical beliefs of the need to teach the good news, government’s incompetence to determine what that was, and a negative outlook about human nature. Special interest groups had repeatedly misconstrued Christian teaching on sexuality and marriage. These teachings were seen as hate speech, which discouraged discussion. Existing civil and criminal law and codes of conduct sufficiently protected against real hate speech. Therefore, ACM contended there was no need for new legislation. Its first preference was to scrap the Bill; second was to remove the hate speech aspects of the Bill; the hird preference was to mitigate the wording of the Bill to lower the risk of innocent people being punished or intimidated. ACM stated that changing a few words in the Bill would make a massive difference. It requested in order of priority:
1. remove ‘be harmful’ from clause 4(1)(a)(i) for offence of hate speech, leaving only ‘incite harm’.
2. insert ‘physical’ before ‘harm’ in the clause 4(2) exemptions or else it left little protection.
3. remove the vague categories ‘social’ and ‘economic’ from the definition of harm.
4. shorten the list of grounds to be in line with the unprotected grounds in the Bill of Rights.
5. reduce the eight-year maximum sentence.
6. broaden the religious exemptions clause to include ‘by a religious organisation or individual in public or private’.
7. narrowly define ‘promote, propagate or advocate’ as public and intentional, excluding casual comments.

ACM said that the Preamble to the Bill should refer to sections 15,19 and 31 of the Bill of Rights and section 16 of the Universal Declaration of Human Rights. The phrase ‘matters of public interest’ should be defined. It proposed the deletion of ‘bona fide’ from the clause 4(2) exemptions. It proposed the deletion of ‘emotional, psychological, social and economic’ from the definition of harm. If this was not possible, then ‘deep’ or ‘gross’ could be inserted and not just ‘substantial’. It was the state’s responsibility to encourage the inclusion of ‘grounds’ beyond those unprotected by the Bill of Rights. The inclusion of ‘gender identity and expression’ was unprecedented and could chill those defending women’s private spaces and sports. It proposed the removal of ‘sexual orientation’, if not, then have it narrowly defined. The term ‘intersex’ was preferred to ‘sexual characteristics’. Finally, it believed that physical harm needed to be limited to a fine and not imprisonment.

ACM said the claim that the Bill was required by the Bill of Rights or international law was false. It would likely be found in contravention of both. The Bill of Rights required any limitation of freedom of expression to be strongly motivated. This included the consideration of less restrictive means. The International Covenant on Civil and Political Rights had only three grounds. This Bill had 10 grounds and balanced with other rights. The Bill did not comply with the United Nations Rabat Plan of Action for Hate Speech. European Union policy documents called for clear definitions, narrow grounds and protection of religious and political free speech. Academic articles cited in favour were mainly about hate crimes and not hate speech. No research was cited on unintended impacts nor were effectiveness statistics given. Hate speech laws had seriously harmed free speech in ‘good countries’. The countries cited as examples by the Department of Justice did not have laws with the scope and severity of this Bill. These examples also displayed no proven effect in reducing homicide statistics. Without an additional budget, the law would divert scarce resources from the justice system. This would backfire in making the prosecution of hate crimes more difficult; the motive would need to be proven beyond a reasonable doubt. The ruling party's National Conference of 2017 called for better enforcement of existing law rather than new legislation.

Ilitha Labantu submission
Ms Natsai Chakapvafa, Ilitha Labantu Senior Legal Advisor, said that Ilitha Labantu welcomed the purposeful intent of creating a law that holistically provided for hate crimes and hate speech given the background of a society that continued to experience such crimes despite the Constitution’s stance on all matters on the dignity of all people. South Africa incorporated international instruments in the legal framework as shown by being a signatory to the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD).

Ilitha Labantu welcomed the definition of hate crime as it felt this was in line with the grounds for equality protection in the Bill of Rights and protected categories or groups of people who were targets of hate speech. It welcomed this definition ensured the protection of all those recognised by the Constitution and would protect several vulnerable groups often facing extreme discrimination, marginalisation and risk of violence. Once the Bill was passed, it would provide specific protection to marginalised communities that were more likely to be targeted based on their identity. This would help create a safer environment that fostered a sense of security within those communities.

It welcomed the definition of hate speech. This had been a problematic issue in the age of technology, which presented unique challenges in the widespread use of the internet and social media. It welcomed the provision of clause 5(1) which provided for a victim impact statement that was to be considered in prosecuting offences. It included people authorised by the victim to make statements on their behalf. It welcomed the penalties and orders that courts could impose on hate crime and hate speech offenders because this would discourage potential offenders from engaging in these acts that were not only harmful to the victims, but made a mockery of the provisions set out in the Bill of Rights and other clauses of the Constitution. It welcomed the coordination and collaboration among the South African Police Service (SAPS), Department of Justice and Constitutional Development, and the National Prosecuting Authority (NPA) to align efforts and work as a unit in issuing directives that would ensure clarity and consistency in the implementation of the hate crime and hate speech law, policies and procedures so there was consistency. It welcomed the provisions under clause 9, especially the mandate given to the SAHRC, the Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. However, it saw no effort to bring on board the Department of Basic Education to promote awareness as DBE was responsible and had a mandate for overseeing primary and secondary quality education in the country.

Discussion
The Chairperson thanked her for the submission which was clear and specific to certain clauses in the Bill. She asked if any Committee members had questions.

Mr Dodovu asked when the organisation was founded and if it was a coalition or one body.

Ms Chakapvafa replied that it was founded in 1989 and that it was a non-profit organisation (NPO) that offered psychosocial support and legal services to all survivors of violence.

Mr Dodovu said he was satisfied; the presenter was very clear and eloquent.

Council for Charismatic Churches submission
Mr Lucas Nkosi, CFCC Deputy Chairperson, referred to the National Assembly debate on the Bill when it was voted on. Ms Maseko-Jele of the ANC and Deputy Minister of Justice and Constitutional Development John Jeffreys each made concerning statements. Ms Maseko-Jele said Parliament was ensuring that preachers stayed in line and that when preaching, pastors should preach the gospel and stop talking about things that insult other people. What exactly did she mean by staying in line? Mr Nkosi wanted accountability for that statement which seemed directed at pastors. The Deputy Minister said that such organisations preach love to all but had problems with people in the LGBTQIA+ community. The organisation wanted clarity on these unfortunate statements.

Mr Nkosi spoke of the weaponisation. This organisation represented churches and it saw this legislation as a weapon forged against pastors.

Another issue it had was with the definitions. In the Qwelane case, defining harm was difficult. Not even the Constitutional Court could come up with a clear definition on the difference between hate crime and hate speech. The session in Parliament further highlighted that the courts and Parliament could not differentiate between the two.

A further point was the penalty for hate speech could not bear the same weight as a hate crime. Hate speech and hate crime were defined differently but the same penalty was attached to both.

The Chairperson said the Committee had the Council's written submission and the submission of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities (CRL) for consideration.

[An apology was received from Cause for Justice as its oral submission would not be made].

Closing remarks
The Chairperson noted that the Committee had concluded its schedule of submissions. It had been a lengthy process over the last three days. She thanked everyone who made submissions to the Committee. She also thanked Committee members for their engagement on the submissions.

Meeting adjourned.