Prevention and Combating of Hate Crimes and Hate Speech Bill: Department response to public submissions (with Deputy Minister)

Meeting report

The Chairperson welcomed the committee members to the meeting and noted the presence of the Deputy Minister of Justice and Constitutional Development (DoJ&CD).

The Chairperson also made the committee aware of the limited time members would have to engage.

No apologies were received by the Secretary.

Doj&CD response to public submissions on the Prevention and Combating of Hate Crimes and Hate Speech Bill

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, greeted the committee and welcomed members of his Department who were present which included Ms Allison Botha, DoJ&CD, Legal Advisor, and Mr Henk du Preez, DoJ&CD, State Law Advisor.

The issues raised in the public hearings revolved around seven identified key concerns which were:

1. The existence of current remedies in law
2. Provisions of hate speech in the Films and Publications Act
3. Proposal that the Bill be split so as to only pass legislation against hate crimes and not hate speech
4. The Bill not being in line with international conventions
5. Ill-defined definitions, including the terms ‘hate’, ‘harm’, and ‘hatred’ being undefined
6. Six provisions in the Bill not adhering to the Section 16 of the Constitution
7. The eight-year maximum sentence being too excessive

This Promotion of Equality and Preventions of Unfair Discrimination Act (PEPUDA) was raised as an existing remedy in law. This Act only allows cases to be settled in civil suits in the Equality Court and the Department feels strongly that hate crimes and hate speech should be criminally prosecuted by the state. South Africa also has a crime titled crimen injuria or a common law crime. By creating a statutory crime on hate speech, the Department can better define the crime and not rely on cases being prosecuted under crimen injuria. Crimen injuria also is defined as a crime against a particular person, whereas the statutory crime on hate speech would recognise hate speech or hate crimes against a group.

Mr du Preez addressed the criticism around certain terms lacking definitions. The common law offence of crimen injuria, PEPUDA, and Sections 9 and 16 of the Constitution all lack definitions for the terms ‘hate’ and ‘hatred’. These terms do not stray from their dictionary definitions and hence should be taken as such.

The Films and Publications Act only contains provisions for hate speech in film and on social media, and the criminal sentencing is very limited. This Bill creates a wider scope of sentencing provisions. The Department is of the position that individual cases should be contextually understood and sentenced by the prosecutor.

Deputy Minister Jeffery addressed the third concerning the splitting of the Bill. In the National Assembly, the Bill was supported by all parties with the exception of the DA, ACDP, FF+, and Al Jama-ah.

The Bill is not limited to a specific race group, no one should be exempt from prosecution, and issues such as homophobia and discrimination according to gender identity would also be allowed to exist under this Bill.

The Bill was initiated in 2018 but the outcome of the Qwelane judgement in 2021 has been integral in shaping the Bill. The ANC included this Bill as a part of its manifesto in 2019, so it is imperative that it be passed after so long.

Mr du Preez responded to the fourth concern stating that the Bill would not be in line with international conventions. This is addressed in the preamble of the Bill and references both the South African Constitution as well as the most relevant international conventions. All essential elements are listed in the preamble to justify the Bill and the Department is sure that the issue raised here can be eliminated by reading the preamble.

Ms Botha indicated that annexure C, which was sent to the members as an additional research note, extensively addresses the concern that the Bill does not adhere to international conventions. International conventions speak to both the right to freedom of expression and the right to non-discrimination. It has been proven to be balanced internationally and would mirror the efforts of this Bill.

Deputy Minister Jeffery elaborated that South Africa is a signatory to a number of international treaties, including the International Covenant on Civil and Political Rights and the International Convention for the Elimination of All Forms of Racial Discrimination. Treaty committees are obliged to review the state to ensure South Africa is fulfilling its commitment to the treaty, and the state also undergoes a review by the Human Rights Council periodically. These treaty committees, during these review processes, have made recommendations that the Department develop legislation that aligns with their commitment to these treaties.

Mr du Preez returned to the point of insufficient definitions, including missing definitions of the terms ‘hate’, ‘harm’, and ‘hatred’. The legislature will add or subtract within the legislation should these definitions stray from the traditional dictionary definitions. It was not seen as necessary by the Department, considering they should just be understood as they are defined in the dictionary.

Ms Botha added that this issue is dealt with in sufficient detail in annexure C. The terms ‘hate’, ‘harm’, and ‘hatred’ are nebulous and particularly difficult to define. In South Africa, these terms must be understood according to the socio-historical context of South Africa.

In the research done by the Department, they have established that there is no universally accepted definition of these terms. Three countries were picked as research subjects: Canada, Uganda, and Germany. The research found that, despite the fact that ‘hate’ and ‘hatred’ were not defined, there were identifiable commonalities and similar definitions according to the socio-historical background across countries. Offenses and criminal procedures have been selected, prosecuted, and sentenced according to that country’s history, and all of these countries have legislation protecting individuals from hate crimes and hate speech. International academia on hate crimes and harm has been able to define these acts beyond just physical, financial, and personal injury, which allows a larger scope of one’s universal understanding of hate crimes. Hate crimes can also appear in everyday interactions at a local and regional level.

Deputy Minister Jeffery assessed the constitutionality of the Bill. In Section 16 of the Constitution, the idea of freedom of expression is defined. The Constitution explicitly states that freedom of expression does, in fact, have limitations which include incitement of violence and advocacy of hatred based on race, gender, ethnicity, or religion. The Qwelane judgement found PEPUDA unconstitutional and made a series of observations and recommendations for the amendment of this Act. The Department has taken these recommendations into account to ensure a constitutional Bill.

This Bill has also gone further to identify further vulnerable groups than those identified in the Constitution. The Bill, thus, aims to also include those who experience Albinism and immigrants as being lawfully protected by the state.

This Bill has created a higher bar for artists and academics than PEPUDA. Anything that has the ability to promote hatred will face the chance that they will be prosecuted by the state. He made the example that preachers in church are allowed to say that gay people will go to hell, but may not state that they must face harm, or incite any sort of attack on this group.

Ms Botha acknowledged that the findings from the Qwelane judgement recognised that there are limitations to freedom of expression.

Deputy Minister Jeffery lastly addressed the concern raised about the maximum sentence listed in the Bill. The initial proposal submitted to the National Assembly suggested a maximum sentence of three years for first offenders and five years for those facing multiple offenses. The National Assembly requested that the Bill not define differences in sentencing for first and multiple offenses. Furthermore, the portfolio committee suggested that the maximum sentence be increased to eight years. It is finally up to the select committee to either choose to disagree or agree with the recommendations made. The Department is not bound by the 8-year recommendation.

Documentation submitted to the committee includes the response to the 7 issues, as well as the 3 annexures. The Department has begun the process of making minor adjustments to the Bill. This has not been concluded, and the Department offered to bring the amended version to the next meeting.

Discussion

The Chairperson opened the floor for questions and requested that the Department brief the committee on the remaining documentation that was handed to Members after they posed their questions.

Mr G Michalakis (DA, Free State) accused the Deputy Minister of baiting him into a political debate. He listed the issues that remained for the DA. The suggestions sent in were not negative or to discredit the production process of this legislation. Instead, the DA’s submissions were only meant to make the Bill the best it can be. Does the Department still stand by its initial proposal of a three-year maximum sentence, or whether they are siding with the National Assembly’s proposal of an eight-year sentence? He clarified that the DA strongly agreed with the initial proposal of a three-year maximum sentence and requested that the committee take the same stance.

Mr Michalakis referred to Ms Botha’s suggestion that hate speech, hate, and harm cannot be defined. In criminal law, the definition of the crime is important to set out the specific elements of the crime. Without the definition, the crime itself cannot be defined. Should the Department not be able to define these crimes, the general public would be even less equipped to understand what would constitute a hate crime. The implications of criminal law are much greater than a civil lawsuit.

Furthermore, he requested that the Department provide clarity on satire and comedy. He requested that the Department explicitly define satire and comedy to be exempt from this legislation as opposed to implicitly suggested.

Mr T Dodovu (ANC, North West) thanked the Department for its presentation of the seven key issues and emphasised that the Department must contribute to interrogating these seven issues. He acknowledged that South Africans must consider that hate speech and hate crimes are key features that have defined our constitution and democratic South Africa.

He acknowledged that the definitions cannot go without better interrogation. It is important that this Bill does not censor people unnecessarily and so these terms need to be properly and clearly defined.

Mr Dodovu expressed his concern about the eight-year maximum sentence proposed, and it is important that this be interrogated according to the historical context of South Africa. Education and conscientisation should be at the centre of what the department does to ensure the elimination of hate speech and hate crimes. Criminalisation cannot combat issues of hate crimes alone.

He addressed the concern that the Bill should be split and clarified that he was against this. Both hate speech and hate crimes should be considered harmful criminal actions.

Ms M Dlamini (EFF, Mpumalanga) emphasised the discomfort surrounding the lack of definitions within the Bill. The public and members would be open to any interpretation of the Bill. The position one takes on their personal position depending on what side of history one stands on varies in the context of South Africa.

The Chairperson requested that the Department respond to some of the matters raised by members, assuming that further detail will be addressed in the next meeting.

Deputy Minister Jeffery echoed the sentiments expressed by Mr Dodovu and assured the committee that this Bill in no way intends to replace efforts to eradicate racism and hate speech, it must go hand-in-hand with education and conscientisation.

On sentencing, he responded that the Department cannot be placed in between the warring opinions of the NCOP and the National Assembly. He encouraged the bilateral relationship between the NCOP and the National Assembly to play out.

He emphasised that there is an international common understanding of hate and hate speech. Harm or incitement of harm is defined. There is a grey area, but people should understand what is at a very basic level. Hate has not been defined because it can deliberately limit free speech. Cases must be taken in their specific context, hence the case should be referred to a court of law.

Mr du Preez thanked the Deputy Minister for clarifying that the department will not take a stance on the sentencing now that it has already gone through various stages of the process. He suggested that the discretion on sentencing be given to the courts and that no maximum sentence be listed within the Bill.

Ms Botha clarified that annexure C deals with the sentencing issue in a comparative analysis of Canada, Germany, and Uganda.

Time limited the continuation of this discussion, and the Chairperson closed the meeting.