Correctional Services A/B: DCS briefing; Judicial Matters A/B: DoJ&CD briefing; Prevention and Combating of Hate Crimes and Hate Speech Bill: deliberations; with Deputy Ministers

Meeting report

The Chairperson said the Committee would receive a briefing on the Correctional Services Amendment Bill, a briefing by the Ministry and Department of Justice and Constitutional Development on the Judicial Matters Amendment Bill. Finally, there would be deliberations on the Prevention and Combating of Hate Crimes and Hate Speech Bill.

Deputy Minister of Justice and Constitutional Development, Mr John Jeffery, asked to be excused for part of the meeting, as he would be travelling and might experience connectivity issues.

The Chairperson shared a few opening remarks before the briefing of the Correctional Services Amendment Bill. She said the Bill seeks to amend the Correctional Services Act 11 of 1998 and align it with the Constitution and the Sonke judgment to provide an adequate level of independence for the Judicial Inspectorate for Correctional Services (JICS) and related matters. The Bill had a Constitutional court deadline of 4 December 2023.

Correctional Services Amendment Bill

Nkosi Phathekile Holomisa, Deputy Minister of Correctional Services, said he would also be travelling and therefore would like to be excused when the time for his flight arrived.

He thanked the Committee for the opportunity given to the Department to engage with Members of the Committee on the Bill to gain further insight. He was leading the delegation from the Department of Correctional Services (DCS) on behalf of the Minister, Mr Ronald Lamola, who was currently abroad for other government commitments.

The Bill had been developed to give effect to the Constitutional court judgment handed down on 4 December 2022 in the matter between Sonke Gender Justice and the President of the Republic of South Africa. The Constitutional Court had found sections of the Correctional Services Act to be unconstitutional and had ordered the amendment of these sections by Parliament within 24 months from the date of the order. The sections referred to were Sections 88 (a) 1(b) and 91 of the CSA Act, and they were declared to be inconsistent with Section 7 Subsection 2 of the Constitution of the Republic of South Africa. The court had held that it impugned provisions were constitutionally invalid to the extent that they failed to provide an adequate level of independence to the Judicial Inspectorate. The Department had had to request an extension to the initial deadline from the Constitutional court, and it had been granted, therefore making the deadline 3 December 2023.

In its efforts to comply with the court's extended deadline, the DCS, in conjunction with the JICS, developed a JICS Bill and a CSA Bill to cure the defects found by the court. Initially, the JICS Bill was developed to repeal the relevant sections in the Correctional Services Act concerning the JICS, including correcting the impugned provisions.

The readiness of the JICS Bill to be introduced into Parliament was dependent on a final determination by the National Treasury on the business and funding model of JICS. Deputy Minister Holomisa had also stated that it included the appointment of an Accounting Officer for JICS, who was currently the National Commissioner of Correctional Services. The Minister of Finance made a final determination. Both the Minister of Finance and the Minister of Public Service and Administration (PSA) had voiced their support that the JICS should be established as a government component. Political parties were currently engaging on the matter, and it was nearing conclusion. He added that in the absence of the final determination of the budget for JICS and the delays experienced, the Minister of Justice and Correctional Services had approved that the CSA Bill be introduced to cure the defects in the Act.

Deputy Minister Holomisa said that the CSA Bill had been developed and consulted internally and presented to the National Council of Correctional Services (NCCS), the Advisory Board and the Minister. It had obtained exemption for the social economic impact assessment (SEIA) from the Department of Planning Monitoring and Evaluation (DPME); the Office of the Chief State Law Advisor (OCSLA); the Justice and Crime Prevention and Security cluster; the Director-General; and Ministers.

Cabinet had recommended the Bill for introduction to Parliament on 10 May 2023, and it had been passed [by the National Assembly]. The Department sought the concurrence of the National Council of Provinces (NCOP).

The OCSLA issued the final certificate on 19 May on the Bill's constitutionality and found it to be properly drafted in the form and style which conformed to legislative practices. The Department had complied with rule 276 of the rules of the National Assembly (NA) relating to the notice of intention to introduce the Bill and including an explanatory summary which was published in the Government Gazette on 26 May.

The Department had also complied with rule 159 of the joint rule of Parliament by submitting Ministerial letters to the Speaker of the NA and the Chairperson of the NCOP.

The Bill had been published for public comments, and three submissions were received. Public hearings were held through the Portfolio Committee. The Department responded to the submissions and presented a clause-by-clause presentation to the Committee, which was then adopted.

The Deputy Minister highlighted that in its efforts to comply with the constitutional court judgment, the CSA Bill aimed to amend the Correctional Services Act as follows:

(a) by inserting definitions for - 1. head of the Remand Detention Facility, 2. Sexual violations, and 3. Torture.
(b) by amending Sections 30 and 31 concerning segregation and restraints.
(c ) making amendments to Section 88 (a) regarding matters related to the Chief Executive Officer of the JICS.
(d) making amendments to Section 91 regarding the expenses of JICS and the Chief Executive Officer (CEO) as the Accounting Officer.
(e) by inserting Section 95 (d) regarding mandatory reporting measures by the Department to JICS.

He concluded that the Department would like to recommend that the Select Committee consider the progress made in implementing the Constitutional court judgment in the matter of the Sonke Gender Justice versus the President of the Republic of South Africa. He asked the Committee to support the CSA Bill, following rule 159 of the joint rules of Parliament.

DCS on details of CSA Bill

Mr Jacques van Wyk, Legal Services, Department of Correctional Services, took the Committee through the submission, providing the finer details of the envisaged amendment to the Correctional Services Act.

He outlined the amendments related to the definitions, as highlighted by the Deputy Minister in his opening remarks. He said that various sections in the Principal Act referred to the head of the remand detention facility without the meaning thereof being defined in the Act.

The proposal in Sections 30 and 31 was to insert a provision that inmates must be informed of their right to appeal against being subjected to segregation and restraints by the inspecting judge.

The proposal in Section 95 D was related to the insertion of a new section to outline the content of the mandatory reporting obligations of the Department to the Inspecting Judge. This would comply with ratified international instruments and law, the Mandela rules, and would bolster the public's perception of the cooperation between the DCS and the JICS, and the latter's independence.

(More details of the amendments are available in the attached presentation).

Inspecting Judge's comments

Judge Edwin Cameron handed over to his colleagues to provide the Committee with a few comments regarding the presentation. He also indicated that the CEO would share a few remarks. He said that this was part one of an ongoing legislative process that he hoped to engage with the Committee again in the following year, to finalise the autonomy of the JICS.

Ms Thembelihle Ngema, Director: Legal Services, JICS, confirmed that the JICS and the DCS had consulted and discussed the amendments presented before the Committee.

Discussion

Ms A Maleka (ANC, Mpumalanga) raised her concerns regarding the delay in introducing the Bill to Parliament, but added that the Deputy Minister had allayed the concern in his presentation.

She referred to the amendment in Section 88a, where the term "career incident" had been used. She said that the term was unclear and not in the definition section of the Principal Act. She asked for clarity on the matter.

Mr G Michalakis (DA, Free State) said that the Bill had had four years, and yet it was being presented before the Committee only now. The Constitutional Court deadline was 3 December 2023, and the Bill was in the programme of the Committee to adopt in the plenary on 29 November. He asked how the Department anticipated it would handle the situation should the Committee have any proposed amendments, considering the tight deadline it was under.

He raised his concerns regarding the fact that no specific reference was made to the obligations regarding the national preventative mechanism.

He also indicated that there was no alignment with the Public Services Act when it came to the appointment of the CEO. He asked for further clarity on the matter.

Mr Michalakis referred to the point raised in the presentation regarding the recommendations made by the JICS which were considered not to be binding. He asked whether this was a serious issue, and why it was not addressed in the Bill.

He asked for clarity on the point raised that the JICS would not be able to operate as a separate independent body as contemplated in the Sonke judgment.

The Chairperson asked when the JICS Bill would be introduced to Parliament. She said that in previous cases where Bills were presented late to the Committee, there was usually an application for an extension.

Mr Michalakis said he would like to hear from the legal term on the platform.

Response from the DCS

Mr Van Wyk explained that all the career incidents would be covered by the Public Service Act in the principal Act.

Regarding the questions asked by Mr Michalakis, he said that the issues raised were all part of the objective of the CSA Act which, in the main, was meant to cure the defects identified by the Constitutional court. The Department was currently engaged in a parallel process with the DPSA and National Treasury on the establishment of the JICS as a separate government component.

The Department was currently engaging the relevant stakeholders about the process of the Bill and the finalisation thereof. It was envisaged that the Bill would be finalised and ready to be released in Parliament in 2024. The CSA Bill had been submitted to Parliament in June 2023.

Mr Van Wyk experienced connectivity issues and some of his responses were not audible.

Deputy Minister Holomisa concluded that the CSA Act was meant to ensure that the Constitutional Court decision was implemented by ensuring the independence of the JICS. Therefore, once independence had been assured, the Department anticipated that when the JICS Bill became an Act, it would adjust how the independence would be exercised by the JICS. The Bill did not meet all the expectations emanating from the Concourt bill. Due to the various engagements relating to the Bill with the relevant departments and stakeholders, the DCS had not been able to meet the deadline, hence the extension to 3 December.

Follow-up discussion

Mr Michalakis asked whether the Department could indicate the reasons for the delay in the Bill getting to the NCOP, and the delays with the JICS Bill.

The Chairperson said that the reasons for the delays had been touched on during the responses.

Response from DCS

Deputy Minister Holomisa repeated that the reasons for the delays had already been covered, but if the Member would like to receive a substantive report with the reasons, it could be provided.

He said that in its efforts to comply with the Act, there had been a debate relating to what needed to be included in a bill that sought to amend the Correctional Services Act, to comply with the constitutional judgment. The other view was to develop a JICS bill that would not only amend the relevant section in the CS Act, but would provide a comprehensive account of how the JICS would exercise its independence.

He responded to the concerns raised about National Treasury. He stressed that there had been an engagement and a few recommendations regarding amalgamating some of the Chapter Nine institutions tasked with promoting human rights. The argument was centred on the fact that the JICS was intended to promote the exercise of human rights of vulnerable members of society within correctional facilities. Therefore, it should be part of a body that would come from the amalgamation of the chapter nine institutions. He said that due to the ongoing process, there had been delays. The Department had also raised concerns regarding the amount of money spent.

He commented that it often became difficult for Departments to work coherently alongside each other, and the reasons were often unknown.

Judge Cameron said he endorsed the sentiments of Deputy Minister Holomisa and Mr Van Wyk. When the Department had applied to the Concourt in the previous year for an extension, they had put in an affidavit of support in which National Treasury had been blamed. The Department had required funds and needed to clarify the possession of a head as an accounting officer. There had been progress made in terms of the funding for the JICS, and the Bill before the Committee encapsulated the position of the JICS's chief executive officer (CEO) as the accounting officer.

Input from Parliament Legal Advisors

Dr Barbara Loots, Parliamentary Legal Advisor, said that if the Committee would like to make amendments, there would need to be another application from Parliament for an extension from the Constitutional Court. The previous extension had been driven by the Department at the request of the Portfolio Committee, because the Bill had not been officially tabled in Parliament. She added that there would be no guarantee that the extension would be granted, and it was a risk which the Committee would have to take.

She agreed with Judge Cameron and the Deputy Minister that the Bill was regarded as an interim measure, and the contents of the Bill did indeed meet the requirements of the Constitutional Court's order in the Sonke case.

The Chairperson concluded that this was just the beginning of the process in terms of dealing with the Bill.

Judicial Matters Amendment Bill [B7B-2023]

The Chairperson said that this was a Section 75 Bill which had been referred to the Committee on 19 September 2023. The Bill provided for the amendment of 19 different acts administered by the Department of Justice and Constitutional Development (DoJCD). The proposed amendments were intended to address practical and technical issues of a non-contentious nature.

Deputy Minister Jeffery said that the Judicial Matters Amendment Bill was an amendment to several different laws, and concerned issues which were not technical or controversial. The Bill was supported by all the political parties except for the Economic Freedom Fighters (EFF), which had indicated that it did not like omnibus bills, but had no objection to a particular provision.

He highlighted some of the points in the bills. He referred to the offence created in the Domestic Violence Act for making a false declaration when one made an application for a domestic violence order. It allowed an individual to make an application without having to make an affidavit.

Adv Tsietsi Sebelemetja, Chief Director: Legislative Development, took the Committee through a summary of the Bill and the purpose which it sought to achieve.

He said the Bill sought to amend various acts administered by the DoJCD, and contained 35 clauses.

He briefly discussed some of the clauses in the Bill. He highlighted that clause one amended section 51 of the Magistrates’ Courts Act, 1994 (Act No. 32 of 1994), to empower the court to subpoena the court manager of that court whenever it required information about an infrastructure-related or operational matter that arose at the court.

Clauses 4 and 5 proposed amendments to remove references to cheques, and to make provision for an affidavit by the executor for the declaration of payments to creditors or an heir’s share in the process of winding up an estate.

Clause 10 proposed the insertion of new sections 57B, 57C and 57D into the Criminal Procedure Act, 1977 (Act No. 51 of 1977). Section 57B proposed that the Minister may declare that certain categories of offences did not result in a previous conviction against the accused, and also provided for expungement of minor offences, as well as certain offences committed in terms of the Disaster Management Act, 2002 (Act No. 57 of 2002). Section 57C provided for expunging the criminal records of persons whose names appear in the records of the Criminal Record Centre of the South African Police Service (SAPS) after having paid an admission of guilt fine for offences as envisaged in 57B(1). The amendment sought to also provide for the automatic expungement of the criminal record.

(More details of the clauses are available in the presentation).

Discussion

The Chairperson said there were still people who struggled with the expungement of their criminal records. The Committee welcomed the insertion which was going to push for the automatic expungement of criminal records.

She also welcomed the amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) in light of the current deliberations in terms of the Hate Crimes and Hate Speech Bill.

Ms M Bartlett (ANC, Northern Cape) referred to the provisions highlighted in Clause 35 (2) and said they were unclear. She asked whether clause 9 of the Bill came into operation on a date which was fixed by the President, by proclamation in the Government Gazette, or if Section 103 of the Administration of Estates Act, as amended by the Bill, came into operation.

She asked when the rest of the Bill would come into operation.

Mr T Dodovu (ANC, North West) welcomed the presentation, and said that the laws under the amendment were quite critical.

He raised concerns relating to the Magistrates' Courts Act of 1944, and the Criminal Procedures Act of 1977. He asked why these laws were not properly amended. He had raised this question before during the Committee's engagement with the South African Law Review Commission, concerning the problems he had encountered regarding these particular laws. The historical context and the language in which these laws existed were incompatible with the current ethos and principles encapsulated in the Constitution. He asked why these pieces of legislation had not been aligned accordingly.

He said he had encountered issues with the expungement of criminal records. He had been arrested ten years ago and at some point, he had had to declare that he did not have a criminal record, only to find out later that the state had opposed his bail application on the basis that he had been arrested in 1986 for political reasons, and the record had not been expunged. He said the issues needed to be expedited, and individuals could not continue to be held hostage.

He said that the Department should work at creating accessibility for individuals who would like to access their criminal records.

Mr K Motsamai (EFF, Gauteng) echoed the sentiments of Mr Dodovu, and relayed his own experience with the issue of criminal records. He was a Member of Parliament and had been arrested and convicted of a crime in 1989. The criminal record had restricted his movement as a Member of Parliament, and he had been unable to go to Germany. He asked the Department to provide further clarity as to when the matter of expungement would be implemented.

DoJCD's response

Deputy Minister Jeffery said that the Department had passed an amendment to the Criminal Procedures Act ten years ago which provided for automatic expungement of apartheid crimes. The Truth and Reconciliation Commission was meant to expunge the crimes, but unfortunately, it did not agree to indemnify. The current procedure outlined that if an individual was not sentenced to prison, the person could easily get the criminal record expunged. He said the Criminal Record Centre had been concerned about automatic expungements, and that the system may fail. He suggested that Mr Motsamai should apply for a Presidential pardon.

He said the importance of the records was so that employers found it easier to identify sexual offenders from the register.

He added that many people were not warned about the fees which they had to pay for admissions of guilt and having their fingerprints taken.

When the Department passed the amendment to the Criminal Procedures Act, the Minister needed to report to Parliament, and it was given to the Law Reform Commission (LRC). The LRC had proposed that those involved should apply to the courts, and the Department did not find that practical.

He said that lawmaking was complicated and there was a process for the revision of the Criminal Procedures Act.

There was a proposal to redo the Extradition Act, but it did not make it to Parliament due to the pressure of other legislation. He also agreed that it was taking a long time to work through the Bills.

Adv Sebelemetja referred to the concerns raised about the short titles. He said that the rest of the provisions, except for the one in clause nine, would come into operation as soon as the President assented to the Bill, as they did not require any part of the regulations. Clause nine, which dealt with Section 103, was a provision that dealt with making regulations and changes. Therefore, the regulations needed to be aligned to address the changes the Bill had made.

He indicated that the Administration of Estates Act and the Criminal Procedures Act were currently being reviewed. The Department had set up a project which was a fast-tracked process to review the entire Criminal Procedures Act, and the LRC was leading the project. The process was being fast-tracked to ensure that it would be ready when the next Administration took over.

Closing remarks from the Committee

The Chairperson indicated that this was just the beginning of the process, and there was still more time to engage on the Bill and receive public comments. She welcomed the responses, and thanked the Department for their efforts.

Mr Motsamai said he did not get the necessary responses to his questions.

The Chairperson responded that the discussion was concluded, with an understanding that the Committee and the Department would continue the engagement at another stage. The Deputy Minister had already left the meeting.

Mr Motsamai expressed his dissatisfaction with his unanswered concerns.

Prevention and Combating of Hate Crimes and Hate Speech Bill: Deliberations

In her introduction to the deliberations, the Chairperson said that the Committee had had limited time to deal with this particular Bill in the previous meeting. The Department and the Deputy Minister had highlighted seven key areas of concern. The Department would outline its responses to the clauses of the Bill, and indicate some of the proposed amendments.

Submissions on Hate Crimes Bill

Mr Henk du Preez, State Law Advisor, took the Committee through a summary of the submissions on the Hate Crimes Bill.

He said that table one reflected the general comments the Department and the Committee received. The Democratic Alliance and Google were of the view that the Bill was attempting to double-legislate for Hate Crimes by considering circumstances which would ordinarily be taken into account at the sentencing where an underlying crime existed.

The response of the Department was to state that the introduction of the underlying offences as hate crimes, among others, enabled the SAPS Criminal Record Centre to record offences as hate crimes that were committed due to the convicted person’s prejudice towards a certain person with certain characteristics.

It was also proposed that the Bill posed a risk of government using the provisions of the Bill to curtail speech or actions it found politically undesirable, and the usage of existing legislation and mechanisms was a safer solution. The Bill in its current form may have a chilling effect on free speech. The Department had responded that it was unclear how a statutory offence of hate speech may become a stronger “tool” to curtail free expression. The common law offence of crimen injuria could just as easily be employed as a political tool to stifle freedom of expression.

The Centre for Social Justice (CSJ) had made a submission in connection with the balance between free speech and hate speech prevention. The Qwelane and Afriforum versus the Economic Freedom Fighters cases provided guidance on the approach to be followed. Mr Du Preez said that the finalisation of the Bill was kept in abeyance pending the Qwelane judgment. It may also be mentioned that the judgment gave rise to a “tightening up” of some provisions of the Bill. The relevant provisions of the Bill had been aligned to the judgment.

CSJ had submitted that there had been no mention of growing hate speech on the internet, particularly social media, and the need to control hate speech and other crimes perpetrated as cybercrimes. The Department had responded that the ambit of clause four encompassed instances of hate speech committed in cyberspace.

The Professional Association for Transgender Health said that the Bill recommended protection from hate crimes or hate speech aimed at young people specifically. There were questions as to whether hate crimes or hate speech aimed at children or vulnerable persons, were recognised under the Act. In its response, the Department stated that age formed part of the definition of “characteristics,” and referred not only to young people, but also included older persons against whom hate crimes may be committed. The categories listed in the definitions of “characteristics” and “grounds” had been identified as the most vulnerable persons.

The Film and Publication Board (FPB) had proposed that reference should be made in the Bill to the FPB as an enforcement statutory entity, particularly on online platforms where hate speech was
so highly prevalent. The Department had responded that the ambit of the Bill was much wider than the ambit of the Films and Publications Act of 1996. It was doubted whether it was feasible to include the FPB as an enforcement entity in the Bill, where it had a restricted statutory mandate. The Department’s view was that Chapter 9 institutions were entrusted with enforcing fundamental rights, irrespective of the platforms on which those rights may potentially be violated.

Clause-by-clause summary of submissions and Department's responses

Clause 1

Table two covered the comments received on the different provisions of the Bill. Mr Du Preez highlighted the response from Dr Georgia du Plessis, of Alliance Defending Freedom (ADF), in his response to the Select Committee’s request. He recommended an amendment to the preamble by inserting a reference to “freedom of religious expression” and by replacing “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” with “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.

The Department said that the Bill was in line with the Constitution, and there was no need to amend the preamble as suggested.

Lombard Forensic Accountants had submitted that it did not support the Bill. The term “hate” was not defined. In its current form, it could be used to silence outspoken persons for political reasons. The Department said it was not clear how a statutory offence of hate speech may become a “tool” to curtail free expression. The Films and Publications Act of 1996 contained similar provisions which Parliament recently approved. The common law offence of crimen injuria could also be used as a political tool to stifle freedom of expression. The word “hate” must be considered in the context of what the Bill seeks to prohibit, namely hate crimes and hate speech, which had been the subject matter of numerous academic articles both internationally and in South Africa, in case law and the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

The Aurum Institute highlighted that the Bill was not clear and did not mention or categorise corrective rape. The question that needed to be raised at this point was whether the South African legal framework adequately addresses the scourge of corrective rape in the light of the aims of transformative constitutionalism.

The Department was of the view that the definition of “characteristics” covered those who were regarded as vulnerable persons. The ambit of the definition was therefore wide enough to include instances of corrective rape.

Google suggested that including a definition of “intersex” would restrict the definition to a meaning that may evolve as the scientific and societal understanding of what it means to be “intersex” changes. The definition of “intersex” should be deleted from the Bill. The definition had been deleted from the Bill.

Clause 3

The Western Cape Government had recommended that a qualification concerning the victim was necessary for this clause. It appeared that the victim’s association or support was limited to a “group of
persons” rather than the broader category of association with a person or a group exhibiting the characteristics which were the subject of the prejudice or intolerance.

The Department agreed, and an amendment would be proposed to the Select Committee.

The Centre for Social Justice suggested that considering that over the past years, xenophobic violence had erupted in South African communities, it should be explicitly listed as an offence under hate crimes. The argument for not listing it could be that it was captured under “ethnic and social origin.” Due to its recurring nature and the prejudices within communities, it warranted its explicit inclusion as a characteristic of hate crimes.

In its response, the Department said that xenophobic violence was a generic term that was used to refer to acts of violence being committed against persons who, for example, had different nationalities from the perpetrators of the violence. The term “xenophobic” was not strictly speaking a characteristic, but nationality was regarded as a characteristic in terms of the Bill. It was submitted that the definition of “characteristics” was wide enough to encompass all forms of xenophobic violence.

Clause 4 (1)

Ilitha Labantu said it was challenging to draw a clear line between hateful speech and protected expression, given the fact that it was a subjective and context-dependent test. The country was very diverse in terms of culture, religion, politics and race, which therefore needed a balance to safeguard the limitations placed under hate speech. The Department was of the view that clause four had been carefully redrafted with the judgment in Qwelane in mind and the need to strike a balance between competing rights, such as the right to dignity and freedom of expression. The test to determine whether a person was guilty of hate speech was objective, and not subjective.

Mr Du Preez highlighted that this idea came out strongly in the Portfolio Committee -- that freedom of expression was very important, but the dignity of others was equally important. Therefore a balance would be struck between the two rights.

For-SA had suggested defining hate speech to expressly exclude private communications as follows: “Any person who intentionally, publicly publishes, propagates or advocates anything or communicates to one or more persons in a manner - (i) to incite harm; and (ii) promote or propagate hatred, based on one or more of the grounds, is guilty of the offence of hate speech.” Google also agreed with the recommendation.

It was not necessary to expressly exclude private conversations. The Constitutional Court had expressly stated in the Qwelane judgment that a disjunctive reading of S10 (1) (a) to (c) of PEPUDA would, among others, include private conversations, which should not be the case.

The Free Speech Union recommended that the Bill had effectively codified three of the four items listed in Section 16 (1) (a) - (d) of the Constitution. It had also codified the S15 freedom of religion. The error was that Section 16 (1) referred to a general right to freedom of expression which “includes” freedom of the press and other media, freedom of artistic creativity, academic freedom and freedom of scientific research. The Bill’s codification of the aforementioned was misguided to the extent that the Section 16 (1) list was not intended to be an exhaustive list.

The Department disagreed with the recommendation. The Bill did not codify what was already in the Constitution. The word “includes” in Section 16 (1) indicated that the list was not exhaustive, which meant that other analogous grounds may be added in future as and when the need arises. The right to receive and impart information or ideas was very wide or broad, and was therefore not included in the sub-clause.

Clause 5 (1)

The Centre for Social Justice recommended that organisations that work in communities on issues related to violence and its prevention should be recognised as having the ability to assist victims in the preparation of statements on crimes of hate, including hate speech. A failure to recognise this gap had the potential for victims to slip through the cracks of non-redress for offences committed against them.
The Department submitted that discretion to address the court on sentencing should remain with the prosecution. However, nothing prevented a prosecutor from consulting with organisations that would be able to assist in addressing the court on sentencing.

The South African Jewish Board of Directors agreed with the inclusion of a victim impact, but it recommended the inclusion of a ‘Community Impact Statement.’ In the United Kingdom, it was described as a short document illustrating the concerns and priorities of a specific community over a set period.
The proposal was not supported. It was trite that a presiding officer should take the interests of the victim, the convicted person and the community at large into consideration when deciding on an appropriate sentence.

Clause 6 (1)

Ilitha Labantu and the Congress of South African Trade Unions (COSATU) welcomed the penalties and orders that courts may impose on offenders of hate crimes and hate speech.

The South African Jewish Board of Deputies supported the provision for perpetrators to be sentenced by the jurisdiction of the court, and that hate crimes had been included in the minimum sentencing regime.
The proposed jail sentence of eight years, even for a first offence, posed a threat to freedom of religious expression. No one would be protected from such a jail sentence.

The Department was of the view that the eight-year period was the maximum period of imprisonment. Sentencing was left to the discretion of the courts to determine an appropriate sentence, having regard to all relevant factors of every case. (Refer to Annexure “C”).

Clause 7

The Western Cape Government criticised the Bill for not being properly drafted. In clause 7(2)(a)(i): There was a typographical error in this sentence: “(i) Themanner in which cases…” The Bill contained certain drafting, grammatical and typographical errors.

Clause 8

The Hate Crimes working group submitted that due to the public interest nature of hate crimes and hate
speech, clause 8 (2) must be extended to the public. The information contemplated in clause 8 (1) must be available to the public.

In its response, the Department said that the mere fact that the information must be submitted to the institutions listed in clause 8(2) would render such information automatically available to the public.

Clause 10

The Association of Christian Media argued that the Act would result in substantial additional costs to the SAPS and the National Prosecuting Authority (NPA). It recommended that before approving the Bill, the Cabinet member responsible for finance should be requested to approve a budget for the implementation of the Bill, after consulting with the SAPS and the NPA.

The Department argued that provision had been made for the Minister of Justice and Correctional Services to consult with the Minister of Finance where any draft regulations may have financial consequences.

Discussion

Mr Michalakis raised concern about the responses of the Department to some of the recommendations. He said that the various organisations had raised some legitimate concerns, and he had hoped that the Department would indulge them in improving the Bill.

He also had a few suggestions which he believed should be added to the Bill. He said he had submitted three proposals to the Department, one of which related to Section Four - the offence of hate speech. He suggested that Section 4 (2) could be expanded and improved to address some of the concerns raised by stakeholders during the public participation process.

He made a few proposals concerning Section 6.

He also attempted to provide a definition of “hatred”, although he commented that he understood that it was difficult to define the term. He said that the aim was to limit the possible confusion for the public in terms of what the actual crime might be. The Department could not continue to use dictionary definitions for criminal law -- there needed to be clear definitions in the legislation so that the public was aware before committing a crime.

Mr S du Toit (FF+) asked the Department to provide further clarity on which of the proposals made during the submissions had been considered when amending the proposed Bill. He said that in the summary presented, there were numerous instances which indicated that the suggestion had been noted, but it was not clear whether there were any changes resulting from these suggestions.

The Chairperson said that perhaps some of the issues raised by Mr DuToit may have been dealt with by the Committee previously, and the Department had indicated the three specific areas which they would consider in the Bill.

Response

Deputy Minister Jeffery thanked Mr Michalakis for the proposal he had sent to the Department, and handed it over to the officials to respond.

Mr Du Preez provided responses to the proposal submitted by Mr Michalakis, and referred to the proposed amendment made in clause 4: offence of hate speech. He said that the gist was that literary, comedic, or satirical creativity should also be included in paragraph (a). The Department's view was that it was still unnecessary to make such amendments at this point, because there was the overarching term “artistic”.

Chairperson's concluding remarks

The Chairperson said the legal team would have a look at the proposal, and provide further clarity to the Committee in the next meeting.

She asked the Deputy Minister to formalise the issues raised by the NPA, and the Committee would engage on the matter in the next meeting.

The meeting was adjourned.