Prevention and Combating of Hate Crimes and Hate Speech Bill: deliberation; Protected Disclosures Act Amendments to the Practical Guidelines for Employees; with Deputy Minister

Meeting report

The Chairperson said the Committee would receive a briefing from the Department of Justice and Constitutional Development (DoJ&CD) on the amendments to the Practical Guidelines for Employees. The Committee would then continue deliberating on the Prevention and Combating of Hate Crimes and the Hate Speech Bill.

S10(4)(b) of the Protected Disclosures Act required that Parliament must approve any proposed amendments to the Act before publication in the Government Gazette. It was therefore at the point where the Department had to make the briefing today.

DoJ&CD on Amendments to the Practical Guidelines for Employees

Mr John Jeffery, Deputy Minister, DoJ&CD, did not make any opening remarks, but asked Adv Henk du Preez, State Law Advisor, to make the presentation.

Adv Du Preez reiterated that the presentation was to get the Select Committee’s approval on the Practical Guidelines for Employees, submitted in terms of section 10(4)(b) of the Protected Disclosures Act, 2000 (Act No 26 of 2000).

(Please refer to presentation slides for details)

Discussion

The Chairperson asked Deputy Minister Jeffery about the amendment to part 3 of the Guidelines, which mentioned the extended contact list. Was the contact list confined to those bodies that were set out in the 2018 regulations, and did the Department view that list as being adequate?

She wanted to know if there was more which the Department could be doing with other governmental departments, such as the Department of Employment and Labour, to ensure compliance with the Act and access to the Guidelines.

Her last question was why those amendments were inconsistent regarding aiding the whistle-blowers.

Response

Adv Du Preez said that the Department had had extensive consultations to discuss the additional bodies that should be included in the regulations, but it had been challenging to identify institutions that would add value to the whole process. The Department felt fairly confident the number of institutions that were listed in the regulations were sufficient, because they covered a broad spectrum and were not related strictly speaking only to government, but also included the private sector. He also indicated that there was a provision in the Act that if a disclosure was made to a body but that body felt that if another body or institution was better placed to investigate the matter, the matter could then be referred to that institution. The regulations also required persons to divulge whether or not they had made similar disclosures to other institutions.

Unfortunately, he was not in a position to give too much detail at this stage, but he assured the Committee that the Department was working on revisiting the provisions of the Act as a whole and that there was a consultation process taking place. That consultation was mainly of an internal nature now, but after that, general comments would be invited from members of the public.

The Department acknowledged that it had received some quite surprising comments from the individuals and institutions which had made submissions.

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

The Chairperson recalled that Mr G Michalakis (DA, Free State) had made some recommendations on the Prevention and Combating of Hate Crimes and Hate Speech Bill during the previous meeting. The Committee would be expecting to receive a comprehensive presentation on the Bill in due course.

Deputy Minister Jeffery commented that the DoJ&CD had hoped that it would make some inputs or respond to Mr Michalakis’s briefing, and it was a pity that the Department could not have been given access to that presentation in advance.

Mr Michalakis said he had explained to the Committee Secretary why he had not made any submission, and confirmed that the Chairperson’s understanding was correct -- that the expectation was that he would do the written submissions. However, after careful consideration and also the fact that the submissions of last week had not so much as even been entertained without being rejected immediately, his position at this stage was that he stood by the submissions that he had made, and would present the motivation properly to the Committee and the Department. Although the Department was welcome to give their inputs, which they had done, he cautioned the Department that it was not up to it to decide whether the Committee should adopt certain recommendations or not. He would therefore much rather reserve his deliberations and discussions for when the Committee Members discussed this. He had raised some concerns that were consistent with the views of not only his own party, but also members of other political parties.

He emphasised the importance of discussing all the public submissions, and disagreed with the DoJ&CD’s approach of simply rejecting those submissions. It was not up to the Department to decide whether the submissions were acceptable or not. He did not think it proper for it to take part in the Committee’s deliberation process as an outside party.

Deputy Minister Jeffery said that the Bill had to go through the processes of both Houses, and it had been brought from the National Assembly and had been supported by all parties with the exception of the Democratic Alliance, the Freedom Front Plus, etc. The process dictated that after public submissions, the Department was required to give its response to those submissions, and that had been the Department’s response. He agreed that it was obviously up to the Committees in both Houses to actually make the decision. Hence, it was very clear that the Department did not reject those submissions on behalf of the Committee.

He also pointed out that the Department had had discussions both in and out of the Committee on the examples of the definitions of hatred, but certain Members were still dissatisfied with the Department’s explanations. He understood that the DA did not want this Bill passed, so those were all delaying tactics. He reminded the Committee that this Bill had now been with the Committee for over six months.

The Chairperson commented that the Committee’s deliberations last week had not concluded the matter, and the Committee had requested additional information. Today, the Committee would continue with that deliberation process, and she advised Mr Michalakis to raise his issues as the deliberation process unfolded.

Mr Michalakis clarified that he meant that the actual deliberations or decision on how the Bill should ultimately be amended did not lie with the Department. The rejection or adoption of public submissions to this Committee lay with the Committee. He asked the Chairperson when the Committee was going to consider the various submissions from the members of the public, as well as the Department's response.

He emphasised that it was important for Committee Members themselves to deliberate on those submissions and certain aspects of the Bill. For instance, in section 4(2) of the Bill, “artistic expression and publishers” should both be covered. Religious views and other non-religious ones should be protected as well. He pointed out that it did not help that a specific segment of the population was protected from bona fide statements that they made, and the other half of the population was excluded. He indicated to the Department that those were the points he had made on various occasions, but he did not seem to have made any progress in convincing the Department. Also, for example, regarding the sanctions, Committee Members had not had a chance to discuss their views.

The Chairperson noted Mr Michalakis’s concerns, and indicated that the Department would be providing explanations on technical matters of the Bill in this meeting.

Mr T Dodovu (ANC, North West) commented on the maximum sentence in the Bill, and endorsed the maximum sentence of five years. The Department’s initial submission had been that the maximum sentence would be for five years. The deliberation from the National Assembly had recommended eight years. However, he pointed out that South Africa was not the only country that was dealing with hate crime, and the five-year sentence was in line with international practice according to the little research which he had done. He highlighted the need for education to rehabilitate as a principle for the perpetrators, considering where South Africa came from.

Ms M Bartlett (ANC, Northern Cape) supported Mr Dodovu’s view.

Mr Michalakis supported the maximum sentence of five years, and asked Mr Dodovu if he could share the nature of his research with the Committee. He endorsed the proposal that first-time offenders should be subjected to a three-year maximum sentence, and second-time offenders to five years.

Mr Dodovu replied that he would share the documents with other Committee Members at the next meeting.

Mr K Motsamai (EFF, Gauteng) agreed, and said that he wanted people to change -- it was not the intention of the Committee to put people in jail for eight years.

Deputy Minister Jeffery informed the Committee that five years was the maximum sentence for countries with a similar constitutional dispensation, such as Brazil and India. Countries like Oman, Belarus, Albania and Serbia exceeded the eight years. He recalled that when the Bill was first introduced to Parliament, there had been a differentiation between first-time and second-time offenders. However, it was the Portfolio Committee of the National Assembly that had recommended making the sentencing simpler by implementing a maximum sentence of five years for all offenders. He agreed with Committee Members that the Department also did not intend to put people in jail. In the case of Vicky Momberg, she had been a first-time offender, and her jail sentence had been due to the unique circumstances of her case.

Mr Michalakis expressed his concern that as the Bill was related to criminal law, it was vitally important to be clear on certain definitions. In the absence of definitions being clear, the public would not know what the crime actually was, and would find out it was a crime only after facing imprisonment. He found it unacceptable that the Department referred to many definitions according to the ordinary dictionary meanings, which was insufficient for criminal law. He suggested that the Committee needed to sort out proper definitions, and then it could address s4(2) where his concerns were.

Ms A Maleka (ANC, Mpumalanga) disagreed with Mr Michalakis’ view, and felt that the definitions provided adequate meaning. It was common knowledge that people knew what hate was.

Deputy Minister Jeffery said that the definition of hate had been taken from s10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), subject to the provision in s12, since no person may publish or advocate communication of words based on one or more of the primary grounds against any person. The constitutional judgment in the Qwelane case had clearly demonstrated the meaning of harm, which was anyone who communicated anything in a manner that could be reasonably construed to demonstrate a clear intention to be harmful and or to incite harm and promote or propagate hatred based on one of these grounds. He disagreed with Mr Michalakis that there would ever be a situation in which a person was arrested for having committed a crime without knowing it was a crime. He insisted that the definition of hatred was clear in the Bill. Everybody knew what a person could say and could not say.

He reminded Mr Michalakis of the requirement of mens rea. In the case of Penny Sparrow, she had tried to argue that she did not intend to promote or propagate hatred by calling black people on the beach "monkeys," and had argued that she had tried to say that as a term of endearment. He understood the difference between civil and criminal law. He asked Mr Michalakis if he could provide examples of what should be hatred, and what was seen as hatred but was not actually hatred. Ultimately, it would be up to the courts to determine whether it was hate speech or not.

Mr R Badenhorst (DA, Western Cape) was uncertain about the Deputy Minister’s remark on the DA’s delaying tactics. His position was clear that this Bill defined harm but did not sufficiently define hate. Ordinary people would be unable to differentiate what constituted hate or hatred if it was not clearly defined in law.

Mr Dodovu was satisfied with the definitions as provided in the Bill, and indicated that as long as the Bill was legally and constitutionally sound, he would be satisfied.

Ms Maleka supported the Bill, and was of the view that the Committee could not keep on debating on this Bill, given the country’s long history of racism. Racism had no place in the democratic new South Africa.

Deputy Minister Jeffery told the Committee that the National Prosecuting Authority (NPA), which was responsible for prosecutions, had not raised any problem with the definition, as the DA Members had.

Ms Bartlett supported the Bill.

The Chairperson noted the two different views on the matter of definitions.

Definitions

Characteristics

Adv Du Preez took the Committee through the proposed amendments.

The Western Cape government suggested using ‘asylum seekers status,’ rather than ‘asylum seekers’.

The NPA suggested that prosecution should be implemented at any court, including magistrates.

Since the Criminal Procedure Act did not appear in the body of the Bill, the Department had submitted for it to be removed from definitions.

The NPA was unhappy that the Director of Public Prosecutions (DPP) had been removed from the Bill.

Clause 3

Offence of hate crime

The Western Cape government suggested the wording “a person or a group of persons with the characteristics..”

(Refer to the attached document for details of other amendments proposed by stakeholders.)

Mr Michalakis noted that it was proposed that prosecutions would take place among all courts and prosecutors. He asked if that did not require more clarity -- should it not be narrowed down?

Ms Bartlett supported the amendments.

Deputy Minister Jeffery confirmed that the restriction that the DPP made a decision around prosecution remained, but that function could be delegated. In terms of certainty of prosecution, there was an NDPP policy that there were details around prosecution circumstances. The Department anticipated that such prosecutions would take place at the regional courts, and did not foresee a huge increase in hate crime/speech cases. Given the pressure of regional courts, they may decide where the cases would be referred to.

Adv Du Preez added that magistrates courts did deal with offences of a crimen injuria nature, so there would not be any need for prosecutors or magistrates to undertake additional training.

The meeting was adjourned.