New categories of individuals and groups protected under hate crimes are introduced in addition to those from the draft Bill. These are: age, nationality, migrant or refugee status; as well as political affiliation or conviction. Given well-documented widespread xenophobic violence, as well as political killings, it is important for South Africa’s laws to recognise the prejudice and intolerance driving such crimes and to punish the offenders accordingly. 

Political affiliation or conviction is included as a ground for hate crime but is not included as a ground for hate speech. This stands out because all of the other characteristics listed under hate crimes – such as age or albinism – are also listed as hate speech. This suggests a response to the concerns previously raised over the possible introduction of insult laws to curtail the criticism of high-ranking political office holders. It is also testament to the importance of public participation, given that this aspect of the Draft Bill had been severely criticised by civil society and lobby groups alike.

Significantly so, the Bill is better aligned to the Constitution, in so far as the Constitution proscribes certain forms of speech, namely speech which is harmful or incites harm, promotes or propagates hatred. However, the Bill goes beyond the protected categories listed in the Constitution, which are: race, ethnicity, gender and religion, to include 11 other categories such as culture, disability, sexual orientation and HIV status. This extension of protected categories is a justifiable infringement of freedom of expression, given that the Constitution allows for the limitation of rights. Such limitation of rights can only be in terms of a law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The inclusion of categories such as age should be welcomed, given the vulnerability of both South Africa’s elderly, as well as children.

As with its predecessor, the Bill criminalises hate speech, but perhaps the inclusion of defence to a hate speech charge is what ultimately rescues the hate speech provisions contained in the Bill. Defences to a charge of hate speech recognise that in certain context-specific instances – such as artistic creativity, performance, academic or scientific activity – there can be allowance for speech which would otherwise be considered as constituting hate in terms of the Bill.

Such defence would also give protection to religious practices in so far as such practices “do not advocate hatred that constitutes incitement to cause harm…”. The defences include fair and accurate reporting or commentary in the public interest. This means that the likelihood of “insult laws” being used to stifle the press and other media remains low and South Africa will continue to enjoy robust forms of expression. It is also in accordance with the understanding that political spaces enjoy much more robust forms of expression than otherwise enjoyed by individuals in private spaces. 

Arguably the most controversial aspect of the Bill is the criminalisation of hate speech, with possible imprisonment, for a period of three years, to boot. It is perhaps this provision which raises eyebrows and lends credence to the criticism that the Bill may very well serve to chill free expression in creating such extreme penalties for hate speech. Arguably it is perhaps the most severe forms of hate speech which would be subject to such harsh measures in order to send a strong message of deterrence.

The Bill does not stop at criminalising hate crimes and hate speech. It takes the important step of tasking the State (presumably government at all levels, as well as state-owned entities) and the South African Human Rights Commission (SAHRC) with promoting awareness of, and combating, both hate crimes and hate speech. The President is further mandated to appointment Cabinet Members who will conduct education and information campaigns about hate crimes and hate speech. The inclusion of the SAHRC is a welcome development, given its vital role in supporting South Africa’s constitutional democracy. One hastens to add cautious optimism in this regard, given suggestions of lack of partiality in resolving complaints of racism levelled against the SAHRC. 

Free speech absolutists may disagree with the criminalisation of hate speech and punt the Bill as an example of thought control. However, this view possibly loses sight of the balancing nature of the Constitution in which most rights are subject to limitation. Professor Elmien du Plessis, writing for The Conversation, quotes the philosopher Karl Popper in observing that 

…unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.

Perhaps that is the paradox which the Bill seeks to address – robust freedom of expression while ensuring that the social fabric of South Africa remains intact. 

Should the Bill be passed into law, then South Africa joins other nations including Germany, the Netherlands and the United Kingdom in criminalising certain forms of speech. As such, it would not appear to be an anomaly for South Africa to enact the Bill as it stands. Of course, the ultimate test will be whether the Bill does indeed deter the growing incidents of hate crime and hate speech. 

By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights
17 April 2018