Legislation: Hate Speech Bill tabled in Parliament

The Prevention and Combating of Hate Crimes and Hate Speech Bill tabled in Parliament last week seeks to address the ‘frequently occurring and sometimes violent conduct of persons who are motivated by clear and defined prejudices’. This is noting that its ‘primary aim’ is to ‘create the offences of hate crimes and hate speech’ and ‘put in place measures to prevent and combat them’. According to a memorandum in the Bill’s objects, while section 16 of the Constitution enshrines the right to freedom of expression, this right is nevertheless ‘limited’. It ‘does not extend to propaganda for war, incitement to imminent violence or advocacy of hatred ... based on race, ethnicity, gender or religion’, reports Pam Saxby for Legalbrief Policy Watch. 

Given that such forms of speech are intended to cause harm, the memorandum notes that, among other things, section 7(2) of the Constitution empowers the state to protect its citizens from them. To that end, the Bill also draws on section 9(3) – prohibiting ‘direct or indirect unfair discrimination against anyone on the grounds race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth’. In addition, it takes cognisance of: section 10 (the right to human dignity); and section 12 (the right to freedom and security), which includes the right to freedom from ‘all forms of violence from either public or private sources’.

As Legalbrief Today has already reported, last month a Department of Justice and Constitutional Development media statement noted that the proposed new statute addresses ‘most’ concerns raised in response to a draft version released in October 2106 for comment. It specifically excludes from the ambit of hate speech anything done in good faith as part of bona fide ‘artistic creativity’; academic or scientific inquiry; and ‘fair and accurate reporting or commentary in the public interest’. This is on the understanding that the activity or publication concerned should not ‘advocate hatred’ or incite actions that will inevitably be harmful. The same applies to ‘the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings’.

The Bill’s clause 6 proposes that anyone convicted of an offence should face ‘a fine or imprisonment for a period not exceeding three years in the case of a first conviction, or a fine or imprisonment for a period not exceeding five years in the case of a subsequent conviction’. This is apparently in line with sections 276 and 297 of the 1997 Criminal Procedure Act, ‘subject to the penal jurisdiction of the court concerned. According to the memorandum, section 276 ‘provides the sentencing options … courts may impose, including imprisonment, periodical imprisonment, a fine and correctional supervision’. Section 297 ‘provides for the conditional or unconditional postponement or suspension of sentences, cautions and reprimands’. In the case of a conviction where the hate crime concerned ‘is not subject to the obligatory minimum sentencing regime … provided … in section 51 of the 1997 Criminal Law Amendment Act’ (discretionary minimum sentences for certain serious offences), it is mooted that, should ‘any damage, injury or loss of income or support’ ensue, the court would regard the conviction ‘as an aggravating circumstance’.