First published by GroundUp

The  Hate Crimes Working Group  (HCWG) congratulated the Department of Justice on the introduction of the Prevention and Combatting of Hate Crimes and Hate Speech Bill, which was published by the department for comment in November 2016. This was a step in the right direction, and once the bill becomes an act it will close a gap in South African law.

We need a bill like this, because it creates a legal definition of hate crime for the first time in our law; it will allow us to count hate crimes and know more about their nature and prevalence, so that we can make effective plans for preventing it; it provides a framework for police detection and prosecution of hate crimes; and it sends the necessary message that crimes motivated by hate have no place in our society.

However, there is a key problem in the draft bill which must be pointed out before it becomes a law: the criminalisation of hate speech.

We always knew that such a provision would be controversial, and indeed it has dominated the public debate on the bill at the expense of discussion about hate crimes.

We believe that this controversy may even delay the promulgation of what is a critically important bill, at the expense of victims of “corrective” rapes and murders, racist and xenophobic assaults, damage to places of religious worship, and ongoing violence against sex workers (the list goes on), simply because they make their living at the margins of the law.

It has also unintentionally provided a space for reactionary and right-wing sections of South African society to rally around.

After much contemplation, debate, and discussion, the HCWG has come to the conclusion that it cannot support the statutory criminalisation of hate speech as contemplated in the bill, especially not in its current over-broad form.

There are practical, legal, and ideological reasons for this, including the high criminal law burden of proof; the enduring power imbalances in our society and the criminal justice system such as who is most likely to lay hate speech charges and be legally represented; the risk of misuse to silence political dissent; the risk of driving hateful and prejudiced sentiment underground, thereby allowing it to fester and become extremism; and the inherent threat to freedom of expression, which is a cornerstone of any democracy.

We recognise that freedom of expression is not an absolute right, and can be limited in accordance with Section 36 of the Constitution. We know that some happily employ this right in arguments that would entitle them to make racist, homophobic, xenophobic, and other utterances that destroy social cohesion in South Africa. The HCWG is deeply concerned about ongoing reports of racist speech, which are deeply painful and humiliating to the majority of people living in South Africa, and only serve to stoke fires of hatred and deepen divisions.

However, we believe that freedom of expression has already been constitutionally limited in our law, and that hate speech should not become the burden of the criminal justice system any more than it already is. Our research indicates that there are both existing and imminent measures that can address hate speech in our society.

We cannot support the creation of a new mechanism to deal with hate speech, where existing mechanisms have not been adequately strengthened, used, and publicised. Existing mechanisms include:

• The criminal charge of crimen injuria, which forms part of the common law;
• The definition of hate speech, and the civil remedy provided by the Promotion of Equality and Prevention of Unfair Discrimination Act of 4 of 2000 (the Equality Act), which allows for varied, creative, and transformative orders by Equality Courts;
• The prohibition of incitement in Section 16(2) of the Constitution, the Intimidation Act 72 of 1982, and section 16 of the Films and Publications Act 65 of 1996;
• The prohibition of incitement with regards to the names of companies, as outlined in section 11 of the Companies Act 71 of 2008;
• The provisions of the Protection from Harassment Act of 2011, and criminalised intimidation;
• The laws governing the workplace and employer/employee relationships and disciplinable and dismissible conduct, as recently developed by the Constitutional Court in South African Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others (CCT19/16); and
• The contemplated prohibition of incitement of violence and damage to property, in the draft Cyber Crimes and Cyber Security Bill.

Given all that already exists, the answer is not to create a new, parallel mechanism and statutory crime – multiplying the implementation and administrative burden.

A lack of implementation plagues many of our laws, and we believe it is time to reflect critically on why that is the case, and how we can improve implementation.

For example, it is an appropriate time to revisit the Equality Act, and its definition of hate speech, to provide for the fact that we now live in a digital age, and that communication extends to online and other digital forms.

The equality courts are also under-utilised, and much can be done to address this through improving visibility, accessibility, user-friendliness. In practice, equality courts are still not really places that can be accessed without legal assistance, such as for example, the CCMA or small claims courts.

The HCWG supports the law being used against anyone who utters hate speech: being sued in the Equality Court, and ordered to pay damages, or to do community service, or apologise publicly and unconditionally; be found guilty of incitement if your speech amounts to that; be sanctioned by society and severely disciplined in your workplace.

But we do not believe that further statutory criminalisation (leading to criminal records, and possibly imprisonment) would be effective in improving social cohesion, nor is it in step with progressive and constitutional values, nor is it the best use of our already over stretched criminal justice resources.

We very much look forward to the bill being approved by Cabinet, hopefully in next few months, and we will do our utmost to ensure thorough and constructive public participation, by highlighting real lived experiences of people in South Africa. DM

The author is an attorney in the Lawyers for Human Rights Gender Equality Programme, and Chair of the Hate Crimes Working Group.

Views expressed are not necessarily GroundUp’s.

Photo:Marchers against xenophobia in Johannesburg in April 2015. Photo by Bridget Mnyulwa of Sonke Gender Justice.