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2016 v 2018: What’s new in the Prevention and Combating of Hate Crimes and Hate Speech Bill?

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On 13 April 2018, the revised draft of the Prevention and Combating of Hate Crimes and Hate Speech Bill B9-2018 (the 2018 Bill) was introduced in the National Assembly for consideration.  The 2018 Bill is intended to give effect to South Africa’s constitutional and international obligations, in particular “to address frequently occurring and sometimes violent conduct of persons who are motivated by clear and defined prejudices”.  To achieve this, the 2018 Bill creates the offences of hate crime and hate speech, and sets out measures aimed at preventing and combating these offences.

Various concerns were raised when the previous version was published for comment in 2016 (the 2016 Bill).  Unlike the hate crimes provisions that had been the subject of years of discussion with interested stakeholders, the hate speech provisions came as more recent introduction.  In general, criminalising speech often gives rise to apprehension given the chilling effect that this can have on freedom of expression and media freedom.

The 2018 Bill has undergone a number of revisions since 2016.  Set out below are some of the key changes:

Definitions (section 1)

  • Definition of communication: The definition of communication has been narrowed in the 2018 Bill to exclude gestures and expressions from its ambit.
  • Definition of harm: The definition of harm now includes social harm in the 2018 Bill to add to the list of emotional, psychological, physical or economic harm.
  • Definition of victim: The definition of victim in the 2018 Bill has been amended to exclude members of a group as contemplated victims under the offence of hate speech in section 4.

The offence of hate crime (section 3)

  • Removal of bias: The 2018 Bill excludes bias as an element for the motivation of the offence of hate crime, but retains prejudice and intolerance as relevant motivations.
  • Amendments to the listed grounds: Section 3(1) lists certain characteristics that a victim of hate crime may have that underlies the prejudice or intolerance motivating the commission of the offence. This list has been modified in the 2018 Bill to include age, migrant or refugee status, and political affiliation or conviction as relevant considerations.  The list has further been modified to exclude belief.
  • Exclusion of inchoate crimes: Section 3(2)(b) and (c) of the 2016 Bill provided that it was an offence to attempt, incite, instigate, command, direct, aid, promote, advise, recruit, encourage, procure another or conspire with another to commit a hate crime. This has been deleted in the 2018 Bill.

The offence of hate speech (section 4)

  • Elements of the offence of hate speech: The elements of the offence of hate speech have been significantly revised. In the 2018 Bill, the offence of hate speech refers more narrowly to publishing, propagating or communicating in a manner that could be reasonably construed to demonstrate a clear intention to be harmful or incite harm, or to promote or propagate hatred on one or more of the listed grounds.
  • Amendments to the listed grounds: The listed grounds have been amended in the 2018 Bill to include age and migrant or refugee status, and to exclude belief and occupation or trade.
  • Exclusion of incitement, contempt or ridicule: Section 4(1)(a)(aa) and (bb) of the 2016 Bill provided that the offence of hate speech should demonstrate a clear intention to incite others to harm any person or group of persons, or to stir up violence against, or bring into contempt or ridicule, any person or group of persons. This has been deleted in the 2018 Bill.
  • Requirement of knowledge: Section 4(1)(c) of the 2018 Bill now includes an express requirement of knowledge, stating that any person who intentionally displays or makes available of any material that constitutes hate speech must know that it constitutes hate speech in order to be guilty of an offence.
  • Exemptions: Section 4(2) of the 2018 Bill now sets out a list of exemptions to which the offence of hate speech will not apply. These exemptions apply if it is done in good faith in the course of engagement in one of the following:
    • bona fide artistic creativity, performance or other form of expression, to the extent that such creativity, performance or expression does not advocate hatred that constitutes incitement to cause harm;
    • any academic or scientific inquiry;
    • fair and accurate reporting or commentary in the public interest or in the publication of any information, commentary, advertisement or notice, in accordance with section 16(1) of the Constitution of the Republic of South Africa, 1996; or
    • the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm.

Victim impact statements (section 5)

  • Admissibility of victim impact statements: Section 5(3) of the 2016 Bill provided that a victim impact statement would only be admissible as evidence in court if its contents were not disputed. This has been amended in the 2018 Bill to stipulate instead that the victim impact statement will as a general principle be admissible as evidence, unless the court decided otherwise on good cause shown.

Penalties (section 6)

  • Stipulation of penalties: Section 6(1) of the 2018 Bill now stipulates the specific penalties that a court can impose in terms of the Criminal Procedure Act 51 of 1977, namely imprisonment, periodical imprisonment, declaration as a habitual criminal, committal to any institution established by law, a fine, correctional supervision, postponement or suspension of the sentence, or a caution or reprimand.
  • Reduction of term of imprisonment: Section 6(3) of the 2018 Bill provides that for any subsequent conviction for hate speech in terms of section 4, the maximum term of imprisonment may not exceed five years. This has been reduced from the 2016 Bill, which provided for a maximum term of ten years.

Prevention of hate crimes and hate speech (section 9)

  • Duty to promote awareness: In addition to imposing a duty on the State, section 9(1) of the 2018 Bill now also imposes a duty on the South African Human Rights Commission and the Commission for Gender Equality to promote awareness of the prohibition against hate crimes and hate speech.
  • Training of judicial officers: Section 9(3) of the 2018 Bill further requires that the South African Judicial Education Institute must develop and implement training courses, including social context training courses, for judicial officers presiding in court proceedings relevant to hate crimes and hate speech.

The 2018 Bill includes a number of positive changes from the 2016 Bill, such as the proposed exemptions to the offence of hate speech, which in significant part can be attributed to the public engagement from civil society and other interested stakeholders.  However, there remain concerns.  Criminalising speech – and the consequent penalties that arise, such as imprisonment – is inevitably a drastic and intrusive measure on the right to freedom of expression, and must be construed narrowly if imposed at all.  Now that the 2018 Bill has been introduced in the National Assembly, there will be a further opportunity in due course for the public to make submissions in order to further refine the provisions in line with the Constitution, international law instruments and comparative best practice.

Avani Singh is a Director and Co-founder of ALT Advisory.

Please note: The information contained in this note is for general guidance on matters of interest, and does not constitute legal advice.  For any enquiries, please contact us at [email protected].

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