On 13 April 2018, the updated Prevention and Combating of Hate Crimes and Hate Speech Bill B9-2018 (the Bill) was introduced to the South African National Assembly by the Ministry of Justice and Correctional Services (Ministry of Justice) for consideration. The Bill has been tagged in terms of section 75 as an ‘ordinary bill not affecting the provinces’.
According to the Memorandum on the Objects of the Bill, the 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”. The primary aim of the Bill, therefore, is to create the offences of hate crimes and hate speech, and to put in place measures to prevent and combat these offences.
According to a media statement issued by the Ministry of Justice, the Bill has undergone a Socio-Economic Impact Assessment (SEIA). As indicated in the media statement, the SEIA is a public document and available for scrutiny.
Various changes have been made to the current version of the Bill from the previous draft. For instance, section 4(2) of the Bill now contains certain exclusions to the offence of hate speech – including a journalistic exemption in the public interest – as follows:
“The provisions of subsection (1) [regarding the offence of hate speech] do not apply in respect of anything done as contemplated in subsection (1) if it is done in good faith in the course of engagement in—
(a) any 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, based on one or more of the grounds referred to in subsection (1)(a);
(b) any academic or scientific inquiry;
(c) 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
(d) 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, based on one or more of the grounds referred to in subsection (1)(a).”
The Bill is accessible here.
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].