Parliament’s portfolio committee on justice and correctional services has responded to public comments on the Prevention and Combating of Hate Crime and the Hate Speech Bill.

The bill outlines the criminal offence of hate crime and hate speech in South Africa. It also outlines the appropriate sentences that can be imposed on a person who commits such violations.

During a virtual committee meeting on Wednesday (7 September), John Jeffery, the deputy justice minister, said that parliament is actively engaging with the bill and has a working draft.

Jeffery said that the idea behind the bill was to have a new crime of hate speech. It defines the following offences:

  • Hate crime – when a person commits any recognised offence motivated by prejudice or intolerance;
  • Hate speech – when a person publishes or shares statements that intend to be harmful or incite harm.

‘Hate Speech’ under the bill includes the promotion or propagating of hatred based on the following categories:

  • Age
  • Albinism
  • Birth
  • Colour
  • Culture
  • Disability
  • Ethnic or social origin
  • Gender or gender identity
  • HIV status
  • Language
  • Nationality or migrant or refugee status
  • Race
  • Religion
  • Sex, which includes intersex
  • Sexual orientation

The bill also makes it an offence to distribute hate speech material in cyberspace – digitally or on digital channels, such as Whatsapp.

Recently, social media law expert Emma Sadleir Berkowitz warned that a new update to Whatsapp could lead to legal trouble for group admins in South Africa.

Under the new update, group admins will have the ability to delete any message sent to the group and “delete for all”, and the time limit for this function has been extended to a couple of days.

In South African law, if you can delete something, and you choose not to, then you become legally responsible for the content, she said.

“If you’re the admin of a WhatsApp group, because of this recent change, you become legally responsible for everything that appears on that group.”

Any administrator of a group whose members are posting hate speech, threats, incitement, or other illegal content could face legal repercussions if that content is not removed, according to Sadlier Berkowitz.

How it expands the law

Jeffery said that existing law is not efficient enough in that, under the Promotion of Equality and prevention of Unfair Discrimination Act (PEPUDA), it involves civil matters where a person must approach the equality court within their capacity.

Under the new bill, if it becomes law, a hate crime would be followed up by the state and criminally prosecuted.

This is not the first piece of law that restricts people’s speech, said Jeffery. South Africa already has restrictions such as crimen injuria – the willful injury to a person’s dignity as a result of obscene or racially offensive language – that is common law.

The Constitution also already lists forms of speech such as propaganda for war, incitement of imminent violence or advocacy of hatred based on religion, gender or race.

Jeffery added that the new bill is not trying to replace crimen injuria but rather provide a statutory crime of hate speech so that there is greater clarity for parliament.

He added that hate speech laws are commonplace in Western Europe, places like Canada, as well as African nations like Kenya.

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