Hate speech bill unconstitutional and unnecessary – FSU SA

10 November 2023

The Free Speech Union of South Africa believes the Prevention and Combating of Hate Crimes and Hate Speech Bill is both unconstitutional and unnecessary.

In its written and oral submissions to the Select Committee on Security and Justice (Committee), the FSU SA recommended that the Bill be abandoned entirely.

We said that the defining characteristic of a society that prioritises civil liberty is that hate speech is not addressed through legal or political coercion, but through social or economic pressure.

The Committee has now issued a report agreeing to a revised Bill consequent to the various submissions made orally and in writing.

However, the FSU SA believes the critical flaws of the original Bill remain in the amended version.

The amended Bill continues to:

provide for offences defined as hate crimes and the offence of hate speech, and the prosecution of persons who commit those offences;

provide for appropriate sentences for those who commit hate crimes and hate speech offences;

prevent hate crimes and hate speech.

The Democratic Alliance did not vote in favour of the Bill in the absence of the following proposed amendments:

It did not expand either the definition of hatred or hate speech so that the public understood what the crime would be if they committed it;

The penalties should be more like those in the 2018 version of the Bill. Inter alia these did not include maximum penalties and conformed more to the penalties established for similar, existing crimes.

The exceptions to hate speech:

- The DA proposed adding ‘literary, comedic or satirical creativity’ to the exception of ‘artistic creativity, performance or expression’ (This was rejected as not necessary.)

- On the exception regarding ‘any belief, opinion or religious conviction’ the clause should have added ‘as protected in section 15 of the Constitution’ (This was rejected for ‘stating the obvious in terms of the principle of Constitutional supremacy’.)

- Adding an exception for ‘political debate’ (This was rejected because the Department of Justice said that political debate is protected in terms of parliamentary Rules.)

- The ‘Sharing of anything done in good faith contemplated in clause (a) to (e) above’ should precede ‘that does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds’ (Rejected.)

The FSU SA supports the DA’s rejection of the Bill. There are many reasons why criminalising hate speech is wrong.

However, if the government wanted to prevent hate speech, the governing party – and the same is true for the EFF – could show the way by desisting from using hate speech to score the cheapest of political points.

Leadership comes from the top – as Siya Kolisi has shown.

[The Bill now goes to the National Council of Provinces for adoption. As the draft legislation falls under Section 75 of the Constitution, if the NCOP rejects the Bill or amends it, it has to go back to the National Assembly, which is not obliged to take account of what the NCOP decides. The NCOP can delay a Section 75 Bill, but it can’t prevent it from being passed.]

Issued by Sara Gon, FSU SA Director, 10 November 2023