The FW de Klerk Foundation makes a submission to the National Council of Provinces on the Prevention and Combating of Hate Crimes and Hate Speech Bill

4 June 2023

On 22 May, the FW de Klerk Foundation made a submission to the Select Committee on Security and Justice of the National Council of Provinces on the Prevention and Combating of Hate Crimes and Hate Speech Bill (the Bill).

The Foundation did so because of the deep concerns it has regarding the Bill’s potential impact on freedom of expression, which is an indispensable prerequisite for democratic governance as it ensures accountability, responsiveness and openness, as required by section 1 of the Constitution.

The Foundation was also concerned about recent jurisprudence and decisions of the South African Human Rights Commission that have shown a marked - and sometimes openly acknowledged - tendency to apply different standards to the evaluation of hate speech according to the race of the offender. The Foundation expressed the hope and expectation that the Bill will protect all South Africans, irrespective of their race, from hate speech threats to their human dignity and security.

Although the Foundation was in favour of the Bill’s objective of distinguishing hate crimes from ordinary crimes - to allow proper data collection, reporting and prosecution - it was concerned over the lack of clear definitions for key elements, such as “prejudice” and “intolerance”. The Foundation recommended that the definition of a “victim” should not include juristic persons, because hate crimes are motivated by aversion to characteristics - such as race, gender, religion or sexual orientation - inherent in natural persons.

The Foundation is totally opposed to the provisions in the Bill relating to hate speech.

They are, in its opinion, unconstitutional. They go far beyond the limitations on freedom of expression permitted in section 16(2) of the Constitution and the definition of hate speech in the Promotion of Equality and the Prohibition of Unfair Discrimination Act ("the Equality Act"), as confirmed by the Constitutional Court in the Qwelane v South African Human Rights Commission and Another (Qwelane).

The Bill would seriously limit the core right to freedom of expression, which is essential for an open system of democratic government, as required in section 1 of the Constitution. The limitation of this right would in no way be justifiable in an open and democratic society based on human dignity, equality and freedom, and would accordingly fail the test laid down in section 36 of the Constitution.

In the Foundation’s view, the Bill is also unnecessary. Adequate provision for the punishment of hate speech is already available under the Equality Act and in terms of crimen injuria. For this reason, the Bill fails the test in section 36(e) of the Constitution because there already exist less restrictive means to achieve its ostensible purpose.

In addition, the Bill does not meet the requirements of the rule of law in section 1(c) of the Constitution, as there are no clear or adequate definitions for “hate”, “the promotion and propagation of hatred”, “social harm” and “harm”. Without such definitions, the Bill falls far short of the requirement for legal clarity which is an essential element of the rule of law.

The authors of the Bill have not given adequate consideration to international law as required by section 39(b) of the Constitution. In particular, they have not considered the clear guidelines for the determination and punishment of hate speech set out in the 2017 Rabat Plan of Action and the Recommendations of the International Convention on the Elimination of Racial Discrimination (ICERD).

Although provision is made for the exemption from the provisions of the Bill for journalists, academics, artists and religious practitioners, the circular nature of the exemptions makes them meaningless. There is also no reason why these categories of people should enjoy a greater right to freedom of expression than ordinary citizens, politicians, or members of NGOs exercising their political rights and their rights to freedom of expression in sections 19 and 16 of the Constitution. The provision also offends against their right to equality before the law and to equal protection and benefit of the law in terms of section 9(1) of the Constitution.

In addition, the Bill would extend to private communication between individuals - contrary to the Qwelane judgement and the recommendations of the Rabat Plan of Action and ICERD.

Most seriously, the provision in the Bill for a draconian prison term of eight years for transgressing the very broadly and unclearly defined offence of hate speech would have a crippling effect on people’s willingness to express themselves openly on controversial issues. This would seriously limit the right to freedom of expression, which has been found in numerous judgements of the Constitutional Court and other courts to be indispensable for the maintenance of our democratic system of government. The envisaged punishments are also at variance with the guidelines laid down by the Rabat Plan of Action and the ICERD Recommendations on hate speech.

For all these reasons, the Foundation has recommended that the provisions in the Bill for hate speech be withdrawn in their entirety.

Issued by FW de Klerk Foundation, 4 June 2023