The new and improved 2018 Hate Speech Bill
17 April 2018
The Prevention and Combating of Hate Crimes and Hate Speech Bill (the Bill) has recently been tabled before Parliament. It is an improved version of its 2016 predecessor, which was then in draft form. In an open and democratic society, the freedom to express ideas is important, but that freedom has to be underpinned by considerations of other values including dignity, equality and freedom. It is this delicate balance which the Bill by and large successfully achieves.
Rightly so, the Bill creates the offence of hate crime motivated by prejudice. The hate crime means that where an individual is found guilty of a criminal offence motivated by prejudice or intolerance, towards the victim, then the additional charge of a hate crime arises. There are widely-reported incidents of groups and individuals murdered and subjected to other harm or abuse over prejudice influenced by for example, sexuality or nationality. It is therefore important for South Africa’s penal laws to develop in order to deter this particular type of criminal behaviour. The first intention of the Bill therefore is a welcome development in South African law, as this plugs a legislative gap and further serves as a deterrent to would-be offenders. There is a need for legal regulation to guide behaviour change.
New categories of individuals and groups protected under hate crimes are introduced in addition to those from the draft Bill. These are: age, nationality, migrant or refugee status; as well as political affiliation or conviction. Given well-documented widespread xenophobic violence, as well as political killings, it is important for South Africa’s laws to recognise the prejudice and intolerance driving such crimes and to punish the offenders accordingly.
Political affiliation or conviction is included as a ground for hate crime but is not included as a ground for hate speech. This stands out because all of the other characteristics listed under hate crimes - such as age or albinism - are also listed as hate speech. This suggests a response to the concerns previously raised over the possible introduction of insult laws to curtail the criticism of high-ranking political office holders. It is also testament to the importance of public participation, given that this aspect of the Draft Bill had been severely criticised by civil society and lobby groups alike.