This bill introduces a new and contentious statutory offence of hate speech. Hate speech can be defined as expressive conduct which insults a racial or ethnic group in derogatory language, whether by suggesting inferiority or by effecting exclusion.
The legal prohibition of such speech is provided for by section 16(2) of the Constitution, which qualifies section 16(1) of the Constitution which in turn provides for freedom of expression in general.
The former states that the latter does not extend to the advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to harm.
An example of hate speech is the case of Freedom Front v South African Human Rights Commission, where an appeal committee of the SAHRC held that the slogan “Kill the farmer, kill the boer” did indeed constitute hate speech and was unprotected.
It declared that “calling for the killing of people because they belong to a particular community or race amounts to the advocacy of hatred, unless the context indicates otherwise”.
Another example of prima facie hate speech is Julius Malema’s statement: “We are not calling for the slaughtering of white people, at least not yet,” which obviously amounts to the calling for the killing of people because they are of a particular race.
Malema’s utterances have led to a complaint to the SAHRC, which still has to be adjudicated on. It also appears to be a more serious manifestation of hate speech than Penny Sparrow’s appalling reference to black people on the beach at Scottburgh as “monkeys”, which was found to constitute hate speech.
According to Christine Botha (Centre For Constitutional Development), although the present bill is a greatly improved version of the earlier poorly drafted version of 2016, it still poses a grave threat to the fundamental right of freedom of expression, indispensable for our constitutional democracy.
The new bill provides that an individual found guilty of the offence of hate speech, on a first conviction, can be punished with a fine and/or imprisonment of up to three years. This is a cogent punishment that must be understood in the context of our libertarian Constitution, which provides in section 16(1) for the seminal right to freedom of expression.
Our Constitution defines in unequivocal language in section 16(2) the kinds of expression that are unprotected. Such speech must fall within the clearly defined parameters. If not, it will violate the right to freedom of expression and precipitate the legal requirement to justify the limitation in terms of 39(1), requiring that any limitation must be “reasonable and justifiable in an open, democratic society”.
Section 16(2) (c) is designated as the “hate speech” prohibition. The prohibition states that expression of “hate speech” must constitute “advocacy of hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm”. These elements of hate speech must be present in any statute proscribing such speech to ensure that they are constitutional.
What appears to be a manifest defect in the bill is, according to Ms Botha, that there are no definitions in the bill for the elements of such “hate speech”, of the seminal terms, such as “publishes”, “propagates”, and “harmful”.
These omissions compound the difficulty of legal interpretation and are also at variance with international law precedent. It is submitted that the present bill appears to be unconstitutional and would in all probability be found to be such if challenged in the courts.
Devenish is Emeritus Professor at UKZN and assisted in drafting the Interim Constitution in 1993