Professor Pierre de Vos says the proposed Hate Speech Bill is "perfectly constitutional". Picture: Jeffrey Abrahams/Independent Media

Johannesburg – As opposition regarding the proposed Prevention and Combating of Hate Crimes and Hate Speech Bill mounts, constitutional law experts have dissenting views regarding the bill’s constitutionality.

The bill was approved by the cabinet for public comment in October last year, and seeks to criminalise prejudicial remarks made about a person’s race, religion, sexual orientation and almost 20 other characteristics – carrying a jail term of up to three years.

DA leader Mmusi Maimane slammed the bill on Monday, telling The Star that it did not find the balance between curtailing hate speech and promoting the constitutionally enshrined freedom of expression.

“A religious leader might stand up in a meeting of whatever kind and make a statement, and if someone takes that statement to be offensive – whether they feel prejudiced because of sexual orientation – the bill will find against that person. That limits not only the right to freedom of expression, but also the right for (religious) practice and publication of media,” Maimane said.

“Yes, in the Bill of Rights the right to dignity is protected, but ultimately no right is absolute – it must be seen in the context of religion.”

But UCT’s constitutional law professor Pierre de Vos rebutted Maimane’s views about religious freedom, saying that the bill sought to deal with the problem between freedom of religion and the demands of dignity.

“I think that our courts have not been very good at confronting this problem, that there is a direct clash between freedom of religion and the right to equality and dignity. There is clearly some harm that results from speech that vilifies people – it sends a message that some of us are not fully human,” De Vos contended.

“So the question is: how serious must the harm be for the religious freedom to yield to other rights like dignity and equality? There is a point where the harm of the religious group is so great that we cannot accept that – even if they claim it’s freedom of religion.”

De Vos added that the hate crimes aspect of the bill was “perfectly constitutional”, but said that the hate speech aspect needed to be “tailored so as to not infringe on constitutionally valid speech” that promotes democratic debate.

However, resident attorney at the Centre for Constitutional Rights, Christine Botha, said that her organisation believed that the Department of Justice’s inclusion of hate speech as a crime was a reaction to highly publicised social media incidents, against which the department wants very much to be seen to be taking “swift action”.

She added that the Promotion of Equality and Prevention of Unfair Discrimination Act already has provision to institute criminal proceedings for people who feel discriminated against.

“We believe that the offence of hate speech should be completely excluded from the ambit of this bill. Before the department considers drafting statutory criminal measures to deal with hate speech, proper legislative reform of the Prevention of Unfair Discrimination Act has to be undertaken, and a proper consensus has to be taken to determine whether there is a pressing societal need to address hate speech within criminal law over and above the act.”

Justice Deputy Minister John Jeffrey said last month that the act’s “prohibitions on unfair discrimination and hate speech are civil only”, hence they introduced this bill.

The Star