Public comments for the Bill are open and will close on the 1st of December 2016. Read on to understand more about the Bill, the obvious pitfalls and some questions we, as the South African public, need to answer.
What does the Bill cover? According to the DOJ the draft Prevention and Combating of Hate Crimes and Hate Speech Bill aims to-
- give effect to the Republic’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance in accordance with international law obligations;
- provide for the offence of hate crimes and the offence of hate speech and the prosecution of persons who commit those crimes;
- provide for appropriate sentences that may be imposed on persons who commit hate crime and hate speech offences;
- provide for the prevention of hate crimes and hate speech;
- provide for the reporting on the implementation, application and administration of this Act;
- amend certain Acts of Parliament consequentially; and
- provide for matters connected therewith.
What can happen to you if you are convicted under this bill? First time, a fine and/or jailtime and after that, jailtime.
BIG NOTE: you will spot, if you do read the Bill, that ‘conspiring’ is listed. An example of this would be if somebody expressed a communication that is found to be criminal under this Bill, say for example a Facebook post, and you liked or shared the post, you would be ‘conspiring’. Be careful.
It sounds all very fancy and amazing, but will this Bill, in current form, realistically do what is meant to do? In my opinion, not.
I’m not going to go into details of each and every incident as we know pretty much all of them by now and they are covered in the other articles shared above. Further, I’d like to add in, as examples, the speech and other communications (online postings and messages portrayed on posters and t-shirts) prevalent in many of the student protests over recent months.
Common Law Approach: Civil & Criminal
Currently, the type of conduct and speech the Bill is envisaged to cover can, for the most part, but obviously depending on facts, be prosecuted as criminal under the charge of crimen iniuria and civil compensation can be sought under a claim such as a defamation claim as well as protection being afforded under Constitutional Law in accessible courts such as the Equality Court. If one is being harrassed, a protection order can be sought under the Protection from Harrassment Act. Under Consitutional and common law (criminal and civil), the bar to prove harmful conduct or speech in these scenarios is not as high as the bar set in the Bill.
I am going to highlight points I find to be troublesome. Please, keep in mind, we live in a beautiful multicultural society where even colour has different meanings to different cultures.
In the definitions, communication is defined as including seven ways to communicate. One of these is expression. Please tell me HOW we are to agree on whether an ‘expression’ (I’m assuming this is a facial expression and not a verbal expression as oral statement is listed) is an expression of hatred? Keep this in mind for the hate speech section below.
The Bill is ABOUT hatred, but there is no attempt to define hatred. How do you define hatred? Please, educate me. Hatred is a very subjective emotion informed by many different things and experienced in many different ways. The definition of hatred ranges from words such as ill or bad feeling (very light) to abhorrence and abomination (very extreme).
Maybe the intention of the legislature is for us to extrapolate an understanding of hatred from the very convoluted definition and setting out of what a hate crime is in section 3 of the Bill. According to this Bill a ‘hate crime is an offence recognised under any law, the commission of which by a person is motivated on the basis of that person’s prejudice, bias or intolerance towards the victim of the hate crime in question because of one or more of the following characteristics or perceived characteristics of the victim or his or her family member’ and it goes on to list the characteristics which are all pretty much protected under our Equality Rights in any case. Perhaps specifically listing albinism, intersex and occupation makes some sort of difference? Although albinism and intersex are inherent so already covered by Equality Rights. I’m grappling with this notion that we commit hate crimes against people because we dislike their occupation or trade so very deeply. I might not like clowns and you might not like teachers, but I battle to find an example of a crime committed against someone because of their occupation that would justify action under this Bill/Act? Is the State venturing into regulating personal preference versus dealing with very deep issues of entrenched intolerance?
Let us venture with caution into section 4 and hope we find something slightly more understandable and doable. Alas, no. Section 4 is the Hate Speech section. Any person who intentionally communicates (expression, etc as listed in definitions) to others in a manner that advocates HATRED toward people or groups, OR is threatening, abusive or insulting AND WHICH DEMONSTRATES A CLEAR INTENTION TO incite others to harm (even if harm is not done) OR stir up violence against OR BRING INTO CONTEMPT OR RIDICULE (oh damn shame for all you comedians – read http://ewn.co.za/2016/10/31/comedian-john-vlismas-new-bill-could-jail-sa-comedians-for-10-years) any person or persons.
In plain English: you say something nasty but it has to have demonstrated a clear intention to incite others to harm or stir up violence against or ridicule.
And, then, as a victim who reports a crime under this Bill – you will be required to make a Victim Impact Statement which reflects the physical, psychological, social, financial or any other consequences of the offence for the victim and his or her family member. So you cannot just go and say you did not like what happened to you.
Success of Claims
First, understand that we are dealing with ‘crimes’. Criminal. Lay a charge. Police investigate. Will case even get to court? Maybe if you’re raging on the side of the road or a high profile figure who splashes out on social media. Or if you’ve managed to get under the skin of the local youth league. The police still have to investigate. Shall I just say dot dot dot here and not continue?
Besides this, PLEASE take note of section 3 wording where it is stated that a hate crime is AN OFFENCE RECOGNISED UNDER ANY LAW and the commission of which is motivated by the factors etc listed after. This is quite honestly one of the most backward pieces of legislation I have yet had the displeasure of reading. The offence the hate crime is attached to will have to be proved as well as the MOTIVATION of the person based on prejudice, bias or intolerance, which means you still have to prove that they are prejudiced, biased or intolerant. And remember, proved beyond a reasonable doubt. Your case, people, is most likely just not going to go anywhere.
I will now specifically refer to the Penny Sparrow case. For Ms Sparrow to be convicted of Hate Speech under this Bill Act, a prosecutor would have to prove that by referring to people as ‘monkeys’ based on skin colour, Ms Sparrow DEMONSTRATED A CLEAR INTENTION to incite others to harm (no, probably not) or stir up violence (no, probably not considering her peer group) BUT she may have wanted to bring into contempt or ridicule a group of people.
So, the question remains, did Ms Sparrow CLEARLY INTEND to bring into contempt a group of people, or was she expressing her opinion, as unsavoury or hurtful as it might be? [Note: this is a very academic discussion. I do not advocate the statement by any means at all.] Really, truly think about it. If Ms Sparrow was sitting in the box and being cross-examined, could you as the prosecutor prove beyond a reasonable doubt that Ms Sparrow was trying to actively with intention bring into contempt ‘black’ people or was she just venting to her friends? This is a VERY HIGH BAR.
Consider this point now, which is a very valid point, you are the victim in this case. You have experienced hate speech and you take your case to the police. Eventually, EVENTUALLY, you get through the process and you get to court and the prosecutor cannot meet the burden of proof. You walk away. The perpetrator walks away. And hurt upon hurt continues in a society that desperately needs healing.
South Africa is known to be a grand over-legislator. I am not going to venture into the reasons for this happening but needless to say, what is the point of having an over-abundance of very grand and wonderful laws without the ability to enforce said laws? Scoff all you might and say that goes for all law these days or whatever your opinion might be. The point is that there is ‘enough’ law to deal with a situation. If it is not being applied already, why add more law to the melting pot to make it more confusing?
Oh, and, LOL at section 9 where the ‘State has a duty to promote awareness of the prohibition against hate crimes and hate speech, aimed at the prevention and combating of these offences.’ Maybe we’ll get pamphlets installed in the empty condom dispensers in government ‘facilities’.
- The Invitation to Comment and Bill: http://www.justice.gov.za/legislation/bills/2016-HateCrimes-HateSpeechBill.pdf
- Procedure to Comment: http://www.justice.gov.za/legislation/invitations/invites.htm
- Daily Maverick Analysis: http://www.dailymaverick.co.za/article/2016-10-24-analysis-whats-in-the-hate-bill/
Any person wishing to comment on the Bill is invited to submit written comments to the Department of Justice and Constitutional Development on or before 1 December 2016. Comments on The Prevention and Combating of Hate Crimes and Hate Speech Bill should be marked for the attention of Ms T Ross and –
(a) if they are forwarded by post, be addressed to –
The Department of Justice and Constitutional Development, Private Bag X81, PRETORIA, 0001;
(b) if delivered by hand, be delivered at –
The Department of Justice and Constitutional Development, Salu Building, 316 Thabo Sehume Street (Corner of Thabo Sehume and Francis Baard Streets), PRETORIA;
(c) if they are delivered by E-mail, they can be sent to: firstname.lastname@example.org; or
(d) if it is faxed, they can be faxed to 012 406 4632.
For further information, please contact T Ross at 012 406 4759.
And, please, people, in your home and your community and as far as your reach extends, let us learn to LISTEN, UNDERSTAND and LOVE.
*Please note that this ‘blog’ post should not be regarded as ‘legal advice’ and should most certainly not take the place of a legal professional who is advising you on a case as they will be well-versed with the facts of each individual case.
Philipa is the lead consultant and auditor at ProPrivacy. With clients as far afield as Canada, South Africa, Kenya, Germany, Spain and other such exotic locations, besides Cork and elsewhere in Ireland, Philipa enjoys a broad view of the state of data protection, privacy and cyber security worldwide. Philipa’s passion is manageable data compliance for SMEs.
Philipa is a qualified teacher besides holding a computer science (Bachelor of Science in Artificial Intelligence Programming) and electronic and intellectual property law (LLB) qualified. She is trained in constitutional (fundamental) rights litigation and enjoys a good debate.
Philipa has over twenty years of experience working in different sized organisations and sectors on operational, governance, risk management and compliance matters. She is an analytical and focused person that enjoys a challenge in the workplace. She loves technology, systems and people and has a passion for showing people how technology can make life easier and better. She understands that the world is driven by data today but privacy is paramount. Responsibly developed AI excites Philipa for the future.