South Africa is a country riddled with discrimination. This is made worse by the fact that it comes from different fronts and there can be a fluid transition from the perpetrator to the victim. For example, person A will discriminate against person B based on race. The next day person A will discriminate against person C based on gender. Thereafter, person B will discriminate against person C based on nationality. South African law makers, with the aid of the Constitution of the Republic of South Africa, 1996, (“the Constitution”) have tried to redress the ills of the past, but unfortunately, ignorance, prejudice and intolerance have no expiration date. In an attempt to curb these alarming levels of discrimination and hate, the South African parliament has introduced a new Bill called the Prevention and Combating of Hate Crimes and Hate Speech Bill (“the Bill”).
THE CONSTITUTION
The founding provisions of the Constitution set out certain values in the Bill of Rights, including, human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism.
This Bill of Rights prohibits direct or indirect discrimination on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
Further, the Bill of Rights gives everyone the right to freedom of expression. However, this right is limited in that it does not extend to the following categories:
- Propaganda for war;
- Incitement to imminent violence; or
- Advocacy of hatred that is based on race, ethnicity, gender or religion, which constitutes incitement to cause harm.
PREVENTION AND COMBATING OF HATE CRIMES AND HATE SPEECH BILL
The primary aim of the Bill is to create offences relating to hate crimes and hate speech and to put in place measures to prevent and combat these offences.
Hate Crime
A hate crime is committed when a person commits any recognised offence under any law, commonly referred to as the “base crime” (e.g., murder, theft, arson, etc.) and the commission of that base crime is motivated by prejudice or intolerance on the basis of one or more of the following characteristics or perceived characteristics of the victim on the following listed grounds:
- age;
- albinism;
- birth;
- colour;
- culture;
- disability;
- ethnic or social origin;
- gender or gender identity;
- HIV status;
- language;
- nationality, migrant or refugee status;
- occupation or trade;
- political affiliation or conviction;
- race;
- religion;
- sex, which includes intersex; or
- sexual orientation.
An example of a hate crime would be when one person robs another person (“base crime”) and is motivated by their prejudice against the victim’s race.
Hate Speech
Hate speech is when any person intentionally publishes, propagates, advocates or communicates anything, to one or more persons, in a manner that could be reasonably construed as demonstrating a clear intention to be harmful or to incite harm, or to promote or spread hatred based on any one of the following listed grounds:
- age;
- albinism;
- birth;
- colour;
- culture;
- disability;
- ethnic or social origin;
- gender or gender identity;
- HIV status;
- language;
- nationality, migrant or refugee status;
- occupation or trade;
- political affiliation or conviction;
- race;
- religion;
- sex, which includes intersex; or
- sexual orientation.
An offence of hate speech is committed when hate speech material is intentionally distributed or made available on the internet, and the said person knows that such electronic communication constitutes hate speech.
One can also be guilty of an offence of hate speech when one intentionally displays any material or makes available any material, knowing that such material constitutes hate speech, and is accessible by or directed at a specific person who can be considered to be a victim of such aforementioned hate speech.
As with most general rules, there are exceptions. From the scope of hate speech, the Bill excludes the following:
- Anything done in good faith in the course of engagement in any bona fide artistic creativity, performance or expression, as these actions do not advocate hatred that constitutes incitement to cause harm based on the listed grounds below:
- Any academic or scientific inquiry;
- Fair and accurate reporting or commentary in the public interest; or
- The bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and preaching does not advocate hatred that constitutes incitement to cause harm, based on one or more of the listed grounds.
An example of alleged hate speech and intolerance can be seen where a Durban man, Kessie Nair, posted a video online calling president Cyril Ramaphosa the K-word. Interestingly enough, after Mr Nair was arrested and denied bail, his legal representative stated that the State was on a witch hunt to persecute Nair and that “he is being persecuted because he’s Indian”.
Unfortunately, hate, prejudice and intolerance does not have a termination date. South Africa needs to urgently address racism, gender-based violence, homophobia and other forms of discrimination. It is hoped that when the Bill is enacted and becomes law, there will be a positive shift in the mindsets of South Africans, and that people who expose their discriminatory and hateful ideologies under the guise of “freedom of expression” experience the full might of the law.
Author: Mikhael Cain
Candidate Attorney
