By Daniela Ellerbeck, Legal Advisor for FOR SA

The revised Prevention and Combating of Hate Crimes and Hate Speech Bill saw strong public participation, with the Parliamentary Portfolio Committee on Justice reportedly receiving 16 000+ submissions before the closing date of 15th February 2019.

According to ACDP MP Steve Swart, who is a member of the Portfolio Committee, it was decided that the Bill and the submissions received, will stand over for consideration by the next Parliament.

This is good news as it means Parliament will not rush the Bill through before it adjourns at the end of this month, but will hand it over for the new Parliament (to be constituted after our national elections) to properly consider all submissions received and effect possible changes to the Bill.

Revised Bill remains concerning

While the revised Bill contains a much narrower definition of “hate speech” than the initial Bill, we remain concerned that the current definition of “hate speech” criminalises speech that is actually protected by our Constitution, thereby violating both Freedom of Expression (section 16 of the Constitution) and Freedom of Religion, Belief and Opinion (section 15 of the Constitution).

In our submission on the revised Bill, FOR SA also pointed out that the proposed criminalisation of “hate speech” is unnecessary, particularly since existing legislation already prohibits and deals with unacceptable forms of speech. (Recent examples of people held liable under existing “hate speech” legislation and/or guilty in terms of the common law include the cases of Sparrow, Momberg, Khumalo, Qwelane and Masuku).

On the positive side, FOR SA was encouraged that this version of the Bill included a “religious exemption clause”– no doubt the direct result of the more than 75,000 public submissions (many from the religious community) received on the previous version of the Bill!

However, as previously explained, even with the inclusion of the “religious exemption clause”, we are not out of the woods yet! The revised Bill still poses a serious threat to the religious community, particularly since the Deputy Minister of Justice had indicated to the Portfolio Committee that the “religious exemption clause” would probably only protect speech from the pulpit – not speech by individuals.

In the circumstances, and so as to ensure that both individuals and religious organisations’ constitutional right to freedom of (religious) expression is protected by the Bill, FOR SA recommended to Parliament that the “religious exemption clause” be strengthened. (For a copy of FOR SA’s submission on the revised Bill, click here).

In summary, although this draft of the Bill was a big improvement on the previous version, the Bill still poses a serious threat to freedom of speech which is the bedrock of a truly democratic society. FOR SA will continue to monitor the Bill’s progress through the new Parliament and alert the religious community to any causes for concern and/or action.

 

Daniela is a duly qualified Attorney of the High Court of South Africa. She obtained a BCom LLB degree from Rhodes University. Daniela first worked for Médecins sans Frontières before completing her articles of clerkship at G van Zyl Attorneys, where she stayed on after being admitted as an attorney and practised, specialising in litigation. Daniela has loved Jesus since she was young and is a member of a local church in Cape Town where she is actively involved.

 


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