Cabinet Considers Proposed Hate Crimes and Hate Speech Bill

by Daniela Ellerbeck
14 March 2018

By Adv Nadene Badenhorst, Legal Counsel of FOR SA

It has come to our attention that the controversial draft Prevention and Combating of Hate Crimes and Hate Speech Bill will be tabled before Cabinet on Wednesday, 14 March.

This Bill was initially published in the Government Gazette in October 2016, with the public given five weeks only to respond. At the request of FOR SA and others, the timeline was extended by a further month, which many still felt was inadequate. However, following the apparent initial urgency on the part of the Department of Justice and Constitutional Development with regard to the Bill, it was then seemingly placed on the back-burner. For more than a year, nothing further was said about it until earlier this month when the Minister of Arts and Culture unexpectedly announced at the recent Anti-Racism Week in Johannesburg that the Bill will be tabled before Parliament soon.

FOR SA subsequently wrote various e-mails to the office of the Deputy Minister of Justice, and also the Minister of Arts and Culture, requesting urgent information on the status and anticipated timelines of the Bill as well as to obtain a copy of the most recent version. However, to date we have had no response.

The Department of Justice’s website is also of no assistance either, and still only displays the original version of the Bill as first published in the Government Gazette in October 2016. In the circumstances, it is impossible to say whether any amendments have been made to the Bill following the 76,000+ submissions received by the Department in respect of this Bill now more than a year ago.

As previously reported, FOR SA made substantive submissions on the Bill, particularly focusing on the highly contentious “hate speech” provisions which are over-broad and for this reason pose a severe threat to freedom of religion and freedom of religious expression. (In this regard, see

FOR SA also met personally with the Deputy Minister of Justice, John Jeffery MP, to share our concerns. On this occasion, the Minister said that he would invite us to participate in the redraft of the Bill, which he acknowledged (at least in so far as the hate speech provisions are concerned) were over-broad and would have to be redrafted. This acknowledgment was repeated during the meeting with religious leaders at the FOR SA “Road Show” in Cape Town in February 2017 (as well as at a subsequent meeting in East London). At these meetings, the Minister explained the objectives of the Bill and assured religious leaders that they should have the freedom to preach the Scriptures without fear of adverse consequences.

Despite these undertakings, and despite various e-mails sent by FOR SA to the Minister’s office during the course of 2017 to enquire regarding the status of the Bill and any new developments, FOR SA has not been informed or invited to participate in any further discussions regarding proposed amendments to the Bill, which is unfortunate. We will continue to contact the Minister’s office, and also engage other Members of Parliament, with regard to this issue of great concern and pertinence to the religious community in South Africa, many of whom made submissions themselves in respect of the Bill.

In terms of further process, assuming the Bill is approved by Cabinet, it will be referred to the Parliamentary Portfolio Committee of Justice and Constitutional Development. They will then invite further public input with regard to the Bill. Nevertheless, the lack of transparency with regard to the content of (and the process surrounding) this Bill is hugely problematic and concerning, particularly in light of the far-reaching (and potentially criminal) consequences for the freedom of speech of all South Africans. In terms of the original draft of the Bill, the penalty for “hate speech” is a fine or 3 years’ jail time for a first offence, and 10 years for a repeated offence.

FOR SA will be closely monitoring developments and will analyse the “revised draft” as soon as it is made available with a view to alerting the religious community in particular in the event that our sincere and substantive concerns have not been heeded. We are all too aware that similar legislation is being used to devastating effect in other nations where religious freedom once flourished. FOR SA is therefore committed to doing everything possible to ensure that this does not happen in South Africa.

Having obtained a BA LLB degree from the University of Stellenbosch, Nadene was awarded a scholarship to study a LL M degree in International Human Rights Law at the University of Essex, United Kingdom which she obtained cum laude.

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