8 September 2022


08 September 2022

For immediate distribution


Parliament & DOJ meet on Hate Speech Bill:
On Wednesday, 7 September 2022, the Department of Justice (“the DOJ”) briefed Parliament with a summary of their responses to the 100,000 plus public comments sent into Parliament last year on the Prevention and Combating of Hate Crimes and Hate Speech Bill (“the Hate Speech Bill”).  They also provided Parliament with a new version of the Bill, which continues to define hate speech widely and then criminalises it, with a three-year jail sentence for a first offence and a five-year jail sentence for a second offence. 

In what seems to be a regression to the criminalisation of speech under apartheid, our State seems determined to press forward with this chilling piece of legislation,” said Michael Swain, Executive Director of Freedom of Religion South Africa (FOR SA).

FOR SA attended this meeting and have now studied the new Bill”, says Swain. “It is clear that the amendments proposed by a broad spectrum of religious organisations and members of the faith communities to strengthen the religious exemption clause to ensure that both individual’s and organisation’s public or private expressions of faith are not criminalised, have been completely marginalised and ignored.

Massive public outcry:
Despite only being given 30 days last year to comment on this Bill, the level of public concern about this Bill was exceptional, evidenced by the fact that over 100,000 individual members of the public made written submissions.

Crime of Hate Speech overbroad:
A primary concern is that the current definition of hate speech in this Bill criminalises speech that can cause any emotional, psychological, physical, social, cultural or economic harm that severely undermines the human dignity of the individual or group that the speech is targeted against; and promotes or propagates hatred against them. The fact that the Bill has been changed to require both elements to be present simultaneously is an improvement, but it remains deeply flawed.  The first part is an over-broad definition of harm which goes much wider than what the Constitutional Court held harm to be defined as in relation to the civil offence of hate speech last year. The second part is problematic because the Bill fails to define what promotes or propagates hatred means.

 This vague and overbroad definition of hate speech is deeply problematic, but it is made worse by the Bill listing 23 criminally actionable grounds, some of which are highly controversial such as sexual orientation, gender identity or expression and sex characteristics, all of which are also undefined in the Bill,” says Swain.

Easier to go to jail than to apologise:
The effect of the Bill is that it would be more difficult to be found to guilty of the civil offence of hate speech under the Equality Act/PEPUDA, and ordered to apologise, than to be found guilty of the crime of hate speech and sent to jail for three years.

This is especially concerning given that the Bill also criminalises the distribution and display of “hate speech”, while only providing narrow grounds for exemption that do not seem to provide strong enough protection for artists, academics, journalists or religious people.

Religious freedom concerns:
The concern is that this Bill in its current form can potentially be weaponised to target, arrest, prosecute and even imprison people of faith, simply for professing traditional views that are no longer politically correct”, said Swain, “This has been the case in several European nations where similar hate speech legislation is in force”.

Although (and only after significant levels of protest) the DOJ included a so-called “religious exemption clause” in an earlier version of this Bill, Deputy Minister John Jeffery is on record stating that in his view this would only protect a pastor, imam, rabbi or priest making a bona fide statement based upon their faith tenets if it was part of the sermon, but that if it was someone expressing their own view, then it would be hate speech.

FOR SA made a substantive 43-page submission to Parliament, representing over 6 million people from the religious communities, which highlighted these concerns and proposed alternatives and amendments, which we further confirmed in an oral presentation to Parliament earlier this year.  These seem to have been completely ignored,” said Swain, “Why is this Parliament – and the Department of Justice in particular – failing to take into account and reasonably accommodate the democratically expressed concerns of so many people of faith?”

Process going forward:
The process is now moving forward rapidly. Parliament’s Justice Portfolio Committee will start working on the Bill this coming Friday, 9 September 2022, and should it pass the Bill, it will then move on to the National Council of Provinces.

FOR SA will closely monitor the process,” said Swain, “We and our constituency remain fully opposed to this chilling piece of legislation, which represents an immediate and severe threat to our constitutional right to religious freedom.”


For more information, contact:
Daniela Ellerbeck
Legal Advisor, FOR SA
Email: [email protected]
Tel: 021 556 5502

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