“Religious Exemption” Clause Included in Revised “Hate Speech” Bill

by Daniela Ellerbeck
20 March 2018

By Adv Nadene Badenhorst, Legal Counsel of FOR SA

The revised Prevention and Combating of Hate Crimes and Hate Speech Bill has been referred to Parliament following approval of the Bill by Cabinet last week Wednesday.  The Bill will now go through the normal parliamentary legislative process, including (re-)publication in the Government Gazette for public comment and hearings which may result in further amendments before the Bill is tabled in the National Assembly for adoption.

While we have not yet had sight of the revised Bill which is not yet in the public domain, the Department of Justice and Constitutional Development (in a media release issued on Thursday, 15 March) confirmed that “most of the concerns around the previous draft of the Bill have indeed been addressed and thus the revised Bill which was approved by Cabinet … is considerably different from the earlier Bill that was made available for public comments.”  In particular, the media release confirmed that the revised Bill:

  • Defines “hate speech” more narrowly and requires “a clear intention to be harmful or to incite harm or promote or propagate hatred on the basis of age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, race, religion, or sex (which includes intersex or sexual orientation)”.
  • Contains a “religious exemption” clause as advocated for by Freedom of Religion South Africa (FOR SA) and other religious organisations. According to the media release, “the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm” is excluded from the ambit of “hate speech”.

These are certainly positive developments for which we are grateful, and a testimony to the difference that can be made when the religious community in South Africa unites around issues that are of importance to them.

However, the revised Bill (including the “religious exemptions” clause which it now contains) is by no means a done deal and changes (including deletions) can possibly be made as a result of the further process that will now kick in, as explained above.

In the circumstances, it is VITALLY IMPORTANT that all religious organisations and individuals who made submissions in respect of the first Bill (published in October 2016) AGAIN make submissions in respect of the revised Bill at the appropriate time when comments on the Bill are invited, in order to “secure” what has been gained and comment (challenge) the clauses that remain problematic.

As soon as the revised Bill becomes available, FOR SA will publish same on its website together with comments on the content thereof, to guide and assist religious organisations in making submissions on the revised Bill. 

Nadene is an Advocate, and practised as a member of the Cape Bar for a number of years. She holds both a BA LLB degree from the University of Stellenbosch and a LLM degree in International Human Rights Law (cum laude) from the University of Essex. She currently serves as a Next Generation Board Member on the Advocates Africa Board, representing Southern Africa.

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