By Adv Nadene Badenhorst, Legal Counsel of FOR SA

On 28 August, the Parliamentary Portfolio Committee for Justice and Constitutional Development published the latest version of the controversial Prevention and Combating of Hate Crimes and Hate Speech Bill for public comment by 14 September. (Following publication, FOR SA immediately wrote to the Committee to object to the short timeline and ask for an extension). A mere three days later however, the call for comments was withdrawn in circumstances where the new Committee Chair is currently facing charges of corruption.

It is anticipated however that the Bill could shortly be published for comment again. Hopefully, this time, a sufficient period will be given for the public to be properly informed of the content and to have the opportunity to make representations.  This is particularly important as this is a far-reaching Bill which criminalises certain forms of speech, with the potential of a three-year jail sentence for saying something which could potentially be regarded as “hateful” or “harmful” towards certain people.

The original draft of the Bill was so controversial that the government received more than 75,000+ submissions – including many from religious organisations and people who were concerned that the Bill could be used to silence people of faith for saying things that could be regarded as “offensive” or “politically incorrect”. This has happened in many other countries where “hate speech” laws have been passed.

Against this background, FOR SA has worked very hard to advocate for the inclusion of a “religious exemption clause” that would exclude bona fide religious speech. We are pleased that the revised draft does include such a clause. However, we remain concerned at the statement by the Deputy Minister of Justice during a Parliamentary briefing recently that such clause would probably only protect speech from the pulpit – not speech by individuals. (In this regard, see

The revised Bill (published on 28 August) also contained a much narrower definition of “hate speech” than the one in the original draft of the Bill. While the revised definition is certainly an improvement, the concern remains that the Bill unnecessarily and unjustifiably violates freedom of speech (including religious speech) – particularly since existing legislation already prohibits and deals with unacceptable forms of speech.

In summary, this Bill still poses a serious threat to freedom of speech, which is the bedrock of a truly democratic society.  We will therefore need to (again) make our voices heard on this very controversial and dangerous Bill when it is published for comment.  As soon as it is officially released, FOR SA will be analysing the revised Bill and publishing our own comments, together with a pro forma submission shortly thereafter which may be used by anyone to help formulate their own submission or objection. Please be sure to follow our website ( for updates in this matter.

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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