Tipping the Scales: Balancing the right to equality and religious freedom in South Africa

by Daniela Ellerbeck
7 December 2016

by Guest Author Kelly Stone

In October 2016, Parliament released the latest draft of the Prevention and Combatting of Hate Crimes and Hate Speech Bill (“the Bill”) for public comment. The Bill, which has been ten years in the making, creates a separate category of criminal offences for incidents of hate crime and hate speech, and provides a series of punishments for anyone convicted thereunder, ranging from monetary fines to periods of imprisonment (up to three years for a first offence, and ten years for a repeated offence).

Despite initial praise for the Bill, human rights activists, including members of the Hate Crimes Working Group (HCWG), (the group designated to provide expert advice to the Department of Justice and Constitutional Development), have expressed concerns over the Bill’s criminalisation of hate speech and its potential infringement on the right to freedom of expression. Although the Bill poses threats to other constitutional rights, including the right freedom of religion, belief and opinion, as well as the right of cultural, religious and linguistic communities to enjoy their culture, practice their religion and use their own language, these concerns have remained largely absent from the current political debate. The failure by government to consider the impact of this legislation on peoples’ cultural and religious rights is fairly alarming.

It is worth noting that earlier versions of the Bill did not cover hate speech because it was understood that existing law, such as the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA or “the Equality Act”), was adequate because it provided a civil remedy for victims of hate speech. However, in response to growing levels of racism on various social media platforms, most namely Penny Sparrow’s inhumane comments about black beachgoers being ‘monkeys’, the Department of Justice made a unilateral decision and extended the ambit of the law to provide a criminal offence for hate speech. The Department, during the Annual General Meeting of the HCWG in March 2016, expressed confidence that the newly amended Bill would address “some of the vitriolic comments we so often see on social media and online”, although many members of the HCWG had not supported criminalisation, and were surprised to find the provisions for hate speech in the final version of the Bill.

The intention behind the Bill may mean well, however, the current draft is deeply problematic because it uses vague and overly broad phrases to define key terms, which makes it difficult to determine what acts constitute as ‘hate crimes’ and ‘hate speech’. For example, section 4 of the Bill deals with the offence of hate speech, and prohibits any form of communication that is intended ‘to stir up violence, or bring into contempt, or to ridicule‘ any person or group of persons. The Bill defines communication as ‘any gesture; display; expression; written, illustrated, visual or other descriptive matter; oral statement; representation or reference; or an electronic communication’, which means that it can be interpreted to include actions outside the spoken or written word. Further, the Bill provides no direction about the type of actions that would ‘stir up violence’, ‘bring into contempt’, or ‘ridicule’, which opens the door for backlash against cultural and religious communities that do not condone abortion, euthanasia, pre-marital sex, acts of homosexuality, and sex work, amongst others. On the other hand, the Bill has the potential to backlash against the human rights activists for failing to protect their right to culture and religious freedom.

One of the biggest challenges of living in an open and democratic society is co-existing with people who we do not understand and with whom we do not agree. Our constitutional rights provide us with the freedom to truly express ourselves, to openly participate in political processes, and to practice the culture and religion of our choosing. However, the same rights that provide us with such freedoms demand, in turn, that we provide those freedoms to all other people, regardless of what our opinions or beliefs may be.

*The deadline for comments on the Bill has been extended to 31 January 2017. Comments can be submitted to [email protected]


Kelly Stone is a Research and Project Officer at the African Policing Civilian Oversight Forum (APCOF) in Cape Town, South Africa. Prior to joining APCOF, Kelly worked as a research associate for the South African Human Rights Commission, and as a legal fellow at the Women’s Legal Centre in Cape Town. Kelly received her Doctor of Jurisprudence (J.D.) from Suffolk University Law School in 2012, and her Bachelor of Arts (B.A.) in sociology and philosophy from Boston College in 2006.

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