The Prevention and Combating of Hate Crimes and Hate Speech Bill was tabled in Parliament in March this year to include several changes since the Bill’s introduction in 2016.
The Hate Speech Bill has come under fire by the public since its revised introduction. The primary cause is the large number of characteristics which are now covered under the “hate speech” blanket.
Under the new laws, hate speech is defined as the clear intention to be harmful or to incite harm, or to promote or propagate hatred on the basis of these characteristics, including:
– Ethnic or social origin
– Gender or gender identity
– HIV status
– Migrant or refugee status
– Sex (which includes intersex or sexual orientation)
In a 2017 analysis of the earlier version of the Bill, The Free Market Foundation (FMF) stated that the Constitution allows for the protection of only four specified characteristics, which includes race, ethnicity, gender and religion, while the Bill protects seventeen characteristics (listed above).
This led to a number of civil society groups cautioning that even petty insults could lead to trouble with the law.
According to Martin van Staden, legal researcher at the FMF, the broad nature of the legislation could mean that one could be arrested for insulting someone with the intention to bring them to contempt.
This proved to be true in the case of Vicki Momberg, who was sentenced to two years in prison for a racist rant.
Momberg was convicted of crimen injura after lashing out at a black police officer who had assisted her following an alleged smash-and-grab incident in Johannesburg. The video clip went viral, with Momberg using the k-word 48 times and ranting about the “calibre of blacks” in Johannesburg.
The latest version of the Bill, which was tabled in Parliament last week, will now include a section of scenarios where the hate speech rules do not apply.
– Any bona fide artistic creativity, performance or any other form of expression to the extent that such creativity, performance or expression does not advocate hatred that constitutes incitement to cause harm
– Any academic or scientific inquiry
– Fair and accurate reporting or commentary in the public interest or in the publication of any information, commentary, advertisement or notice, in accordance with section 16(1) of the Constitution
– The bona fide interpretation and proselytising or espousing of any religious belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm.
While the changes made are likely to be welcomed, as they now offer protection to those acting under good faith, additional tests as to what does or does not qualify as ‘hate speech’ are also likely to greatly complicate the offense.
This is important, as someone who assumed that they had protection and said things in good faith, could still face severe punishments should they be found guilty of the offence of hate speech. This includes a fine and imprisonment not exceeding three years for first-time offenders, and a fine or imprisonment for a period not exceeding five years for any subsequent offences.