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SUBMISSION ON THE PREVENTION AND COMBATING OF HATE CRIMES AND

HATE SPEECH BILL


Introduction 2
Jurisprudential Context 2
Proposed Offence of Hate Speech 4
Constitutional Scrutiny 5
Limitations Analysis of the Bill 8
Nature of the Right 8
Truth 9
Democracy 9
Agency 10
Tolerance 10
Nature and Extent of the Limitation 11
Constitutional Thresholds 11
Listed Grounds 13
Criminal Sanction 14
Crime of Reporting 14
Censorship 16
Prosecutorial Discretion 16
Examples of Speech Prohibited by the Bill 17
Relation Between the Limitation and its Purpose 18
Less Restrictive Means 19
Recommendations 19
Conclusion 20
Bibliography 22
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Introduction
Afriforum, while in no sense abandoning its commitment to free speech,
unreservedly accepts that communications should be prohibited if vulnerable
groups in society suffer or are likely to suffer demonstrable harm in
consequence. Vulnerable groups are entitled to protection from people who
incite harm and violence against them by means of hateful language. No
society can tolerate hate speech, and none defends such speech by invoking
the right to free expression.

Afriforum believes, however, that the proposed Bill fails to strike the proper
balance between what should and should not be tolerated as legitimate
expression. The Bill casts its net too wide and criminalizes speech, distasteful
though it may be, that our society should be willing to treat as permissible.

As a matter of social policy, this is manifestly undesirable since the freedom to


speak out is integral to personal conceptions of dignity and vital to the
interchange of ideas on which the development of every society depends. But
the problem does not stop there. Under our constitution, which entrenches
freedom of expression as a basic right, an exception is properly made for hate
speech but its scope is limited. The Bill, being over-broad, travels well beyond
the exception and is, as a result, vulnerable to constitutional challenge. Such
a challenge, far from being unlikely, will certainly be mounted as soon as the
enactment is invoked.

The jurisprudential context

Jurisdictions throughout the world take extensive steps to outlaw hate speech.
Their proscriptions range in scope and content. Some of the proscriptions are
narrow; in the United States of America, for instance, the established test is that
speech of this nature, however objectionable, is legally permissible provided it
entails no incitement to actual or imminent violence (the so-called clear and
present danger test. But most countries opt for a wider prohibition that, while
favouring a presumption of legitimacy, balances the harm against the good
in one way or another.
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The broader approach derives its inspiration from international conventions


and similar instruments that deal with the topic. The International Covenant on
Civil and Political Rights (1976), ratified by South Africa in 1998, provides in
Article 20(2) that; Any advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence shall be prohibited
by law. In a comparable provision (Article 4), the International Covenant on
the Elimination of All Forms of Racial Discrimination requires signatories (South
Africa is one) to declare an offence punishable by law all dissemination of
ideas based on racial superiority or hatred, incitement to racial discrimination,
as well as all acts of violence or incitement to such acts against any race or
group of persons of another colour or ethnic origin, and also the provision of
any assistance to racist activities, including the financing thereof. In the
European Union, the Court of Human Rights, while constantly emphasizing the
importance of freedom of expression has consistently denied protection to
racist, xenophobic or anti-Semitic speech; statements denying, disputing,
minimizing or condoning the Holocaust; and neo Nazi ideas.1

In 2000 South Africa enacted legislation to outlaw hate speech in the manner
legitimated by the constitutional framework. Section10 (1) of PEPUDA2, the
statute states that no person may publish, propagate, advocate or
communicate words based on one or more of the prohibited grounds, against
any person, that could reasonably be construed to demonstrate a clear
intention to- (a) be hurtful; (b) be harmful or to incite harm; (c) promote or
propagate hatred. Prohibited grounds are defined in s 1 to encompass
virtually every form of systemic discrimination - that is, (a) race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual orientation,
age, disability, religion, conscience, belief, culture, language and birth; or (b)
any other ground where discrimination based on that other ground (i) causes
or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii)

1
T McGonagle Council of Europe Strategies for Countering hate Speech in M Herz and P Molnar The Content
and Context of Hate Speech (2012) 461.
2
Promotion of Equality And Prevention of Unfair Discrimination Act.
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adversely affects the equal enjoyment of a person's rights and freedoms in a


serious manner that is comparable to discrimination on a ground in paragraph
(a).

These provisions are broad so broad, in fact, that they are regarded by many
commentators as unconstitutional. In the light of this, it is hard to know why a
further enactment is regarded as desirable. It is true that PEPUDA is purely civil
in form but, if this were thought to be a shortcoming, it would require little effort
to introduce a criminal sanction into the statute. The same is true of the
provisions in the Bill that enlarge the scope of the protection against hate
speech. There is, no doubt, some political mileage to be gained from piling
one anti-discrimination statute upon another but, beyond that, it is difficult to
discern the considerations of policy that propel the creation of this wholly novel
enactment.

Proposed Offence of Hate Speech

Section 4 of the states that:

(1) (a) Any person who intentionally, by means of any communication


whatsoever, communicates to one or more persons in a manner that

(i) advocates hatred towards any other person or group of


persons; or

(ii) is threatening, abusive or insulting towards any other person or


group of persons, and which demonstrates a clear intention,
having regard to all the circumstances, to

(aa) incite others to harm any person or group of persons,


whether such person or group of persons is harmed; or

(bb) stir up violence against, or bring into contempt or


ridicule, any person or group of persons, based on race,
gender, sex, which includes intersex, ethnic or social origin,
colour, sexual orientation, religion, belief, culture, language,
birth, disability, HIV status, nationality, gender identity,
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albinism or occupation or trade, is guilty of the offence of


hate speech.

Constitutional scrutiny

Legislation to be valid must survive scrutiny under our constitution and this will
be no less true of the Bill should it be made law. The constitution creates a
protection for freedom of expression by clause 16(1), which states: Everyone
has the right to freedom of expression, which includes (a) freedom of the
press and other media; (b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and (d) academic freedom and freedom of
scientific research.

The importance of freedom of expression has been recognized by our


Constitutional Court. It has described freedom of expression as the lifeblood
of an open and democratic society cherished by our Constitution3.

In Mandela v Falati, the court proclaimed that In a free society all freedoms
are important, but they are not equally important. Political philosophers are
agreed about the primacy of the freedom of speech. It is the freedom upon
which all the other freedoms depend; it is the freedom without which the others
would not long endure.4

In South African National Defence Union v Minister of Defence & Another the
Constitutional Court held that:
[Freedom of expression] lies at the heart of a democracy. It is valuable for
many reasons, including its instrumental function as a guarantor of
democracy, its implicit recognition and protection of the moral agency of
individuals in our society and its facilitation of the search for truth by
individuals and society generally. The Constitution recognises that individuals
in our society need to be able to hear, form and express opinions and views
freely on a wide range of matters. 5

3 Dikoko v Mokhatla 2006 (6) SA 235 (CC), at para 92.


4
1995 (1) SA 251 (W), at 259
5 1999 (4) SA 469 (CC), at para 7.
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Freedom of expression, important though it undeniably is, cannot be unlimited


in scope. So much is recognized even in the jurisdiction of the United States,
which arguably treats it most generously. As Justice Homes famously said in
Schenk v US,6 considerations of freedom of expression give no licence to shout
fire in a crowded theatre and thereby cause panic. In clause 16(2) of our
constitution, the lawgiver has gone out of its way to specify the legitimate
bounds of freedom of expression. The provision carves out, as exceptions: (a)
propaganda for war; (b) incitement of imminent violence; or (c) advocacy of
hatred that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.

The limitation, we should observe, is narrowly drawn. Within the present context
(ie para (c) above), it is triggered only when (1) the communication fosters
inter-group hostility (2) on grounds (circumscribed in nature as they are) of
race, ethnicity, gender or religion (3) in order to incite the recipients to cause
harm.

In Islamic Unity Convention v Independent Broadcasting Authority and Others


the constitutional court commented on exception with which we are
concerned (hate speech see para (c)) in the following terms.

Section 16(2)(c) is directed at what is commonly referred to as hate speech.


What is not protected by the Constitution is expression or speech that
amounts to 'advocacy of hatred' that is based on one or other of the listed
grounds, namely race, ethnicity, gender or religion and which amounts to
'incitement to cause harm'. There is no doubt that the State has a particular
interest in regulating this type of expression because of the harm it may pose
to the constitutionally mandated objective of building the non-racial and
non-sexist society based on human dignity and the achievement of equality.
There is accordingly no bar to the enactment of legislation that prohibits such
expression. Any regulation of expression that falls within the categories
enumerated in s 16(2) would not be a limitation of the right in s 16.

Where the State extends the scope of regulation beyond expression


envisaged in s 16(2), it encroaches on the terrain of protected expression and

6
249 US 47 (1919)
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can do so only if such regulation meets the justification criteria in s 36(1) of

the Constitution.7

In the same vein is Phillips & another v Director of Public Prosecutions, where
the court held that:

Under the new constitutional dispensation in this country, expressive activity


is prima facie protected, no matter how repulsive, degrading, offensive or
unacceptable society, or the majority of society, might consider it to be. In
other words, expressive activities cannot be excluded from the scope of the
freedom guaranteed by s 16(1) of the Constitution on the basis of the content
or meaning being conveyed. 8

Reconciling the right and the limitation entails a process of balancing. So much
was made clear in the principled discussion of the process in the constitutional
court case of S v Makwanyane:
The limitation of fundamental rights for a purpose that is reasonable and
necessary in a democratic society involves the weighing up of competing
values, and ultimately an assessment based on proportionality. This is implicit
in the provisions of section 33(1) [Now S 36]. The fact that different rights have
different implications for democracy, and in the case of our Constitution, for
an 'open and democratic society based on freedom and equality', means
that there is no absolute standard which can be laid down for determining
reasonableness and necessity. Principles can be established, but the
application of those principles to particular circumstances can only be done
on a case by case basis. This is inherent in the requirement of proportionality,
which calls for the balancing of different interests. In the balancing process,
the relevant considerations will include the nature of the right that is limited,
and its importance to an open and democratic society based on freedom
and equality; the purpose for which the right is limited, and the importance
of that purpose to such a society; the extent of the limitation, its efficacy, and
particularly where the limitation has to be necessary, whether the desired
ends could reasonably be achieved through other means less damaging to
the right in question.9

7 2002 (4) SA 294 (CC), at paras 33-34


8 Phillips and Another v Director of Public Prosecutions (Witwatersrand Local Division) and
Others 2002 (5) SA 549 (W)at 554
9 1995 (3) SA 391 (CC), at para 149
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In S v Bhulwana it was held that:


The Court places the purpose, effects and importance of the infringing
legislation on one side of the scales and the nature and effect of the
infringement caused by the legislation on the other. The more substantial the
inroad into fundamental rights, the more persuasive the grounds of
justification must be.10

Limitations Analysis of the Bill

Nature of the Right

To be constitutional, the Bill must fall within the bounds created by this
exception. Compliance with the exception is, of course, a precondition in the
process of considering whether the Bill is acceptable; if there is no compliance,
it makes no difference what public interests are served by the Bill; once the Bill
is shown to be compliant, on the other hand, public policy does become
relevant in determining whether the proposed law should be enacted and
how it should be construed. In short, the exception embodied in the
constitution operates as a necessary, but not sufficient, condition in
determining the aptness of the enactment.

Within the context of public policy, there are four main reasons why freedom
of expression is so valuable. First, it aids us in the search for truth. Second, it is
vital for the functioning of a democracy. Third, it enhances moral agency.
Fourth, it instils tolerance.

Truth
Allowing the free dissemination of beliefs, opinions and other forms of
expression brings immense benefits. It allows for intellectual, cultural, and
scientific progress whilst provoking discussion and aiding the search for truth.
Since we are fallible we cannot know with certainty that a particular opinion is
false. When we suppress opinions that are believed to be false we risk missing

10 1996 (1) SA 388 (CC), at para 18


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out on the truth.11 By stifling beliefs that are different from our own we lose the
opportunity to challenge, reconsider and perhaps reaffirm our own views.12

In S v Mamabolo the court held that:


Freedom of expression, especially when gauged in conjunction with its
accompanying fundamental freedoms, is of the utmost importance in the
kind of open and democratic society the Constitution has set as our
aspirational norm. Having regard to our recent past of thought control,
censorship and enforced conformity to governmental theories, freedom of
expression the free and open exchange of ideas is no less important
than it is in the United States of America. It could actually be contended with
much force that the public interest in the open market-place of ideas is all
the more important to us in this country because our democracy is not yet
firmly established and must feel its way. Therefore we should be particularly
astute to outlaw any form of thought control, however respectably dressed.13

Democracy
Freedom of expression is the cornerstone of a functioning democratic state. It
gives people the opportunity to be exposed to differing viewpoints to make
informed and legitimate decisions about their political and private lives.14

As O'Regan J stated in Khumalo: without [freedom of expression], the ability


of citizens to make responsible political decisions and to participate effectively
in public life would be stifled.15

Agency
The eminent legal philosopher Ronald Dworkin wrote that:
Morally responsible people insist on making up their own minds about what is
good or bad in life or in politics, or what is true or false in matters of justice
and faith. Government insults its citizens, and denies their moral responsibility,
when it decrees that they cannot be trusted to hear opinions that might

11 Denise Meyerson, Rights Limited: Freedom of Expression, Religion and the South African
Constitution, at 78
12 Jonathon Wolff, An Introduction to Political Philosophy, (Oxford University Press, 1996), at

118
13 S v Mamabolo (E TV, Business Day and the Freedom of Expression Institute Intervening) 2001

(3) SA 409 (CC), at para 37


14 J De Waal et al, Bill of Rights Handbook, (Juta, 2001), at 310
15 Khumalo & Others v Holomisa 2002 (5) SA 401 (CC), at para 21.
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persuade them to dangerous or offensive convictions. We retain our dignity,


as individuals, only by insisting that no one no official and no majority
has the right to withhold an opinion from us on the ground that we are not fit
to hear and consider it.16

When people are exposed to a range of conflicting opinions on a subject they


are given the opportunity to exercise their rational faculties, weigh up the
arguments on both sides and come to form their own view on the matter.

If citizens are under the impression that the media they are exposed to has
gone through a filtering process to remove all inappropriate forms of
expression, then they are less likely to be critical of the material that they
consume. Societies that allow for a broad selection of opinions create an
environment that strengthens peoples analytical skills and trains them to
question the views that are presented to them.17

Tolerance
In South African National Defence Union v Minister of Defence & Another the
Constitutional Court held that:
The corollary of freedom of expression and its related rights is tolerance by
society of different views. Tolerance, of course, does not require approbation
of a particular view. In essence, it requires the acceptance of the public
airing of disagreements and the refusal to silence unpopular views. 18

In her seminal paper on the dangers of suppressing racist speech, Denise


Meyerson wrote that:

To drive an evil view underground can actually increase its strength; whereas
to debate it out in the open is more likely to bring home its abhorrent nature.
It is precisely those who, after all, believe there is a truth about the
awfulness of racism, who should be optimistic about the power of debate
and argument to demonstrate that truth. They came to their views by reason,

16 Ronald Dworkin, Freedom's Law: The Moral Reading of the America Constitution (1996), at
200
17 Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Womens

Rights, at 263
18 South African National Defence Union v Minister of Defence & Another 1999 (4) SA 469

(CC), at para 8.
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and since they do not believe themselves to be intellectually superior, should


trust in reason rather than the police force as the better weapon against
falsehood.

It is only too easy for censorship laws to be put to different uses from those
originally intended and if we are happy for them to be deployed in one way,
we make it much easier for them to be deployed in other, more frightening,
ways later. And a final consideration here is that, to the extent that racial
animosities will continue to plague us, it is better to let them be played out at
the level of words rather than to bottle them up, thereby not only increasing
their virulence, but also making more likely a more dangerous kind of
discharge. Forced, as we are, to weigh up evils here, we should therefore
conclude that tolerance is more beneficial than costly.19

The Nature and Extent of The Limitation

The Bill makes massive incursions into the right of freedom of expression. First,
the thresholds that it sets for defining when hate speech occurs are too low.
Second, it criminalises the fair and accurate reporting of hate speech. Third, it
imposes prison sentences when it would be more appropriate to makes use of
restorative justice measures like apologies, community service and the
payment of compensation to affected groups.

Constitutional Thresholds: Imminent Violence, Hatred, and Incitement to Harm


S16 (2) of the Constitution makes it clear that the right to freedom of expression
does not extend to incitement of imminent violence; or advocacy of hatred
that is based on race, ethnicity, gender or religion, and that constitutes
incitement to cause harm.

The Constitution recognises that some forms of speech do not warrant


constitutional protection, but the threshold for limiting speech is set at the high-
water marks of imminent violence and harm.

19D Meyerson '''No Platform for Racists'': What Should the View of Those on the Left Be?'
(1990) 6 SAJHR 394 ('No Platform') at 397
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Advocacy of Hatred
S4(1)(a)(i) of the Bill uses the phrase advocates hatred towards any other
person or group of persons; or (ii) is threatening, abusive or insulting towards
any other person or group of persons...

The first part of the clause is in line with the Constitution but the second portion
lowers the threshold of speech below advocacy of hatred to much milder
forms of speech. This would have the effect of criminalising constitutionally
protected expression.

Violence
S4(1)(a)(ii)(bb) uses the phrase stir up violence against, or bring into contempt
or ridicule, any person or group of persons

The first part of the clause is in line with the Constitution but the second portion
lowers the threshold of consequences from violence to contempt and ridicule.

Furthermore, the clause refrains from using the term incitement, which is
required by the Constitution. The ordinary meaning of the phrase incitement to
cause harm suggests that one should not look to the harm caused by the
speech itself but rather to the impact of the speech on third parties, i.e. does
the speech encourage, stimulate or call for others to cause harm?20

Actual Harm
S4(1)(a)(ii)(aa) of the Bill uses the phrase incite others to harm any person or
group of persons, whether such person or group of persons is harmed.

In their highly-regarded commentary the authors of the Constitutional Law of


South Africa state that:
Part of what balancing means is that, while our courts acknowledge that
expression can cause harm, the fundamental value of freedom of expression
means that it can only be restricted where harm is actually caused or is likely

20D Milo, G Penfold & A Stein Freedom of Expression in S Woolman, T Roux, J Klaaren, A
Stein, M Chaskalson & M Bishop (eds) Constitutional Law of South Africa Chapter 42, at page
82.
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to occur. Mere speculation of harm is insufficient to warrant overriding this


fundamental right.21

Criminal sanctions should only be placed on speech that actually results


in harm. In cases where a speaker is attempting to incite harm against
others, but that harm has not actually resulted, it would be more
appropriate to interdict their speech.

Listed Grounds
The authors of the Constitutional Law of South Africa state that:
S16(2) does not cover all forms of hate speech, but only those that are based
on the specified grounds of race, ethnicity, gender or religion. [It] does not,
therefore, include hate speech based on analogous grounds such as
homophobic speech.22

S4(1)(a)(ii)(bb) of the Bill lists the grounds specified in S16(2)(c) of the


Constitution, but then goes on to add sex, which includes intersex,
social origin, colour, sexual orientation, belief, culture, language, birth,
disability, HIV status, nationality, gender identity, albinism or occupation
or trade.

The Constitution limits the specified grounds to race, ethnicity, gender


and religion. Further grounds are listed in the equality clause, which
supports the view that the Constitution deliberately limits hate speech
to the four listed grounds. To add the further grounds, without infringing
on the right to free speech, the Bill can be appropriately modified by
including them under the correct threshold.

21 Constitutional Law of South Africa Chapter 42, at page 12.


22 Constitutional Law of South Africa Chapter 42, at page 81.
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Criminal Sanction
The Bill creates the following criminal sanction:

S 6(3) Any person who is convicted of an offence referred to in section 4 is


liable, in the case of

(a) a first conviction, to a fine or to imprisonment for a period not exceeding


three years, or to both such fine and imprisonment; and

(b) any subsequent conviction, to a fine or to imprisonment for a period not


exceeding 10 years, or to both such fine and imprisonment.

The chilling effect on speech, caused by the Bill, would be enormous since the
risk of being imprisoned, would deter people from expressing anything that
could result in a criminal sanction. The overly broad definition of hate speech
would deter robust discussions about politics, art, and current events. Satirists
and stand-up comedians would live in constant fear of punishment.

Furthermore, the process of defending oneself in court places a financial


burden on the accused, even in cases where the accused wins the case, the
legal costs involved in fighting a case can be crippling.23

Crime of Reporting
The Bill contains a clause that has the effect of criminalising the reporting of
hate speech uttered by others.

S4 (b) Any person who intentionally distributes or makes available an


electronic communication which constitutes hate speech as contemplated
in paragraph (a), through an electronic communications system which is

(I) accessible by any member of the public; or

(ii) accessible by or directed at a specific person who can be a victim of


hate speech, is guilty of an offence.

(c) Any person who intentionally, in any manner whatsoever, displays any
material or makes available any material which is capable of being
communicated and which constitutes hate speech as contemplated in

23Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Womens
Rights, at 67-8
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paragraph (a), which is accessible by or directed at a specific person who


can be a victim of hate speech, is guilty of an offence.

In Holomisa v Argus Newspapers Ltd the court held that:


In a system of democracy dedicated to openness and accountability, as
ours is, the especially important role of the media, both publicly and privately
owned, must in my view be recognised. The success of our constitutional
venture depends upon robust criticism of the exercise of power. This requires
alert and critical citizens. But strong and independent newspapers, journals
and broadcast media are needed also, if those criticisms are to be
effectively voiced, and if they are to be informed with the factual content
and critical perspectives that investigative journalism may provide. 24

In the Khumalo case the court held that:


The print, broadcast and electronic media have a particular role in the
protection of freedom of expression in our society. Every citizen has the right
to freedom of the press and the media and the right to receive information
and ideas. The media are key agents in ensuring that these aspects of the
right to freedom of information are respected. The ability of each citizen to
be a responsible and effective member of our society depends upon the
manner in which the media carry out their constitutional mandate. As Deane
J stated in the High Court of Australia, '. . . the freedom of the citizen to
engage in significant political communication and discussion is largely
dependent upon the freedom of the media'. The media thus rely on freedom
of expression and must foster it. In this sense they are both bearers of rights
and bearers of constitutional obligations in relation to freedom of expression.

Furthermore, the media are important agents in ensuring that government is


open, responsive and accountable to the people as the founding values of
our Constitution require. . . . In a democratic society, then, the mass media
play a role of undeniable importance. They bear an obligation to provide
citizens both with information and with a platform for the exchange of ideas
which is crucial to the development of a democratic culture. As primary
agents of the dissemination of information and ideas, they are, inevitably,
extremely powerful institutions in a democracy and they have a
constitutional duty to act with vigour, courage, integrity and responsibility.

24 1996 (2) SA 588 (W), at 608-9


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The manner in which the media carry out their constitutional mandate will
have a significant impact on the development of our democratic society. If
the media are scrupulous and reliable in the performance of their
constitutional obligations, they will invigorate and strengthen our fledgling
democracy. If they vacillate in the performance of their duties, the
constitutional goals will be imperilled. The Constitution thus asserts and
protects the media in the performance of their obligations to the broader
society, principally through the provisions of s 16.25

Censorship

This section of the Bill also has the effect of punishing bookstores that stock
material about genuine hate speech. Selling books about the Holocaust or the
Rwandan genocide could result in incarnation. Even material which falls
outside the scope of the proposed definition of hate speech would not be
distributed since booksellers are unable to review all the titles that are sent to
them by publishers, so for pragmatic reasons they may have to avoid stocking
many publications that contain potentially offensive content, to avoid
imprisonment.26

Prosecutorial discretion
Section 4(3) of the Bill states that any prosecution in terms of this section must
be authorised by the Director of Public Prosecutions having authority or a
person delegated thereto by him or her.

Prosecutorial discretion has often been used to prosecute minorities and


other victims of racism, rather than to protect such victims from further insult.
In England the first individuals prosecuted under the Race Relations Act were
black power leaders, and the law has subsequently been used more
frequently to curb the speech of racial minorities and other activists, than to
limit the expression of racists. Ironically, the English statute intended to restrain
the neo-Nazi National Front has been utilised to ban expression by the Anti-
Nazi League South Africa had 'hate speech legislation' which the previous

25Khumalo & Others v Holomisa 2002 (5) SA 401 (CC), at paras 22-24
26Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Womens
Rights, at, 68
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government used to suppress legitimate political speech and to silence


political opposition.27

The Bill does not provide any guidance to the Director of Public
Prosecutions on when he should or should not authorise prosecutions in
terms of the Bill. This creates ample room for arbitrariness and would not
pass constitutional scrutiny.

Where far-reaching powers are conferred on an administrative official, the


legislature must provide clear instructions on how such powers are to be
exercised The unfettered grant of power has serious consequences for the
rule of law: a person must be able to understand the basis upon which a
decision by a government official may lawfully be taken.28

Examples of Speech Prohibited by the Bill

Insult, Contempt and Disability

27 L Johannessen 'A Critical View of the Constitutional Hate Speech Provision' (1997)
13 SAJHR 135, at page 141
28
S Woolman & H Botha Limitations in S Woolman, T Roux, J Klaaren, A Stein, M Chaskalson
& M Bishop (eds) Constitutional Law of South Africa Chapter 35, at pages 84-85.
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The cartoon is communication which is insulting towards any other person or


group of persons (Oscar Pistorius and the disabled), and which demonstrates
a clear intention, having regard to all the circumstances, to bring into
contempt, any person or group of persons, based on disability.

Threat, Ridicule and Occupation

Q: What do you call 100 lawyers at the bottom of the ocean?


A: A good start.

This lawyer joke is communication which is threatening towards any other


person or group of persons, and which demonstrates a clear intention, having
regard to all the circumstances, to bring into ridicule, any person or group of
persons, based on occupation.

Importance of the Purpose of the Limitation and the Relation Between the
Limitation and its Purpose

Two sections of the limitations clause have been combined under one heading to
discuss what the prohibition of hate speech aims to achieve and to assess whether
prohibition will achieve those aims.

One of the most powerful weapons against offensive speech is counter dialogue. The
Bill purports to protect vulnerable groups from offensive language, but it has the effect
of prohibiting speech that seeks to vilify bigotry. In this sense, it is a Bill at odds with its
purpose.
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Abuse, Contempt and Belief

The above cartoon serves as a critique of President Trumps proposed policy


of registering Muslims. It is an important tool in combating a bigoted policy.
However, the cartoon would be considered hate speech in terms of the Bill.

It is communication which is abusive towards any other person or group of


persons (Trump and his supporters), and which demonstrates a clear intention,
having regard to all the circumstances, to bring into contempt, any person or
group of persons, based on belief (the belief that Muslims should be placed
on a register).

Less Restrictive Means

It is evident that the costs of adopting the definition of hate speech proposed
by the Bill would be heavy and it is not clear that there would be any benefit
in doing so either. As Judge Barker once proclaimed to deny free speech to
engineer social change in the hope of accomplishing a greater good for one
section of our society erodes the freedoms of all.29

29 American Booksellers Association v Hudnut, 598 F Supp 1316, 1317 (D. Ind. 1984)
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Recommendations

A legitimate purpose of the Bill would be to protect people from imminent


violence and harm. This can be achieved without unduly infringing the right to
freedom of expression by using the limitations set out in S16(2) of the
Constitution to define hate speech. The following definition should be used in
place of the one currently found in S 4 of the Bill.

4. (1) (a) Any person who unlawfully and intentionally, by means of any
communication whatsoever, communicates to one or more persons in a
manner that

(i) incites imminent violence against any person or group of persons for any
reason, including reasons based on race, gender, sex, which includes intersex,
ethnic or social origin, colour, sexual orientation, religion, belief, culture,
language, birth, disability, HIV status, nationality, gender identity, individual
identity, albinism or occupation or trade, in cases where such person or group
of person actually suffers violence, is guilty of the offence of hate speech; or

(ii) advocates hatred towards any other person or group of persons based on
race, ethnicity, gender, or religion, and that constitutes incitement to harm, in
cases where such person or group of person actually suffers harm, is guilty of
the offence of hate speech.

(2) It shall not be an offence to communicate words uttered by a person who


has committed the offence of hate speech if such communication constitutes
fair and accurate reporting or commentary on those words, which includes
but is not limited to, satire, opinion, or critique.

6. (3) When determining the sentence for any person convicted of an offence
referred to in section 4, a court may impose one or more of the following
penalties by requiring the offender to:

(a) make an unconditional apology,

(b) perform acts of community service,


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(c) pay to the victim or an organisation that represents the victimised group-

i) an amount not exceeding R100 000 in the case of a first conviction; or

ii) an amount not exceeding R500 000 in the case of any subsequent
conviction.

Conclusion

We began by drawing a distinction between "genuine" hate speech, which is


constitutionally unprotected speech that incites harm or violence against
vulnerable groups, and hate speech as defined by the Bill, which prohibits
protected speech.

We examined the importance of the right to freedom of expression by


demonstrating its role in a functioning democracy, the search for truth and the
personal development of citizens. We argued that the prohibition in the Bill is a
severe infringement on the right because of the penalty that it imposes and
the chilling effect it has on expression.

We proceeded to argue that the state can take less restrictive measures:

1. By changing the definition of hate speech used in the Bill to render it


constitutional.
2. By allowing the reporting of hate speech to keep the public informed.
3. By addressing the problem of arbitrary prosecutions under the Bill.
4. By using restorative justice measures instead of incarceration to deal with
offenders.

Considering the above arguments, it must be concluded that the Bills


definition of hate speech is an unconstitutional violation of the right to freedom
of expression, which cannot be justified by the limitations clause.
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Bibliography

Books

J De Waal et al Bill of Rights Handbook, (Juta, 2005)

Ronald Dworkin, Freedom's Law: The Moral Reading of the America


Constitution (1996)

Michael Herz & Peter Molnar The Content and Context of Hate Speech (2012)

Denise Meyerson Rights Limited: Freedom of Expression, Religion and the South
African Constitution (1997)

Nadine Strossen, Defending Pornography Free Speech, Sex and the Fight for
Womens Rights, (1996)

Jonathon Wolff An Introduction to Political Philosophy (1996)

S Woolman et al Constitutional Law of South Africa.

Journals

L Johannessen 'A Critical View of the Constitutional Hate Speech Provision'


(1997) 13 SAJHR 135
D Meyerson '''No Platform for Racists'': What Should the View of Those on the
Left Be?' (1990) 6 SAJHR 394

Cases

American Booksellers Association v Hudnut, 598 F Supp 1316, 1317 (D. Ind. 1984)

Dikoko v Mokhatla 2006 (6) SA 235 (CC)


Holomisa v Argus Newspapers 1996 (2) SA 588 (W)

Islamic Unity Convention v Independent Broadcasting Authority and Others


2002 (4) SA 294 (CC)
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Khumalo & Others v Holomisa 2002 (5) SA 401 (CC)


Mandela v Falati 1995 (1) SA 251 (W)

Phillips and Another v Director of Public Prosecutions (Witwatersrand Local


Division) and Others 2002 (5) SA 549 (W)

S v Bhulwana 1996 (1) SA 388 (CC)

S v Makwanyane 1995 (3) SA 391 (CC)


S v Mamabolo (E TV, Business Day and the Freedom of Expression Institute
Intervening) 2001 (3) SA 409 (CC)

South African National Defence Union v Minister of Defence & Another 1999
(4) SA 469 (CC)

Legislation

The Prevention and Combating of Hate Crimes and Hate Speech Bill