A Slippery Slope or a Necessary Remedy?

By: Jessica Skelly

By law, South African citizens are prohibited from using hate speech. The Constitution of South Africa contains a guarantee of equality and a prohibition of public and private discrimination and additionally mandates that the South African government enact legislation to prohibit discrimination.[1] To follow the Constitution, the South African government enacted the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA). In this Act, hate speech is legally prohibited: “[N]o person may publish, propagate, advocate or communicate words based on one or more of a 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 hate.”[2] The Act specifically lists race, gender, sex, pregnancy, family responsibility or status, marital status, ethnic of social origin, HIV/AIDS status, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth as “prohibited grounds” for discrimination.[3] The violation of the Act is brought to the Equality Court of South Africa.

However, although PEPUDA exists in the country and prohibits harmful and hurtful speech, South Africa is still grappling with hate speech offenses.[4] “Stalked by the vestiges of apartheid,” South African citizens continually experience ugly outbursts and hurtful words from private individuals and even public figures.[5] While Nelson Mandela’s battle to introduce a democratic era “restored political and personal freedoms to millions,” it did not rid of the country of the “toxic legacy of the system of racial segregation enforced by a white-run government for most of the 20th century.”[6] For example, in 2017, the Equality Court received over 300 hate speech complaints, and of those, 125 were related to race.[7]

In an attempt to combat the magnitude of hate speech still occurring, a hate crime bill is making its way through Parliament, known as the Prevention and Combating of Hate Crimes and Hate Speech Bill, which would criminalize hate speech.[8] The bill was introduced after many years in the making, starting in 2016, as a result of a series of social media incidents that sparked political debate, but now, modified, sits before the South African National Assembly.[9] While PEPUDA currently regulates hate speech, it does not criminalize it. Now, if the new bill passes, first-time offenders of the law could be sentenced for three years to prison, and repeat offenders could be sentenced to a maximum of five.[10]

Conceptually, outside of the criminalization of a hate speech violation, the bill more or less slightly expands on what is already exists in PEPUDA. The bill states that “any person who intentionally publishes, propagates or advocates anything or communicates to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to – (i) be harmful or to incite harm; or (ii) promote or propagate hate… is guilty of an offence.”[11] Moreover, under the new bill, a hate crime is defined as “an offence recognized under any law, the commission of which by a person is motivated by that person’s prejudice or intolerance towards the victim of the crime in question,” because of a particular characteristic.[12] The bill then goes on to list the characteristics as: age, albinism, birth, color, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, occupation or trade, political affiliation or conviction, race, religion, sex (which includes intersex), or sexual orientation.[13] The bill does not give examples of what is “harmful,” but identifies harm as emotional, psychological, physical, social, or economical.[14] Moreover, the bill does not qualify harm as significant or substantial, so the standard of analysis is that of a reasonable person.[15]

Those who are proponents of the law argue that hate speech’s danger has risen, and there needs to be heavy consequences.[16] Thus, criminalization is necessary. These proponents argue that freedom of speech is necessary to be limited to these cases in order to protect citizens from discrimination. South African Committee Chairperson Mathole Motshekga stated that the bill was created to increase intolerance and allow assistance to victims of hate speech crimes.[17]

In contrast, opponents of the law argue it unnecessary, given that there are already existing legal remedies aimed to tackle hate speech.[18] These opponents argue that, along with the already existing Equality Court, which looks at civil cases, courts have allowed criminal prosecution of hate speech under a common law offense known as crimen injuria.[19] Crimen injuria is the act of unlawfully and intentionally impairing the dignity or privacy of another.[20] Additionally, opponents fear the law is too vague and will induce a slippery slope of unintended consequences, which will affect the free speech rights of South African citizens.[21] In fact, Phephelaphi Dube, an independent legal analyst who specializes in constitutional law says that the language used to define hate speech is “clumsily drafted.”[22]

Whether or not the bill will pass is still unknown.

#BlogPost #JessicaSkelly #SouthAfrica #HateSpeech #FreedomOfSpeech

[1] See generally Constitution of South Africa, 1996.

[2] See Promotion of Equality and Prevention of Unfair Discrimination Act of 2000, Sec. 10 (2000).

[3] Id. at sec. 1.

[4] Krista Mahr, A South African law would make hate speech punishable by jail time, Los Angeles Times (Mar. 28, 2019), https://www.latimes.com/world/la-fg-south-africa-hate-speech-20190328-story.html.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Prevention and Combating of Hate Crimes and Hate Speech Bill, Sec. 3.6, (2018).

[11] Id. at sec. 4.

[12] Id.

[13] Id. At sec. 3.

[14] Pierre de Vos, Hate speech Bill could be used to silence free speech, Daily Maverick (Feb 29, 2019), https://www.dailymaverick.co.za/opinionista/2019-02-26-hate-speech-bill-could-be-used-to-silence-free-speech/.

[15] Id.

[16] Mahr, supra note 4.

[17] South African government introduces hate speech bill to Parliament, Coast Week (Dec. 29, 2019), http://www.coastweek.com/4122-South-African-government-introduces-hate-speech-bill-to-Parliament.htm.

[18] Mahr, supra note 4.

[19] Id.

[20] Id.

[21] Id.

[22] Id.