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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the CAM Forum (Current Affairs and Media Forum) of the Helderberg branch of the University of the Third Age (U3A), Somerset West, 22 January 2016

Ladies and gentlemen,

Good afternoon to you all and thank you to Mr Peter Ford for the kind invitation to meet with you this afternoon. I was most interested indeed to read about the various activities and educational undertakings of the U3A.

I have been asked to share some thoughts with you on the role and responsibilities of my Department, the Department of Justice and Constitutional Development. I thought it best to focus specifically on the role of the Department in contributing to a society based on human dignity, equality and freedom.

The adoption of the Constitution in 1996 was a major turning point in this country's history. It’s often called the "birth certificate" of a new South Africa - a country that is profoundly different to the one that existed before. 

Of course, the Constitution did not arrive suddenly or magically. It is the product of protracted negotiations - and a long and troubled history before that.

The Bill of Rights is arguably the part of the Constitution that has had the greatest impact on life in this country.

The right to equality and to be protected from discrimination features prominently in our Constitution. Government passed the Promotion of Equality and Prevention of Unfair Discrimination Act, or PEPUDA, as it’s also known, which prohibits unfair discrimination on the grounds of race, gender and disability.

I mention this Act specifically, as the issues of racism and hate speech have recently been much in the news and part of the public discourse.

The Equality Act defines hate speech as words ‘that could reasonably be construed to demonstrate a clear intention to be hurtful, cause harm or promote hatred on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth’.

We have special courts, called Equality Courts, which were specifically established to give effect to the spirit of the Constitution.

The purpose of these Equality Courts is to hear cases relating to infringements of the right to equality, unfair discrimination and hate speech.

Perhaps the most well-known Equality Court cases are the two Julius Malema cases – the first when Sonke Gender Justice took Mr Malema to the Equality Court and he was found guilty of hate speech. In the second case, AfriForum Youth opened a civil case against him in the Equality Court after he sang “Dubul’ibhunu” at a number of political gatherings.  The Court found that the singing of the song by Mr Malema constituted hate speech.

One of the challenges we face is that the Equality Courts are currently under-utilized.

Our Department found that there has been 36% increase in hate speech cases in the Equality Courts for the 2014-15 financial year. Hate speech and unfair discrimination constituted most of the complaints in 2014/15, with 328 and 291 respectively. Unfair discrimination complaints increased by 46%.

However, despite the increases in percentages, these courts are not being used optimally. I will return to the issue of hate speech in a moment.

The mandate of our Department is a broad one, but one of our main aims is enhancing access to justice.

What do we mean by access to justice? It’s more than simply having a court close by. It means knowing what one’s rights are, how to enforce those rights, how to have a matter settled speedily, in an unbiased manner.

We know that people often do not have the time or the money to travel long distances to courts.  That’s why we have, and are building new courts, bringing the courts closer to our people and ensuring that the poor can also make use of legal and justice services.

An accessible justice system must be inexpensive, easy to understand and deliver results speedily. That why we have rolled-out small claims courts across the country, especially in rural areas. In the small claims court persons represent themselves, so one doesn’t need an attorney. We have extended the provision of legal aid and have a legal aid system which is viewed as one of the best in the world.

A further important focus of our work is constitutional awareness.

Ownership of the Constitution must reside amongst the people.  If people are not aware of the Constitution or of their basic human rights, the Constitution really becomes a piece of paper with unattainable promises.

Constitutional awareness can never be only an occasional privilege.   It has to become a reality in the daily lives of our people. In this regard, our Department runs a number of constitutional and human rights education programs, often in partnership with civil society organisations.

We also draft legislation, which is then tabled in Parliament. Once tabled in Parliament it is referred to specific parliamentary committees which process the draft legislation, often calling for submissions on Bills and embarking on public hearings. The legislation is then passed, either by the National Assembly or the National Council of Provinces, in accordance with a process outlined in the Constitution.   

Some of the pieces of legislation that you may be familiar with, or may have come across in the media, are pieces of legislation such as, for example, the Child Justice Act (which raised the age of criminal capacity of children from 7 years to 10 years), the Legal Practice Act (which regulates the practice of legal practitioners), the Protection from Harassment Act (which provides for the issuing of protection orders against harassment) and the Protection of Personal Information Act.

The Protection of Personal Information Act establishes a set of conditions for the processing of personal information.  These include both general conditions and more detailed conditions for the processing of personal information.

It establishes an independent Information Regulator as an independent juristic person to regulate the implementation of the law. The Regulator is subject only to the Constitution and the law and is accountable to the National Assembly. 

The appointment of the Regulator is still underway, with the Portfolio Committee on Justice and Correctional Services having called for nominations from individuals, organisations, institutions and civil society for suitable persons to be appointed as members of the Information Regulator for a period of five years.

This year we will be celebrating the twenty year anniversary of our Constitution.  There are still, currently, challenges that we need to face. When I say “we”, I do not mean our Department only, or even government, but our country as a whole.

South African society remains divided. Many schools, suburbs and places of worship are integrated, but many are not. South Africa remains one of the most unequal economies in the world. The privilege attached to race, class and gender has not been fully reversed.

Then there is the issue of free speech versus hate speech.  The media and other means of public communication, such as the Internet and social media, play a crucial role in enabling free expression and the realization of equality.

However, the unprecedented development of new communication and information technologies, such as social media, has enabled wider dissemination of racist and xenophobic content that has the potential to incite racial hatred and violence.

The right to freedom of expression is not absolute. So while freedom of expression and freedom of religion or belief are mutually dependent and reinforcing, freedom of expression may not impinge on the right to dignity.

People across our country, across racial lines, were horrified recently when a series of racist and prejudicial remarks surfaced.

The whole issue surrounding Penny Sparrow and Chris Hart is well-documented. Perhaps just as background, Penny Sparrow, an estate agent from KZN, described black beachgoers, celebrating New Years at the beach, as “monkeys” on Facebook.  This sparked a national outcry.

In my view, the most damning of all is the fact that Ms Sparrow’s apology wasn’t an apology at all. In fact, she justified her comments by telling News24 that “I wasn’t being nasty or rude or horrible, but it’s just that they [black people] make a mess. It is just how they are.” 

Then various people respond and the issue escalates, with media personality Gareth Cliff saying people don’t understand free speech. This is interpreted by some as Cliff defending Sparrow’s remarks and Cliff gets removed as a judge on the TV reality show, Idols.

Economic commentator Chris Hart’s statement was that 25 years after apartheid, "victims are increasing, along with a sense of entitlement and hatred towards minorities." This causes a further public outcry and Hart is suspended from Standard Bank.

Then we see e-News anchor Andrew Barnes mocking the Basic Education Minister and making fun of the way she pronounced "epitome".

I wonder if Mr Barnes can speak a single African language. But he nonetheless sees it fit to make fun of a Black person.

Then there is Velaphi Khumalo, a civil servant, who allegedly called for black South Africans to do to white people what “Hitler did to the Jews”.

One can’t help but stop and ask oneself: how did we get to this, a low-point in our democracy?
Why is racism flaring up at the moment? Was it always there, but just hidden under the surface?  Or were we all so hyped on the idea of a “rainbow nation” that we deluded ourselves into thinking that racism ended in 1994?

Some of you may perhaps have read a piece I wrote recently which appeared in the Sunday Times and deals with white racism.  What I had said in the piece was that the most disturbing part of the Penny Sparrow episode is her inability to realise what she has done wrong.

Penny Sparrow, and many white people like her, ignore how Black people in South Africa were, since the arrival of the Dutch settlers in 1652, systematically deprived of their land, their economic livelihood and turned into second class citizens in the land of their birth. 

People like Penny Sparrow do not acknowledge or understand that all white people benefited from apartheid - regardless of whether they supported apartheid or not.

My parents immigrated to South Africa from Britain. Although my father was from the working class, he was able to become part of the middle class in South Africa simply because he was white. His formal education was limited. 

I received a good education going to a white government school and was able to attend a white university on the basis of scholarships and bank loans given to white people.  Whatever sacrifices I made in the struggle against Apartheid cannot extinguish the fact that I had a huge head-start, due to apartheid – because I was classified as White.   Thanks to Apartheid, White people in South Africa were advantaged over other South Africans.

People like Penny Sparrow do not acknowledge how their racism is expressed in notions of racial superiority – which, in turn, affects the way they relate to people of other races.

It is indeed distressing that 21 years after the South African Miracle, when South Africa moved from a country of oppressive white-minority rule to a democratic dispensation where everyone is to enjoy equal human rights, that people like Penny Sparrow still hold and express these views.

Of course, not all white people are like Penny Sparrow. There are many white people who honestly accept and acknowledge their privileged past and are indeed playing their part in building a united country.  But there are many others who are not.

When we talk about racism, one generally finds that white people respond in one of two ways – they respond by saying ‘but we are a democracy now, we must let go of the past and “move on”’.

Moving on is easier said than done. We cannot, and may not, ignore the history of our country.  Our past has shaped our Constitution and, if we want to move forward, we cannot deny that past. It is impossible to erase the legacy of 300 years of colonialism and apartheid in 2 decades.

Many people, still today, carry painful memories of apartheid. As South African poet, Andries Walter Oliphant, remembering the forced removals, writes in his poem “Childhood in Heidelberg” -

“In the kitchen mother cries as she turns
the toast on the black plates
of the Welcome Dover. When
father packed my pigeons into boxes,
I ended up with Rover and the cats
on the back of a truck
with all the household goods.
I thought, if this is part of life, it’s fun.

At the end of the truck’s journey through
the sky, we arrived
in a toy town of match-box houses
lined up like tombstones in a graveyard.

At once, I understood why mother cried.”
The other response one gets from white people is that they will say, “but I’m not racist, so this doesn’t apply to me” – but racism is bigger than that.  As African-American poet Scoot Woods wrote:

“The problem is that white people see racism as conscious hate, when racism is bigger than that.

Racism is an insidious cultural disease. It is so insidious that it doesn’t care if you are a white person who likes Black people; it’s still going to find a way to infect how you deal with people who don’t look like you.

Yes, racism looks like hate, but hate is just one manifestation. Privilege is another.  Access is another.  Ignorance is another. Apathy is another, and so on.  

So while I agree with people who say no one is born racist, it remains a powerful system that we’re immediately born into. It’s like being born into air: you take it in as soon as you breathe.

It’s not a cold that you can get over.  It’s a set of socioeconomic traps and cultural values that are fired up every time we interact with the world.”

So, ladies and gentlemen, then the question remains – what can the law do to address this situation? And, is it the purpose of the law to legislate for tolerance in an ever-increasing world of intolerance? Is this something that the Department of Justice must do?

In terms of our constitutional framework, the answer is a definite yes.

We currently have a draft piece of legislation, called the Hate Crimes Bill, which is to be released for public comment soon. The Bill seeks to address crimes directed at individuals or groups of people because they belong to a certain group. The motive behind such crimes is prejudice against a specific group.

The fact that there are people who are prepared to insult, attack and, in extreme cases, murder, others on the basis of race, gender, sexuality or nationality, shows that there we still live in an intolerant and prejudicial society. We have come a long way.  But we still have a long way to go.

The original intention with the Hate Crimes Bill was not to criminalise hate speech, which can already be dealt with as a civil matter in the Equality Courts, as I mentioned earlier. 

However, in light of the clearly outrageous racism that we are now experiencing, we will need to reconsider this position and to see where the existing common law crime of crimen iniuria should be strengthened to provide for penalties for blatant racism.

But we cannot leave it up to the law alone.

The law can regulate the behaviour of people in society, our Department can draft the law, Parliament can pass it and it will be on the statute book, but it cannot change the hearts, minds and attitudes of people – only human beings can do that.

Our Department has also released the draft National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance, or as it’s known for short, the NAP.

The purpose of the NAP is to provide South Africa with a comprehensive policy framework to address racism, racial discrimination, xenophobia and related intolerance at both a private and public level. The NAP has recently been published for public comment. You will find it on the Department of Justice’s website and it’s a draft that we hope you, as the CAM Forum, would also be able to comment on.

Ladies and gentlemen,

It is incumbent on South Africans from all walks of life to embark on programmes dedicated at eradicating all the lingering negative legacies of apartheid and discrimination from our past.

It is therefore imperative that each one of us take a long hard look at ourselves and acknowledge our own prejudices.
It is the only way we can move forward and eradicate all the scourges of racism, sexism, xenophobia and other forms of prejudice.  It is the only way we can attain the ideals of nation building and social cohesion.

When I spoke of the South African Miracle earlier, I did not use the word “miracle” lightly.

Let us never forget that two decades ago the world looked at South Africa as a beacon of hope, a shining light in the quest to bring about a non-violent transition.

Ask any person where they were on 27 April 1994 and chances are that almost every single person will be able to tell you, in detail.

Because we remember. We remember the sense of unity, the sense of possibility and the belief that a better life was to come.

Yes, there are many challenges facing South Africa, in the same way that almost every country on every continent has challenges it has to face. We need only to look at some of the social and political issues facing Europe at the moment to see that.

But at the heart of the matter lies the fact that we have, within our country, the extraordinary ability to make the impossible possible.  

With the collective will and the strength of our people, we have shown the world that miracles are never out of reach.

I thank you.