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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP at a Roundtable Discussion on the draft Prevention and Combating of Hate Crimes and Hate Speech Bill, hosted by the Southern African Catholic Bishops’ Conference’s Parliamentary Liaison Office, held at the at the Townhouse Hotel, 14 February 2017

Good morning, and thank you to Mike Pothier for the invitation.

We do welcome occasions such as today’s roundtable as the Bill we are discussing is an important one and meaningful consultation and debate on important draft legislation is vital.

Putting a Bill out for public comment is not a meaningless exercise. It is a real attempt to hear what the public’s views are. 

We have received a variety of responses to the draft Prevention and Combating of Hate Crimes and Hate Speech Bill.

Some have welcomed it, while others have raised concerns.

We have had Dr Anthea Jeffery, the Head of Policy Research at the South African Institute of Race Relation, arguing that we should scrap the Bill all together. She relies on surveys of public opinion on racial issues (the most recent one commissioned by the IRR and carried out in September last year) that claim that only 3.2% of South Africans – and 2.4% of blacks – identify racism as a serious unresolved problem and if problems of inequality and xenophobia are factored in as well, then 6.4% of all respondents and 5.9% of blacks list racism, in this broader sense, as a serious problem.

She argues that –
“far more public concern is evident about joblessness, service delivery failures, corruption, poor education, and inadequate housing. Responses to various other questions in the IRR field survey further confirm that race relations in the country are still generally sound. There is thus no looming racial crisis that could justify the Bill.”

The IRR survey asked respondents about their personal experiences of racism, asking: ‘If you do notice racism in your daily life, in what ways do you notice it?

But while the survey results are encouraging, it does, with respect, miss the bigger picture. Asking a sample group of 2,291 people from both rural and urban areas about their very own personal experiences is vastly different to what the broader population, particularly those with access to social media, experience when racist rants appear online.

Furthermore, hate is not confined to race. David Saks of the Jewish Board of Deputies recently wrote that the growing prevalence of hostile racial rhetoric, of which anti-Jewish conspiracy theories are just one part, poses a serious problem to the national well-being.  We have also seen violence and hatred directed at our LGBTI communities and recently two local mosques were defaced.

The SA Human Rights Commission dealt with and finalised 505 complaints on racism in the 2015/16 financial year - an 82% increase from the previous financial year. The commission dealt with complaints related to discrimination against a person's sexual orientation, disability, age, colour, culture or religion. But race-related complaints topped the commission's list.

There has generally been greater support for the Bill’s hate crime provisions, whilst concerns have been raised about the hate speech provisions and, in particular, whether it will unconstitutionally limit freedom of speech and/or freedom of religion.

However, the right to freedom of speech must be balanced, in the same way that all constitutional rights are balanced.

A person’s right to dignity is surely just as important as another person’s right to freedom of speech.

Former Constitutional Court Judge Johan van der Westhuizen, in an article in De Rebus, said:
However with freedom of expression the Constitutional Court decided that it was to define freedom of speech in a way that from the beginning it does not include hate speech. We say from the out-set that your freedom of expression does not include the freedom to advocate hatred against other races, for example.  What it means in principle is that hate speech is not even speech.”

With regards to comedians and satirists, the right to freedom of expression protects a wide range of expressive conduct, including verbal, written, pictorial and physical expression, so comedians and satirists have nothing to fear. After all, true satire seeks to ridicule for the purpose of showing up society so that society can improve itself, not for the purpose of advocating hatred.

The inclusion of a crime of hate speech in the Bill is to provide for some form of criminal sanction for outrageous and hurtful utterances.

Matthew Clayton of the Hate Crimes Working Group, who is here today, has said that the Bill’s hate speech provisions are a knee-jerk and political reaction.

But are all pieces of legislation or policy not political by their very nature – developed or imposed to respond to a certain aspect of society’s civil - political or socio-economic existence? Policy is developed because the state wants to encourage something or because it wants to prevent something.

One would have hoped that our nation, given the intense public discourse around the topic of racism over the past year, would have steered clear of this type of behaviour, but it was not to be. In December last year, Vanessa Hartley, wrote:
They like stupid animals (sic). We should tie them to a rope. Too many Africans flocking to Hout Bay. Draw up a petition. Soon there will be nothing left of Hout Bay.” 

Not long after, one Ben Sasonof posted comments on a picture of a crowded Durban beachfront and wrote:
"Eh eh Wena… must have smelt like the inside of Zuma's asshole.”

So what are they saying? Are Black people not allowed to go to the beach?

The mind boggles at how people can still think this way more than two decades after democracy.  Perhaps racism is so deeply ingrained in the very psyche of some that what is blatant racism to all of us, is mere free speech to them. And then they apologise and seem to think that that makes it okay.

So what must government do in situations such as this? Must we sit back and do nothing? Surely not.

Matthew will say that the interpretation of hate speech is, as he wrote previously, “broad to the point of futility.” If this is so, we will, after further consideration of the comments and inputs received, narrow it down.

The key question is this: should hate speech be criminalized?

Currently the main remedy for hate speech is to approach an equality court for a civil order in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act.  

The problem with this is that it is up to an aggrieved person to initiate the action in an equality court.  Shouldn’t the State have a duty to act against perpetrators of hate speech? If you get physically assaulted you can bring a civil claim against the person who assaulted you, but at the same time the State also has a duty to ensure that the perpetrator is prosecuted, if there is sufficient evidence. So why would verbal or psychological assault, suffered because of hate speech, be treated any differently to physical assault?  

Many countries criminalise hate speech.  Given our particular historical context of racism and patriarchy, why shouldn’t we?  Is criminalizing hate speech not a further measure aimed at protecting the dignity of persons? Won’t criminalising such conduct act as a deterrent and cause people to think twice before expressing such views?

Some are saying that we could use crimen iniuria to criminalise hate speech. But crimen iniuria – a common law crime from Roman Dutch Law - is problematic for a variety of reasons. Is a common law crime - that can be used for anything from insulting language to “flashing” - appropriate to deal with hate speech in South Africa in the 21st century? 

General views on crimen iniuria differ, some seem to suggest that the impairment of dignity must be that of a specifically identified person. In other words, when a general racist comment, directed at group within society, is made crimen iniuria will not cover it.  Also crimen iniuria will cover the infringement of dignity of a person, but not the incitement to violence aspect of hate speech.

In addition, with common law offencesthe courts effectively determine the elements.  Shouldn’t Parliament, as the body tasked by our Constitution to make the laws, be the more appropriate body to create offences by statute and not the courts, who are constitutionally tasked to interpret the law?  For example, rape used to be a common law crime in South Africa until Parliament defined it as a statutory crime in terms of the Sexual Offences Act.   

Other organisations such as Right to Know have argued that criminal defamation can also be used.  This is another common law crime, but one which is likely to be repealed as being inappropriate in this day and age.

I will go back to the fundamental question: should hate speech be criminalized in South Africa?  If the answer is yes, we can then start engaging on what that should entail.

Religious leaders’ concerns that the current wording of the Bill will restrict their ability to preach the word of God, is something that we take seriously.

It is not intention of the Bill to restrict religious freedom. Equally, the incitement of violence and harm against certain groups in society is not something that can be allowed. 

We want to ensure that the Bill does not constrain the preaching of the Gospel or constrain the quoting of certain Biblical verses, or the texts of any other religion as long as it does not cross the line and become hate speech.

I have recently met with Christian religious ministers as well as an interfaith meeting. I will also be meeting FOR SA (Freedom of Religion South Africa) in the course of this week.

We value the views of our religious institutions and religious leaders and will look closely at the hate speech provisions in the draft Bill to ensure that religious preachers are able to preach their views freely, even though other people may find these views questionable.

However, such sermons cannot include any incitement to violence and harm. If a person, like US pastor Steven Anderson recently, says that all gay people must be killed and uses a Bible verse to motivate it, it will be hate speech. 

The main issue that religious institutions seems to have an issue with is sermons around homosexuality.  I always use the example of Leviticus, but to just to use a New Testament example as well, does the Bible not say, in the first letter of Paul the apostle to the Corinthians, in chapter 6, that neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God (1 Cor. 6:9–10, NIV). 

Why are religious institutions so quick to threaten gay people with eternal damnation, but the greedy, the adulterers, the slanderers and those who drink too much are welcome? Or are some sins considered worse than others? But that is something I will leave to our religious institutions to deliberate on.

With regards to the Bill, I can give you all the assurance that all submissions and inputs made are seriously considered. Of course, if there are also other options that could be further investigated to complement the Bill, such as further strengthening the Equality Courts, these too will be considered.

We are not expecting this piece of legislation to eliminate racism – this cannot be done until the structural inequalities which underpin racism in South Africa have been addressed.

The Bill should also not be seen in isolation. It has to supplement other government measures and initiatives, such as social cohesion and nation-building programs, poverty alleviation and so forth.

What is encouraging is that the Bill is raising debate and discussion. We are talking to each other about racism and hate speech.

For every person who posts an insulting, hateful or downright asinine comment online, there are many more who stand up against racism, against homophobia and against xenophobia.

That is ultimately what we want to achieve – a society which doesn’t tolerate prejudice, a society based on human dignity.

Thank you for listening to me.