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Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at a Hate Crimes Workshop hosted by the Southern African Liaison Office, 28 June 2018

Programme Director,
Ladies and gentlemen

Hate crimes and hate speech happen all over the world. It is part of the harsh reality of the world we live in today.

Yesterday, in the US, a reputed Hitler admirer who was accused of plowing a car into a crowd of protesters in Charlottesville killing a young woman, was charged with federal hate crimes.
Last week the Irish Examiner reported that hate crimes in Ireland have been increasing substantially since 2013.
I was interested to read an article that appeared earlier this month, which stated that although Norway introduced marriage equality in 2008, the number of reports of homophobic hate crimes increased between 2016 and 2017.
The article talks about how hate crimes were reported after Oslo's Pride parade last year, and police figures state that 549 hate crimes were reported to law enforcement in 2017. Statistics showed that in Norway the number of crimes of this type, reported between 2012-2014 remained stable, at around 200, but then began to increase.

Earlier this year Human Rights Watch said that, from a global perspective –
“… looking back over a tumultuous year, for lesbian, gay, bisexual and transgender people in many parts of the world, 2017 was grim by any standard.
The most disturbing trend was the scale and frequency of arbitrary arrests, state-sponsored discrimination, and violence against LGBT people.… For activists, it was a year of responding to a seemingly endless cycle of unfolding crises.”

Here in our own country, incidents of racism and discrimination against LGBTI persons are unacceptably high.
Some of you may have heard of some of the incidents – the latest being Vicki Momberg who was convicted of four counts of crimen injuria related to an incident‚ in which she verbally abused black police officials who attempted to assist her‚ calling a police constable a "useless k****r". 
In addition to the criminal charges, the South African Human Rights Commission lodged a case against her with the Equality Court. The Equality Court ordered Momberg to pay R100‚000 in damages to Constable Mkhondo in June last year.
Earlier this month, a passenger on a Kulula flight admitted that she referred to the captain of the flight as well as two black passengers by using the k-word.
Sadly, there is no shortage of examples.

Earlier this year the Hate Crimes Working Group revealed that nationality‚ sexual orientation and religion were the top three reasons behind hate crimes in South Africa. At 59%‚ the research revealed that most victims of hate crime were black or African. Most of these victims were non-South African nationals‚ the group said.

As you may know, we have a Prevention and Combating of Hate Crimes and Hate Speech Bill which has been tabled in Parliament.
Some may ask why we need a specific law. The Bill creates the offences of hate crimes and hate speech and seeks to put in place measures to prevent and combat these offences.
Laws against hate speech serve a dual purpose.
It protects the rights of the victim and the target group and also ensures that society is informed that hate speech is neither tolerated, nor sanctioned.
We do have other measures as well, such as our Equality legislation and our Equality Courts, but there is still a need for a law to criminalize hate speech and hate crimes.

The revised Bill was approved by Cabinet on the 14th of March this year.
There is no question that incidents of racism and racial discrimination are all too frequent in our society and we are confident that the Bill, once passed, will contribute to eradicating not only racism, but all forms of discrimination, in our country.
There was criticism that the Bill was delayed. The Bill was not delayed. There can be no dispute that the Bill is complex and sensitive in nature, requiring careful consideration which, in turn, takes time.  

After the Bill was published in the Gazette for comments, some 75 854 submissions were received from institutions and individuals. 
Many submissions were received after the deadline for the submission of comments.  The views and concerns expressed in the comments, even those that were submitted late, have been considered by the Department and have, in many instances, been addressed in the revised Bill. 
The overwhelming public response to the Bill, as well as the revised Bill, which now addresses most of the concerns raised, is proof of a participatory democracy at work.

It must be noted, that most of the concerns around the previous draft of the Bill have indeed been addressed and thus the revised Bill which was approved by Cabinet is considerably different from the earlier Bill that was made available for public comments. 
The provisions dealing with, in particular hate speech, have been significantly changed.

The qualifying criteria for hate speech is a clear intention to be harmful or to incite harm or promote or propagate hatred on the basis of age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, race, religion, or sex, which includes intersex or sexual orientation.

Lastly, the revised Bill specifically excludes anything done in good faith in the course of engagement in any bona fide artistic creativity, performance or other form of expression, academic or scientific inquiry or fair and accurate reporting or commentary in the public interest, in so far as it does not advocate hatred that constitutes incitement to cause harm, from the ambit of hate speech.

It also excludes the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm, from the ambit of hate speech.

These exclusions also find resonance with section 16 of our Constitution.
We are confident that the revised Bill will, once passed, send a clear message that there is no place for hate crimes or hate speech in our society.

Thank you.