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Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at a Workshop on the Hate Crimes and Hate Speech Bill, hosted by the Southern African Liaison Office (SALO), held at 6 Spin Street, Cape Town, 20 November 2018

Programme Director
Ladies and gentlemen

There is no shortage of hate crimes in the world.

Federal prosecutors in the US recently filed hate crime charges against a Pennsylvania man for storming a Pittsburgh synagogue, opening fire and killing 11 people.  He allegedly made anti-Semitic statements during the shooting and targeted Jewish people on social media.

Over the weekend, former Wales rugby legend, Gareth Thomas, spoke out about being the victim of a hate crime after suffering a homophobic attack in Cardiff.

South Wales police have since said that a 16-year-old boy has admitted and apologised for the assault and that the boy was dealt with by way of a restorative justice process following the incident.

Closer to home, in an apology released last Friday, Velaphi Khumalo apologised unconditionally for the comments he made on Facebook in 2016 when he called for the country to be "cleansed" of white people in the same manner Adolf Hitler targeted the Jews. The Equality Court, last month, found Khumalo guilty of hate speech.

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.

Hate crimes are identity crimes, directed not only at the identity of the victim but also at the group to which they belong.

A victim is thus often a symbol of a broader group of people. Although hate crimes can be perpetrated against anyone, it is often more marginalised groups that are targeted.

So why do we need a specific Bill to deal with hate crimes and hate speech?

South Africa has a number of laws that deal with discrimination, such as the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) as well as section 9 of the Constitution, yet none of these are specifically tailored to address the issue of hate crimes.

PEPUDA deals with hate speech, unfair discrimination and harassment. The term “hate crime” does not feature anywhere in the Act.

It is important to note that PEPUDA recognizes that unfair discrimination and hate speech may constitute crimes and must be regarded as an aggravating factor for the purposes of sentencing. But this does not address hate crimes individually and specifically, as it does harassment, discrimination and hate speech.

PEPUDA has a further weakness in the sense that, whilst it prohibits unfair discrimination generally, it focuses specifically on discrimination based on race, disability and gender, but does not include nationality or sexual orientation, or any other grounds.

In this way, one could argue that PEPUDA creates a ‘hierarchy of hate’ by prioritising some forms of discrimination over others. A further weakness of PEPUDA is that not enough emphasis is placed on the finding of motive.

On this issue of PEPUDA, Prof Pierre de Vos raises an interesting point relating to the judgment in the Khumalo case and argues that the judgment narrows the scope of hate speech.

Prof De Vos argues that other judges and academic writers have assumed that one would be guilty of hate speech if it could be shown that a reasonable person could believe one had the intention either to be hurtful; or to be harmful or to incite harm; or to promote or propagate hatred against somebody because of their race, sex, sexual orientation or other listed or analogous grounds.

In this view hate speech includes any speech that could reasonably be construed as being hurtful to somebody based on that person’s race, sex, sexual orientation or other listed and analogous grounds.

However, according to Prof de Vos, the judgment in the Khumalo case radically narrows the scope of hate speech by deciding that you have to show that a reasonable person could believe the perpetrator had the intention to be hurtful; and to be harmful or to incite harm; and to promote or propagate hatred against somebody because of their race, sex, sexual orientation or other ground.

Prof de Vos says: “This would be far more difficult to do than to show a person could reasonably be construed to have had the intention to be hurtful to somebody based on their race, sex, sexual orientation and the like.”

Currently persons committing hate speech are prosecuted for the common law crime of crimen injuria.  We would rather have a specific statutory crime of hate speech rather than a crime which has elements that are developed by the courts - as in the case of common law crimes.

As you know, there is currently a Prevention and Combating of Hate Crimes and Hate Speech Bill, which has been tabled in Parliament. The Bill is based on the recommendations contained in a policy framework which was developed. 

Developing specific legislation on hate crimes will have a number of advantages. 

It will help create  shared definitions of hate crime and hate speech amongst all those involved in the criminal justice system;  will send a clear public message that hate crimes will not be tolerated in South Africa; will provide additional tools to investigators and prosecutors to hold hate crimes perpetrators accountable; will provide a means to monitor efforts and trends in addressing hate crimes; will allow for effective coordination between government service providers to reduce the impact of secondary victimisation on hate crimes victims. 

Secondary victimisation takes place where victims are subjected to further insensitive or inappropriate behaviour or comments by, for example, police, health care officials or justice officials.

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.  They protect the rights of the victim and the target group and also ensures that society is informed that hate speech is neither tolerated, nor sanctioned.

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.

After the Bill was first published by our Department for comments, some 75 854 submissions were received from institutions and individuals.   Many submissions were further 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 our 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.

The revised Bill was approved by Cabinet on the 14th of March this year.

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 comment. 

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.

The Bill was tabled in Parliament in April and I am pleased to inform you that the National Assembly will be advertising the Bill and calling for public comment and inputs before the end of the year.

Some commentators have asked the question why we do not simply criminalise racism.

The short answer to that would be that to criminalise racism only would ignore the existence and impact of intersectionality.

Intersectionality plays a significant role in addressing past patterns of discrimination.

In its simplest form intersectionality relates the various attributes that play a role in the discrimination that an individual experiences. It refers to the "overlapping" of social attributes such as gender, race, class, ability, religion  and sexual orientation.

This "structure" can be used to appreciate how systemic injustices and social inequalities occur on multifaceted levels.

Intersectionality contends that the traditional notions of oppression such as racism, sexism and homophobia are not independent. Rather these interrelate and generate a system of oppression that generates the "intersection" of multiple forms of discrimination.

Furthermore, what the Bill seeks to achieve is not only to prohibit and prevent discrimination on the basis of race – but also on a number of other grounds upon which discrimination takes place.

In short, we cannot say that the law must be used to stop racism, but that homophobia or xenophobia or any other form of discrimination will be tolerated in a society with constitutional values.

The Bill of Rights is arguably the part of the Constitution that has had the greatest impact on life in this country. As it says: "This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom."

South Africa has passed a number of laws to give effect to its constitutional goals of achieving equality, human dignity and the advancement of human rights and freedoms.

Since the dawn of democracy a plethora of laws and amendments have been passed to dismantle apartheid and eradicate all forms of discrimination. In addition, the democratic government passed legislation dealing with land restitution, the upgrading of land tenure, the facilitation of access to housing and the provision of social assistance to those in need.

These laws address systemic inequalities and unfair discrimination that manifest in the institutions of society and the practices and attitudes of South Africans insofar as these undermine the aspirations of our constitutional democracy.

Yet it would be naïve to expect even the best-drafted laws to eradicate decades and centuries of oppression and institutionalized racism and other forms of discrimination.

That can only be done if we change the hearts and minds of people. As Charlotte Brontë wrote in Jane Eyre:

“Prejudices, it is well known, are most difficult to eradicate from the heart whose soil has never been loosened or fertilised by education: they grow there, firm as weeds among stones.”

So whether it is through running social cohesion programmes and interventions, the continued training of public servants, focusing on equality in our school curriculum, or whether it is championing with civil society bodies to run awareness campaigns or human rights education – it takes people to do that.

And there are already many interventions and initiatives – both from the side of government and civil society - to prevent and combat racism, racial discrimination, xenophobia and all forms of intolerance and discrimination such as against people with disabilities, people with albinism, the LGBTIQ community and others.  And we do not have to wait for the new legislation to be passed for us to further champion these programs and interventions.

If we are to succeed in the fight against hatred and intolerance, we should reflect on the words of self-described “black, lesbian, feminist, mother, warrior” poet, Audre Lorde, who dedicated her life to confronting the injustices of racism, sexism, classism, and homophobia, when she wrote:

It is not our differences that divide us. It is our inability to recognize, accept, and celebrate those differences.”

I thank you.