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Response to the concerns raised regarding the Prevention and Combating of Hate Crimes and Hate Speech Bill

01 November 2016

The Department of Justice and Constitutional Development (DOJ&CD) has particularly noted the concerns raised in the media regarding the scope of the Prevention and Combating of Hate Crimes and Hate Speech Bill. It was reported that comedians are concerned that once passed into law, the Bill will curtail their freedom of expression as guaranteed in the Constitution.

It should be noted that the Department does not have any intention to process a Bill that is not consistent with the Constitution of the Republic of South Africa. All pieces of legislation are tested against the Constitution. Indeed section 16(1) guarantees the right to freedom of expression and inevitably protects a wide range of expressive conduct, including verbal, written, pictorial and physical expression. It therefore includes speech and activities such as displaying posters, painting and sculpting, dancing, the publication of photographs, symbolic acts such as flag burning, the wearing of clothing, and physical gestures – in principle, every act by which a person attempts to express some emotion, opinion, idea, belief or grievance.

However, Section 16(2) of the Constitution contains a built-in proviso (also referred to as an “internal limitation”) regarding the definitional scope of the right to freedom of expression. It states that the right to freedom of expression does not extend to, propaganda for war, incitement of imminent violence; or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

This limitation was also thoroughly expressed by the Constitutional Court’s pronouncement in a matter between the State versus Mamabolo, 2001 that freedom of expression is not to be afforded any primacy over any other constitutional rights, including dignity. According to the court, freedom of expression -“... is not a pre-eminent freedom ranking above all others. It is not even an unqualified right. ... [section 16(1)] is carefully worded, enumerating specific instances of the freedom and is immediately followed by a number of material limitations in the succeeding subsection. Moreover, the Constitution, in its opening statement and repeatedly thereafter, proclaims three conjoined, reciprocal and covalent values to be foundational to the Republic: human dignity, equality and freedom. With us the right to freedom of expression cannot be said automatically to trump the right to human dignity. The right to dignity is at least as worthy of protection as the right to freedom of expression. How these two rights are to be balanced, in principle and in any particular set of circumstances, is not a question that can or should be addressed here. What is clear though and must be stated, is that freedom of expression does not enjoy superior status in our law.”

The Department welcomes the diversity of views that are currently being expressed about the Bill on various platforms. It has been published precisely to stimulate the nature of debate that is currently unfolding. The Department expects that the Bill will benefit from the collective wisdom of the country. In that regard, the Department once again invites interested parties and individuals to access the Bill on the departmental website and make their inputs until the due date of 1 December 2016.    

Mthunzi Mhaga
Spokesperson for the Ministry of Justice and Correctional Services