Submission on the "hate speech bill"

24 January 2017
Views 1 846
FMF


31 January 2017

 

Submission

to the

Department of Justice and Constitutional Development

on the

Prevention and Combating of Hate Crimes and Hate Speech Bill

 

Contents

Executive Summary

The Free Market Foundation

Introduction

Rule of Law & Good Law

The Need for Freedom of Expression

The Constitutional Right to Freedom of Expression

Legitimacy of Regulating Hate Speech

Hate Speech Regimes of Kenya, Canada, and Australia

Problems with the Bill

Conclusion

 

1.         Executive Summary

The proposed Prevention and Combating of Hate Crimes and Hate Speech Bill (“the Hate Speech Bill”) regulates hate crimes as well as hate speech, however, the FMF submission is mostly concerned with the regulation of hate speech.

The Constitution guarantees freedom of expression to all South Africans, but does not protect speech which advocates hatred based on the four specified grounds of race, ethnicity, gender, or religion, and which constitutes incitement to cause harm.

The proposed Bill intends to regulate these expressions, in line with the International Convention on the Elimination of All Forms of Discrimination. The Department of Justice further claims that the Bill was inspired by anti-hate speech laws in Kenya, Australia, and Canada. The proposed crime of hate speech carries a sentence of up to three years in prison for a first offence, and up to ten years for a subsequent offence.

The FMF has identified several problems with the Bill and proposed amendments to rectify them.

Firstly, the Bill allows for the conviction on a charge of hate crime although the accused person had already been acquitted of the underlying offence with which the hate crime was connected. For example, an acquittal on a charge of assault would constitute no defence to a subsequent charge for the hate crime which is alleged to have given rise to the assault. This does not make logical sense, and will certainly lead to injustice.

Secondly, the Bill violates the principle of double jeopardy found in the Constitution, in that, while the Bill purports the create two separate crimes of hate crime and hate speech, these overlap to such a significant extent, that a charge for hate speech must, by the wording in the Bill, be accompanied by another charge of hate crime. The same may conceivably be true in reverse.

Thirdly, the Bill’s grounds for hate speech are far too wide. The proposed law will criminalise the act of ‘insulting’ another ‘with the intent’ to ridicule or ‘bring into contempt’ the other. Insult and ridicule is part of normal human intercourse and is, in fact, an essential ingredient of a free and democratic society. No law, no matter how well intentioned, can, or should, interfere with this freedom.

Fourthly, the Bill’s protection of certain characteristics is extremely dangerous, as well as unconstitutional. This is especially problematic within the context of the previous point. The Constitution allows for the protection of only four specified characteristics – race, ethnicity, religion, gender – but the Bill protects seventeen characteristics, including ‘culture’, ‘belief’, ‘occupation’, and ‘gender identity.’ Protecting characteristics such as ‘belief’ and ‘occupation’ from ‘insults’ will have perverted effects, whereby South Africans will be jailed for having opinions which are allowable in every other democratic society in the world. Something as harmless as saying “All politicians are thieving liars!” or “All lawyers are blood-sucking parasites!” is hate speech in terms of this Bill.

Fifthly, the Bill provides for no exemptions or defences. The Bill’s apparent purpose, which is to curb hate speech likely to lead to violence, is justified. However, it is essential that a latitude be allowed in certain specified cases, which are internationally recognised.

Furthermore, the Bill is, read as a whole, much harsher than any of the legislation in Kenya, Australia, and Canada, upon which the Bill is apparently based. The Bill also falls foul of international free speech obligations, and goes far wider than any international anti-hate speech instrument, including the International Convention on the Elimination of All Forms of Discrimination.

Hate speech, by its nature, is speech which is likely to lead to violence, or which causes the aggrieved party intense psychological or emotional harm. However, the Bill is far too wide, and has the effect of protecting mere offence or insult. Much vexatious litigation will surely follow from the Bill, and it is open to abuse.

Existing South African law regulates hate speech adequately, and should be preferred to the introduction of a new law. The Equality Act prohibits hate speech, and the Films and Publications Act empowers the Films and Publications Board to refuse classification to publications which contain hate speech. Most notably, the doctrine of crimen injuria has been used in our law to prosecute cases of hate speech, most notably the recent case of Penny Sparrow. Crimen injuria is superior to the proposed Bill because it does not merely require someone’s dignity to have been violated, but also requires that the reasonable person, in the same circumstances, would also have felt degraded. This means that the courts will not allow petty disputes where one person merely offended another, for instance, with a joke, to end up with someone spending three years in prison.

The Hate Speech Bill, if passed unamended (especially without the inclusion of generous defences), will have a profound effect on our constitutional democracy. South Africa will become one of the few countries in the world where freedom of expression is regulated to this draconian extent. Much of the Bill is, in fact, unconstitutional and will, if passed unamended, lead inevitably to successful constitutional challenge.

Martin van Staden
Legal Researcher
Rule of Law Project
Free Market Foundation

2.         The Free Market Foundation

The Free Market Foundation (FMF)[1] is an independent public benefit organisation founded in 1975 to promote and foster an open society, the Rule of Law, personal liberty, and economic and press freedom as fundamental components of its advocacy of human rights and democracy based on classical liberal principles. It is financed by membership subscriptions, donations, and sponsorships.

Most of the work of the FMF is devoted to promoting economic freedom as the empirically best policy for bringing about economic growth, wealth creation, employment, poverty reduction, and human welfare.

3.         Introduction

The Constitution of the Republic of South Africa, 1996,[2] and the interim Constitution[3] before it, was a break from the previous constitutional dispensation wherein the legislature – Parliament – was sovereign, and could pass whatever laws it deemed appropriate.[4] Indeed, in the case of Sachs v Minister of Justice[5] the Appellate Division of the Supreme Court said “Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its sway, and… it is the function of courts of law to enforce its will”.[6] This was the bedrock upon which the previous regime was able to construct Apartheid, as no court of law or civil rights association could challenge the rightfulness or legality of that system according to a set of principles which regulate governance.

The Constitution, however, brought an end to parliamentary sovereignty, and brought about the beginning of constitutional supremacy. This means that all law and legal conduct must be in line with the text, spirit, and purport of the Constitution, and especially the Bill of Rights.[7]

Section 1(c) of the Constitution provides that the Constitution itself, as well as the Rule of Law, is what the non-racial and non-sexist South African state shall be founded upon. Section 16(1) of the Constitution further provides for the most fundamental ingredient of a constitutional state: Freedom of expression. Section 16(2) provides the internal limitations of this right which are evident in every constitutional democracy in the world. Section 36 further provides for general limitations which are also common, if not in text, in practice, in most free societies; and this is quite in line with the accepted jurisprudential notion that no right is absolute.

On 30 March 2016 the Deputy Minister of Justice and Constitutional Development, the Hon. John Jeffrey, MP, announced at the annual general meeting of the Hate Crimes Working Group that the national government intended to introduce an updated version of the Prevention and Combating of Hate Crimes Bill, which has now come to be called the Prevention and Combating of Hate Crimes and Hate Speech Bill, 2016.[8] “In the drafting of the Bill”, Jeffrey said, “we looked at hate crimes laws in other countries, such as Canada, Kenya and Australia.” In closing the Deputy Minister commented that ignorance breeds fear, that fear breeds hatred, and that the Bill will help build “a society free of hate crimes and prejudice”.[9]

The Bill was made available to the public recently in terms of Notice 698 of 2016, issued by the Department of Justice and Constitutional Development.

The FMF has been an active role player in South African civil society in the decades since its foundation, and during that time it has opposed the oppressive legal regime of the Apartheid government and contributed to the constitutional negotiations of the early 1990s. Among the FMF’s key constitutional contributions was that in terms of section 36 of the Constitution, rights could only be limited if “the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”

In the light of the constitutional commitment to the Rule of Law, the open and democratic society, and individual freedom, the FMF makes this submission to highlight various problematic provisions in the Bill. This submission will also include the reasoning for the FMF’s position on these provisions, especially with regards to the Rule of Law and the jurisprudential theory behind freedom of expression. Crucially, while we would prefer the Hate Speech Bill to be shelved entirely (as existing law is sufficient), we do include various suggested amendments to the Bill toward the end of the submission, which we enjoin the Department of Justice and Constitutional Development to take heed of and seriously consider.

4.         Rule of Law & Good Law

4.1       The Constitution

Chapter 1 of the Constitution is known as the ‘founding provisions’, and can be considered to be the very basis upon which this nation is founded. Indeed, section 1 is entitled ‘Republic of South Africa’, and what follows under that section is what the Constitution envisages will characterise this state.

Section 1 reads as follows:

“1. The Republic of South Africa is one, sovereign, democratic state founded on the following values:

(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.

(b) Non-racialism and non-sexism.

(c) Supremacy of the constitution and the rule of law.

(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

This section explicitly states that the Republic per se, i.e. by virtue of its existence, by default, is founded on the values that are listed. Unlike other provisions which are found in the Bill of Rights, which obligate the State to ‘progressively realise’ the content of the provision, the State has no choice or discretion vis-à-vis these values.

Section 1(a) says that the State is founded on “the advancement of human rights and freedoms”; section 1(c) says the State is founded on the “Supremacy of the constitution and the rule of law”; and section 1(d) says the State is founded on “a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”

It would be improper to overlook section 2 of the Constitution. On the face of it, this might appear to be a redundant provision, because it essentially repeats what has already been said in section 1(c) above. However, in light of the fact that this repetition does appear in the constitutional text, it stands to reason that the constitutional drafters considered this to be a provision of paramount importance.

Section 2 of the Constitution, entitled ‘Supremacy of Constitution’, reads as follows:

“2. This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”

This section has the effect of strengthening not only section 1 above, but the Constitution as a whole. Laws which are passed by any level of government which are inconsistent with the constitutional text are invalid by default.[10] Any law thus which violates the Rule of Law (which will be discussed next) is, by virtue of its inclusion in the constitutional text in section 1(c), invalid.

4.2       The Rule of Law

Section 1(c) of the Constitution provides that the supremacy of Constitution, as well as the Rule of Law, are what the South African state is founded upon. This provision elevates the principles of the Rule of Law to a status higher than any specific law, secondary only to the text of the Constitution itself.

In light of this provision it is pertinent to ask “what is the Rule of Law?” Let’s consider the jurisprudence surrounding this constitutional principle.

In the case of Van der Walt v Metcash Trading Ltd[11] the Constitutional Court per Madala J said[12] the following:

“[65] The doctrine of the rule of law is a fundamental postulate of our constitutional structure. This is not only explicitly stated in section 1 of the Constitution but it permeates the entire Constitution. The rule of law has as some of its basic tenets:

1. the absence of arbitrary power – which encompasses the view that no person in authority enjoys wide unlimited discretionary or arbitrary powers;

2. equality before the law – which means that every person, whatever his/her station in life is subject to the ordinary law and jurisdiction of the ordinary courts.

3. the legal protection of certain basic human rights.

[66] The concept of the rule of law has no fixed connotation but its broad sweep and emphasis is on the absence of arbitrary power. In the Indian context Justice Bhagwati stated that:

‘the rule of law excludes arbitrariness and unreasonableness.’

I would also add that it excludes unpredictability. In the present case that unpredictability shows clearly in the fact that different outcomes resulted from an equal application of the law.”

It is important to note the following observations made by the Court. The Rule of Law:

·         Permeates the entire Constitution.

·         Prohibits unlimited arbitrary or discretionary powers.

·         Requires equality before the law.

·         Excludes arbitrariness and unreasonableness.

·         Excludes unpredictability.

The Good Law Project’s Principles of Good Law report largely echoes this, saying:[13]

“The rule of law requires that laws should be certain, ascertainable in advance, predictable, unambiguous, not retrospective, not subject to constant change, and applied equally without unjustified differentiation.”

The report also identifies four threats to the Rule of Law,[14] the most relevant of which for purposes of this submission, is the following:

            “[The Rule of Law is threatened] when laws are such that it is impossible to comply with them, and so are applied by arbitrary discretion […]”

Albert Venn Dicey, known for his Introduction to the Study of the Law of the Constitution, and considered a father of the concept of the Rule of Law, wrote that the Rule of Law is “the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government”.[15]

Friedrich August von Hayek wrote:[16]

“The ultimate legislator can never limit his own powers by law, because he can always abrogate any law he has made. The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal.”

What is profound in Von Hayek’s quote is that he points out that the Rule of Law is not the same as a rule of the law. Indeed, any new Act of Parliament or municipal by-law creates and repeals multiple ‘rules of law’ on a regular basis. The Rule of Law is a doctrine, which, as the Constitutional Court implied in Van der Walt, permeates all law, including the very Constitution itself.

4.3       Good Law

The Rule of Law is a non-negotiable, prerequisite characteristic of any state which purports to call itself a constitutional democracy founded on values such as equality, freedom, and justice. In South Africa, the principles of the Rule of Law were explicitly adopted into our law by the constitutional drafters in section 1(c), and this provision, due to its inclusion in the Constitution, cannot be limited,[17] modified, or abridged, by virtue of section 2 of the Constitution.

The concept of Good Law, however, is wider than the concept of the Rule of Law, and is not a rigid rule. Rather, it is a guideline which a state can adhere to, to various extents, if it wishes to be a prosperous, successful, and free society. A law must certainly adhere to the Constitution and the Rule of Law in the first place, in order to be a good law; but what makes good law broader than the Rule of Law, is the inquiry into whether or not a particular law is both feasible and desirable.

The goal of the law, as well as the textual provisions in the law, must plausibly be achievable, for the law to be feasible.

The movement control laws of the Apartheid era, for instance, were certainly not feasible. The desire of the people to move into urban areas and earn a living was too great for the law to ever hope to control. This is why the Apartheid government, almost immediately after enacting those laws, started chipping away and relaxing them, to the extent of them being virtually repealed in many cases, by the late 1980s.

A law must, furthermore, be desirable. This does not mean that bureaucrats and Members of Parliament desire a law, but rather, it is an inquiry into whether something is jurisprudentially desirable.

For instance; passing a law which creates three new government agencies which do exactly the same thing, would not pass the desirability test, even if it is feasible and constitutionally permissible.

If the goal of government is to encourage legislation which advances transformation and makes South Africa a prosperous society for all to live in, then it will be wise for it to adhere to the principles of Good Law, and not only those of constitutionality or the Rule of Law.

5.         The Need for Freedom of Expression

5.1       Battle of Ideas

Human beings have an extraordinary capacity for violence, as history has demonstrated right up until the dawn of liberal constitutional jurisprudence. When two or more states, tribes, or individuals had a disagreement, using violent force was often one of the first apparent ‘solutions’. Duels (to the death) between individuals were up until a point in history regarded as a completely valid way of solving disputes, for example.

But as our desire for peaceful coexistence developed, we settled on solving our disputes through words and persuasion. We developed an aversion to violence. The phrase ‘battle of ideas’, indeed, is employed to distinguish it from physical battle, or battle of fists. And that is the essence, and most important point, when freedom of expression is considered.

How do we want our disputes and our disagreements to be handled? If we choose to censor some speech – for whatever reason, legitimate as it might be – we are giving individuals two choices: Bottle up, or act out. Either the individual must keep his opinion to himself, or he must assert himself strongly in another manner, to get what he wants. Indeed, it can go either way, and it can never truly be predicted how persons would behave in such a situation. But we rob them of their ability to use their words to achieve their ends.

During Nelson Mandela’s 1962 trial which led to his imprisonment until 1990, he made the following remark to the presiding officer:[18]

“Recently in Britain, a peer of the realm, Earl Russell, probably the most respected philosopher of the Western world, was sentenced, convicted for precisely the type of activities for which I stand before you today, for following his conscience in defiance of the law. For him, his duty to the public, his belief in the morality of the essential rightness of the cause, for which he stood, rose superior to his high respect for the law. He could do no other than oppose the law and suffer the consequences for it. Nor can I… Nor can many Africans in this country.”

Mandela was an intellectual, and not a violent man by nature. But he, along with all those who fiercely opposed the regime of the day, was given the choice highlighted above: Bottle up, or act out. They could not lawfully petition the State to change the system, and freedom of expression was a right which only existed, truly, in the halls of Parliament.

Naturally, the correct choice for the liberation movement was to fight the system. ‘Bottling up’ and doing nothing would have been unacceptable. But they were placed in this position where they had to choose between obeying the law, or their conscience. In our view, it is not prudent or wise to force individuals or groups into having to make this choice.

The battle of ideas, however, also has a crucial economic function, as Von Hayek noted in The Constitution of Liberty:[19]

“If there were omniscient men, if we could know not only all that affects the attainment of our present wishes but also our future wants and desires, there would be little case for liberty. And, in turn, liberty of the individual would, of course, make complete foresight impossible. Liberty is essential in order to leave room for the unforeseeable and unpredictable; we want it because we have learned to expect from it the opportunity of realizing many of our aims. It is because every individual knows so little and, in particular, because we rarely know which of us knows best that we trust the independent and competitive efforts of many to induce the emergence of what we shall want when we see it.”

He continues:

“Freedom necessarily means that many things will be done which we do not like. Our faith in freedom does not rest on the foreseeable results in particular circumstances but on the belief that it will, on balance, release more forces for the good than for the bad.”

We, as individuals, alone, do not know everything. In fact, often, we do not know about everything we know ourselves, and certainly, we more often than not, have no idea what other individuals know. This is why we give them the liberty to express their knowledge, for all of us to collectively benefit from it.

5.2       Individual Autonomy

It is interesting to note an aspect of the British philosopher John Stuart Mill’s seminal work, On Liberty, which is often not considered in the discourse surrounding it. The text was first published in the year 1859, and in the opening lines of the second chapter Mill wrote:[20]

“No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear.”

At a time when slavery was still legal in the United States of America, Mill believed that the debate around freedom of expression was cut-and-dried. So fundamental was the ability to speak one’s mind to Mill, that he would likely be dumbstruck to learn that in 2017 we are still contemplating whether or not we should allow individuals to do so.

Mill continues, writing perhaps the words of his which are the most-often quoted:[21]

“If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”

The theory of the social contract is that individual human beings sacrificed their absolute freedom in nature to government, in order for government to protect them from violence. The social contract, in the modern constitutional democracy, is usually embodied in the constitution of that particular state.

As we will submit below, the Constitution of South Africa does not entitle the State to prohibit expression on any ground other than those listed. But it is furthermore apt to note that a prohibition on expression defeats the very essence of democracy, for, indeed, how else will society make use of the mechanisms of democracy without the ability to articulate their individual and collective ideas?

In Case v Minister of Safety and Security[22] Mokgoro J said the following:[23]

“But of more relevance here than this ‘marketplace conception of the role of free speech is the consideration that freedom of speech is a sine qua non for every person’s right to realise her or his full potential as a human being, free of the imposition of heteronomous power. Viewed in that light, the right to receive others’ expressions has more than merely instrumental utility, as a predicate for the addressee’s meaningful exercise of her or his own rights of free expression. It is also foundational to each individual’s empowerment to autonomous self-development.”

Indeed, it is a prerequisite for a prosperous society for the people of that society to believe, and to be able to, fulfil their own needs and desires.

5.3       Societal Transparency

Frank Meyer aptly observed the following:[24]

“Men cannot be forced to be free, nor can they even be forced to be virtuous. To a certain extent, it is true, they can be forced to act as though they were virtuous. But virtue is the fruit of well-used freedom. And no act to the degree that it is coerced can partake of virtue – or of vice.”

What this means, in essence, is that individuals cannot be virtuous, unless they are free to be vicious.

It is no secret that South African society, like many other societies across the world, is often plagued by bigotry, racism, and sexism. None of these vicious character traits or attitudes is cured when the ability to be a bigot, is presumably outlawed. It is merely another case of bottle up, or act out, wherein individuals are placed. The freedom to be ignorant and hateful, is the only way for people to become informed and loving.

But aside from this, freedom of expression serves a crucial function vis-à-vis other persons – not the hateful person in question. This function is that of societal transparency.

There is a saying among progressive thinkers that ‘sunlight is the best disinfectant’. This means that if we allow the hateful to air their ignorant views and opinions, we are able to identify them, and subsequently help correct them, or avoid them.

John Stuart Mill had the same thing in mind when he wrote the following:[25]

“But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

This function of freedom of expression is both social and economic: Society is able to manifest its disapproval of certain views by ostracizing the individuals who espouse them if they are completely unwilling to change, and if those individuals are providers of goods or services, their business can be boycotted. This function is superior to the outlawing of expression, in that it does not cost the taxpayer anything to enforce, and that it is a people-driven initiative.

6.         The Constitutional Right to Freedom of Expression

Section 16 is part of Chapter 2 of the Constitution, otherwise known as the Bill of Rights. The Bill of Rights codifies rights, liberties, and obligations which the people of South Africa may exercise unhindered by other persons, companies, or the government.

Section 7 is the first provision in the Bill of Rights, and provides as follows:

7. (1) 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.

(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

This section highlights the importance of the Bill of Rights, elevating it to “a cornerstone of democracy in South Africa.” Section 2, crucial for purposes of this submission, binds the State with the provisions of the Bill. Finally, section 3 subordinates any right in the Bill to the application of internal limitations as well as general limitations, as found in section 36.

Section 16 does two things. Firstly, in section 16(1), it guarantees the right to freedom of expression:

“16. (1) Everyone has the right to freedom of expression, which includes —

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.”

This section is the actual ‘right’ which the Constitution bestows upon the people. Implicit in this provision is also a prohibition against the State using its power to suppress individuals from making use of the freedoms in this section.

Of importance here and throughout, is section 16(1)(b), the “freedom to receive or impart information or ideas”.

This right, like any other right, is not absolute, as is stated in section 7(3).

Secondly, in section 16(2), the Constitution limits the preceding right to freedom of expression:

“(2) The right in subsection (1) does not extend to —

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.”

This is a numerus clausus – a closed list – which means that the right in section 16(1) above can only be limited in terms of what section 16(2) actually provides, and nothing more. Only those three subsections can cause the State to legitimately limit freedom of expression.

Of importance within the context of this submission, then, is clearly section 16(2)(c), which prohibits the advocacy of hatred based on four listed grounds, being race, ethnicity, gender, and religion. But this advocacy is only prohibited if it constitutes incitement to cause harm.

6.1       Internal Limitations – Section 16(2)

Every right in the Constitution, as well as foreign bills of rights, contains internal limitations. These internal limitations serve the purpose of limiting a right further than it might otherwise be limited under a general limitations clause, in order to provide for specific contexts where the right must be limited.

Internal limitations can take two forms: Those limitations evident from the text itself, and those limitations expressly provided for. In the first case, the right limits itself through the wording of the right itself, in other words, it is not infinitely open-ended. In the second case, a provision in the right provides for a limitation.

Section 16(2) is the internal limitations clause of the right to freedom of expression in South Africa.

For the context of this submission, section 16(2)(c) is the applicable provision to bear in mind. As quoted above, it provides that expression which advocates hatred based on race, ethnicity, gender, or religion, and which constitutes incitement to cause harm, are not protected.

The limitation has four crucial aspects which will be considered here:

·         Advocacy for hatred.

·         The grounds of prohibition.

·         Incitement.

·         Harm.

The expression must advocate hatred, which, according to the oft-cited Canadian Supreme Court case of R v Keegstra[26] means “emotion of an intense and extreme nature that is clearly associated with vilification and detestation.” In other words, the hatred must be intentional, and subjective to the individual advocating it. It is not possible to negligently or accidentally have an “emotion of an intense and extreme nature.” Intention also presupposes consciousness. There is no such thing as a subconscious intention.

The advocacy must relate to race, ethnicity, gender, or religion. Advocacy of hatred based on any other group characteristic cannot be limited in terms of this section, but may be in terms of section 36. Incitement to imminent violence, however, is not protected (on any ground), as is evident from section 16(2)(b) of the Constitution.

The advocacy must amount to incitement. In other words, mere advocacy of hatred is still protected expression.[27] But when there is a call to action – an incitement to cause harm, it becomes hate speech, and is no longer protected. ‘Incitement’ is a specific criminal law concept. In South African law incitement is defined in the Riotous Assemblies Act, as amended,[28] and means “incites, instigates, commands, or procures any other person to commit any offence, whether at common law or against a statute or statutory regulation”.[29] Building upon ‘hatred’, as defined above, the incitement itself must also be intentional, and cannot happen negligently or accidentally.[30]

Finally, the advocacy which constitutes incitement must be to commit harm. Botha and Govindjee,[31] in arguing for the introduction of hate speech regulations in South Africa, built upon the constitutional hate speech provision and argued that cases of “wilful incitement to cause severe harm” must be prosecuted by the State. They defined harm as the advocacy of physical violence. However, as section 16(2)(b) already outlaws incitement of imminent violence, it is to be presumed that section 16(2)(c)’s provision has wider application. In this respect, the criteria relating to the doctrine of crimen injuria is apt to note, as it is the clearest common law doctrine which relates to non-physical harm which potentially carries penal repercussions.

Crimen injuria is the unlawful and intentional serious violation of the dignity or privacy of another.[32] To determine whether someone’s dignity has been seriously violated, both a subjective and an objective test are utilised.[33] In the subjective sense, there must be an awareness of the offending behaviour, and degradation or humiliation must have followed from it.[34] In the objective sense, the reasonable person in the same circumstances must also have felt degraded or humiliated.[35]

Therefore, in summation, a person must have the intention to advocate hatred based on race, ethnicity, gender, or religion, which constitutes incitement to cause physical harm or seriously violate dignity, based on those grounds.

6.2       General Limitations – Section 36

Not only does the Constitution contain internal limitations found within each granted right, but there is also the ‘general limitations’ clause in section 36, which empowers the State to limit any right in the Bill of Rights if the limitation adheres to the criteria set out in that section. Section 36 provides as follows:

36. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including —

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

While the courts may take into account factors other than those listed in section 36(1)(a)-(e), it has been customary for the courts to limit themselves to these five factors which appear in the text.

Laws which limit rights must be “reasonable and justifiable in an open and democratic society”.

The Free Market Foundation was instrumental in having this portion of section 36 added to the Constitution, and thus we write with confidence when we say that the ‘open society’ is a concept developed by Karl Popper in his work The Open Society and Its Enemies. The ‘open society’, according to Dr Alan Haworth, “is a society characterised by institutions which make it possible to exercise the same virtues in the pragmatic pursuit of solutions to social and political problems”. These ‘virtues’ which must be possible to exercise are “creativity and imagination in the formulation of theories and hypotheses, as well as in devising experiments with which to test them; critical rationality in the assessment of theories and other claims; the toleration required to recognise that other peoples’ theories could be rivals to your own”.[36]

Therefore, for a limitation to be justifiable in an open society, the limitation must still allow individuals to exercise these aforementioned virtues in their daily lives. In other words, they must have the freedom to express themselves and manifest their own ‘experiments’ to arrive at certain conclusions. This certainly mirrors Von Hayek’s sentiment as quoted above, in that individual liberty lets everyone come up with their own apparent ‘solutions’, and then the most appropriate solutions are chosen by society. This is the battle of ideas.

The Constitution’s provision could have stopped at “open and democratic society”, but it goes further, and says “an open and democratic society based on human dignity, equality and freedom”. These values of dignity, equality, and freedom also appear in section 1 of the Constitution, meaning these are founding values for South Africa, and not simply filler text. These values also complement one another, in that no individual’s dignity is truly being respected if he has no substantive freedom.

Furthermore, the factors listed in section 36(1)(a)-(e) further narrow the scope of the limitation of rights, and allow the courts to take other, unlisted factors into account, to decide whether or not the limitation is justifiable in an open and democratic society which is committed to the values of human dignity, equality, and freedom.

As we are dealing with freedom of expression in this submission, we will briefly discuss this right in relation to each of the factors listed in section 36(1)(a)-(e).

(a) The nature of the right.

The right to freedom of expression, by its very nature, is meant to protect speech which might be offensive to other persons. This stands to reason, for why would the freedom to discuss the weather, the taste of certain food sorts, or sports, require constitutional protection? For the most part, these are inoffensive topics for discussion, meaning nobody will take action to hinder this expression.

On the other hand, political and economic expression by a person or group of persons is more often than not offensive to another person or group of persons. It is because this other group of persons – which is often the State – may try to coerce the former into silence that such a thing as the ‘right to freedom of expression’ exists.

As I have written elsewhere:[37]

“Of what relevance is the right to freedom of expression, for example, if an individual is in any case not allowed to say the most demeaning or offensive thing conceivable to another? If a particular statement is not offensive to anyone, then there need not be a constitutional protection for it, as no individual will challenge it in court. However, the constitutional protection exists because others might be offended or affronted by certain statements which they would desire to be censored. Indeed, the very nature of freedom of expression is supposed to protect the most unpopular perspectives, otherwise rendering this constitutional protection useless.”

In the case of SABC v NDPP,[38] the Constitutional Court further emphasised the nature of this right:

“This Court has frequently emphasised that freedom of expression lies at the heart of democracy.  It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally.  The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.”

(b) The importance of the purpose of the limitation.

Hate speech is a deeply emotional and divisive aspect in any society, especially if it has the potential to lead to physical violence and civil strife. In this case, the purpose of the limitation cannot be questioned on its importance and noble intention.

(c) The nature and extent of the limitation.

The extent of the limitation has an undeniable effect on its justifiability. If freedom of expression is banned in toto then the limitation will never be justified. If freedom of expression is allowed absolutely, then it will also not be justified, in light of section 16(2) of the Constitution. The more severe the nature and extent of the limitation, the greater the chances of it being unjustifiable, and vice versa.

As we discuss below, the extent of the limitations on expression found in the Hate Speech Bill are very severe, especially if compared to other legal regimes and international law. To name but one example, the prohibition of ‘insults’ with the intention to ridicule, on the basis of belief or occupation, itself almost has the effect of banning political expression entirely.

(d) The relation between the limitation and its purpose.[39]

This is simply the requirement of rationality restated in constitutional terms. Rationality is one of the two legs of reasonableness. Reasonableness, in this context, means that a reasonable person will come to the conclusion that the limitation will achieve its purpose. As we already know, a limitation must be “reasonable and justifiable” to persist, in terms of the Constitution.

For the limitation to be justifiable, thus, it must be rational, meaning the limitation must be objectively capable of achieving the purpose. In other words, evidence must support the notion that the limitation will effectively combat the problem identified.

(e) Less restrictive means to achieve the purpose.

This is the second leg of reasonableness, and is a constitutional restatement of the requirement of proportionality. In S v Manamela[40] the Constitutional Court described proportionality as the notion that one ought not to use a sledgehammer to crack a nut.

If less restrictive means are available to the government to achieve the purpose, then it must exhaust those means before resorting to harsh action, such as the Hate Speech Bill.

As we will discuss below, existing law is sufficient in the combating of hate speech, and, furthermore, no public order or public moral crisis is happening, as a report on South African race relations shows. Furthermore, the FMF has identified ways in which the sections of the Bill can be amended to render it constitutionally sound, meaning that, certainly, less restrictive means are available to the government.

7.         Legitimacy of Regulating Hate Speech

7.1       South African History

It goes without saying that South Africa has a unique history which has led, in large part, to the unique circumstances underlying the justification of the Bill.

The Apartheid regime was marked by the State arbitrarily distinguishing between individuals of different races and thereby affording social and economic opportunities and dignity only to some, but not to others. The State also, directly and indirectly, attempted to instil a culture of racial separateness, which inevitably led to perceptions of racial superiority on the part of many South Africans. These perceptions – to a much lesser extent – still linger, and the grave violation of the dignity of millions of South Africans during the period of the former regime, also lingers psychologically.

While South Africans have been extremely resilient, and, in comparison to other societies around the world, markedly peaceful in the face of great temptations for war, these lingering consequences of the former regime still have a substantial impact on our society, today. This is why legislation such as the Equality Act – but for the aspects we object to as being unconstitutional – may be needed to attempt to dress the wounds of the past.

7.2       Hate Speech Leads to Physical Violence

The most notable distinction between ‘hate speech’ and ‘hateful speech’ is that hate speech leads to violence, whereas hateful speech may merely lead to emotional or psychological offence. There is therefore a legitimate government interest in regulating hate speech, which in essence amounts to incitement to commit a violent crime, in our law.

In the year of our first democratic election, Rwanda experienced one of the potential consequences of unregulated hate speech. The popular radio station Radio Télévision Libre des Mille Collines and magazine Kangura spent the months and years preceding the 1994 genocide stoking ethnic hatred, culminating in the deaths of between 500,000 and 1 million people.

The commonly accepted legal definition of hate speech is speech aimed at stoking hatred, which will likely provoke violence.

The Constitution in section 16(2)(c) requires that advocacy must also include an incitement to cause harm (a call to action). This is the difference between hateful, and hate speech. Hateful speech is the advocacy of hatred, and hate speech is advocacy of hatred coupled with incitement to cause harm. Furthermore, the Constitution – as we know – further limits this to the four grounds of race, ethnicity, religion, and gender. However, section 16(2)(b) does provide that incitement to imminent violence on any ground is prohibited.

Therefore, it is constitutionally justified to regulate hate speech. Mere hateful speech, on the other hand, is protected.

7.3       International Law Requires It

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), of which South Africa is a member, enjoins national governments to take action against ethnic and racial discrimination. ICERD is mentioned explicitly in the Preamble to the Hate Speech Bill.

In article 2, the Convention provides that national governments undertake “to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.” It further provides that governments must take “measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.”

Article 4 is of importance within the context of this submission. It provides in subsection (a) that law must be adopted by parties to the Convention which criminalise “all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race […]”


 

8.         Hate Speech Regimes of Kenya, Canada, and Australia

As we have seen in the introduction, the Deputy Minister of Justice said that much inspiration for the Bill was drawn from similar legislation found in Kenya, Canada, and Australia. In this section we will consider the hate speech legal regimes of each of those nations, and compare them with what the Bill currently makes provision for.

8.1       Kenya

In terms of the relevant part of section 13 of the National Cohesion and Integration Act[41] in the Republic of Kenya, a person will be guilty of hate speech only if his “threatening, abusive or insulting words or behaviour […] is threatening, abusive or insulting […] if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up.”

In other words, the Kenyan Act is, firstly, limited to ethnic hatred[42], and secondly, is limited to when there is an intention to stir up ethnic hatred, or ethnic hatred is likely to be stirred up.

On the other hand, the Hate Speech Bill in South Africa, as will be seen below, is not limited to racial or ethnic hatred. It provides for the protection of an astounding seventeen characteristics. Furthermore, it is not limited to the intention to stir up hatred based on those grounds. It also does not matter whether hatred will be a likely consequence of the behaviour in question. The Bill goes far wider, and prohibits the speech regardless of consequence. It simply requires the person to act intentionally. Whether actual hatred is stirred up or is likely to be stirred up, is irrelevant.

This is concerning for two interrelated reasons: Firstly, the proposed Hate Speech Bill goes far beyond the Kenyan Act; and, secondly, the Kenyan Act itself has been authoritatively questioned in light of international human rights law.[43] If the Department of Justice and Constitutional Development is going to take inspiration from foreign sources, those sources must, at the very least, comply with international law. From our reading, the same concerns which have been levelled against the Kenyan Act will be mutatis mutandis problems in the South African legislation.

8.2       Canada

Within the Canadian context we will focus on the Canadian Criminal Code.[44] The Canadian Human Rights Act[45] is distinguishable from the Hate Speech Bill, as it does not provide for the criminalisation of certain speech. It, like our Equality Act, prohibits discrimination on various grounds.

Canada is a federation, meaning subnational provinces may have their own laws. However, in this case, the relevant provincial legislation is based on the federal Human Rights Act.

In terms of section 318 of the Criminal Code, advocacy of genocide is prohibited, which is consistent with our Constitution and justifiable in terms of our law. What is of more relevance is section 319(1) and (2), which prohibit the public incitement of hatred, and the wilful promotion of hatred. In the case of the former, inciting hatred in public against an identifiable group[46] which “is likely to lead to a breach of the peace” is prohibited, and carries a sentence not exceeding two years. In the case of the latter, promoting hatred against an identifiable group, in public, with intent, is similarly prohibited, and carries the same sentence.

In other words, the Criminal Code requires the hate speech to be public. It is also limited to the grounds of colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability, which are significantly fewer characteristics than the seventeen found in the Hate Speech Bill.

Of crucial importance is the fact that section 319(3) provides the defences of truth, engagement in good faith, and discussion in the public interest. The South African Bill makes no provision for defences.

8.3       Australia

The principal statute in Australia dealing with hate speech is the Racial Discrimination Act.[47] From the name it should be immediately evident that its scope of application will be much more limited than that of the local proposed Hate Speech Bill. Like Canada, Australia is a federation, meaning that subnational provinces may have their own laws. One of these will be briefly considered, but the Racial Discrimination Act will be the focus of this section.

The Act provides in section 18C that it is unlawful for a person to do something in public (private conduct[48] is exempted) that “is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of people” and it “is done because of the race, colour or national or ethnic origin” of the other person or group of people. Section 18D provides exemptions: Artistic work; statements, publications, and discussions for academic, artistic, or scientific purposes; and fair report or fair comment on an event or matter of public interest.

In other words, the Australian Act’s application is limited, firstly, to public acts, and secondly, limited to race, colour or national or ethnic origin. It also includes exemptions.

The Hate Speech Bill, in South Africa’s case, does not include exemptions, which is contrary to international best practice in the regulation of speech, appears to apply to all conduct whether private or public, and provides for the protection of seventeen grounds – not four, as in the case of the Australian Act.

Most importantly, the Australian Act does not make ‘hate speech’ an imprisonable offence. Instead, the authorities seek to mediate the matter between the involved parties, with damages potentially payable to the aggrieved party.

With the exception of the province of Western Australia, all other Australian provinces have civil penalties for hate speech, all of which remain narrower than the proposed South African Bill in terms of protected grounds.

The Western Australian statute – the Criminal Code Act[49] -- regulates racial[50] hate speech in Chapter 11. It, like the Australian Act, is limited to public conduct which “intends to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group”,[51] but punishment is an astounding 14-year term of imprisonment. Section 78 provides that conduct which is likely to have the same effect as the above is similarly unlawful, with 5 years’ imprisonment being the punishment.

Section 80G of the Western Australian statute provides exemptions which are in effect the same as that in the Australian Act.

The Hate Speech Bill in South Africa thus also goes far beyond the grounds of protection found in the Western Australian statute; again with seventeen versus four. The Western Australian statute, however, does impose a harsher sentence, but this should be seen in light of the fact that it only applies to racial hate speech, and not, like the South African Bill, to instances such as ‘hate speech’ based on culture, belief, or occupation. Furthermore, only public conduct is regulated.

9.         Problems with the Bill

Although it should be evident from a holistic read of this submission that the Free Market Foundation would prefer the Bill not to pass, we will, under the relevant sub-headings below, include proposed amendments to the Bill for every section contemplated, in an attempt to rescue the Bill from unconstitutionality and bring it in line with the principles of good law.

9.1       An Individual can be Convicted of a Hate Crime even if Acquitted of the Underlying Offence.[52]

The bulk of this submission focuses on the crime of hate speech which is created in terms of this Bill, however, one aspect of the regulation of hate crimes which is similarly part of the Bill, must be noted and problematized.

What the Bill does in section 3(1) is make it an original offence to commit another offence, with hatred being the motive. In other words, the crime being motivated by hate does not aggravate the crime, but rather, it is an additional offence in and of itself.

It is apt to highlight the problem with this by way of an example:

A single mother, Thandi, lives alone with her child. A large man, John, violently breaks into her flat with the intention to do harm to her and her child. Thandi reacts quickly and defends herself with a softball bat, beating John into submission. However, overcome by adrenaline and emotion, as she is defending herself, Thandi calls John “an evil chauvinist Englishman” who must “go back to England.”

The National Prosecuting Authority charges Thandi with assault with the intent to do grievous bodily harm (the underlying offence), and attaches the offence of hate crime to the charge sheet.

The charge of the underlying offence – assault with the intent to do grievous bodily harm – fails when Thandi’s defence of private defence succeeds. However, it is shown that Thandi did use excessive force in the process of defending herself and was motivated by a racial hatred for John (proved by earlier poetry expressions of hatred towards Englishmen by Tandi). For instance, she did not stop hitting John with the bat after he was already incapacitated. Rather than a possible diversion program and non-conviction status (the court exercising its discretion under section 297 of the Criminal Procedure Act,[53] particularly section 297(1)(c)) Thandi would be harshly, and unjustly, dealt with by the law.

We propose that for an individual to be convicted of hate crime, the underlying offence (be it assault, murder, rape, or whatever) must itself first be proved. In other words, if the underlying crime is not proven, and the individual is duly acquitted, then the hate crime, which has been “attached” to the offence, must also fall away.

Therefore, we believe it will be appropriate to simply add the following provision in section 3 of the Bill:

(4) A person may not be convicted of an offence under this section unless all of the elements of the underlying offence are proved beyond a reasonable doubt and the court is satisfied that it is in the public interest that the accused be convicted of the offence.

9.2       Double Jeopardy: The Two Crimes Overlap to a Significant Extent

The Act, as we know, creates two new crimes: Hate crime, and hate speech.

A hate crime is defined as any offence already recognised under our law, the commission of which was motivated on the basis of the perpetrator’s prejudice, bias, or intolerance of the victim, based on several characteristics. Hate speech is defined as the intentional communication of the advocacy of hatred, with the intention to inter alia bring into contempt or ridicule a person or persons based on several characteristics.

The problem at hand here is that these two definitions overlap to a significant extent, in the following sense:

Because hate speech will now be a recognised crime in our law, it will qualify in terms of the definition of hate crime, and because hate speech will always be motivated by prejudice, bias, or intolerance, any instance of hate speech will always, going by the wording of the Act, be an instance of hate crime. In other words, whenever someone is charged with hate speech, they must as a consequence also be charged with hate crime.

The following example illustrates this: Mondi is a destitute hawker in Durban. A wealthy Mozambican businessman ignores Mondi as he walks past him on the busy street as Mondi tries to sell something to him. Mondi then mumbles “filthy Mozambican trash!” to a fellow hawker nearby, but the businessman overhears this and subsequently requests the National Prosecuting Authority to institute charges in terms of the hate crimes law.

Due to the wide scope of the hate speech provision in the Bill, which will be discussed below in more detail, Mondi might be guilty of having committed hate speech. However, because he committed this crime with prejudice, bias, or intolerance as his motivation, he will simultaneously be guilty of hate crime. This, going by the wording in the Act, might conceivably happen in every case of hate speech.

Furthermore, the opposite is also true. Unless a group of perpetrators who commit a hate crime (i.e. assault, rape, murder, etc. with hatred as described above as motivation) does so in complete silence, they will conceivably always also be guilty of hate speech.

The proposed new crimes, therefore, overlap to such an extent that absurdities may result.

This potentially has the effect of violating the rule against double jeopardy. The principles of autrefois convict and autrefois acquit – South Africa’s equivalent of the rule against double jeopardy – dictates that an accused who has been either convicted or acquitted of an offence, may not on the same facts, be charged for the same crime. In other words, his conviction or acquittal is a bar to a second indictment on the same facts.

Therefore, if the Bill retains these provisions as they stand, it will fall foul of the Constitution,[54] in that if Mondi is, for instance, convicted of hate speech, he may, on the very same facts, also be convicted of hate crime.

The Department of Justice and Constitutional Development, or, if the Bill is passed as is, Parliament, could certainly not intend for this to be case. In our view this might be an error in legislative drafting – an oversight. This oversight, if enacted into law, will not only violate the Constitution, but also the Rule of Law principle that the law should be clear and rationally linked with the purpose for which it was enacted.

Therefore, we recommend the following amendment to the Bill to bring this provision in line with the Constitution and the Rule of Law. This will conceivably be a new section 6 in the Bill:

Mutual exclusivity of sections 3 and 4

6. (1) An accused who has been convicted or acquitted on a charge of hate crime in terms of section 3, may not be convicted, on the same facts, on a charge of hate speech.

(2) An accused who has been convicted or acquitted on a charge of hate speech in terms of section 4, may not be convicted, on the same facts, on a charge of hate crime.

(3) The Director of Public Prosecutions having jurisdiction must direct that any prosecution in terms of sections 3 or 4 be limited to the offence contained in either section, and not both.

(4) An acquittal on a charge of hate speech in terms of section 4, is, on the same facts, a complete defence for a charge of hate crime in terms of section 3.

(5) An acquittal on a charge of hate crime in terms of section 3, is, on the same facts, a complete defence for a charge of hate speech in terms of section 4.

9.3       Existing Law is Sufficient

Bearing in mind the fact that it is entirely legitimate to regulate hate speech in South Africa, it is important to realise that the law, as it exists, is entirely sufficient in this regard. In addition to the Constitution in section 16(2) which does not provide protection for hate speech, two further Acts of Parliament regulate hate speech, in addition to the common law doctrine of crimen injuria.

While the Free Market Foundation will have similar objections to the Promotion of Equality and Prevention of Unfair Discrimination Act,[55] it is already a part of South African law, and those objections will be reserved for a more appropriate time. However, because this Act is already part of our law – despite our concerns about its constitutional validity – we believe it would be redundant for the Hate Speech Bill to become law.

The Equality Act, in the aptly-titled section 10 (“Prohibition of hate speech”), provides:

“10. (1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to —

(a) be hurtful;

(b) be harmful or to incite harm;

(c) promote or propagate hatred.

(2) Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21(2)(n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.”

While much more verbose, this section, in essence, re-states what the Constitution provides in section 16(2).

The Equality Act also provides for appropriate exceptions in section 12, a provision which is not mirrored in the Hate Speech Bill.

Section 16(4) of the Films and Publications Act[56] empowers the Films and Publications Board to refuse classification to publications which contain “advocacy of hatred based on any identifiable group characteristic and that constitutes incitement to cause harm”, which is a constitutionally-sound provision, but for the fact that the “identifiable group characteristic” definition in the Act – like the Equality Act – goes far wider than the what is constitutionally permitted. However, as with the Equality Act, the FMF will reserve its objections for existent law for a more appropriate time.

We briefly discussed crimen injuria above, but it deserves a more detailed discussion in this section. It is defined as “the unlawful, intentional and serious violation of the dignity or privacy of another”.[57] In order for an individual to be guilty of crimen injuria, they must unlawfully and intentionally fringe on the dignity or privacy of another, in a serious fashion. This infringement can take place in terms of conduct or communication. [58]

Both a subjective and an objective test are utilised to determine whether infringement, in fact, took place.[59] In the subjective sense, there must be an awareness of the offending behaviour, and degradation or humiliation must have followed from it.[60] In the objective sense, the reasonable person in the same circumstances must also have felt degraded or humiliated.[61] This latter aspect is crucial, as it ensures individuals who may be hypersensitive do not place an unbearable burden on the courts.

Crimen injuria also requires the infringement to be serious, which is determined by the courts on a case by case basis having regard to all the factors. The objective test outlined above will have a large influence on the courts’ determination of whether an infringement was serious.

This existing part of our law is superior to the proposed law, firstly, because it has already been fleshed out as a developed doctrine in our criminal law. Years of precedence and previous judgments – including ones for racist speech – are available which the judiciary can rely on in settling hate speech issues. Secondly, crimen injuria does not require an exhaustive list of possible ways of communication, which the Bill provides for. Instead, regardless of the mode of communication, the court simply determines whether there was, in fact, a serious violation of dignity. Lastly, the combination of a subjective and objective test is apt in hate speech cases, because it affords the psychological and emotional harm the aggrieved party may have suffered recognition and relevance, but also ensures that petty or vexatious disputes – which could number in the hundreds of thousands per month, on the Bill’s current language – are kept well away from the criminal justice system.

9.4       The Grounds Establishing Hate Speech Are Too Wide

Section 4(1)(a) of the Hate Speech Bill provides as follows (our emphasis):

“4. (1) (a) Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that –

(i) advocates hatred towards any other person or group of persons; or

(ii) is threatening, abusive or insulting towards any other person or group of persons,

and which demonstrates a clear intention, having regard to all the circumstances, to –

(aa) incite others to harm any person or group of persons, whether or not such person or group of persons is harmed; or

(bb) stir up violence against, or bring into contempt or ridicule, any person or group of persons […]”

What this section says is that any individual, who insults another group of people, with the intention to bring them into contempt or ridicule them, based on the characteristics that will be discussed below, is guilty of hate speech.

The problem here is immediately evident, given that the Bill does not define “insulting”, “contempt”, or “ridicule”. Therefore, we must use laymen’s dictionaries to find the true meaning of the provision:

·         Insult: “an insolent or contemptuously rude action or remark; affront”.[62]

·         Contempt: “the feeling with which a person regards anything considered mean, vile, or worthless; disdain; scorn”, or “the state of being despised; dishonour; disgrace”.[63]

·         Ridicule: “speech or action intended to cause contemptuous laughter at a person or thing; derision”.[64]

In other words, a rude remark which is aimed at pointing out the dishonour of, for instance, an ideological belief, will be considered as hate speech. This, in our view, is a complete violation of freedom of expression and cannot be justified within the context of our constitutional democracy.

The inclusion of “or ridicule”, furthermore, is in direct contravention of section 16(1)(c), which protects artistic creativity, which would include comedy and humour. A substantial portion of comedy is often dark in its nature, and the inclusion of ‘ridicule’ as a ground which establishes hate speech might criminalize everything from comically critiquing conservative Afrikaner culture to light-hearted lawyer or politician jokes.

We propose the following as an alternative provision for the first portion of section 4(1)(a):

4. (1) (a) Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that advocates hatred or is threatening toward any other person or group of persons, and which demonstrates a clear intention, having regard to all the circumstances, to –

(i) incite others to harm any person or group of persons, whether or not such person or group of persons is harmed; or

(ii) stir up violence against any person or group of persons, […]

9.5       There Are Too Many Protected Characteristics

The Constitution, in section 16(2), provides that advocacy of hatred that constitutes incitement to cause harm, based on race, ethnicity, gender, or religion, is not protected speech. That is a numerus clausus – a closed list – meaning that ‘hateful speech’ based on other grounds is protected speech.[65]

The constitutional provision dealing with discrimination[66] is often conflated with the free expression provision. The equality clause states that no person, or the State, may unfairly discriminate against another based on inter alia race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, or birth.

But these characteristics are protected from unfair discrimination, and not from insulting or offensive speech. It is absolutely crucial to bear this distinction in mind and not assume that they mean essentially the same thing.

The Hate Speech Bill, however, protects all seventeen of the following characteristics:[67]

·         Race

·         Gender

·         Sex (including intersex)

·         Ethnic or social origin

·         Colour

·         Sexual orientation

·         Religion

·         Belief

·         Culture

·         Language

·         Birth

·         Disability

·         HIV status

·         Nationality

·         Gender identity

·         Albinism

·         Occupation or trade

It must be remembered here that the Constitution’s conception of hate speech is limited to incitement to cause harm, whereas this Bill, as discussed above, goes far beyond. This means that mere insults might be characterized as hate speech, and thus punishable in terms of this law.

The most worrying of these protected characteristics are ‘belief’, ‘culture’, ‘occupation or trade’, and ‘gender identity’, none of which are defined in the Bill.

‘Belief’, as a protected ground, is alone a grave threat to South Africa’s democratic dispensation. Prohibiting South Africans from insulting beliefs – capitalism, racism, homophobia, and Afro- and Eurocentrism, are all ‘beliefs’ – is to take away their ability to honestly interrogate ideas.

‘Culture’ is certainly a sensitive aspect in South African discourse, but making it an imprisonable offence to ridicule the cultural choices of individuals has the same effect as that with ‘belief’. For instance, the controversial initiation ceremonies which occur mostly in the Eastern Cape always have a tendency to make emotions run high. This past season, the City Press reports, around 20 initiates have died,[68] and many upset South Africans have expressed their disapproval of this cultural institution in very passionate terms, some of which might well be classed as ‘hate speech’ in terms of this Bill.

It goes without saying that the inclusion of ‘occupation or trade’ in this Bill must be met with much concern and circumspection. Hate speech has traditionally been associated with characteristics over which individuals do not have much or any choice, such as their race or sex. However, protecting one’s profession from ridicule is fertile ground for this law to be abused by overly-sensitive individuals in our society, which will not only harm the dignity of South Africa’s judicial system, but also fill the courts’ case logs with unnecessary and petty disputes which will hinder the judiciary from hearing actual cases which address real problems. It would be quite ridiculous to allow a lawyer, such as myself, to have the State prosecute someone for saying “lawyers are blood-sucking parasites!”, and possibly send them to prison for three years.

It is immaterial whether the Department of Justice and Constitutional Development and the National Prosecuting Authority assert that they will not engage in this kind of petty litigation, and thus will not authorise such prosecutions. But neither of these organs of state can comment on the next administration of their respective agencies. Changes in government, and changes of individuals in government, are the lifeblood of a democracy, and it is for this reason that all law must rather be compatible with the tried and tested principles of the Rule of Law and the Constitution, rather than merely be based on what is true ‘at the moment.’

In light of the fact that some of these grounds may open the floodgates of litigation or be available for abuse, we propose the following characteristics to be protected, instead, to bring section 4 in line with the Constitution:

·         Race

·         Colour

·         Ethnicity

·         Gender

·         Sex (including intersex)

·         Religion

These six characteristics can be interpreted as being protected in terms of section 16(2) of the Constitution on a liberal, generous reading of that provision. However, anything beyond these six are in conflict with the letter and spirit of the Constitution and our open and democratic society.

9.6       No Exemptions or Defences

In our discussion on the hate speech regimes of Kenya, Canada, and Australia – which the Department of Justice and Constitutional Development claims are inspirations for the Bill – we pointed out repeatedly that a distinguishing factor between those statutes and the proposed South African law, is that they all had some or other provision for exemptions or defences, whereas the Bill has no such provision.

Some form of exception, exemption, or defence is found in most international instruments and foreign legislation. More importantly, however, it is found in South African legislation, such as the comparable Equality Act, as discussed above. The most common defences provided for in constitutional democracies are expressions made in good faith for artistic, academic, or scientific purposes, as well as public debates in good faith, and accurate and truthful reporting.

Therefore, we believe the addition of the following provision to the Bill after the currently-existent section 4, will be appropriate:


 

Defence

5. The bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by the provisions of section 4.

9.7       It Falls Foul of International Law

South Africa’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination are set out above.

However, the Convention focusses particularly on racial discrimination, and not the wide variety of protected characteristics guaranteed by the Bill.

Furthermore, the Convention defines “racial discrimination” as follows:

“[…] any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

The grounds mentioned in this definition are covered by the Constitution’s section 16(2) limitation as well as our suggested amendment to the protected grounds above.

The Hate Speech Bill, on the other hand – as discussed above – goes far beyond what is provided for, and will have the effect of criminalising the mere offending of one person by another. It provides that insulting someone with the intention to bring into contempt or ridicule on basis of a listed ground will be considered hate speech.

This is an extremely wide provision, which is not limited to the equal enjoyment of the rights and freedoms contained in the Constitution and international instruments such as the United Nations Universal Declaration of Human Rights. It will have the effect of criminalising jest, bona fide debate and discussion, on a wide array of grounds, the most ridiculous of which are “belief” and “occupation or trade”.

Article 19 of the Universal Declaration of Human Rights – to which South Africa is a member – is explicit in this regard:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

How can South Africans retain their right (under this Declaration as well as the Constitution) to “impart information and ideas” if they are prohibited from potentially offending someone else? As we asked earlier, would inoffensive ideas require this protection, in the first place? It stands to reason that the rights contained in these international law instruments and our Constitution were enacted for the particular purpose of safeguarding people’s ability to offend others.

South Africa is a member of the International Covenant on Civil and Political Rights – an instrument which our Bill of Rights very closely resembles – of which the Hate Speech Bill also falls foul.

The Covenant provides in article 19(1) that “everyone shall have the right to hold opinions without interference”. The protection of “belief” in the Hate Speech Bill has as a direct consequence the nullification of this article, because if one were to have an opinion which is different from someone else’s opinion (their “beliefs”) and one were to make that opinion known in a way that can be seen as “insulting” with the intention to ridicule the other person, they will be guilty of hate speech. The article 19(3)(b) exception to this rule is not applicable, as it provides that the law may regulate expression to ensure public order or morals.

In this regard it is apt to note a study conducted by the Institute of Race Relations,[69] which is introduced as follows:

“In this report, we do not rely on the subjective opinions of individual commentators.  Instead, we report on the results of a field survey which asked South Africans how they themselves feel about race relations.”

It continues:

“The views of the overwhelming majority of people are very different from the vitriol so often evident in the race debate this year. Far from being hostile towards one another, most South Africans, black and white, occupy a pragmatic middle ground on race relations. White South Africans understand and support the need for redress. Black South Africans do not believe that their white compatriots should be treated as second-class citizens. The overwhelming majority of both groups believe that they need each other for progress to be made.”

The survey is concise and to the point, with the inevitable conclusion being, in this context, that there is no public order or public moral crisis which needs to be addressed by harsh new legal provisions which violate international and constitutional law.

10.       Conclusion

10.1     Summary of suggestions

The suggestions and recommendations found throughout this submission will be summarised here:

·         The FMF opposes the introduction of the Hate Speech Bill, and it would be ideal if it were shelved permanently. Existing law deals with the problem of hate speech adequately.

·         If, however, the Bill is to be passed, the FMF recommends the following:

o   That section 3(4) be changed to reflect the following:

 

(4) A person may not be convicted of an offence under this section unless all of the elements of the underlying offence are proved beyond a reasonable doubt and the court is satisfied that it is in the public interest that the accused be convicted of the offence.

o   That section 4(1)(a) be changed to reflect the following:

 

4(1)(a). Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that advocates hatred or is threatening toward any other person or group of persons, and which demonstrates a clear intention, having regard to all the circumstances, to –

(i) incite others to harm any person or group of persons, whether or not such person or group of persons is harmed; or

(ii) stir up violence against any person or group of persons,

based on race, colour, ethnicity, gender, sex, which includes intersex, or religion, is guilty of the offence of hate speech.

o   That a new section, presumably a section 5, be added after the existent section 4 to provide for the following:[70]

Defence

5. The bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by the provisions of section 4.

o   That a new section, presumably a section 6, be added after the proposed section 5 (above), to provide for the following:

Mutual exclusivity of sections 3 and 4

6. (1) An accused who has been convicted or acquitted on a charge of hate crime in terms of section 3, may not be convicted, on the same facts, on a charge of hate speech.

(2) An accused who has been convicted or acquitted on a charge of hate speech in terms of section 4, may not be convicted, on the same facts, on a charge of hate crime.

(3) The Director of Public Prosecutions having jurisdiction must direct that any prosecution in terms of sections 3 or 4 be limited to the offence contained in either section, and not both.

(4) An acquittal on a charge of hate speech in terms of section 4, is, on the same facts, a complete defence for a charge of hate crime in terms of section 3.

(5) An acquittal on a charge of hate crime in terms of section 3, is, on the same facts, a complete defence for a charge of hate speech in terms of section 4.

10.2     Afterword

The Deputy Minister of Justice said that ignorance breeds fear, and fear breeds hatred. The Hate Speech Bill will not, to any extent, solve ignorance, hinder fear, or extinguish hatred. Instead, if the Bill passes without heeding the FMF’s suggestions, ignorance will be amplified, because people will fear saying something which might land them in prison for three years. The environment the Bill will create is not conductive to learning, and will, if anything, lead to a climate of fear which will exacerbate hatred. In light of good law practice – the feasibility of the law – the inevitable conclusion is that the Hate Speech Bill is not desirable.

Freedom, by its very nature, requires the government to respect individuals’ ability to do unpleasant things. For that is the only way we learn about what works and what doesn’t, and what’s socially appropriate, and what isn’t. The government must certainly intervene where violent hostility is being provoked, but this Bill goes far wider, criminalising insults. Insulting people with the intention to ridicule them is what comedians do for a living, and this artistic freedom is integral in any free society.

The Prevention and Combating of Hate Crimes and Hate Speech Bill is problematic in several crucial respects, which were addressed throughout this submission.

Firstly, the Bill allows individuals to be convicted of a hate crime even if they were acquitted of the underlying offence with which the hate crime was connected. This does not make logical sense, and will certainly lead to injustice. The FMF has proposed an amendment which will rectify this.

Secondly, the Bill violates the principle of double jeopardy found in the Constitution, in that, while the Bill purports the create two separate crimes of hate crime and hate speech, these overlap to such a significant extent, that a charge for hate speech must, by the wording in the Bill, be accompanied by another charge of hate crime. The same may conceivably be true in reverse. This means that a conviction on either crime will also secure a conviction for the other crime, without the accused having the ability to plead autrefois convict.[71] The FMF has proposed amendments to rectify this.

Thirdly, the Bill’s grounds for hate speech are far too wide. The proposed law will criminalise the act of ‘insulting’ someone ‘with the intent’ to ridicule them or ‘bring them into contempt’. These are things all human beings do. It is part of our nature. No law, no matter how well intentioned, can rectify this. The FMF has proposed an amendment which will make the grounds for hate speech in the Bill more reasonable.

Fourthly, the Bill’s protection of certain characteristics is extremely dangerous, as well as unconstitutional. Protecting characteristics such as ‘culture’, ‘belief’, and ‘occupation’ from ‘insults’ will have perverted effects, whereby South Africans will be jailed for having opinions which are allowable in every other democratic society in the world. Furthermore, the Constitution does not allow the Bill to protect the majority of the listed characteristics. The FMF has proposed an amendment which will rectify this.

Fifthly, the Bill has no exemptions or defences. The Bill’s desire to curb hate speech which is likely to lead to violence is justified, however, it is good practice to allow for certain exemptions, such as bona fide debate, artistic, scientific, and academic inquiry, and fair and accurate reporting. The FMF has proposed an amendment which will rectify this.

Furthermore, the Bill is, read as a whole, much harsher than any of the legislation in Kenya, Australia, and Canada which the Department of Justice and Constitutional Development claims inspired the proposed law. The Bill also falls foul of international free speech obligations, and goes far wider than any international anti-hate speech instrument.

South Africa has, for the greatest portion of its collective history, experienced illiberal censorship and suppression of free and open engagement. Apartheid was marked not only by its racial discrimination, but by its careless disregard for civil liberty, and was known to bully the press as well as its white electorate with draconian legislation forcing them to toe the regime’s ideological line.

With the advent of constitutionalism, the collective potential of South Africa was freed, and we consequently became part of the global community and its discourse. And this discourse is often highly emotional with high-running passions on all sides of every debate.

No free society can condone the incitement of violence, which is what hate speech is, at its core. But no society can call itself ‘free’, either, if the authorities presume to regulate to the extent found in this Bill, what the people may or may not say.

***

Prepared by:
Martin van Staden
Legal Researcher
Rule of Law Project
Free Market Foundation

 



[1]      www.freemarketfoundation.com

[2]       Henceforth “the Constitution.”

[3]       Constitution of the Republic of South Africa Act (200 of 1993)

[4]       This is made clear by the remarks of Didcott J in Nxasana v Minister of Justice and Another 1976 3 All SA 57 (D), where the Court said “under a constitution like ours, Parliament is sovereign, and the Courts can no more assume a power which it has decreed that they shall lack, or set its enactments at naught, than can anyone else.”

[5]       Sachs v Minister of Justice 1934 AD 11

[6]       At par 37.

[7]       Chapter 2 of the Constitution

[8]       Henceforth “the Bill” or “the Hate Speech Bill”.

[9]       http://www.justice.gov.za/m_speeches/2016/20160330_HateCrimes.html

[10]     It is trite that a law is only ‘unconstitutional’ when a court of law declares it as such, however, the text of section 2 seem to imply that the law is invalid ab initio. In any event, the effect of this section is that laws which conflict with the Constitution do not carry the legitimate force that characterizes the modern state.

[11]     Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC).

[12]     At pars 65-66.

[13]     Good Law Project. Principles of Good Law. (2015). 14.

[14]     On page 29.

[15]     AV Dicey. Introduction to the Study of the Law of the Constitution. (1959, 10th edition). 202-203.

[16]     FA von Hayek. The Constitution of Liberty. (1960). 206.

[17]     Section 1 is not part of the Bill of Rights (Chapter 2, sections 7-39), hence the general limitations clause which appears in section 36, which will be discussed below, does not apply.

[18]     W Le Roux. “Natural Law Theories” in Roederer, Christopher, Moellendorff, & Darren (eds) Jurisprudence. (2004). 25.

[19]     Von Hayek (footnote 16 above) 570.

[20]     JS Mill. On Liberty. (1859). 19.

[21]     On page 20.

[22]     Case and Another v Minister of Safety and Security and Others 1996 (3) SA 617 (CC)

[23]     At par 26.

[24]     FS Meyer. In Defense of Freedom: A Conservative Credo. (1962). 66.

[25]     JS Mill (footnote 20 above) 20.

[26]     R v Keegstra [1990] 3 SCR 697

[27]     This even more so if one considers some of the many group characteristics protected by the Bill, which will be discussed below. For instance, advocating hatred against racists (racism being a belief) is constitutionally protected. The bill, however, would criminalise this.

[28]     Riotous Assembles Act (17 of 1956)

[29]     Section 18(2)(b)

[30]     CR Snyman. Criminal Law. (2014, 6th edition). 290.

[31]     J Botha & A Govindjee. “Regulating cases of ‘extreme hate speech’ in South Africa: A suggested framework for a legislated criminal sanction.” (2014). 27 South African Journal of Criminal Justice.

[32]     S v Sharp 2002 1 SACR 360 (Ck)

[33]     CR Snyman (footnote 30 above) 463.

[34]     R v Van Tonder 1932 TPD 90

[35]     CR Snyman (footnote 30 above) 464.

[36]     https://philosophynow.org/issues/38/The_Open_Society_Revisited

[37]     M van Staden. South African Law and Social Engineering. (2016). LL.B dissertation. University of Pretoria.

[38]     South African Broadcasting Corp Ltd v National Director of Public Prosecutions and Others 2007 (1) SA 523 (CC)

[39]     We rely in large part on the following book for the following two sections.
       C Hoexter. Administrative Law in South Africa. (2012, 2nd edition). 340.

[40]     S v Manamela 2000 (3) SA 1 (CC)

[41]     National Cohesion and Integration Act (12 of 2008)

[42]     “Ethnic hatred” is defined to include color, race, nationality (including citizenship) or ethnic or national origins.

[43]     Article 19. Commentary on the Regulation of “Hate Speech” in Kenya. (2010). 17. Available online: http://www.article19.org/data/files/pdfs/analysis/kenya-commentary-on-the-regulation-of-hate-speech-.pdf

[44]     Criminal Code of Canada (1985)

[45]     Canadian Human Rights Act (1985)

[46]     Defined in section 318(4) as “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability.”

[47]     Racial Discrimination Act (52 of 1975)

[48]     What is “public” and “private” is expanded upon in subsections (2) and (3).

[49]     As seen in terms of the Criminal Code Act Compilation Act (1913)

[50]     Defined in section 76 as “race, colour or ethnic or national origins”.

[51]     Section 77

[52]     We thank Mr Paul Hjul for recognising this defect in the Bill and pointing it out to us.

[53]     Criminal Procedure Act (51 of 1977)

[54]     Section 35(3)(m) provides the right “not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted”.

[55]     Promotion of Equality and Prevention of Unfair Discrimination Act (4 of 2000), henceforth “the Equality Act”.

[56]     Films and Publications Act (65 of 1996)

[57]     S v Sharp (footnote 32 above).

[58]     CR Snyman (footnote 30 above) 461.

[59]     CR Snyman (footnote 30 above) 463.

[60]     R v Van Tonder 1932 TPD 90

[61]     CR Snyman (footnote 30 above) 464.

[62]     http://www.dictionary.com/browse/insult

[63]     http://www.dictionary.com/browse/contempt

[64]     http://www.dictionary.com/browse/ridicule

[65]     It must be borne in mind that incitement is a standalone crime in South Africa, therefore incitement to cause harm is illegal regardless of motive.

[66]     Section 9

[67]     Section 4(1)(a)

[68]     http://www.news24.com/SouthAfrica/News/initiates-died-from-the-heat-20161217

[69]     Institute of Race Relations. Race Relations in South Africa: Reasons for Home. (2016). Available online: http://irr.org.za/reports-and-publications/occasional-reports/files/race-relations-in-sa-2013-reasons-for-hope-2013-29feb16.pdf

[70]     This is an adaptation of section 12 of the Equality Act (footnote 54 above).

[71]     Autrefois convict meaning that the accused has previously been tried and convicted of the same crime, based on the same facts.

Normal 0 false false false false EN-ZA X-NONE X-NONE

Comments on Submission on the "hate speech bill"