Media release: Free Market Foundation renounces Prevention and Combating of Hate Crimes and Hate Speech Bill as redundant and inaccessible

1 October 2021

Chris Hattingh
083 600 8688

Gail Day
076 836 5661

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Free Market Foundation renounces Prevention and Combating of Hate Crimes and Hate Speech Bill as redundant and inaccessible

Urges government to remove hate speech provisions or align them to the Constitution

The Free Market Foundation is concerned about the Prevention and Combating of Hate Crimes and Hate Speech Bill and urges government to reconsider it or, at the very least, bring it in line with the Constitution.

In a written submission to the Department of Justice and Constitutional Development, the Free Market Foundation says it’s concerned that the hate speech provisions in the Bill are redundant as South Africa already has sufficient anti-hate speech law and doctrine.

Moreover, the definition of hate speech in the Bill is misaligned to the Constitution’s definition of hate speech; and the complicated, inaccessible way that hate speech is defined in the Bill makes the piece of legislation wholly inaccessible to the majority of South Africans to whom it will apply.
The Free Market Foundation submission strongly recommends that the hate speech provisions in the Bill be removed as the country's existing anti-hate speech measures are ample and have been successful in addressing this issue. Failing this strong recommendation, the Foundation says, the Bill’s “labyrinthian definition” of hate speech must be simplified to align the Bill with the Constitution, and specifically to section 16(2)(c) of the Constitution, so that all South Africans may easily understand it.

Section 16 of the Constitution enshrines the right of freedom of expression, but allows government to prohibit or to regulate expression that advocates hatred based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.
The Bill, in its original 2016 form, would effectively have abolished freedom of expression in South Africa, and so was met with wide disapproval that sent legislators back to the drawing board.
The Free Market Foundation has been involved at every step of the public participation process around the Prevention and Combating of Hate Crimes and Hate Speech Bill.
The revised Bill, while an improvement (it defines hate speech as statements that could reasonably be construed to demonstrate a clear intention to harm or promote hatred), remains problematic. Where the Constitution defines hate speech as advocacy of hatred based on race, ethnicity, gender and religion (and that constitutes incitement to cause harm), the Prevention and Combating of Hate Crimes and Hate Speech Bill cites 15 (not four) protected grounds and has added age, culture and language (among others) to the list. These (and other) additions and modifications are an unnecessary intervention, the Free Market Foundation says.
The requirement that both advocacy of hatred and incitement to cause harm be present, has also been unconstitutionally replaced with a requirement that either advocacy of hatred or incitement to cause harm be present.
“The Free Market Foundation recommends in the strongest terms that the definition of hate speech in the Constitution be used in the Bill,” it says in its submission by Martin van Staden, Member of the Executive Committee at the Free Market Foundation and member of the Rule of Law board of advisers.
South Africa has ample legislation to curb hate speech: the Promotion of Equality and Prevention of Unfair Discrimination Act, and the Films and Publications Act. In addition, the doctrine of crimen injuria has successfully been used in the past to prosecute perpetrators of hate speech and may well be used again in the future.
“Crimen injuria is superior to the proposed Bill. 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,” the submission says.
The Free Market Foundation adds that the Bill must return to its original purpose: hate crimes, and allow hate speech to be regulated by existing law. “If government does not wish for the Bill to concern itself only with hate crimes, the FMF cannot recommend highly enough that the legalistic definition of hate speech in the Bill be replaced with a reproduction of the Constitution's definition of hate speech.”
South Africa should not legislate for legislation's sake as this sets a misguided precedent that state intervention can solve social ills through law-making. This, in turn, leads to expensive governance, costs citizens money and limits freedoms. And it won’t solve the problem anyway.

Issued by Flow Communications
for the Free Market Foundation

Media enquiries: Allison MacDonald 082 771 2541


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