In what spirit was the Hate Speech Bill drawn up? To add a moral imperative to South African law? To fulfil an aspect of social justice, a vague concept that has gained traction in academia and politics? The answer is that it seems to have been spawned in response to the outcry of many South Africans against racist incidents during the past few years, especially those on social media. But, regardless of whether a majority cries out for action, that does not mean irrational endeavours must be pursued. As we have seen with the Vicki Momberg case, culprits are being held to account or, at the very least, government is doing something about racist speech.
When laws are mutually defeating i.e. this bill, the Equality Act, and crimen injuria; confusion, abuse of the law, and misinterpretation of the law are the result.
The previous iteration of the bill was far worse. As my colleague, Martin van Staden, has said, the legislation would have meant that you could be convicted of hate speech by simply insulting someone with the intention of bringing them into contempt.
If we want to hold racists accountable for their speech, and punish them accordingly, this bill will only water down the harm that is caused by racist speech. For law to be effective, indeed for it to be considered moral, it must have objectivity at its core.
Since 1996 and the adoption of the Constitution, all South Africans have enjoyed the right to freedom of expression. When citizens of a country have to internally monitor their own thoughts and speech for fear of imprisonment, they are forced into dealing with a form of soft tyranny. While the new version of the bill is far superior to its tyrannical predecessor, South Africans could still be held liable for publishing something with the intention to be “harmful” based on, for example, culture. It is conceivable, then, that an impassioned feminist article about the deficiencies of patriarchal elements within some cultures, may be construed as harmful. If convicted, social justice activists could spend up to three years in prison for a first offence, and up to five years for subsequent offences.
The most effective way to fight against racist speech and racist actions is to expose people who utter and commit them. In a free society, you have freedom of association; when someone acts in a way you do not agree with, you are under no compulsion to be with them.
Your right to free expression which is protected by the Constitution, does not include the right to offend and hurt others yet remain immune from the consequences of your words. Momberg is being punished for her words; she must own them and take responsibility for them. That she has been convicted under common law, ought to be sufficient without the arbitrary need to manufacture another law under which people will actively search for outrage.
The Hate Speech Bill, if it becomes law, could theoretically lead to freedoms enjoyed in every developed and free society around the world being eroded in South Africa. Too much depends on how the law will be implemented by this government, and future governments. If someone feels somehow harmed by the words of someone else, they could pursue criminal charges against the alleged offender.
Racist thinking and speech ought to be exposed and refuted. The best way for this to happen is for things to come out into open and not for all speech to be repressed for fear of punishment. This would be unhealthy both for an individual’s psychology, and for the psychology of a nation.
We are taught that all people are equal in the eyes of the law in a democracy. Laws are supposed to be applied consistently across the board, regardless of someone’s race, gender or wealth. The treatment of a certain former president shows that perhaps laws are not applied as objectively and equally as we may hope, and indeed expect. While an abuse of power by corrupt judges or an entire justice system are possible, the possibility of this happening is greater when laws are vague in their wording and inexact in their implementation. The Hate Speech Bill will increase South Africa’s litany of onerous, non-objective laws.
Chris Hattingh is a researcher at the Free Market Foundation