TRC prosecutions: NPA progress; Prevention & Combating of Hate Crimes & Hate Speech Bill; with Deputy Minister

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Justice and Correctional Services

25 November 2022
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

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In a virtual meeting, the National Prosecuting Authority gave a progress report on the Truth and Reconciliation Commission prosecutions. There are a total of 129 cases currently under investigation. It was also confirmed that the Missing Persons Task Team has recovered 179 persons. The Committee was informed that there has been engagements with the families and stakeholders. A external independent senior counsel will also be appointed to assess if the decisions made on the cases are appropriate thus avoiding any political interference

Committee members asked about the engagements with the families of victims and if all of them have been traced; the comment in the media by the Cradock Four family member and the feedback mechanism for these families; SAPS review application of the court decision that it should pay for legal representation of SAPS members / ex-members in the TRC prosecutions; and certainty about independence from political interference;

In the Prevention and Combating of Hate Crime and Hate Speech Bill deliberations, the Committee discussed the definitions clause, in particular the definition of 'communication' and 'harm'. The Department will look into the issues that the Committee raised.

The Chairperson informed the Committee that the legal opinion on the Personal Use of Cannabis Bill is that because the religion chapter was not included in the Bill as introduced, it should go to the House again for permission to re-advertise for public comment and a public hearing. The Committee therefore cannot finalise that Bill as expected.

Meeting report

National Prosecuting Authority (NPA) on the Truth and Reconciliation Commission (TRC) prosecutions
Adv Rodney De Kock, Deputy National Director of Public Prosecutions, NPA, said that since the last meeting on 1 June 2022 with the Committee, dedicated capacity had been increased to deal with the TRC cases in the NPA and Directorate for Priority Crime Investigation (DPCI) for both prosecutors and investigators. There have been increased engagements with families and stakeholders. TRC accountability sessions have been increased to track progress and challenges in the provinces.

Between September 2021 and April 2022, 38 new investigations were opened. Between May 2022 and October 2022, an additional 32 new investigations were opened.

In September 2021, 59 TRC matters were under investigation. As of October 2022, 64 new investigations stemming from the TRC have been reopened. A total of 129 cases are presently under investigation.
 
He confirmed the NPA commitment to the measures it presented stemming from the Rodrigues judgement that relate to the NPA's internal capacity, processes and efforts to insulate the prosecution of TRC cases from political interference. The NPA will also appoint a TRC- knowledgeable senior counsel to assess if the matters had been properly decided.

The Missing Persons Task Team (MPTT) in addition to recovering the remains of 179 missing persons, also recorded these successes, amongst others:
- Location of the remains of an MK member shot dead in 1980, which excavation is currently being planned. Awaiting the outcome of the DNA results.
- The identification of a burial site where four missing MK members were ambushed in the Caprivi Strip in 1970. The fourth member was later murdered
- The recovery of the remains of a political prisoner, Mr James Booi who had been buried in a pauper’s grave. His remains were exhumed and presented to the family for re-burial which took place on 30 July 2022.

Adv De Kock said the work of the MPTT continues and we believe the MPTT is an important institution within the NPA to bring closure to the family and victims of Apartheid offences.

The Chairperson asked why the names were not provided of the located MK members.

Adv De Kock said that he would ask his colleagues to give the names at the end of the presentation.

Adv De Kock gave a breakdown of the dedicated capacity of the 25 NPA TRC prosecutors and 40 DPCI TRC investigators in each province. They are assigned only to do TRC work. He presented the provincial breakdown of the 129 TRC matters under investigation.

In terms of monitoring in the different divisions there is internal communication forwarded to the divisions to encourage active engagement between prosecutors and families/family representative. The families are kept up to date and a feedback report is then submitted to the national office monthly. Challenges and tasks are identified on a project management basis. There are successful engagements facilitated by the national office with representatives of the Apartheid Era Victims Family Group. Monthly reports are received on all 129 matters under investigation from all divisions. A detailed report was submitted to the national office on all decisions taken. There are also accountability sessions that were done in KwaZulu-Natal, Cape Town, North West, and Eastern Cape. These sessions are for critique and to promote best practice. Accountability sessions are to be held quarterly.

Investigation progress:
- Category A matters (0-33% complete): 94 matters
In 64 of the 94 matters, statements have been obtained, witnesses have been traced, exhibits, dockets and records of inquest have been sought and some have been obtained. In most matters families have been informed, where traceable. 56 matters occurred between 1980 and 1989 and 27 matters between 1970 and 1979. The older the matter the more difficult it is to obtain evidence.
- Category B matters (34-65% complete): 9 matters
- Category C matters (66-100% complete): 26 matters

Adv De Kock outlined the prosecution matters that have been enrolled in the High Courts. The NPA has ensured its records are now accurate about all prosecution matters that were finalised previously which he were presented to the Committee.

The Chairperson asked about the S v Marais (Nyoka) case and the legal opinion. He also asked that the overturned verdict for the Dr Neil Aggett inquest be explained for the public that were following the meeting.

Adv De Kock replied that the original verdict would have been that no one responsible for the death of Dr Aggett. The new verdict would indicate that members of the security forces would have been responsible. His colleague would provide further answers to the questions.

In conclusion, he said that the NPA knows that more progress is expected, and it is committed to deliver on this. Challenges still include age of matters, age of witnesses, persons of interest, suspects, destruction of records including inquest records, no trace of dockets and exhibits.

Adv Shubnum Singh, TRC coordinator at NPA Head Office, replied about the requested legal opinion. There were a number of matters where the accused was represented and the deceased’s family was represented by a legal representative. There had been a request to add additional charge of crime against humanity in particular in the matters of S v Coetzee (Simelane), S v Rorich and Another (COSAS 4), and S v Rodrigues. The legal representatives of the families and the NPA had legal opinions on this but it was decided to request an independent external legal opinion on two issues. 1) Did section 232 of the Constitution introduce customary international law retrospectively or only from 4 February 1997 when the Constitution came into effect? 2) Whether section 35(3)(i) can be relied on as sanctioning prosecution of customary international law offences from the time when it acquired customary international law status or if the provision is simply a reference to Chapter 4 of the Constitution.

On 10 October 2022, an external legal opinion was obtained from Prof Strydom from the University of Johannesburg. The NPA is in possession of that legal opinion which must still be circulated throughout the divisions to give them direction on how to proceed with the request by the legal representatives.

On the overturned verdict of Dr Aggett. He was a medical doctor and a trade unionist. He was taken into custody at the end of 1981 by members of the special branch. In 1982, he was found hanging in his cell. The initial inquest held that he had committed suicide. After the application for reopening the inquest was made, the court found on 4 March 2022, that Dr Aggett did not commit suicide but that he had been killed and certain special branch members had been directly implicated in his death.

The four MK members ambushed in the Caprivi Strip in 1970 were Flag Boshielo; Theophilus Mkhaliphi; Faldini Mziwonke Boshielo. The fourth member, Bennet Ndezaku, escaped but was later captured and murdered. The remains of an MK member shot dead in 1980 could be one of three. They are currently awaiting the outcome of the DNA results.

Discussion
Mr G Hendricks (Al Jamah-Ah) said that there has been substantial progress since the National Director of Public Prosecutions (NDPP) appeared before this Committee on 1 June 2022. There was an undertaking that resources would be ring fenced from the budget. Over the last 20 years, there has been excuses from different ministers that there is no money to carry out the instructions of the TRC. Many cases have been reopened. Has there been an actual ring fencing of resources? There are over 1 000 victims and to date only 10% of the cases have been dealt with. This means that there are over 900 cases pending. He found it worrisome that the NPA wants to play God. The NPA cannot decide that because witnesses have died, the inquest will not be reopened. Dr Aggett did not take his own life and the overturning of the verdict brought relief to his family. Mr Luthuli did not commit suicide or unintentionally walked on the train line. There was no evidence in the docket. If family members had a chance at an inquest to state its case it could have brought the family much relief. It will not only bring relief to his family but to the nation that this great leader did not commit suicide because he was not of sound mind. It is important that the NPA and TRC deal with every case and not just shut the door unilaterally to families. It has to listen to every case.

In the Imam Haroon case, people have heard how the docket showed that there were bruises on the body and under the skin and muscles. Some of the bones were broken. It showed how people were tortured by the Afrikaaners in those days, by the special branch. These cases are not heard and it seems as if people still want to return to Apartheid. They do not want to apologise or pay reparations. Why are the pensions of these people from the special branch not being forfeited? He asked about the R1.8 billion for survivors of these atrocities or their families. Are there no plans to disburse the money? He was not impressed because there is much more work to be done. There needs to be more implementation of the TRC recommendations.

Mr X Nqola (ANC) welcomed the progress report on the TRC cases and the additional capacity of prosecutors and investigators in ensuring that these matters are brought to completion. The longer these cases drag, the fewer chances of gaining sufficient evidence for prosecution. The NPA appears to have segregated and assigned investigators and prosecutors to the various divisions in line with the number of cases. He asked if this is indeed the case. He asked how much the budget was to pursue these kinds of matters. There are currently 129 actives cases and 64 new cases. Did the NPA trace all the families of the 129 cases? If so, are those families cooperating with the investigations? Does the NPA have a particular time frame it uses to estimate when the cases will be completed? He mentioned the case of a surgeon killing a victim and the court acquitted him. He asked for more details on this case and what happened. Was this because of the lack of sufficient evidence? This was an unsuccessful prosecution. He suggested that there be a monitoring process and that the NPA report quarterly.

The Chairperson informed Mr Nqola that it had been decided that there be a quarterly report.

Mr S Swart (ACDP) appreciated the progress that had been made. It is important to repeat what the full bench said in the S v Rodrigues case. Society has an ongoing interest in the work of the TRC and the follow-up to which the government had committed itself. Parliament which represents the legislative authority of the state has a right to know when the letter and spirit of legislation that it had passed was being deliberately undermined. He appreciated the role of the Committee in exercising oversight. The Committee has to be very cautious as politicians cannot intervene in any way in the exercise of discretion by the NPA to fulfil section 41 of the NPA Act. It is up to the NPA to evaluate evidence and to decide on prosecution. It is exercising its prosecutorial and independent discretion which is in itself reviewable by the High Court.

There is a process for appointing a senior counsel to assess if the matters had been properly dealt with. He suggested that there be a further briefing on this. At the time of the Minister’s briefing, some form of inquiry was indicated. The Minister has to advise the Committee if this inquiry is separate from what is anticipated by the appointment of the senior counsel. He was disappointed that a senior counsel has not yet been appointed. He asked for a timeline on the investigation the court requested on the Rodrigues case.

The Committee did appreciate the progress that has been made with these matters. The NPA or provincial representatives have been meeting the families. He suggested that in future the families can be part of these parliamentary sessions. The Committee is not aware to what extent the families are alerted. It would be good if the families that are involved can find some form of closure and be informed of the oversight session. This would allow families to confirm what is not correct or what they are not happy about. He appreciated the better engagement with families. The Committee appreciated the renewed efforts but it has only been as a result of the families and court applications that have obliged this process to be continued.

He understood that there was a civil matter in the Cradock Four matter. Is there an update on that civil matter? He acknowledged that there are record problems with evidence that goes way back.

He asked to what extent the budget impacts the matters that the NPA deals with such as State Capture and a plethora of other matters such as gender based violence. How do prosecutors manage the heavy workload?

He asked if the court granted the application for legal representative in the S v Rorich and Another case. There have been media reports around appeals and so forth. He wanted to hear from the NPA itself what is happening. It seems as if the application for legal representative was delayed. He asked for more details on the court appearances, contempt of court and punitive costs based on the fact that the legal representative application was delayed. A judge purportedly indicated that in his 25 years on the bench he had never been treated so contemptuously. There has to be an investigation into the state attorney who perhaps did not do the job properly. He noted that records going way back might have been destroyed and this is a challenge. He appreciated that there would be ongoing oversight with the Committee on a quarterly basis.

Ms W Newhoudt-Druchen (ANC) said she was happy that the NPA has committed to continue engaging with the families. She could not even imagine how the families have been feeling all these years where things have not been investigated. There was no closure. There is still the pain of the questions that have gone unanswered on how their loved ones have died and what happened. The TRC referred 300 cases to the NPA. The NPA has now confirmed that it has been working on 129 cases. This leaves 171 cases. Are the 64 new cases part of the 171 cases? Will the NPA still investigate those that are left until all 300 cases are completed?

In the S v Rorich and Another case, SAPS refused to pay the legal fees. It cannot expect the aggrieved family to pay the legal fees. What financial or other support does the NPA provide the families? She wanted to understand the legal fees aspect because SAPS refused to pay and the family appealed.

Ms N Maseko-Jele (ANC) said it was discussed in a previous meeting that there be a special meeting about missing persons. Even if the meeting is short, it should take place. There are many families that are angry at the government on this issue. There might be a lot of files missing that makes it difficult to close these cases. Post-mortem evidence should be looked at. She suggested that something should be done to the pension of special branch members. A lot of money is being spent to resolve these issues whilst they are here alive and enjoying the benefit of democracy when they caused this mess. The families are crying and want answers. It is using the same courts for TRC issues. The courts are heavily burdened by daily crime. Is it not time to propose special courts to focus on TRC matters? Has there been any response to the memorandum that was submitted to the Minister? What impact does it have on this whole issue?

The Chairperson asked if the Cradock Four family had been contacted then why did Mr Calata say that they have never seen or heard the NPA. If the NPA had, why would he say publicly that they were not contacted. Or put differently, did your engagement with the family cover the imminent decision that the NPA promised to make on whether it will prosecute? What was the decision of the Director of Public Prosecutions in Gauteng made a decision on the charge of a crime against humanity? In the last meeting the Committee was made to believe that a decision was going to be made about a crime against humanity charge. He asked the NPA to go over the issues of the Cradock Four. There was already a clear judgement at the inquest as to who was supposed to be implicated. The Cradock Four inquest covered a lot of ground and even the identity of the people who were liable. Why is it taking so long? What are the current hindrances? What mechanisms have been put in place to ensure as part of the monitoring what was discussed with the families and to be able to gauge their responses? This can be a very emotional process for the families and it should not be taken lightly. It is also heavy for the investigators and prosecutors. This feedback mechanism for them to see the efforts of the NPA. It is important to see how the NPA identifies those families as part of its monitoring and evaluation process.

The Chairperson said the Committee looks forward to the NPA updating on the work done since the current NDPP took over. We do accept that in the past there was a lull. We are running against time.

NPA response
Adv De Kock replied that the NPA has a commitment to deal with the TRC matters and it is taken very seriously. He is responsible for the TRC Unit now and he meets with the four Directors of Public Prosecutions (DPPs) on a monthly basis in physical meetings. In these meetings, various priorities are discussed such as gender based violence and corruption. However, the TRC is one of its priorities even if the NPA discusses other priorities of the country. Prosecutions Service is not a gatekeeper in any of this. All of the work will be dealt with. The challenges posed are just some of the difficulties that the NPA is having. The objective remains to deal with all the matters and bring closure to family members. Each and every matter relevant to the TRC will be dealt with by the NPA and the investigators. Cases should be reopened as far as inquest is concerned. If there is a particular challenge with evidence or evidence has been destroyed, the NPA seeks alternative means to present the circumstances. The NPA has experts that reconstruct scenes for us and this is what is happening. We look at the post-mortem records. The doctors that did the initial post-mortem are deceased. It then gets other experts to examine that evidence and then those experts become witnesses. There are various techniques the NPA is approaching to present evidence to the court. It is very challenging since the matters have occurred sometime ago.

The NPA has applied to National Treasury for a deviation to appoint the prosecutors we have doing the work. The money received was specifically allocated for that purpose. There is a ring fenced budget within the Prosecutions Service. DPCI also has its own allocated budget. This is over and above the normal budget the NPA has. Prosecutions has motivated for a permanent capacity to deal with TRC matters. The NPA is hoping to complete these cases within three to five years and it is doing its best to move the matters as fast as it can. He reiterated that there has been progress with permanent capacity to deal with the TRC work. That is work in progress but it indicates that there will be a particular budget that will be ring fenced for this unit.

The NPA has submitted a memorandum to the Minister in terms of the issues raised by the court in the S v Rodrigues and Another. The original proposal was that a panel be appointed to investigate but after some serious reflection between the NDPP and the NPA Exco, it was clear that the court was actually directing the NDPP to do this work. It was then agreed that the work already done by the NPA to strengthen its approach to the TRC will be part and parcel of the mechanisms that the NDPP put in place to address the challenges arising from the Rodrigues matter.

In the memorandum we indicated the approach that the NDPP has agreed to follow. It is an internal mechanism with the new leadership having put in place the current arrangements – which is the dedicated capacity and new processes – what we reported to Parliament today. But then we will get this independent senior counsel to oversee the work that has been done and to provide a report to the NDPP and, of course, the NPA will report on this to Parliament in the next quarterly meeting on the findings of the senior counsel. This will be a faster way to get this process behind us. What the NPA want to reassure the Committee of is the independence of the NDPP and of the Prosecutions Service so the work do is done independently of any kind of interference. That it guarantees. It wants to get the job done as fast as possible because it is in the interests of the country. As the Chairperson stated this work is long outstanding and therefore the NPA needs to account for the work. This is a better way than to spend lots of money on an inquiry that will provide a report in two years’ time.

The senior counsel findings may need further investigation so the NPA has left that open in terms of process. However, nothing can wait; the work must continue that the NPA has been engaging with. The senior counsel that is being proposed is not the same one as the one proposed for the inquiry panel. This is a recent memorandum submitted to the Minister who has agreed in principle to the NPA approach. Ultimately the NPA wants to deal with all the issues as speedily as possible. Largely the criticism of the court before was that there was a suggested interference in the work of the NPA. The current NPA leadership says that it will guarantee that there is no interference in the work in the manner in which it is going to do these cases. Today's presentation demonstrates the progress that has been made over the last few months. If the Committee wants a further report, the NPA is happy to provide a written report on that particular issue.

On legal representation in the Rodrigues matter, the court made a ruling that SAPS has to pay for the legal representation of SAPS members and ex-members. The NPA has no control over the decisions of SAPS. The police opposed granting legal representation in this case and this is why the court made that ruling. SAPS is within its rights to determine if it wants to fund legal presentation to some of these people who are being brought to the courts that were policemen before but no longer are and who were in the security branch and were doing unlawful activities. SAPS has decided to take the court decision on review. That is the right of SAPS to make that decision. The NPA will try to expedite those processes.

There were indeed 300 cases referred and 129 matters are being dealt with. The NPA is currently going through the TRC records to identify all the referrals made. Hence, the NPA is going over the older cases to ensure it has identified all of the matters that need to be dealt with. Some matters were dealt with and some were not which brings the balance to 171. Previously, decisions were made not to deal with those matters and it is subject to review. The approach that the NPA followed is that even if a decision had been made previously on any of these matters by any prosecutor, the NPA will relook at them. This is work in progress. Where the NPA has identified a matter where there may have been an inquest but it was not happy about it or the family was not informed of the inquest outcome or the decision was made not to prosecute the matter. Those matters are being reviewed internally. This is the reason the list is growing. This is happening on an urgent basis.

On the Cradock Four, this has been an ongoing matter and there was a civil application some time ago. He invited the Eastern Cape DPP who has been in contact with the families and the legal representatives to reply on this.
 
Adv Barry Madolo, Eastern Cape Director of Public Prosecutions, said that he could confirm that he and his team have met with the families of the Cradock Four. The engagement occurred on 4 November. If there is any assertion that the NPA did not engage with them, it would have been before we met. In the engagement a lot of issues were raised about the delay and obstacles and how the NPA will overcome these. It is meeting with the family again next week. This is a follow-up meeting. It has decided to take the family into confidence and work with them throughout this process and brief them on the legal issues so we are all on board. So there has been ongoing engagements with the families of the Cradock Four until we reach a final decision.

Adv De Kock said that as far as the Cradock Four is concerned, the legal representatives have asked for additional time to give input into the investigation and certain aspects thereof. This is currently under consideration and soon a decision will be made on the way forward on the matter of the Cradock Four.

The majority of the victims and families have been traced. The process followed is that the investigating officers need to get into touch with the family members and hold individual meetings with them. This is where pertinent issues are discussed and the NPA tries to provide a proper understanding of what is currently happening with the case. This is a very sensitive engagement with the families but the prosecutors are well trained to do this. The prosecutors have particular skills to deal with the victims of violence. The NPA also identifies if the families need additional support. There is a new feature of group meetings which allows for strategies to be adopted or adapted in how the work is being done and how matters can be legally addressed in court.

The legal opinion spoken about earlier is also part of this process. Once the NPA has done everything in its power, an independent decision has to be taken on what it is going to do. Someone might still be unhappy with that decision. The NPA cannot guarantee that there will be happiness with each decision. There will be a different and separate process to engage on that. If people are not happy, it can be taken on review. However, there has not been such a process yet. The families or the legal representatives could then bring a review application and the NPA will then have to decide the matter again at the head office. If the family is still unhappy it can approach the courts to review the decision. The NPA does want to avoid that but these are difficult legal issues so some of these decisions may be subject to review.

The Chairperson noted the statement that the majority of the families have been identified. How many are still outstanding? By saying the majority have been identified it means the NPA knows the total number and on that basis came to a decision that the majority has been identified.

Adv De Kock replied that an exercise can be done to get that information and then submit it to the Committee. It is still in the process of identifying because of the new matters that it is opening.

As far as the Missing Persons Task Team is concerned, a separate presentation on this can be made. There are still family members who are unhappy that their relatives have not been found yet. The more communication there is on this issue, the more it will allow for the understanding of what needs to be done. The Missing Persons Task Team is a world class team. It is working with international experts. South Africa does lead the way on the identification of missing persons. There is a lot one can learn and share about the work that is being done.

The question on the R1.8 billion is something the Department of Justice and Constitutional Development can answer. The NPA is not responsible for the monies that are set aside for reparations. The NPA only has a mandate to deal with the decisions on prosecution and assistance in investigations. If there are responses outstanding, the NPA is willing to report on those in writing to the Committee.

The Chairperson asked about the S v Marais (Nyoka) case on the decision by the Director of Public Prosecutions about a charge of crime against humanity.

Adv De Kock said that the NPA has not made a final decision on the crime against humanity. It has been referenced that a legal opinion has been obtained and it has been shared with the Director of Public Prosecutions. This matter is still being discussed. A final approach will then be taken. It is clear from the legal opinion that it has to be done on a case-by-case basis. If necessary a comprehensive response on the matter can be shared with the Committee.

The Chairperson thanked the NPA and welcomed the report. There should be a whole day meeting in the follow-up report in March to clarify and deal with many issues. That meeting will cover the TRC and the list of the missing persons can also be provided. After the TRC, the agenda will be will also be an engagement with the Special Investigating Unit and the Hawks on corruption. This will be part of the Committee’s continuous oversight on that. The suggestion of separate courts is something that should not be considered now because the courts are not the problem. The issue is with the investigations and decisions to prosecute. It will be premature to establish separate courts. Resources should be channelled to DPCI and the NPA. After the work is done and there is a need, separate courts can then be considered. It is important now to focus on investigations. From the reports and response received, not all is well and that is contributing to the delays. In the next meeting, it is important to have an understanding from SAPS on the extent that some of their decisions might be contributing to delays.

The Chairperson said that the SAPS National Commissioner should also be invited to deal with matters raised because some of these were not straightforward. There is some sloppiness from SAPS that is contributing to this delay. SAPS should be invited to come and explain itself. It is not only about the NPA, but blockages should be identified in the system that contributes to these cases not being resolved expeditiously. To the extent that the matters fall within the jurisdiction of Parliament, we should unblock these. If the blockage cannot be unblocked, it should be referred to appropriate bodies to assist to ensure these cases are finalised. The Minister still has to update the Committee because the last time he appeared before us he was supposed to have appointed a judge and conducted a number of charges at that time. If there is a change in circumstances then the Committee should be entitled to be informed of the changes and the reasons therefore. The Minister should appear next year before the Committee with explanations. If we just leave it hanging then in future if people look at our records, it would look as if Parliament did not do its work. It is therefore important that the Minister appear before the Committee.

The Chairperson once again thanked the NPA for the very hard work, the DDPs, the prosecutors that are engaging with families, the SAPS, that is, the Hawks that are part of the process. We think with all the effort we are starting to see some light. We are not there yet but we are starting to see some light. One of the lessons we should learn from this process is when you do not act on time you are bound to act under unreasonable pressure. Now there are pressures because most of these people have died. There is pressure as some may even plead that one cannot follow proceedings. It is an indication that something should have been done earlier. It is a lesson to all of us not only the NPA. It is also important that the Director General comes along with the Minister to discuss the R1.8 billion. There has to be a briefing on how this money is being used for the communities.

Prevention and Combating of Hate Crime and Hate Speech Bill
Ms Ina Botha, State Law Advisor: Department of Justice, took the Committee through “Annexure A Research note 2”. The Department had added additional information for birth and language. As far as birth is concerned, two cases were added. The cases include: Wilkinson and Another v Crawford and Others [2021] ZACC 8 and Petersen v Maintenance Officer and Other [2003] ZAWCHC 61. For language, there is the case of the Chairperson of the Council of the University of South Africa and Others v Afriforum NPC [2021] ZACC 32. A resource list has also been sent through to the Committee.

Mr Henk du Preez, State Legal Advisor, Department of Justice and Constitutional Development, presented the 25 November version of the working document of the Bill. The Department has cleaned up the working document to prepare for the A-list. He wanted to draw attention to section 16 of the Constitution. The right to freedom of expression includes the freedom of press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity and academic freedom and freedom of scientific research. This will be discussed in further detail when the Committee researches clause 4 of the Bill.

Clause 1 Definitions
Mr du Preez noted that a Committee member had made reference to the definition of 'harm'.

Mr Swart replied about the presented options for the 'harm' definition and suggested that the word 'deep' should be added to bring it in line with Qwelane v South African Human Rights Commission and Another [2021] ZACC 22 judgment. There has to be a deletion of the word “any” and an insertion of the word “deep”. The word 'substantial' is there but the word 'any' was not in the judgement. Does substantial and deep mean the same thing? He suggested that it say 'deep'. He also asked if this was just a suggestion or an option. If it is an option, the word substantial should be 'deep' and the words “objectively undermines” should be “severely undermines”. What does social, cultural and economic mean? What are those implications? This definition is crucial. It should say deep, emotional and psychological harm that severely undermines the human dignity of the target group. A much narrower definition should be considered.

The Chairperson suggested that the Committee go over all the definitions and begin at the start of the Definitions clause with the definition of “communication” first.

Mr Hendricks said that there is now a reference to a working document with information that has been added. He was concerned about all the changes. There must be a certification in terms of National Assembly Rule 279(4) on legislative drafting. Before the Committee can do these deliberations, there must be another certification. Additional information cannot be added if the Bill is still being processed. There should be a certificate that states that there are no constitutional issues with the new document. He said that the exemption that a person who is charge but has to show he is not guilty when it comes to bona fide is not correct. The NPA has the authority to do so. It is simple people that cannot defend themselves. If the Chairperson says that there is no merit for it to be relooked, so be it. He apologised if he was wrong because he is new to this.

The Chairperson replied that there were two days of public hearings to comment on this Bill and the public were given an opportunity to make submissions. This Bill has been in the pipeline for quite some time and there has been a number of engagements. Once a Bill is introduced by Cabinet to Parliament, the public is invited to make its comments. There are time limits on this. The Department then responds to the issues that were raised in the public hearings, where it might or might not agree. The Committee then engages on this and has a debate. Members can also make individual submissions. At this stage now all the clauses have been considered and the Committee is now debating. The Committee has followed the procedure it has followed with all the other Bills.

Mr Hendricks said that he does not want another public hearing. He just means that the Committee should relook at if the Bill version is still compliant. This is to ensure that it is working with a document that is constitutionally compliant. The certification is old and a new one is needed.

'communication'
Mr Maseko-Jele said that in terms of oral statements for 'communication', the word 'utterance' should be included which refers to one-word statements or name-calling that can cause harm. She does not know if this is covered by 'oral statement'.

Mr Nqola agreed with the word 'utterance'. This Bill has been long in processing. Legal Services is here and can advise the Committee. He suggested that the Committee proceed with the Bill to ensure that it is completed within time.

Ms Newhoudt-Druchen said that 'utterance' refers to one word. She asked if 'oral statement' also refers to one word. Are these synonyms? Or is there other terminology that can be used?

Mr J Engelbrecht (DA) asked if the Committee would go over all the definitions first and then provide input or go through each definition one at a time.

The Chairperson said that it will be focusing on one definition at a time.

Mr du Preez replied that the Department cannot advise the Committee to get a certificate or not. Although it appears that there might be many substantive amendments to the Bill, that is not the case. There are only two substantial amendments being proposed. This is the definition of 'characteristics' and 'grounds', especially the definition for 'grounds' as the introduced Bill included all the characteristics except for two exceptions. The proposals made now are merely a redrafting of clause 3 as introduced; it does not add or extract additional information.

On the definition of 'communication', the word 'statement' might be confusing because there is an assumption that statement includes something very long and does not include an utterance. However, he believes even if one word is said that is an 'oral statement'. A statement includes an utterance.

The Chairperson asked Mr du Preez which word he thinks is best and the reason therefore.

Mr du Preez said 'oral statement'.

Deputy Minister John Jeffrey said that utterance is a spoken word, statement or vocal sound whereas a statement is a definite or clear expression of something in speech or writing. Utterance is broader and includes a statement. It should be something that covers communication. The Department will consider the change to utterance and will inform the Committee of its decision.

Mr Swart said that the parliamentary legal advisers should look into certification and if there are not substantial changes. Guidance is needed on compliance. Many Bills are amended as the Committee goes along. What is the process now? He thought that there would be a debate. He did however appreciate the deliberation process.

The Chairperson said that the Committee is dealing with the Bill clause by clause. Nothing prevents a Member raising an issue. Members can use the working document to argue its points. The Committee has to see what it agrees and does not agree on. At the end of the process it will see what the Committee agrees on.

The Deputy Minister said certification is done when a Bill is introduced into Parliament by the Office of the Chief State Law Advisor that it is constitutional and properly drafted. What Mr Hendricks seems to be referring to is when a Bill being introduced by a Member of Parliament or the Committee that it must be certified by a Chief Parliamentary Law Adviser that it is consistent with the Constitution – that is the Bill as introduced. The National Assembly rule being referred to is on a Bill's introduction. A substantial amendment is only when there is a substantial change or a change to the pith and substance of the Bill; it will have to go back to the House for permission to re-advertise. None of these changes affect the pith and substance of the Bill. It is an important amendment but does not warrant further public comments. The parliamentary legal advisor does not need to advise on every change.

Mr Swart said that it was not his intention for the legal advisors to comment on every clause. They just might want to come in where it can be helpful. They might have a different view. He does not agree with the Deputy Minister and he believes that there are some amendments that are substantial. He thinks the Committee can take a different view to the Executive.

Ms Sueanne Isaacs, Parliamentary Legal Advisor, replied that a certificate is not issued at this stage. It is issued at the stage of introduction. Members are currently deliberating on the Bill. As the proposals become more formalised, the Committee will be informed if there are any constitutional issues. She will raise such issues if there are any.

The Chairperson said that the legal advisors will look at the Bill.

Mr Maseko-Jele said that a lot has been covered when it comes to this Bill. She suggested that there be another Bill that will address equality. There has to be more clarity. It cannot be put here to cover equality and discrimination. Equality has an impact on this Bill. She proposed that there be a Bill that talks about these issues because it does not belong here.

The Chairperson replied that the Committee needs to proceed with this Bill. The Department will look at a definition for 'oral statement' and consider 'utterance'. The Committee is happy with the rest of the definition.

Committee members had nothing to comment about the definitions of court, Criminal Procedure Act, data, data message and Director of Public Prosecutions.

'electronic communications system'
Mr Engelbrecht said that electronic communications system will include data and all means of social media. If one looks at what happened in Germany, it has a very extensive crime and hate speech law. In 2018, there was a need to introduce a social media law. Social media is so broad and is difficult to police these kinds of messages on different social media. There might be some difficulty in the electronic communications segment such as where it is coming from and curtailing the spread thereof. It will be worthwhile to look at Germany’s experience and its incapability of addressing the problems that arose from that.

Ms Newhoudt-Druchen noted that the term 'social media' is not in the Bill. Which word such as data or electronic communication system would cover social media? Social media changes all the time. It comes and goes and new platforms are introduced so it might be different in the future. There has to be a word that covers all social media.

Ms Maseko-Jele said she agreed about social media.

The Deputy Minister said that the officials can look at the German issues. It is important to note that this is a Bill criminalising hate speech it is not about curtailing the spread thereof. That is left up to the Cybercrimes Act.

Communication is an 'electronic communication' by means of data messages and 'data message' means data generated, sent, received or stored by electronic means. There is no definition of social media. Social media changes a lot. For instance, Mxit used to be very popular but it no longer exists. There is now WhatsApp but there is also Signal. Social media as such is all covered by 'electronic communication', 'data' and 'data message'. There is no social media without a data message or data.

Mr du Preez said he would argue the same as the Deputy Minister. There is a common denominator and that is the use of data and data message.

Ms Kalay Pillay, Deputy Director General: Legislative Development and Law Reform, Department of Justice and Constitutional Development, said that the Domestic Violence Amendment Act 14 of 2021 provides a definition of electronic communication. "Electronic communication means electronic representations of information in any form, and includes without limitation voice, sound, data, text, video, animation, visual images, moving images and pictures that are real, simulated or manipulated, or a combination or part thereof, that are disclosed by means of an electronic communications service". This definition was drawn from the Cybercrimes Act so that there can be as much alignment as possible between legislation. She hoped that it will be of some assistance.

The Chairperson said that this is of assistance. There must be consistency of definitions across various legislation.

Ms A Botha said that the definitions for electronic communication, data and data message were pulled from the Electronic Communications Act 36 of 2005 for consistency. Even that Act does not define social media.

'harm'
Mr Swart repeated his views. This definition is at the heart of this legislation and it cannot be cast to wide. It is still too broad and that is why he suggested the definition in the Qwelane v South African Human Rights Commission and Another judgement. It must be narrowed even further as Qwelane was a civil matter and this definition is for a criminal matter that must be a higher threshold. It is too broad for the crime we are creating, otherwise you will have a lot of constitutional challenges and defences that one can face. That is why he suggested 'deep'. The definition in the Qwelane judgment has no reference to "any". He asked the Department to respond to the removal of "any"; substitution of the word 'deep' for 'substantial which he thinks is a good idea; the motivation for the insertion of the words 'social, cultural and economic' which is not referred to in the Qwelane judgment on 'harm' as that is very broad which is a deep concern as we need to narrow the definition.

The Bill is not dealing with name-calling; we are not dealing with the pure saying of things that are offensive. If one reads paragraph 103 of the Qwelane judgement, hate speech goes way beyond offensive expressions and can be understood as extreme detestation and extreme vilification which risks provoking discriminatory activities against that group. "The expressions that are merely hurtful, especially when understood in everyday parlance, are insufficient to constitute hate speech. It is well established that the prohibition of hate speech is not aimed at merely offensive speech, but that offensive speech is protected by freedom of expression". Mr Swart said that including the words 'social, cultural and economic' can lead to constitutional challenges, particularly given that hate speech in a criminal context was traversed by the Constitutional Court in the Qwelane judgment. The parliamentary legal advisers should advise if this proposal is constitutional or not but he thought they were going to bring the hate speech definition in line with the Qwelane judgment.

The Chairperson said that the Committee has already decided that “any” should be removed. It remains to decide if it is "deep" or "substantial".

Mr Swart asked why the text has not been changed yet and "any" remains as a proposal.

Mr Engelbrecht agreed with Mr Swart. What does social and cultural constitute? Would it be possible to define substantial cultural and social harm or for a prosecutor to prove this beyond a reasonable doubt? It is too broad and it has to be narrowed down.

Ms Maseko-Jele said that 'social, cultural and economic harm' should be included. The Committee has agreed on the proposal of 'deep' to some extent. She suggested that it be replaced with strong; it constitutes insight to cause harm. Fear is the right word and has strong motivation. She also mentioned that verbal should be included and some form of utterance.

The Deputy Minister said that he was not there when Mr Swart mentioned the removal of the word “any”. No decisions are being taken yet. There is a definitive definition of 'harm' in the Qwelane judgement. It does have a civil component. The word “substantial” is legally clear whereas strong is not. The scope of harm is broadened by 'social, cultural and economic'. He read paragraph 154 of the Qwelane judgement: “In contradistinction to the insuperable difficulties with “hurtful”, the term “harmful” does not suffer the same fate. On a plain reading, “harmful” can be understood as deep emotional and psychological harm that severely undermines the dignity of the targeted group. In Keegstra, the Supreme Court of Canada eloquently summed up two types of interconnected harms that resonate with the ethos of our diverse constitutional democracy, namely “harm done to the members of the target group” and harm done to “society at large”.Similarly, in SAHRC v Khumalo, three types of harm were illustrated. First, “the reaction of persons who read the utterances and who are inclined to share those views and be encouraged by them to also shun, denigrate and abuse the target group”. Second, the type of harm experienced by the target group which includes “demoralisation and physiological hurt” and “the harm caused from responding in kind thereby creating a spiral of invective back and forth”. And third, “harm to the social cohesion in South African society” which can undermine our nation building project.”

Prosecutors do not have to look at social and cultural harm. The prosecutors can concentrate on psychological, physical and emotional harm. He still agreed that the word “substantial” should stay. Name-calling can be harmful. It is harmful if someone makes use of the K-word. There is a good idea of what should be legislated against. It should ensure that the examples fall within the definition.

Ms Christine Silkstone, Committee Content Advisor, said that she had looked for synonyms and she found profound for deep and significant for harm.

The Chairperson said that it can agree that the word “substantial” has a clear understanding in law. There is a preference given to the word “substantial”. What was the intention of the legislature? The legislature must have a clearer understanding of what it wants to achieve. The Committee does not understand the social, cultural and economic harm. The Committee is not against it, there just has to be a better understanding.

Mr Swart said that he appreciated the debate and had to acknowledge that he did not raise the word “any” in a previous meeting and that it was related to the word “deep”. He was still having a problem with social and cultural. Agreeing on the fact that the prosecutor will rely on psychological, physical and emotional harm is evident of the fact that the social, cultural and economic is not needed. The wording cannot be open to vague interpretation. There are ongoing discussions on “severely undermines” or “substantially undermines”.

The Chairperson said that before anything is being rejected, the Department should explain to the Committee the 'social, cultural and economic harm'. The reasons provided are not substantively motivated. The Committee has to understand why it is included and what it wants to objectively achieve.

Ms Maseko-Jele said that the Department should assist the Committee on this. As requested by Mr Swart, the legal advisers should be able to assist. The Department should assist the Committee on the background of why 'social, cultural and economic harm' is included. She still supported that it should be included.

The Deputy Minister said that economic harm is easy to measure; it is an objective fact that causes harm. For example, someone says terrible things about Tsonga doctors and as a result of that people do not want to go to a Tsonga doctor. Social harm is any racist thing about a race group. He made mention of the Khumalo judgement on social cohesion. Cultural harm was initially not in the Bill but it was suggested he thinks in the Cosatu submission. This is when someone insults people of a certain cultural group such as Khoi-San or the Xhosa people. For example, an insult on its customs and the way they behave. It will not just be any prosecutor dealing with such matters; it would be a provincial prosecutor. Not all of the harm has to be established, it is only one of them.

Ms Botha said that 'social, cultural and economic harm' was included in the Department's Research Note Two. It covered categories of victims, which includes group identity. Harm does not only have to be towards to one individual, but it can also be a group. It therefore covers victims who belong to a group.

Ms Newhoudt-Druchen provided another example of economic harm. For instance because a person is deaf, the Council of Social Workers does not want to employ her. Another example, an employer does not want to employ someone with albinism.

The Chairperson said that this had been a good discussion. He suggested that there be three options. Option 1 – the definition of harm includes social, cultural and economic harm. Option 2 – the definition of harm includes the word “substantial” but does not include social, cultural and economic harm. Option 3 – the definition of harm includes social, physical, psychological, economic, cultural and emotional but starts with the word “strong” and not “substantial”. These definitions have to be worked on and debated.

Mr Swart said that he liked the different options proposed by the Chairperson. The Department should look at introducing definitions in particular of social and cultural. This will guide the Committee to understand why it is being included.

The Deputy Minister said that the one he prefers is not listed as an option. He suggested that it should state substantial/deep/strong. The Committee should then decide which word is best.

The Chairperson said that the Committee has already decided on substantial and Mr Swart has withdrawn the word “deep”. It is only Ms Maseko-Jele that has not withdrawn the word “strong”.

Ms Maseko-Jele said that she is fine with “substantial” as it is legally clear. She withdrew “strong”.

The Chairperson said the next meeting on 30 November 2022 is for strategic planning, but there should be further deliberations on the Bill. Enough time should be given to the researchers to their job in terms of the documents that will guide the Committee.

Mr Swart said that he agreed and the researchers should be given more time.

The Committee had a discussion on whether the Bill deliberations should continue or not.

The Deputy Minister said that he was happy to carry on.

Personal Use of Cannabis Bill
The Chairperson informed the Committee that it had received a legal opinion from the legal advisers on the Cannabis Bill. In terms of the formalisation of the final Bill there was an issue. The religion clauses were not included in the Bill as introduced and it should go to the House again for permission to re-advertise for public comment. Thereafter, a public hearing should be held again. The Committee cannot continue with the A-list and B-Bill as expected.

Mr Swart said that he was pleased that a legal opinion was received. The planning meeting should continue as planned. The regulations are the same as that of the Plant Improvement Act and there should be a debate on this.

Way forward
The Chairperson said that there is a lot of work that still needs to be done.

Ms Silkstone said that before the end of the term it can provide a summary of the documents that are usually submitted at the end of the term to give the Committee an idea of what has been done. She did ask for more time on the planning session.

Ms Newhoudt-Druchen asked if the Committee will continue to deliberate on the rest of the Hate Speech Bill in this meeting. She suggested that it be dealt with in the upcoming meetings.

The Committee agreed

The Deputy Minister said that the Committee should make a commitment to complete the Bill by Wednesday 30 November 2022.

The Chairperson said, no, there cannot be a deadline. The Bill still has to be processed to the best of the Committee’s abilities.

Mr Swart called a point of order. It is unacceptable that the Executive calls upon the Committee to commit to a deadline. In some instances it can even take eight years to process and finalise a Bill.

The Deputy Minister said that it was not his intention to make instructions.

Mr Swart said that the Chairperson should call the Deputy Minister on a point of order. The Deputy Minister should refrain from comments on how the Committee should do its work. The Committee has tried its best.

Mr Hendricks said that he agreed with Mr Swart. The Executive took its own time to bring this Bill. It cannot rush and steam roll this Committee.

The Chairperson said that the Deputy Minister is allowed to have his own views and the Committee is allowed to not agree. It was not his intention to steam roll the Committee. The Committee will process the Bill and will apply its mind properly.

The meeting was adjourned.

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