Prevention and Combating of Hate Crimes and Hate Speech Bill & International Crimes Bill: briefing, with Minister and Deputy Minister

Meeting report

Opening remarks
The Chairperson welcomed the Deputy Minister of Justice and Constitutional Development and asked him to lead the briefing to the Committee.

Deputy Minister John Jeffery greeted the Committee, stating that he would request the officials to make a presentation on the Prevention and Combating of Hate Crimes and HateSpeech Bill and he would offer a few comments after the presentation.

Presentation on Prevention and Combating of Hate Crimes and Hate Speech Bill
Ms Kalayvani Pillay, DDG: Legislative Development, DoJ&CD, said that the Bill sought to address the increasing number of hate crimes and hate speech in the country and the increasing number of incidents motivated by prejudices, in the form of hate crimes and hate speech, and to assist persons who were victims of hate crimes and hate speech. The Bill created the offences of hate crimes and hate speech and put in place measures to prevent and combat those offences. It was linked directly to a number of key targets in the National Development Plan (NDP), most notably the need for sustained campaigns against racism, sexism, homophobia and xenophobia and that all people were, and felt, safe.

Ms Pillay indicated that Mr Lawrence Bassett, the Chief Director for Legislation in the Department, would provide an overview of the Bill.

The Chairperson had thought that the Department was going to give an overview of the Bill and not details of the Bill. Details of the Bill were for another session. This session was for the Committee to get an understanding of what the Bill was all about.

Ms Pillay indicated that what the Chief Director would be explaining some of the key aspects of the Bill and not presenting the Bill per se.

Mr Bassett began with the definitions, highlighting the definition of “court” which excluded district courts from the application of the Bill. Only the High Court and regional courts, where there were more experienced officers, would be permitted to deal with the adjudication of those offences. Regional courts were more geared up to deal with the matters.

Clauses 3 and 4 were the most important in the Bill because they created the crimes. Clause 3 created the offence of hate crimes. A hate crime was committed if a person committed any recognised offence under any law, commonly referred to as the “base crime or offence”, and that offence had been motivated by prejudice or intolerance on the basis of one or more characteristics or perceived characteristics of the victim listed in the Bill, a family member of the victim or the victim’s association with or support for a group of persons who shared the same characteristics. A prosecution in respect of a hate crime could only be instituted on the authorisation of the Director of Public Prosecutions having jurisdiction.
Clause 4 created the offence of hate speech. A person was guilty of the offence of hate speech when one intentionally published, advocated anything or communicated a clear intention to be harmful, to incite harm or hatred based on a range of factors: age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality or migrant or refugee status, race, religion, sex, which includes intersex or sexual orientation. The list was intentionally alphabetical. It was a crime whether the hate speech was directed to one person or a group of people, or even intentionally distributed or made available in cyber space. Likewise, any person who intentionally displayed or made available any material which constituted hate speech was guilty of an offence.
Clause 4(2) contained exemptions to the crime of hate speech and that included freedom of the press and other media, freedom to receive or impart information or ideas, freedom of artistic creativity and academic freedom and freedom of scientific research. Also excluded from the ambit of hate speech was anything done in good faith, such as any bona fide artistic creativity, performance or other form of expression, academic or scientific inquiry or fair and accurate reporting or commentary, in the public interest. Furthermore, it excluded any bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings.

Artistic creativity or performance or espousal of religious doctrine would not qualify for exemption from hate speech if it advocated hatred that constituted incitement to cause harm based on any protected grounds.
Thousands of public comments felt that the Bill went too far, so the Department had added the relevant clauses from the Constitution regarding the freedom of religion, etc.

As far as penalties were concerned, a hate crime had to be considered an aggravating circumstance when judgement was passed on the base crime. Hate speech carried a fine or imprisonment not exceeding three years for the first offence and five years for second subsequent offence. The latter had been ten years, but international research and public comment had shown it to be too harsh.

The Bill did not make provision for restorative justice measures. When one considered the offences, there was no reason for restorative justice but there was scope for the court to be innovative and suspend a sentence plus use restorative justice.

The list of hate crimes included one’s occupational trade. Killing or attacking someone because that person belonged to Uber could be a hate crime. It included sex workers who suffered crimes based on the fact that they were sex workers. The difference between hate crimes and hate speech was that occupational trade and political affiliation was not included under hate speech. That was so as not to curtail political debate. The hate speech was a response to all the racist incidents. Currently a violation of hate speech could be taken to the Equality Court, but it was a civil court, not a criminal court and someone had to bring the case. There had to be a crime for the case to go to a criminal court, so hate speech had been criminalised in the Bill. The law used currently, crimen injuria, a common law crime, was about impairing the dignity of a person and did not apply to groups. Therefore. the Department had felt that South Africa needed its own statutory law relating to hate speech. Subclause 2 had come in after public comment had been provided. He had engaged with groups of people and religious organisations across the country, and the idea was to not to criminalise religious texts which could be controversial e.g. what the Bible said about homosexuality. The idea was not to criminalise the Bible or any religious text. One could preach whatever one wanted to according to one’s religion, but one could not incite violence or harm.

There had been a debate around penalties, and it was also linked to the fact that hate crimes and hate speech was serious. If one encouraged diversion by putting it in the Act, then it implied that the crime was not so serious. However, that point might be debated.

Remarks by the Chairperson
The Chairperson told the Deputy Minister and his officials that he wished to make some opening remarks.

The central problem, which he characterised as the national question in the country, was that of racism. When he read the Constitution, he understood that the strategic objective was to create a non-racial, non-sexist and democratic South Africa. He asked whether the criminalisation of racism was something that had to be postponed, and whether the country should just deal with prejudices and intolerances, which were already dealt with in various statute books. At what point was government going to deal with the central issue of racism which lay at the heart of the problem and against which people had spent centuries struggling?

Secondly, South Africa needed all of the people in the country and more than 80% of them were traditional communities. If only Directors of Public Prosecutions could initiate proceedings, were they not elevating the offences to modern courts and excluding the traditional courts, which were also part of the legal system in the country? Would that not exclude the majority of people who did not have access to modern courts. To take a matter to the regional courts pre-supposed the use of legal representation which implied costs which were expensive. Was the Department not trying to criminalise issues without taking societies with them? Should there not have been a national dialogue before criminalising the offences? Was the Department not running ahead and creating more problems. Would the country not end up with overcrowded prisons?

If hundreds of submissions had been received, should a summary of those submissions not have been made so that the Committee could gain insight. He referred to the case of Ms Vicki Momberg about use of the K-word. Some who read history had tried to trace the origins of the K word. In some religions, such as Islam, that word simply meant a non-believer. If the Department had not educated the public about those issues, then what if a Muslim used the K-word to refer to someone who did not believe in his religion? Was the Department going to take him to court and find him guilty? Was it not running ahead of society and creating problems? He had heard that the Department had held a forum against racism which had existed for more than 15 years.

In short, he was saying that South Africa was a multi-religious, multicultural society. Could the Department and Parliament really deal with such a complex society by criminalising all kinds of intolerances in society without doing it in tandem with community and national dialogues. Could the Department address the Committee on the desirability of the Bill which, in his view, firstly, did not address the national question of racism and, secondly, ran ahead of public education and might make criminals out of people who were innocent, even though it was said that ignorance of the law was no defence. He believed that the Department had a duty to educate people on human rights so that when activities were criminalised, ensuring that society knew about it. Otherwise, the prisons would be filled, which were already over-crowded. Some people had called for it but, by its nature, it was exclusive of the traditional communities who could not access the regional courts. He wanted to know what the Department had decided and discussed.

Remarks by the Deputy Minister
The Deputy Minister responded that the Bill did criminalise racism, so he was not sure about the comment in that regard. The constitutional framework was based on the equality clause and that any inequality had consequences and that was where the Promotion of Equality and the Prevention of Unfair Discrimination Act (PEPUDA) came in for any kind of abusive language about a race, religion etc. but it was a civil court so legal representation was helpful. In criminal courts, there was no need to pay a lawyer as the state did that and only the accused person needed legal advice. That made it more accessible for people to report hate speech. The Bill criminalised racism and it criminalised other harmful issues noted in the equality clause of the Constitution.

As far as the increasing crimes were concerned, hate crimes were existing crimes and they were being elevated, and that was important as the world was showing greater intolerance. It would not stamp out the hate speech and hate crimes entirely, but the penalties would make people realise that they were serious crimes. Racism as an aggravating circumstance ensured that the crime became more serious.

He did not see an issue with hate crime. The new crime was hate speech. Crimen injuria was inadequate for charging people because the elements were not clear. Definitely, the context in which words were used was important. On a lighter note, the N-word could be used by young black men but not by white people. They did not want to criminalise a religious text or the K-word. It did not criminalise morality, so the Department was not running ahead. They were things that in terms of the Constitution were already wrong.

He was not sure about the forum that the Chairperson had spoken of but there was a conference against racism to be held in Durban. The Conference would draft a plan against racism. The Department could allow the Committee to have the report as it would be putting it out to the public in any case for comment so that the Department could see if the public was satisfied with the changes, including the partial exemption for religious teachings.

Discussion
The Chairperson said Ms Mothapo did not know about Nigger, so he explained that it had been a term used for African-Americans and it was regarded as an insult. But there was country called Nigeria in Africa, derived from the word Nigger. Sudan means the land of the black people. They may even be criminalising the Eastern Cape are of Kaffraria, which meant a place of black people. Education should be courted. He really was worried that the Department was running ahead of the people. That was why he had raised the issue of desirability, but the Bill was before the Committee for discussion.

Mr S Swart (ACDP) understood the need to address increasing racism in the country. He and his party supported hate crime, but they had engaged with the Minister on the topic of hate speech. He was grateful for his engagement with the religious sector and the fact that there had been the partial exemption of religion. It was a good example of participatory democracy. He would, however, have to establish whether it went far enough. His concern was that when one looked at the existing crimen injuria, it was sufficient. It had been used to charge Jackie Momberg on four counts and, for the first time, someone had been sent to prison on the charge of crimen injuria for hate speech. So, the question was whether the hate speech crime was really needed. The Committee would have to delve into it, given that the common law crime had been used effectively.

Mr Swart was also concerned about the exclusion of the principle of restorative justice. It was a principle that he had advocated for many years in the Committee. He did not understand why it would not be applicable for hate crimes and hate speech. Sections 25 and 28 of PEPUDA had never been proclaimed. Why not? Those sections put a duty on the state and private parties to promote equality and to address racism. If there was a need for hate speech legislation, should it not be inserted into the PEPUDA Equality Act, which was a restorative process but could send cases to a criminal court, as had happened with Vicki Momberg. He would study the Bill, but he did not know if the hate speech part was needed.

He was concerned about the impact on freedom of journalism, freedom of expression, freedom of religion. The Deputy Minister was aware of certain agendas that were being used and what certain activists were doing. Why in subclause 2, did the Bill state: ‘in good faith’ and again ‘any bona fides’. The ‘bona fides’ requirement mean that Constitutional bar had been lifted as the Constitution did not stipulate ‘bona fides.’ Freedom of expression was a huge concern.

Why could district and traditional courts not deal with the contents of the Bill? If the Department was going to go that route, why could traditional courts and district courts not deal with hate speech? He could understand hate crimes where sentencing had to be elevated, but that did not apply to hate speech. The regional and high courts were so full. If the ambit was to protect groups of people, and not individuals, the Department had to look at the definition of ‘harm’ which included emotional, pathological and economic harm. The definitions were suited to individuals but not in group contexts. He looked forward to a lengthy period of public comment. He was concerned about the exemptions: were they sufficient? Were all the Acts aligned and did the country need hate speech in consideration of the Equality Act? There was a National Action Plan against racism. He asked how the Bill fitted into that process.

Mr Swart looked forward to a lengthy period of public comment, given the fact that there had been between 70 000 and 80 000 submissions in response to the first draft. He would also like the report on those comments and he needed to examine to what degree the exemptions were sufficient. To what degree did it line up with the Equality Act and various other Acts? Was the hate speech aspect necessary given that it was set out in the Equality Act, and crimen injuria? To what degree did it fit in the Xenophobia Act? He thanked the Deputy Minister and Department for the engagement and hoped that it would continue.

The Chairperson noted that there had almost been a civil war in Johannesburg because of the cartoons relating to the former president. Some journalists had said that it was freedom of expression and others had said it was against their culture. Now he could see under exceptions that artistic creativity was excluded from hate speech. With regard to the desirability that Mr Swart was raising, the Committee could also deal with the desirability of the exclusions as the society was very multi-cultural.

Ms G Breytenbach (DA) was largely covered by Swart. She was concerned about the inclusion of ‘bona fides’. She wanted to know if the Committee would call for public input and she wanted a summary of the public comments from the Department. She was concerned about the overlaps with a range of other laws and legal processes because it became extremely difficult to prosecute when there were so many laws under which a person could be prosecuted.

Ms M Mothapo (ANC) wanted to know what had happened to all those key guideline strategies and plans presented since 2001. She wanted to know if all those strategic guidelines had been taken into consideration when working on the Bill. Mr Swart had mentioned that Sections 25 and 28 of PEPUDA had not been implemented. Also, Section 10 of PEPUDA had been declared unconstitutional. The Act was supposed to be amended, so if those amendments were made, what impact would they have on the Bill? A draft National Action Plan had to be ready for Cabinet by December 2018. Had that been considered?

The issue of traditions and customs and linguistic communities that were recognised in the Constitution was a concern for Ms Mothapo because the Bill created hate speech and referred to religious beliefs, etc. In terms of religion or beliefs, what did it say about traditional customs and practices? Some people hated traditional practices so was it a hate speech or crime, for example to attack an initiation school? Because they hated traditional practices, especially when the initiates were singing and dancing, church groups would burn initiation huts. She needed clarity on the issue of exemptions.

The Bill was overdue and, consequently, had been overtaken by events, such as the Momberg case. When Ms Momberg had been imprisoned, people were puzzled because they did not understand how serious the crime was. The Bill was long overdue.

The Chairperson had read an article where a lawyer asked whether cultural male circumcision was compatible with international children’s rights. When lawyers in court asked such questions, he had to ask whether matters were running ahead of the people, and even of the lawyers that people had to rely on.

The Deputy Minister agreed that cultural circumcision was problematic to people, but what about religious circumcision to new-born babies by Jews and Muslims?

The Chairperson told the Deputy Minister that South Africans would be happy that the Bill had been tabled so that they could really engage with the debate of matters at the heart of society.

Dr E Buthelezi (IFP) indicated that he had been covered by his colleagues, so he would not add to that.

Mr G Skosana (ANC) noted that the Committee was dealing with a complex matter. On the issue of regional courts and the accessibility of courts, he had to say that the traditional courts, or even the district magistrate courts, were more accessible to the people. In respect of the issue of step-by-step reporting on cases of hate speech, what were the steps if a case had to go to the regional court for prosecution?

Mr Skosana referred to the exclusions from hate speech in the Bill. Mr Swart was happy with consultations between the Department and various religious leaders. But, in its nature, one religion opposed the other so what one religion would refer to as unacceptable was something of religious importance to another. When a religious leader preached, he often offended other religions and traditional cultures. He also noted that artistic creativity or performance or espousal of religious doctrine would not qualify from exemption, if it advocated hatred and incitement. What about comedians? The jokes were about race, religion, sexual orientation. The intention of a comedian was to offend someone. To what extent would the artists, especially comedians, be affected? The group that was offended could see comedy as hate speech.

Mr Skosana asked about the elevation of hate crime e.g. an assault that had to do with race, ethnicity or sexual orientation. The person would report an assault case but what about the hate crime? At what stage was the case elevated to the regional court? When was it elevated? Did it first go to a magistrate’s court? It sounded complex. Hate speech had many aspects and there would always be a suspicion if black and white assaulted each other. His last point was the issue of overlapping with other legislation - he was also concerned about that aspect of the Bill.

The Chairperson noted that lawyers would have more than enough business with all the overlapping, but, he noted, lawyers are not taught about culture and religion, so where would one find lawyers well-educated enough to deal with the complex cases? There was also the issue of the many documents that had gone before and whether the Bill was compatible with those documents. The Human Rights Commission (HRC) reported to the United Nations. What had the HRC said to the United Nations on that matter. There were many reports that could throw light on the Hate Crime and Hate Speech Bill. But, were the matters not being dealt with under the existing law?

The Deputy Minister responded to the question of desirability. The Bill had come from Cabinet which had felt that it was desirable. Ms Mothapo was saying that the Bill was long overdue while others were saying that they did not think it was so desirable. He assured the Committee that the Bill had taken into account all other documents. The criminalisation of racism, xenophobia etc. would be in the National Action Plan when it came out in December. It was not the panacea to discrimination but was criminalising discrimination. There was no conflict with the Cybercrime Bill. Ms Pillay would speak about PEPUDA amendments. He was not aware that Section 10, which referred to hate speech, had been declared unconstitutional. There was no definition of hate speech in South African law. Should they not say that Parliament should declare what hate speech was and not the courts? He asked Mr Swart if crimen injuria could be used to prosecute a group or an offence against a group.

The Deputy Minister explained that a crime was reported to police station and the state would have to, and should be able to, prove racism. People had to access the nearest police station, not the courts. Subclause 2 came directly from the Freedom of Express clause in the Constitution and the Deputy Minister read the applicable section of the Constitution. What the Bill did, was to add to the list in the Constitution. It was unconstitutional for the PEPUDA to penalise racism expressions, for PEPUDA to find against a person.

The Deputy Minister noted that Diane Kohler Barnard, from the DA, was mounting a constitutional challenge to PEPUDA that all three factors should apply before a person could be found guilty. In the SARS case and other cases, exemptions came in. One could not advocate preaching hate based on race. One can say not-so-nice things about people in church, or at an artistic venue. For example, ‘F*ck white people’ was ruled not hate speech because it was an artistic display. The Context was important. Comedians could say terrible things as long as they were not advocating religious hatred with the intention of causing harm. The Committee should look at the elevation issue, should there be restorative justice but question whether it was undermining what hate crimes and hate speech were? The Committee could look at district courts dealing with it, but he was of the opinion that the matter was too complex for district courts and more experienced court officials were needed.

Ms Pillay spoke to the desirability of the Bill and concerns about overlapping of legislation. It was correct that there was the PEPUDA legislation and that sections 25 and 28 had not been implemented, but the Department was working on those sections that required an amendment and the Department would publish a Bill in that regard before the end of the year. The Department was also working on the National Action Plan which addressed criminalisation of discrimination. Neither of those addressed the criminalisation of the offences. Hate crimes received not only elevation but also clarity. Crimen injuria was not usually a serious crime and some prosecutors would not see it as serious, but the Bill specified what a hate crime or hate speech was, so there was clarity as to what was an offence. It would no longer be open to interpretation as to whether an utterance was a serious offence.

Regional courts and high courts were the ones to deal with the Bill because of the sentences that would have to be imposed. The courts needed experienced people to manage the process so that consistent decisions were taken in similar cases. There would be challenges, as Mr Skosana had mentioned, and there would always be the suspicion of a hate crime if an offence occurred between two races. She believed that the DPP would examine the case and would ensure consistency in how hate crime and hate speech was prosecuted. She agreed that comedians did enjoy an exemption, so long as their words did not advocate hatred or cause incitement.

Ms Pillay assured the Committee that the Department would make the document on the public comment available to the Members.

Mr Bassett said clause 7(a) (ii) dealt with how to report, elevate and prosecute the cases. It depended on the evidence in the docket but NDP would have to issue directives on relevant matters and, under the Bill, those directives had to be complied with by prosecutors in the execution of their functions. He understood what people were saying about ‘bona fides’ being double dipping. He would take a look at that clause and revert to the Committee.

The Deputy Minister explained that the use of ‘bona fides’ meant that a religious person or a comedian could not just claim to be such a person but would have to show that he or she really was a religious person or a comedian, etc. He added that if there were attacks on people because of their cultural practices, that would be a hate crime or hate speech, but he agreed that it would be more difficult coming from a religious body because religion was subject to the exemption and the speech would have to be inciting hatred and causing harm.

Ms Mothapo explained that the churchgoers would shout,” Hey, you heathens, you make too much noise!”

The Deputy Minister explained that if it was part of the sermon, it was not hate speech. But if it was someone expressing their own view, then it would be hate speech.

The Chairperson noted that if religion was allowed to preach because of the exemption, then 80% of the people would be offended, because 80% of the people believed in traditional culture. Could that not lead to civil war in the country?

Ms Mothapo commented that it was a prevalent belief in traditional culture that one should pray to ancestors.

The Deputy Minister said if it was part of a religious sermon or the religious tenet, they could even say, “Don’t pray to your ancestors.” He heard what the Chairperson and Ms Mothapo were saying, but there had to be acceptance of religions.

The Chairperson stated that in the centre of Johannesburg, the Christian bishops were intolerant of the call to prayer by the Muslims and felt offended, so they said nasty things. So, it would be Christians against Muslims, and then the 80% of the country with their traditional beliefs. Where were the lawyers who were educated enough to understand all these things?

The Deputy Minister reiterated that only the DPP could decide to prosecute and would provide guidelines if the case were to go to trial.

Mr Swart indicated that the broadness of hate speech was the cause of the difficulties. Talking about individuals was far easier. One might have Christians saying something against Muslims, but it worked the other way as well. For example, there might be Muslims saying something against Jews. He was concerned when the Deputy Minister talked about limiting the exemption to when there was preaching because the Bill talked about proselytising. He informed the Deputy Minister that “proselytising” was not preaching. Proselytising was to induce someone to convert to one's faith or the act of attempting to convert people to another religion or opinion. Christians had to go out and convert people. But, it must be remembered a traditional person could tell a Christian to return to the traditional ways. The Bill had tried to address challenges with hate speech but whether it addressed the challenges, or opened up a hornet’s nest, was for the Committee to decide.

The ‘bona fides’ requirements for artistic creativity raised the bar above the requirements of the Constitution. He had asked the question, but that point had not been responded to. What about the legal test for the concept of harm? Was the test for harm subjective or objective? The answer was apparently most certainly subjective as it was from the view of the group or the individual. Overcrowding of courts was terrible. Regional and high courts were extremely overcrowded. The Committee had just dealt with the budget and the Minister should know the situation of overcrowding. He could never see it justifiable to elevate hate speech to the regional courts and high courts. Those were all issues that the Committee needed to unpack. He thanked the Minister for engaging with the public and various ministries. Mr Swart suggested to the Chairperson that the Bill needed a broad engagement with all communities.

Ms Mothapo spoke to the issue raised by Mr Bassett. Did belief include traditional beliefs? Somewhere in the early 2000’s, the traditional healers had approached the Committee because the Council of Churches had held a sermon saying, “Stop honouring ancestors as they are demons”. The traditional people were very, very angry and had wanted the church dealt with. The SACC and Traditional healers and practitioners had met. So, if that Bill was intending to address that thing, she would be very happy. She had not received a response to her query about whether traditional beliefs were included. She understood that religious leaders had been consulted but what about the statutory body of traditional healers? They had been excluded.

The Chairperson welcomed the Minister of Justice and Constitutional Development, Michael Masutha, who had arrived from another meeting.

The Minister apologised for arriving late but informed the Committee that the entire legislative programme of the Department had been delegated to the Deputy Minister so that he, as Minister, played a minimal role in most legislative processes.

In response to the suggestion that the hate speech part be dropped, he stated that the Bill had originally confined itself to hate crimes. When the Bill was initially put together, the hate speech was not included, and he and the Deputy Minister had had a very long engagement on the matter. He believed that it would be most unfortunate in the light of the spate of hate speech, when even the courts had come to the party, not to grant, not only civil relief, but also criminal recourse to those who felt that they had been victim of racial assault and other forms of discrimination. Parliament would open itself to criticism if it did not take the lead in giving full effect to the objectives of the Constitution. Parliament should be bold in executing its constitutional mandate. That was why Members were there.

Coming to the specific issue of hate speech, the Minister said it would be unfortunate, when the issue had already been accepted in common law going back 2000 years, long before the current racism problems underpinned by colonialism, and courts had given relief to abusive speech, that Parliament came in 2018 and said that it would defer. Defer until when? When Rome was burning? That would be failing. Parliament needed to assist courts by strengthening their tools to deal effectively with the scourge of racism and other social prejudices. That was his starting point.

If the common law had been able to distinguish between that which was offensive enough to give some form of penalty, civil or criminal, the Department should be in a position, in the light of all the guidance offered by jurisprudence over the years, together with the Constitution, to be able to develop legislation dealing with hate speech. Surely Parliament could provide some guidance as to where the line should be drawn?

In respect of religion, he did not see a difficulty there as, when he was at university studying law, his pastime had been reading. He had read about Christianity in the Roman empire when persecutions had occurred. He had read that the Christian religion was very intolerant of other religions and had become a threat to the integrity of the Roman Empire and that was why the Romans had persecuted them. Christians were conscious that they were intruding on the faith of others when seeking to impose their own beliefs, calling others pagans and everything else. They had wanted everyone in society to subscribe to Christianity. It had been a political issue. He pointed out that those were some of the things that society had gone through to arrive at a conclusion that religious tolerance had to be the order of the day for the sake of harmony in the world. No one had the right, under the SA Constitution, to go out and engage in provocative utterances and disturb the peace. It might also be true of other religions, but people could only live at peace if everyone accepted the right to co-existence of other groups of people. That was his point of departure.

The Chairperson thanked the Minister. He was wondering whether, having received the briefing, the Committee should not sit on its own and deliberate on the issues that had arisen, and also seek advice from the parliamentary legal advisors. It was a pity that the Minister had not been there when Members had pointed out contradictions in laws, and the laws that had never be declared. A Member had even pointed out that Section 10 of PEPUDA had been declared unconstitutional and the Deputy Minister was not aware of the fact. Some Members of the Committee needed time to internalise and go through the implications of the Bill. Even within traditional society, there were different views. South African society was very complex, and the people had to be taken along by the government or it would end up jailing more than 60% of the population. And the jails were already full. However, there was also increasing intolerance in society.

The Chairperson indicated that Ms Mothapo had listed a number of documents that should have informed the discourse. He asked the Department to provide the documents so that the Committee could check that the documents were aligned. He turned to Members and asked them to indicate how they felt about the way forward.

Mr Swart stated that it was a pity that the Minister had not been there for the earlier engagement. The ACDP stood for religious freedom. It was a tenet of their Constitution. The Minister had to be careful of saying that the religion of Christianity was intolerant from an historical perspective. One could say that about the Muslim faith. One could say that about other faiths. Although the Minister had placed it in an historical perspective, one had to be careful about how one expressed oneself. He did not find it justifiable.

The Minister apologised to Mr Swart. He said that he himself was a Christian and he was only explaining why the Romans had persecuted the Christians. He had not been judging the Christian religion.

Mr Swart suggested that it was the Romans who had been intolerant.

The Chairperson declared the discussion closed.

Mr Swart stated he was one hundred percent in support of the Chairperson’s suggestion that the Committee needed to sit on its own and discuss the issue. As the ACDP, he was appreciative of the Deputy Minister’s engagement on the issues. He emphasised that he was in support of hate crimes, but he was not sure about hate speech. He seconded the Chairperson’s motion to engage as a Committee.

The Deputy Minister asked if the Committee needed to discuss the Bill before it went out for public comment.

The Chairperson replied that Committee had a lot of questions and, as a Committee, was not at one with the Bill. Before the Bill went public, the Committee would need to have discussed the issues in order to be able to respond to public comments.

The Deputy Minister was concerned because once a Bill had been introduced, it had to be put out for public comment. Obviously, there might be differing views on a Bill. He had heard Mr Swart speak of the need for extra time for public comment, so it was urgent that the Bill was sent out before Parliament rose for the extended recess. He assured the Committee that the document was inclusive of, and consistent with, the documents mentioned by Members. He wanted specific information regarding Section 10 of the Equality Act which Ms Mothapo had said was unconstitutional. He was not aware that it had been declared unconstitutional and did not think that anyone was aware of that fact, so he wanted the reference to the exact case in which it had been found unconstitutional.

The Chairperson stated that the Committee wanted to sit as a Committee to review the Bill. If the Department favoured the Committee with the relevant documents, that would help Members to overcome some issues.

The Deputy Minister asked if the Committee wanted, for the first time ever, to consider the desirability of the Bill before putting it out for public comment.

The Minister added that the Committee and those in Parliament did not have all the wisdom required. He would prefer to first hear the diverse views in society which would enrich Parliament’s views and to gauge the mood of society. He recalled that, when he was at Social Development, the Committee and that Department had wanted to ban corporal punishment at home, but society had not yet been ready for it. He was saying that there would always be controversial issues and the Committee and Parliament did not possess all the wisdom to be able to pass judgement in the light of the opinions of society, let alone the correctness or otherwise of the issues.

The Chairperson understood that that meeting had been set down for a briefing and the Committee had received the briefing and raised issues, so it would have to meet and decide the way forward.

Ms Mothapo stated that she would withdraw her statement regarding Section 10 until she had received the evidence. The Committee should take into consideration processes that needed to unfold and the other issues which could derail the Committee, so the sooner they engaged the better.

Mr Skosana agreed with the Chairperson that having received the briefing, the Committee needed to engage with the Bill, but it had to be done urgently as the Minister’s concern was the timeframe. They needed to speed up the process. If they could have a date and the documents, they could arrange a meeting. He understood that it was not only up to the Committee to decide whether the Bill went for public comment, but the Committee needed to clear up its understanding of the issues.

The Chairperson said the documents, as well as the reports of the Department’s engagement with the public, were required. How soon could the Members of Parliament get those?

The Deputy Minister asked if the Chairperson wanted a report on the public comments. What else did he want? He urged the Chairperson to put the Bill out for public comment. The Bill had been tabled in Parliament. Did the public not have the right to say what they thought of the Bill? Or was the Committee going to take a decision that it was not going to engage with the Bill. The Minister had said that the Committee had to be guided by what the public said.

The Chairperson asked the Minister to allow the Committee to follow its processes. He was hearing from the Members that they wanted the Committee to discuss it. The Committee appreciated the urgency of the matter and the Committee would take it forward as urgently as possible.

The Deputy Minister understood that the Committee wanted a report on the public comment, but he advised that the Bill had to be put out to public comment or the Committee would be denying the public the right to comment on a Bill that had been introduced in Parliament. The Deputy Minister said that he had never heard of that before.

Ms Mothapo proposed that the Department and the media be released and then Committee could discuss the Bill.

The Chairperson indicated that was not possible as the Department had to make a presentation on the International Crimes Bill.

The Minister told the Chairperson that he deferred to the fact he was the Executive and the Chairperson was from a Committee of Parliament, and he respected separation of powers.

The Chairperson stated that he saw the need for urgency, but the Committee needed to sit down together and clarify certain things. He thanked the Minister for assisting the Committee.

The Minister said he would leave the Chairperson with Kalay Pillay, as well as the Acting Chief State Advisor, to deal with the Bill and to navigate the Committee through the journey of the issues that had been characterised by much litigation.

The Chairperson indicated that the meeting would move on to address the International Crimes Bill.

International Crimes Bill

Minister’s remarks
The Minister began with opening remarks on the Bill. He said that South Africa had an international policy and an international outlook which had a strong emphasis on the African continent where SA belonged. Promoting stability and peaceful conditions on the continent was central to SA’s international policy outlook. Participation in the regional and continental bodies, such as the African Union, and the critical role SA played there, was also informed by that outlook. Matters had come to a head when SA hosted a summit of the African Union in Johannesburg to which all constituent members and the heads of state had been invited. As part of the preparation, and in terms of the Diplomatic Immunities and Privileges Act, the Department of International Relations (DIRCO) issued a proclamation which had extended immunity to the participants of the conference. At the time, Zimbabwe was holding the Chair and had invited President Omar al-Bashir, President of Sudan, who was the subject of a formal accusation by the International Criminal Court (ICC).

The ICC had approached SA and offered SA advice, if needed, in relation to SA’s obligation to serve the indictment prior to the summit. In response to that, SA had dispatched Mr Enver Daniels, a former Chief State Legal Advisor, to the Hague to seek an audience with the pre-trial chairperson to clarify South Africa’s obligations under the Rome Statute. The Minister would not be going into the details of what had transpired, but a decision had been taken and there was all manner of perspectives about how proceedings were managed in The Hague. The consultations concluded, and SA was informed that it was under an obligation to execute a warrant of arrest when President al-Bashir arrived.

On the morning of the summit, some people were rushed to Pretoria to respond to the North Gauteng High Court about an urgent application about the execution of the warrant. The North Gauteng High Court finally took a decision, soon after President Omar al-Bashir had left, that SA should have executed the warrant. The matter was appealed against and, at the same time, there was engagement with the body politic of the ICC at the Hague. The Minister had represented South Africa in the Hague on two occasions. There was also litigation at the Political Chamber of the ICC as to whether SA was under an obligation to issue the warrant. The judgement on appeal at the Supreme Court of Appeal in South Africa (SCA) was that, under South African law, SA was compelled to execute the law of Rome Statute because, in the domestication law of the Rome Statute, South Africa had tied its own hands behind its back and the court could not untie SA from the obligation. What South Africa had put in its domestication law was not necessarily what the country had been required to do under the Rome Statute.

The Rome Statute never intended to suppress international customary law and diplomatic immunity as SA had done when domesticating the Rome Statute. SA’s obligation rose in relation to its own domestic law rather than Section 27 of the Rome Statute. SA did not appeal as the judgement was fair, but the Judicial Chamber in the Hague adopted a different approach. Under the Rome Statute, regardless of South Africa’s internal laws, SA was still under an obligation to execute the warrant. SA opted not to appeal it as it respected the court and the country was given only five calendar days to appeal, which was insufficient time to launch a proper appeal. SA had left matter at that as there had by then been a country decision to withdraw from Rome statute and that judgement further justified a withdrawal from the Rome Statute.

Why did SA withdraw from the Rome Statute? The main difficulty was that SA had attempted three times to speak to the Assembly of State Parties. It was the Assembly of State Parties that had created the Rome Statute and if there were difficulties in implementing the Statute, that body should have gone back to the drawing board. Conflicting decisions created confusion as to whether the Rome Statute did away with diplomatic immunity. That was a fundamental question that needed to be resolved and SA believed that the Body Politic was the one to decide whether to amend the Statute. All efforts, even representations to smaller bodies, did not bear fruit. All SA was asking for was greater legal certainty in terms of what the Rome Statute did and did not say. SA had a difficulty with the manner in which the ICC interpreted the Security Council resolution which gave an interpretation that certain aspects should be overridden. Furthermore, Sudan was not party to the Rome Statute, but the Rome Statute allowed jurisdiction over non-members.

SA decided that when the country seemed to be expected to issue a warrant of arrest to a Head of State that was not party to the Rome Statute, it was problematic. The Hague differed from the highest court in South Africa. SA did not obtain an appropriate audience from the ICC. South Africa did not want to create a vacuum in its ability to implement arrests for serious crimes against humanity, so to plug the gap, government was repealing the law that domesticated the Roman Statute, but the country had come up with its own law to close that gap.

The last court judgement following an application by the DA and others had found that the decision for the Executive to withdraw from the Rome Statute was based on the wrong interpretation of the Constitution and that the Executive did not have the prerogative of withdrawing from Rome Statute. The appropriate procedure was to go through Parliament to see if Parliament agreed with the policy decision before the new law could be presented. That was the current process.

The Chairperson thanked the Minister for the comprehensive background information. The Committee had a briefing before it.

Presentation of the International Crimes Bill
Ms Pillay made a presentation of the Bill on International Crimes and thanked Minister for taking the meeting through the withdrawal from ICC. The Department had tabled documents on the withdrawal from the ICC and she was going to talk to the Bill as the Bill had to be dealt with at the same time as the repeal of the Rome Statute, if it was repealed, but they had to be linked so as not to leave a gap.

She introduced key aspects of the Bill. The Bill:
* criminalised conduct constituting international crimes;
* provided for immunity from prosecution of international crimes;
* granted extra-territorial jurisdiction to RSA courts in respect of international crimes;
* regulated the investigation of international crimes;
* provided for the extradition of persons accused or convicted of international crimes to foreign States in terms of the Extradition Act, 1962;
* provided for the surrender of persons accused or convicted of international crimes to entities;
* provided for cooperation with entities in respect of international crimes;

Dr Elna Botha, Acting Chief State Advisor, stated that clause 1 of the Bill contained a definition of “entity” which included the International Criminal Court to ensure continued cooperation with that Court. It was necessary because the Extradition Act only allowed South Africa to extradite to a state and not to an entity such as the ICC.

She lifted important points from the clauses of the Bill. Clause 6 dealt with the duty of the South African Police Service to investigate international crimes. Clause 8 provided that a court hearing an international crime had to apply the Constitution and other domestic law and might also consider and apply conventional and customary international law as well as comparable foreign law. The clause was a restatement of a provision of the ICC Act. Clause 11 regulated the extradition of a person to a foreign state for international crimes while Clause 12 provided that a person who had committed an international crime might be surrendered to an entity. Chapter 5 of the Bill was aimed at facilitating cooperation between the Republic and an entity, such as the ICC.

Discussion
The Chairperson stated that the Minister’s background and the presentation had been very clear and succinct.

Ms Mothapo asked in response to Chapter 4 whether the ICC would still have a role to play.

The Chairperson asked if there was a similar n entity in Africa.

The Minister stated that South Africa did not see itself as an enemy of the ICC and did not see the country disconnected from the ICC because when a country had exhausted its own laws, it could even prosecute, and the ICC would advise. The law even allowed the person to be referred to ICC.

The ICC had asked SA to be the first country on earth to arrest a sitting head of state that was in the country on diplomatic business, having received diplomatic immunity before he arrived in the country. Why should SA do what the Americans and British would not do? That was the politics of it. The system of diplomatic immunity had endured for over 1000 years and diplomacy worked only because of the system of immunity, otherwise diplomats and heads of state could not visit another state.

The Minister stated that Africa did not have an equivalent of the ICC. The Malabo Protocol was meant to be the African equivalent but the signatures of 30 countries were needed and only seven had signed the Protocol, and none had ratified it. The Ministers of Justice in the African Union had agreed to a study tour, visiting other countries to see if an instrument could be devised that was more suitable to domestic constitutions. Africa could develop its one homegrown international system.

The Minister added that South Africa’s position was that it should never be seen as being tolerant of impunity.

The Chairperson thanked the Minister for the briefing and adjourned the meeting.

The meeting was adjourned.