Prevention and Combating of Hate Crimes and Hate Speech Bill: Department briefing; Repeal of the Transkeian Penal Code Bill update

Meeting report

Opening Remarks

The Chairperson said the Prevention and Combating of Hate Crimes and Hate Speech Bill (PCHCHS Bill) was referred to the Committee on 14 March 2023. It sought to address frequently occurring and sometimes violent conduct by persons motivated by clear prejudices. The Bill put measures in place to combat these offences. She conveyed an apology from the Deputy Minister for not attending the meeting.

Mr G Michalakis (DA, Free State) questioned the absence of the Deputy Minister. He said the Minister or Deputy Minister preferably introduced Bills, and he was used to the Deputy Minister joining the meetings. It was important that the political head of a department be present at these meetings, whether it was the Minister or the Deputy Minister, in case there were questions of a political nature. If only civil servants were on the platform, it would limit the scope of the questions Members were able to ask. Mr Michalakis said he found this problematic but he noted the apology conveyed by the Chairperson. However, he had not heard an apology from the Minister himself. Did the Chairperson know where the Minister was and what he was doing?

The Chairperson said the Deputy Minister was involved in a lot of legislation by the Department and the Minister had to attend a bilateral meeting. She felt they must continue as the Committee had a lot to deal with during the current term. She recognised that the absence of the Deputy Minister limited the scope of political questions but after speaking with him, it was agreed that Members should not refrain from asking questions of a political nature. The Deputy Minister would engage with these matters in their next encounter. She agreed that it was problematic that the executive was not present at the tabling of the Bill. Unfortunately, the situation had arisen the previous day. Normally, meetings were moved around so the executive could be present, but the current term was too short. 

Briefing on the PCHCHS Bill

Mr Henk du Preez, State Law Advisor,  told the Committee that the Bill was introduced on 13 April 2018. The purpose of the Bill was to address the increasing number of incidents involving hate crime and hate speech motivated by prejudice, and to assist persons who were victims thereof. It put measures in place to prevent and combat these offences. It was a very short Bill and the crux of the matter was contained in Clauses 3 and 4 of the Bill itself.

The Bill aimed to meet the Republic’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance.

The Bill provided for:

- The recognition of hate crime and hate speech as offences and for the prosecution of persons who committed those offences;

 - The taking of victim impact statements;

- Appropriate sentences for persons who committed hate crime and hate speech offences;

- The prevention of hate crimes and hate speech;

- Reporting on the implementation, application and administration of the Act;

- Consequential amendments to certain Acts of Parliament.

See attached presentation

Discussion

Mr Michalakis said Mr du Preez had mentioned that freedom of expression was accounted for in Clause 4(2) of the Bill, but how did this clause accommodate Section 16 (1b) of the Constitution, which dealt with the freedom to receive information and impart ideas? How did the Bill seek to find a balance between those two different rights and requirements?

Mr Michalakis said hatred was being created as an entirely new form of crime. This had already been raised in the National Assembly, but NCOP Members were not part of that discussion. He agreed with the point raised there that hatred should be considered an aggravating circumstance rather than constituting an entire form of crime. What was the motivation for creating an entirely new crime? Why could it not be considered an aggravating circumstance that could be raised after a crime was proven?

He agreed with the outcry about criminal sanctions, such as the term for which someone could be imprisoned. The onerous processes the Bill set out would take a further toll on the already stretched resources of the National Prosecuting Authority. What were the Department’s views on how that would be mitigated?

Mr Michalakis said the Bill did not define hatred itself, which was problematic. It was an element of crime, as had also been seen regarding the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill. It was an element, but hatred was not defined specifically and clearly. Could anything be labelled as hatred in certain circumstances? 

Mr C Smit (DA, Limpopo) said he wanted to continue where Mr Michalakis’s last question left off. Where was the line between offensive language and hate speech? There was a very fine line because offensive language could be part of freedom of speech. The line between the two was not clearly defined in the Bill.

The Chairperson said Clause 1 of the Bill listed the characteristics for which people could become targets of hate speech or hate crime and “the ten grounds on which the freedom of speech can be venerated”. She said six characteristics were omitted - age, occupation or trade, political affiliation or conviction, culture, disability, and language. She asked what the rationale was for omitting these characteristics.

Another issue related to Clause 3, sub-clause 1 and the new Clause 3 (2) (a), which now provided that hate crime was an ‘underlying offence’. Could the Department explain how these provisions would be implemented in practice? It appeared that hate crime was an underlying offence but not hate speech. Clause 4, which related to the offence of hate speech, made no reference to sentencing in terms of Section 6(1). Clause 4 did not contain a provision that the criminal record of those convicted of hate speech must reflect such an offence. Why was that?

On Clause 5, the Chairperson asked if victim impact statements were admissible as evidence. Clause 6, on penalties or orders, now provided that any person convicted of an offence referred to in Clause 4, was liable to a fine or imprisonment for no more than eight years. How was this period of eight years decided upon?

Mr E Mthethwa (ANC, KZN) asked if cultural language would be considered hate speech. Something could be said in an African way, which could be construed as hate speech in another language. How were you going to define hate speech? There was a very thin line between these issues. He would like the Deputy Minister to respond, or a person designated by him.

Mr Michalakis said the root cause of hate speech was a moral issue in society and you could not legislate morality. He did not think this Bill would achieve that. What it would do was limit the freedom of speech of those who did not commit hate crimes. It would discourage many people from speaking their minds. The root cause of hate speech was not being dealt with by this Bill.

The Chairperson acknowledged Mr K Motsamai (EFF, Gauteng).

Mr Motsamai responded in Tswana [there was no translation: please see attached audio for the comments].  

The Chairperson thanked Mr Motsamai. She said Members would be aware that they did not necessarily have translating services available on the virtual platform. She asked whether anyone from the Department understood the question.

Mr Motsamai, on a point of order, said Tswana was an official language. He said someone must be there to answer him in Tswana because he was representing the Batswana people. 

The Chairperson said that was not really a point of order as all official languages were recognised. They just did not have translation services. She asked if anyone from the Department’s legal team understood the question. If they did not, the question would be translated and the Department would respond at the next meeting.

Mr Du Preez said that, unfortunately, no one understood the question.

Responses

The  Chairperson said some questions raised were of a political nature, but Mr du Preez could respond to what he could in terms of the specifics of the Bill.

Mr Du Preez said the Bill aimed to establish an equilibrium between freedom of speech and the stage at which hate speech became involved. If they went through the Bill clause by clause, they would be better able to explain it to the Members.

In the Portfolio Committee hearings, concern was raised about the issue of double criminality. That was why Clause 3 explicitly excluded the common law offence of hate speech and the offence of crimen injuria. Hate speech was dealt with in Clause 4. There was no doubt that a person’s criminal record would reflect the offence of hate speech. It was a new offence that would be created regarding the legislation.

The issue of sentencing was discussed at length in the Portfolio Committee. In the provisions of the Bill, there was a differentiation between a first and second offender. The final decision was to put a maximum of eight years in the penalty provision. Of course, one would want to leave the discretion in sentencing to the courts, not the legislature.

Concerning the aggravating circumstances of hate crime, there was a very intricate and technical sentencing regime in South Africa. When minimum sentencing provisions did not apply, the courts would have to consider whether someone had committed a crime on the basis of prejudice and aggravating circumstances.

Mr Mthethwa said his question about African language culture was not answered. There were songs that were historically significant and he did want them to be demolished by this Act. He wanted to understand how far this Bill was going to go regarding these matters, because there was a thin line between hate speech and singing old songs. It would be problematic if revolutionary songs fell under this Act.

Mr Smit said there might also be things in ancient religious scriptures that were offensive to other religious groups. It came down to where that line was drawn, because it would create a massive problem within the religious community if they were required to remove certain religious scriptures that were classified as hate speech. Many other examples could be raised. Morality could not be legislated. 

Mr Du Preez said the Bill itself empowered the Director of Public Prosecutions in each province to decide whether a prosecution should be instituted or not. When it came to revolutionary songs, for example, the bottom line was whether they were unlawful or not. That was a factual question that would be raised before a decision was made to institute a prosecution. This applied to old religious scriptures as well. Freedom of speech was very important, apart from all the other rights contained in the Bill of Rights. He did not believe the issue of revolutionary songs or religious scriptures would be a concern because it would be decided on the basis of lawfulness or unlawfulness.

Mr Michalakis said it would be important to get the Minister or Deputy Minister before the Committee to answer outstanding questions. He said he did not want to belabour the point but from what he understood, it was up to some prosecutor to decide if hate speech was serious enough to prosecute. It was not clearly defined within boundaries in the Bill at this stage. If that is the case, this should be discussed very seriously in the coming weeks. It would be a problem if the legislature left it to the discretion of the prosecution authority.

Mr Motsamai raised a question in Tswana.

The Chairperson thanked Mr Motsamai and said she thought his question was similar to what Mr Mthethwa had asked. Some outstanding questions needed to be answered by the executive. She proposed they leave the discussion for now and continue when the Minister or Deputy Minister was present. The questions raised by Mr Motsamai would also be addressed as they moved forward.

Repeal of the Transkeian Penal Code Bill

The Chairperson informed Members that the Repeal of the Transkeian Penal Code Bill had been put out for public comment, but no comments were received. She noted that the Bill had been discussed at a previous meeting. There would be further deliberation on the Bill in the next meeting before they adopted it.

After the adoption minutes of previous meetings, the meeting was adjourned.