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Prevention and Combating of Hate Crimes Bill on Track

August 20, 2021


The portfolio committee on justice and correctional services plans to soon release the Prevention and Combating of Hate Crimes and Hate Speech Bill for comment.

The bill was tabled in parliament in April 2018 and lapsed at the end of the 5th parliament.

The national assembly revived the bill in October 2019.

It seeks to:

• give effect to the Republic’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance, in accordance with international law obligations;
• provide for the offence of hate crime and the offence of hate speech and the prosecution of persons who commit those offences;
• provide for appropriate sentences that may be imposed on persons who commit hate crime and hate speech offences;
• provide for the prevention of hate crimes and hate speech;
• provide for the reporting on the implementation, application and administration of this Act;
• effect consequential amendments to certain Acts of Parliament; and
• provide for matters connected therewith.

During an address at a webinar hosted by the Institute for Healing of Memories in July 2021, the deputy minister of justice and constitutional development, John Jeffery, confirmed that the committee was not processing the bill due to Constitutional Court judgments in the Masuku and Qwelane case matters still being outstanding.

According to the deputy minister, the “definition of hate speech is a matter under consideration by the court and its outcome will be instructive to the legislative process”.

“If the legislation is found not to be constitutionally non-compliant, then the time and resources put into deliberating on a Bill may be wasted if the Court determines an outcome that is not aligned to a Bill being deliberated upon,” he said.

The justice and constitutional development department briefed the committee on the Qwelane judgement this week.

In a statement, the committee chairperson, Bulelani Magwanishe, declared that the committee has agreed to re-advertise the bill for public input adding that the “court judgement provides clear parameters on how the committee should approach the Bill”.

The Court found section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) of 2000 to be unconstitutional to the extent of the inclusion of the term “hurtful”.

According to the court, the limitation of “hurtful” speech goes beyond the justified limitation of hate speech and is therefore unconstitutional.

Following the penning of a 2008 newspaper article “comparing LGBTIQ+ people to animals and holding them responsible for the degeneration of values in society”, Mr Qwelane, in response, instituted a constitutional challenge against section 10(1) of PEPUDA, which defines and prohibits hate speech.

The Court has given parliament 24 months to remedy the constitutional defect in the act.

The Court also ordered that, in the interim, section 10 “should be read to refer exclusively to speech that is harmful and incites hatred”.

In the briefing, the department pointed out that Clause 4(1)(a)(aa) to (oo) of the bill lists the specified grounds upon which hate speech may be premised.

The judgment specifically noted the “broadness of the prohibited grounds, but undertook no further analysis.”

The department called on parliament to delve deeper into this clause of the bill.

In terms of PEPUDA, the department indicated that an amendment to address the order of the Constitutional Court will be drafted.