A new definition and new defences
The Bill defines hate speech as the intentional ‘communication’ of material that could ‘reasonably be construed to demonstrate a clear intention to (i) be harmful or to incite harm, or (ii) promote or propagate hatred’, based on one or more of 15 listed grounds. (Listed grounds include race, ethnic origin, gender, and religion, along with age, disability, and sexual orientation.)
According to the Bill, those convicted of hate speech may be sent to jail for up to three years on a first offence, and up to five years on any subsequent one. However, people engaged in ‘fair and accurate’ reporting in the public interest are protected from punishment, as are those involved in artistic expression, academic/scientific inquiry, and the proselytising of religious belief.
However, many people will fall outside these exemptions, none of which would have applied to:
- retired estate agent Penny Sparrow, for comparing black beachgoers to monkeys;
- motorist Vicki Momberg, for calling a police officer a ‘k….r’ close on 50 times;
- businessman Adam Catzavelos for applauding the absence of any ‘k…..s’ on a Greek beach;
- Gauteng official Velapi Khumalo for urging that whites be ‘hacked and killed like Jews’ and that their children be ‘used as garden fertiliser’; and
- EFF commander-in-chief Julius Malema for telling his supporters that whites had ‘slaughtered…peaceful Africans…like animals’, but ‘we are not calling for the slaughtering of White people, at least for now’.
Some readers might think that these individuals merited jail terms under the Bill, had it already been in force. But if imprisonment is the desired penalty, it is important to question why and when this should be so. It is also worth remembering that Sparrow, Catzavelos and Momberg – but not Khumalo or Malema – were all sentenced to suspended or immediate prison terms under the existing common law rules of crimen injuria.
Constitutionality of the Bill’s definition
Is it constitutional to define hate speech in the wide terms set out in the Bill when the Constitution gives ‘everyone the right to freedom of expression’, except where this amounts to (a) ‘propaganda for war, (b) incitement to imminent violence, or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm’?
Defenders of the Bill will doubtless retort that its definition is taken directly from the wording approved by the Constitutional Court in the Qwelane judgment in July 2021. (Jon Qwelane, a journalist, had written a newspaper article in 2008 in which he strongly criticised same-sex marriage and urged that it be ended before ‘some idiot’ (not necessarily a homosexual) decided to ‘marry’ an animal. The Human Rights Commission (HRC) took him before an equality court, which found the article constituted hate speech under Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) of 2000. But Qwelane contested the validity of the hate speech definition in Section 10 and the Supreme Court of Appeal (SCA) in time upheld his challenge, prompting a further appeal to the Constitutional Court.)
Writing for a unanimous court, Judge Steven Majiedt found that Section 10 went too far in barring ‘hurtful’ speech. ‘Hurtful’ was so vague a concept that it undermined the rule of law. It was also so wide that it could be used to prohibit speech which merely ‘offends, disturbs, and shocks’.
However, all that was needed to achieve constitutional compliance was for Parliament to amend Section 10 to excise the ‘hurtful’ criterion. The judgment thus instructed the legislature to make this change within 24 months, pending which Section 10 should be read as if the excision had already taken place.
Does the Qwelane ruling confirm the Bill’s constitutionality?
Since the definition in the Bill is effectively the same as the Section 10 wording approved by Majiedt, does this suffice to confirm the constitutionality of the definition in the Bill? The answer is ‘No’, for three key reasons.
First, Majiedt failed to follow what he himself describes as the ‘lodestar’ precedent on hate speech: the Constitutional Court’s ruling in the Islamic Unity case in 2002. This judgment makes it clear (in the SCA’s words) that ‘all expression is protected, save anything that falls within Section 16(2)’ of the Constitution.
Any legislation that limits protected speech must meet the ‘justification’ criteria laid down in Section 36 of the Constitution. The more a limitation departs from Section 16(2), the stricter the ‘justification’ scrutiny that must be applied. Since this is settled law, Majiedt’s failure to follow it provides good reason to reject his approach.
Second, Majiedt’s judgment is flawed in other ways as well. This is evident, in particular, in:
- the contradiction between his initial assessment – that Section 10 ‘on a plain reading, is broader than Section 16(2) in various respects’ – and his subsequent finding that speech that is ‘harmful or incite[s] harm’ nevertheless ‘aligns’ with the ‘advocacy of hatred’ in section 16(2)’;
- his further assumption that words that ‘promote or propagate hatred’ likewise ‘accord’ with the ‘advocacy of hatred’ in section 16(2), despite the obvious differences in these concepts; and
- his failure even to acknowledge that section 16(2) requires not only the ‘advocacy of hatred’, on a closed list of four grounds, but also ‘incitement to cause harm’
Third, Majiedt was dealing with civil law liability under Pepuda, a statute which (as he noted) aims ‘not to punish the wrongdoer, but [rather] to provide remedies for victims of hate speech’. By contrast, the Bill makes hate speech a crime that can be punished by prison terms of up to three years on a first offence and up to five years on any subsequent one.
In creating criminal liability, the Bill exposes people to the same chilling effects as criminal defamation rules in various African states. The key risk with criminal defamation, notes legal expert Dario Milo of Webber Wentzel, is that it can be enforced by governments in the same way as other crimes. Writes Milo: ‘Criminal defamation is a crime in the same way that stealing a car is. A charge gets laid against you, the police investigate the charge, and you may be arrested.’
Much the same point was made by Zimbabwe’s Constitutional Court in 2014 when it struck down the criminal defamation rules often used to punish merited criticism of former President Robert Mugabe. As the court stressed, ‘the very existence of the crime creates a stifling or chilling effect on reportage’. Even if people are eventually acquitted, they will still have ‘undergone the traumatising gamut of arrest, detention, remand, and trial’.
The differing standards of proof needed for criminal conviction and civil liability further underscore the distinction between the two. In civil proceedings, the standard of proof is a balance of probabilities, which is relatively easy to fulfil. In criminal prosecutions, by contrast, all the elements of an offence must be proved beyond a reasonable doubt.
In the criminal context, thus, it is particularly vital that the definition of hate crime used to arrest, prosecute and put people behind bars for three to five years should be entirely in keeping with what the Constitution requires. The Qwelane ruling – handed down in a civil law context and with many weaknesses in its reasoning – cannot suffice to confirm the constitutionality of the hate speech definition in the Bill.
How then should the Bill’s definition be recast?
Useful lessons may be drawn from various other countries, but perhaps most pertinently from Kenya. In the aftermath of the 2007 ethnic violence that killed some 1 300 people and displaced more than 600 000, Kenya adopted a constitution that withholds protection from ‘propaganda for war, incitement to violence…or the advocacy of hatred that constitutes ethnic incitement, vilification of others, or incitement to cause harm’.
However, Kenya also adopted the National Cohesion and Integration Act of 2008, which makes it an offence to ‘utter words intended to incite feelings of contempt, hatred, hostility, violence, or discrimination against any person, group, or community on the basis of ethnicity or race’. Penalties on conviction include stiff fines and imprisonment for up to five years.
The enforcement of this broad prohibition has been selective, says Umati, a group monitoring online hate speech. No politicians have been convicted for speeches inciting hatred of various groups, including coastal Arabs and the Maasai. By contrast, university student Allan Wadiwas was convicted of hate speech and sentenced to two years in prison for a Facebook post critiquing President Uhuru Kenyatta and saying a particular ethnic group should be deported.
Against this background, Umati proposes that hate speech should be far more narrowly defined as ‘dangerous’ speech with ‘a high potential to catalyse violence’. Speech would count as ‘dangerous’ in this way if it targeted ethnic groups, compared them to vermin, animals, or insects, and contained any call to violent action: whether by looting, burning, beating, forcefully evicting, and/or killing group members.
The definition in the Bill should be redrafted along the same lines. This would be fully in keeping with Section 16(2), as well as the guaranteed right to expression in Section 16(1).
Other reforms required
Criminal defamation law should be scrapped as unconstitutional, while the need to retain crimen injuria rules should be investigated. Since none of the individuals earlier listed merited imprisonment for their offensive but not sufficiently dangerous speech, the law should be reformed to prevent this.
In the civil law context, damages for defamatory speech that ‘unreasonably’ undermines individual reputation should remain available, though in modest amounts notrunning into the millions of rands. Section 10 of Pepuda should be redrafted to echo the wording of Section 16(2)(c) of the Constitution, as the SCA in Qwelane earlier proposed.
The problem of selective interpretation and enforcement must also be tackled. Already the Human Rights Commission (HRC) and the Constitutional Court in Qwelane have come close to saying that liability for hate speech depends primarily on the racial identity of the speaker.
The HRC, in dealing with Malema’s case, seemed to suggest that only vulnerable groups should be able to express anger and frustration through ‘robust speech’. In Qwelane, moreover, Majiedt spoke of ‘curtailing speech which is part and parcel of the system of subordination of vulnerable and marginalised groups in South Africa’.
By contrast, the Equality Court in Johannesburg, in the Velaphi Khumalo case, got it right in rejecting any suggestion that the different racial groups should be treated differently in the adjudication of hate speech.
According to Judge Roland Sutherland, it will not be possible to overcome the rift between the different races if the black group is ‘licensed to be condemnatory because its members were the victims of oppression’, while whites are ‘disciplined to remain silent’. This does not mean that context should be ignored. On the contrary, said Sutherland, historical context, personal social circumstances (Khumalo had grown up in poverty under apartheid) and other pertinent issues are aggravating or mitigating factors relevant in deciding on suitable remedies for hate speech.
A great rethink on hate speech rules
The Bill provides good reason for a great rethink on hate speech rules. The more these rules spiral out of control and are backed by draconian powers of arrest and imprisonment, the more chilling the impact on free speech will be. Yet freedom of expression, as the Constitutional Court has repeatedly stressed, is ‘the lifeblood of an open and democratic society’.
It is particularly important to South Africa’s young democracy and requires a high degree of tolerance for unacceptable, offensive, or even repulsive speech. As the Constitutional Court put it in 1999, ‘the corollary of freedom of expression and its related rights is tolerance by society of different views. Tolerance, of course, does not require approbation of a particular view. In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views’.
1st published by The Daily Friend.
