The Prevention and Combating of Hate Crimes and Hate Speech Bill  was tabled for comment last year and South Africans have until the end of the month to submit their comments. The Bill does three key things (I) creates the offence of a hate crime, (ii) criminalizes hate speech and (iii) places a duty on government to prevent and combat these offences through education and other efforts. The most notable of these aims, however, is the criminalization of hate speech and the creation of an offence that attracts a sentence of up to 3 years in prison on first conviction and up to 10 years for subsequent convictions.

While some have decried the Bill for it’s anticipated ‘chilling effect’ on freedom of expression*, a contingent of religious leaders have expressed opposition to the Bill. An organization called Freedom of Religion South Africa (FOR SA) has even started a petition calling for the extend the deadline for comment and requesting the insertion of a religious exemption. This opposition appears to be centered on the issue of religious preaching against homosexuality, which does not fall under the Constitution’s definition of hate speech unless it calls for violence. However, under the offence created in the Bill, such preaching may now constitute hate speech.

While it is unlikely that the deadline for comment will be extended, the criminalization of hate speech through the Bill may in fact be unconstitutional. If this is the case South Africans are afforded a limited window to address this directly with lawmakers.

Hate Speech and the Constitution

The right to freedom of expression is enshrined in section 16 of the Constitution and it is the only right which contains an ‘internal limitation’. This means that the text of the right itself excludes certain kinds of speech from constitutional protection. In the Constitution, there are three categories of speech that are not protected; propaganda for war, incitement to imminent violence and what we call ‘hate speech’. Specifically, section 16(2) excludes ‘advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.’ (emphasis added) from constitutional protection. The significance of this exclusion is that government may regulate, prohibit and control these excluded categories of speech without having to justify this limitation under section 36.

There are two elements to the constitutional definition of hate speech:

  1. The expression constitutes advocacy – or a call for – hatred on the basis of race, ethnicity, gender or religion; and
  2. The advocacy constitutes an incitement to harm.

For example, Julius Malema singing ‘shoot the boer’ which is both advocacy of hatred and also incites harm against a group of people. The Johannesburg Equality Court, in 2011, found that it is not protected by the Constitution. However, a statement such as ‘Women are evil’ does not incite violence (not directly anyway) and is therefore almost certainly protected by the Constitution.

A challenge to the constitutionality of legislation dealing with hate speech would have to begin by successfully showing that the speech regulated does not fall within the section 16(2) exclusion. The question is then whether the Bill criminalizes the hate speech as defined by the Constitution or whether it goes further than that.

The Offence of Hate Speech

The offence contained in the bill reads as follows:

Section 4: The Offence of Hate Speech

(1) (a) Any person who intentionally, by means of any communication whatsoever, communicates to one or more persons in a manner that –

(i) advocates hatred towards any other person or group of persons; or

(ii) is threatening, abusive or insulting towards any other person or group of persons,

and which demonstrates a clear intention, having regard to all the circumstances, to –

(aa) incite others to harm any person or group of persons, whether or not such person or group of persons is harmed; or

(bb) stir up violence against, or bring into contempt or ridicule, any person or group of persons,

based on race, gender, sex, which includes intersex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism or occupation or trade, is guilty of the offence of hate speech.

When broken down, the offence created by the Bill has four elements:

  1. communication made with the intention to incite harm or stir up violence against, contempt or ridicule a person or persons;
  2. which advocates hatred or is threatening, abusive or insulting;
  3. on the basis of certain listed grounds.

From a quantifiable perspective, the offence includes categories that are not listed in the constitution such as, HIV status, nationality, and also explicitly includes intersex persons. Though the inclusion of these additional grounds would be easily justifiable given the recent history of xenophobia and stigma against HIV-positive persons, these broaden the offence beyond the constitutional exclusion and make the legislation susceptible to Constitutional challenge.

On this basis alone, the offence created in the Bill is broader than the constitutional definition of hate speech.

However, the criminalisation of statements, which express ‘contempt’, ‘ridicule’ and ‘insult’ towards persons, extend the offence of hate speech to include expressions that are constitutional protected. While statements which insult, express contempt and ridicule individuals can be subject to civil suits and, as Penny Sparrow’s case demonstrated, can also attract fines in Equality Court proceedings [insert link: ] this does not mean that they are not constitutionally protected.

Limiting Constitutionally Protected Speech

If Parliament seeks to criminalise speech that is constitutional protected by section 16, it will have to show that this limitation is justifiable. This requires Parliament to show that it is attempting to achieve a legitimate purpose and that criminalisation is the least restrictive means to achieve that purpose. This means that Parliament does have the power to limit freedom of expression in certain circumstances, such as when another right is being negatively impacted. The issue of whether limitations on freedom of expression has been considered many times by the Constitutional Court and their attitudes toward such limitations is clear in Kriegler J’s judgement in S v Mamabolo.

Having regard to our recent past of thought control, censorship…freedom of expression is no less important than it is in the USA. It could actually be contended that with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our demoracy is not yet firmly established and must feel this way. There for we should be particularly astute to outlaw any form of thought control, however respectably dressed.”

 The Bill goes beyond the limitations of freedom of expression that the Constitution imposed on the right but this does not render the Bill unconstitutional. If South Africans do not oppose the Bill and it is passed in it’s current state, our constitutional right to free speech will be limited but this limitation will stand and have the force of law. While it is possible that the Constitutional Court may eventually overturn it, this will require someone to challenge the law. Even if the law is challenged, the case will take time and the court may decide in favour of Parliament. The frequency of racist posts on social media may persuade the court that criminalisation is necessary for transformation.

South Africans have an opportunity to participate in the democratic process by submitting their opinions whether the limitation is just to Parliament before it is made into law.

Whether you are of the view that the offence of hate speech constitutes an unjustifiable limitation on freedom of speech or if you believe criminalising hate speech is beneficial to our democracy, you can submit your comments on the Bill to hatecrimes@justice.gov.za before 31 January 2017.

*The term expression used in the Constitution is broader than just speech and includes the conduct that seeks to communicate more broadly such as art, electronic communications etc.

A shorter version of this article appeared on GroundUp.