Earlier this year, Cde Gwede Mantashe, our Secretary-General said:
“In this march for unity, non-racialism and democracy, we stand on the shoulders of giants who over centuries of subjugation and oppression, committed their lives to the building of a South Africa that would be united, non-racial, non-sexist, democratic and prosperous in character. We reaffirm the clarion call made by our people at the Congress of the People in Kliptown in 1955 that “South Africa belongs to all who live in it, black and white” and that “our country will never be prosperous or free until all our people live in brotherhood, enjoying equal rights and opportunities.”
Many freedom fighters, young and old, black and white, laid down their lives for the realisation of the vision where in South Africa no man or woman would be discriminated against on the basis of their race, gender or creed.”
We live in a world which seems to be becoming more and more intolerant.
Instead of celebrating the fact that we are all different and unique human beings, instead of being united in our diversity as our Constitution champions, many in our country seem to focus on what divide us.
We seem to be a long way away from those proud days as a country where we were acknowledged by the rest of the world as the Rainbow Nation.
For example, the South African Human Rights Commission recently stated that 68% of equality complaints received by the Commission in the period 1st April 2015 to 29th February 2016 have been on the basis of race.
In the recent past we have seen an increasing number of incidents of racism, racial intolerance and attacks on foreign nationals. In June we read that protestors had torched a mosque in Giyani in Limpopo. We have seen a number of violent attacks on gay people and the so-called “corrective rape” of lesbians.
The ANC-led government has responded to many of these evils in a multi-faceted way – for example, we have established Equality Courts which hear, among others, discrimination cases, we have addressed attacks on foreign nationals at the highest level by creating various Inter-Ministerial Committees, as well as structures on the grounds to prevent attacks and assist foreign nationals. We have established a National Task Team which focuses on the prevention of violence and discrimination against at our lesbian, gay, bisexual, transsexual and intersex (LGBTI) persons.
But more needs to be done on the side of legislation, as our current laws do not seem adequate to address forms of hate that our country is now experiencing.
In the latest incident before our Constitutional Court, Jacobus Kruger, an employee of SARS, had racially insulted his manager Abel Mboweni . He said: “I don’t understand how kaffirs think. A kaffir must not tell me what to do.” Kruger pleaded guilty at a disciplinary hearing and was given a final written warning and placed on suspension without pay. In 2007 this decision was reversed and he was dismissed. Kruger then challenged his dismissal at the Commission for Conciliation‚ Mediation and Arbitration and was reinstated. The matter went on to the Labour Court and the Labour Appeal Court and then ended up in the Constitutional Court.
The Constitutional Court upheld SARS’ appeal‚ saying the seriousness of Kruger’s racist remarks cannot be overlooked by the courts in a country still fighting the scourge of racism. The Chief Justice said the use of the word “kaffir” had great historical significance in South Africa and was used previously to dehumanise black people. The Chief Justice says in paragraph 7 of the judgment that: “Calling an African a ‘kaffir’ thirteen years deep into our constitutional democracy, as happened here, does in itself make a compelling case for all of us to begin to engage in an earnest and ongoing dialogue in pursuit of strategies for a lasting solution to the bane of our peaceful co-existence that racism has continued to be. The duty to eradicate racism and its tendencies has become all the more apparent, essential and urgent now. For this reason, nothing that threatens to take us back to our racist past should be glossed over, accommodated or excused.”
President Zuma in his report at the ANC’s National General Council in October last year said:
“Informed by the Freedom Charter and the Constitution, the ANC has succeeded in building a nation which recognises the freedoms, equality and rights of all regardless of race, colour, creed or sexual orientation. Guided by the Constitution we continue to build a society that is totally free of racism. We should thus remain vigilant and fight any attempt to resurrect the demon of racism from the apartheid grave and to glorify a system of government that was declared a crime against humanity.”
A new Bill called the Prevention and Combating of Hate Crimes and Hate Speech Bill has been put out for public comment. The Bill creates the offences of hate crimes and hate speech and seeks to put in place measures to prevent and combat these offences.
The Bill initially excluded hate speech and the criminalisation of unfair discrimination from the ambit of the Bill because of the sensitivities and complexities involved, particularly in a multi-cultural country such as ours. It was also argued that there is already a civil remedy for hate speech and unfair discrimination, as contained in the Promotion of Equality and Prevention of Unfair Discrimination Act.
However, the events we have been witnessing recently highlighted the need to include hate speech, as a criminal offence, in the Bill. The Bill has thus been adapted to include hate speech.
But what, exactly, is a hate crime?
For example, a hate crime is committed if a person commits any recognised offence, and the commission of that offence is motivated by unlawful bias, prejudice or intolerance – so if you throw a brick at a mosque you can be charged with malicious injury to property. However if the State can prove that you threw the brick because you don’t like Muslims, it becomes a hate crime.
The prejudice, bias or intolerance towards the victim of the hate crime would be because of one or more of the following characteristics, or perceived characteristics, of the victim or the victim’s next of kin: Race, gender, sex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, HIV status, nationality, gender identity, intersex, albinism and occupation or trade.
Nationality, gender identity, HIV status, albinism, intersex and occupation or trade are not mentioned in section 9(3) of our Constitution – but it has been argued that they should be included in the Bill because of the hate crimes that have been committed on the basis of these grounds.
The Bill also criminalises any conduct which amounts to an attempt, incitement, instigation and conspiracy to commit a hate crime.
Clause 5 of the Bill creates an offence of hate speech. Laws against hate speech serve a dual purpose. It protects the rights of the victim and the target group and also ensures that society is informed that hate speech is neither tolerated, nor sanctioned.
Some commentators have said that the Bill will infringe the right to freedom of speech. The Bill is not intended to stifle or suppress freedom of speech or expression. However, the right to freedom of speech is not absolute and must be balanced, in the same way that all constitutional rights are balanced. No rights are unlimited.
The Bill provides that any person who – by any means whatsoever, in public – intentionally advocates hatred of any other person, or group of persons, based on the same grounds as listed in the Bill in a way that incites others to harm such person or group of persons, whether or not such person or group of persons is harmed, is guilty of the offence of hate speech.
Harm is defined to include damage to property – in other words, economic harm – in addition to physical harm. It also includes “mental or psychological” harm. The reference to harm is in line with section 16(2) of the Constitution.
Because of the sensitive and often complex nature of cases of this nature, clause 5 also requires the relevant Provincial Head of Prosecutions to authorise any prosecution in writing.
The opinion is held that the phrase “by any means whatsoever” will include all forms of communication, whether by statement, broadcast, advertisement, SMS, WhatsApp, Twitter, Facebook, photograph or Instagram, among others. This is particularly important since many of the hate speech incidents stem from social media.
The Bill was approved by Cabinet for public comment on 19 October 2016 and may be accessed on the departmental website: www.justice.gov.za.
We are hoping that all our structures, in the branches and the regions, will familiarize themselves with the Bill and let us have their views.
Inkosi Albert Luthuli, in 1961, said – “Our vision has always been that of a non-racial democratic South Africa which upholds the rights of all who live in our country to remain there as full citizens with equal rights and responsibilities with all others.”
We all have equal rights, regardless of our race, sex, gender, sexual orientation, religion, language, culture and so forth. People ask me whether I believe that people who are racist or xenophobic or homophobic (or, for that matter, prejudicial in any other way) will now, all of a sudden, have a change of heart just because there is an anti-hate law on the statute book.
Perhaps some of these people will change, perhaps they will not. But at least government will have sent a message, loud and clear, that discrimination, hate crimes and hate speech will not be tolerated. A society based on hate is not the society we fought for.
Significant progress has been made over two decades of freedom – yet there is still much more to be done. There are still, currently, challenges that we need to face. South African society remains divided. Many schools, suburbs and places of worship are integrated, but many are not.
This year we celebrate the 20th Anniversary of our Constitution. We must consider whether we have moved towards the goals of that Constitution or whether we are drifting away from it. We are confident that the new Bill will be advance the vision and ideals of our Constitution.
CDE JOHN JEFFERY IS THE DEPUTY MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT