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Assessing and promoting civil and minority rights in South Africa.

[Source: CFCR by Christine Botha.]

On 15 February 2019, the window closed for written submissions on the Prevention and Combatting of Hate Crimes and Hate Speech Bill (the Bill) to the Portfolio Committee on Justice and Correctional Services. The Bill – which proposes the statutory criminal offence of hate speech – is a much-improved version of its 2016 predecessor. However, the current offence of hate speech still poses a serious threat to the right to freedom of expression.

A person guilty of an offence of hate speech – as defined in the Bill – might be looking at a fine and/or imprisonment of three years on a first conviction. These are life-altering consequences and such a proposal needs to be carefully analysed through the lens of the Constitution. The starting point is section 16(1) of the Constitution – the right to freedom of expression. The right to freedom of expression, critical for social and political debate, indirectly fosters transparency and accountability in a democracy. However, the Constitution, in keeping with international law such as the International Convention on Civil and Political Rights (ICCPR), stipulates clearly in section 16(2) the type of expression that is undeserving of constitutional protection. Furthermore, the expression must fall within the narrow categories of section 16(2) – otherwise it will infringe on freedom to expression and trigger the need to justify the limitation as reasonable.

Section 16(2)(c) of the Constitution is colloquially known as the ‘hate speech’ prohibition.  In line with the ICCPR, it provides that the expression prohibited must amount to “advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm”. These elements of hate speech must be present in any legislation prohibiting hate speech, to ensure it is constitutionally-aligned. An important point to keep in mind is that the ICCPR does not require South Africa to provide statutory criminal measures to regulate hate speech – it only requires regulation by law.

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South Africa at a Glance
57 700 000 (mid 2018 estimate)
4.0% y/y in January 2019 (CPI) & +4.1 y/y in January 2019 (PPI)
1.4% q/q (4th quarter of 2018)
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