by Iswamo Kapalu

Over the last year or so, South Africa has seen an upswing in overt and public racism, especially on social media. The infamous case of Penny Sparrow, prompted a national outcry for serious punishment for her incredibly offensive remarks. Penny Sparrow’s case however only served to heighten awareness of a problem that ordinarily finds expression in many homes, at traffic stops and Facebook pages in South Africa and around the world. It is this problem and the recent national outcry that prompted the Minister of Justice and Correctional to propose, in terms of section 75 of the Constitution, the new Draft Prevention and Combatting of Hate Crimes and Hate Speech Bill.

The Draft Bill, purports to create two new offences: the offence of ‘hate crime’ in terms of section 3 of the bill and the offence of ‘hate speech’ in terms of section.

Properly read, the Bill doesn’t actually create the separate offence of a ‘hate crime.’ What it does instead is create the characterization of existing crimes as hate crimes.[1] Simultaneously, it provides an aggravating circumstance[2] in the sentencing of a person convicted of a crime where “prejudice, bias or intolerance towards the victim of the hate crime”[3] is the motive for the commission of the crime. Further, the crime must be committed because of several listed characteristics or perceived characteristics including race, nationality, language and culture, and interestingly, HIV status, gender identity, albinism and occupation or trade.[4]

Where the bill starts to wander into the realm of constitutional controversy in in section 4 with the creation of the offence of hate speech. To understand why this is so, one needs to consider the offence itself and the competing rights in the Bill of Rights.

Briefly, the Bill makes a crime of communication that advocates hatred or is abusive, threatening or insulting towards a person or a group of persons where the communication is clearly intended to incite harm, violence or bring that person or persons into contempt or ridicule.[5] The conduct described above must be based on the same grounds listed in section 4.[6]

The most obvious way this Bill may be unconstitutional is in its impact on the freedom of expression in terms of section 16 of the Constitution. Section provides:

  1. (1) Everyone has the right to freedom of expression, which includes—

(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to—

(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

What is important to note for present purposes is that the Constitution in section 16(2) provides specific grounds, on an exhaustive list, where expression is not protected. Any conduct, legislative or otherwise, that looks to disallow expression on grounds beyond those listed in section 16(2) is an infringement of that right.

The drafters of our Constitution however, in their seemingly bottomless wisdom, inserted a limitation clause in our Constitution. This clause limits all rights in the Bill of Rights, including the right to freedom of expression. This clause, section 36, provides:

  1. (1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

Read together, the question that these two sections of the Constitution ask the Hate Crimes Bill is whether its patent infringements of the freedom of expression are “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.” They ask whether the limitations the Bill imposes on freedom of expression, are proportional to, and reasonable in light of their intended purpose: curbing hate speech and the social discord that arises from this.

The less obvious but equally troublesome effect of the bill, is its effect on the freedom of religion, belief and opinion in terms of the constitution.

Specifically, potential conflicts arise where one’s religious doctrine and the conveyance thereof, is another’s “abusive hate speech, intended to bring into contempt and ridicule.” This tension exists particularly between the Church and other similarly sexually conservative religious organizations, and the Lesbian, Gay, Bisexual, Transsexual and Queer community. While this tension is not new, the Bill – if passed in a substantially similar form, may add a 3 to 10 year conviction to the list of considerations clerics will have to consider in preparing their sermons.

So, it goes without saying that this well-intentioned, albeit populist piece of legislation may have dire implications if not thoroughly considered and comprehensively qualified. In order to facilitate the consideration and qualification of the Bill, it is open to the public for comment. The deadline for comment on the Bill is the 1st of December 2016, and given the importance of the rights involved, it will be important that the public participate.


[1] Section 3(1)
[2] Sections 6(1) and 6(2)
[3] Section 3
[4] Section 3. Further grounds include gender, sex which includes intersex, ethnic or social origin, colour, sexual orientation, religion, belief and birth disability.
[5] Section 4(1)
[6] Section 4 (1)