Speech on the Prevention and Combating of Hate Crimes and Hate Speech Bill [B9D–2018]
Speech by ACDP MP, Steve Swart

Issued by the ACDP Parliamentary Media Office

Freedom of Expression lies at the heart of our Constitutional Democracy

Dec 5, 2023

Thank you House Chair.

The ACDP broadly supports the hate crimes element of this bill but we did express our concerns and despite welcome exemptions and improvements to the provisions relating to hate speech, we believe it will have a chilling effect on freedom of speech and freedom of religion.

It is important to note what the courts have already said in this regard.

In the SANDF matter, the Constitutional Court said “freedom of expression lies at the heart of democracy … the Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views on a wide range of matters.” 

It also impacts on the right to religious freedom. In the Segal matter, the Constitutional Court said “the right to entertain such religious beliefs as the person chooses”, that is the right to religious freedom. “The right to declare these views openly and without fear of hindrance or reprisal, and the right to manifest belief by worship or practice” that is the essence of religious freedom.

I think it’s very important to consider the Qwelane Constitutional Court judgement which was in a civil remedy setting. The court said very clearly that hate speech is speech that “travels beyond merely offensive expression and can be understood as extreme detestation, extreme vilification, which risks provoking discriminatory activities against a group.”

This is a very important point. Thus, “expressions which are merely hurtful, especially when understood in everyday parlance, are insufficient to constitute hate speech. Offensive speech is protected by freedom of expression.”

I think this is the challenge that has been with this bill, where one tries to strike that balance.

The ACDP agrees that anyone, in whatever setting, who makes any racial utterances, must be held to the full extent of the law. However, what we are dealing with here is criminalisation of hate speech, which is a very high bar.

I also need to just mention that the Maseko judgement made it very clear that utterances against the Jewish Community arising from what is going on in Palestine can also be offensive, and we need to bear that in mind about what we are saying in the context of that incident as well.

Now, the bill was referred to the NCOP and despite objections from civil and religious groups, it was broadly accepted except there was a slight change to the criminal penalty — 8 years down to 5 years.

Now, that is still excessive. The Cabinet’s bill, when introduced, was three years — three years for what you say, and I’m not talking about hate crimes, which is a separate issue and which needs to face the full extent of the law.

Hate speech laws have been used internationally against Christians and street preachers, and we’ve got to be very careful of that.

So, the ACDP reiterates is opposition to this bill.

I thank you.

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