The government plans to criminalise all speech that can be brought within the broad definition of hate speech contained in the Prevention and Combating of Hate Crimes and Hate Speech Bill of 2018 (the Bill), currently before Parliament for adoption.

Turning hate speech into a criminal offence is a very serious matter. Yet the Bill has been ignored by most commentators and looks set to sail through the legislative process with little awareness of its wording or ramifications.

The ‘chilling effect’ of criminalising speech

Subjecting speech to criminal sanctions has a particularly chilling effect on political debate – as criminal defamation laws in various African countries, including Zimbabwe, have shown.

The key risk with criminal defamation rules, notes legal expert Dario Milo of Webber Wentzel, is that they can be enforced by governments in the same way as other laws against crime. Writes Mr Milo: ‘Criminal defamation is a crime in the same way that stealing a car is. A charge gets laid against you, the police investigate the charge, and you may be arrested.’

Much the same point was made by Zimbabwe’s highest court in 2014, when it struck down the criminal defamation rules often used to punish merited criticism of former President Robert Mugabe. As the court stressed, ‘the very existence of the crime creates a stifling or chilling effect on reportage’. Even if people are eventually acquitted, they will still have ‘undergone the traumatising gamut of arrest, detention, remand, and trial’.

It is because of this chilling effect that the African Commission on Human and Peoples’ Rights resolved in 2010 that criminal defamation laws should be repealed across the continent – though this has yet to be achieved.

Said the commission: ‘Criminal defamation laws constitute a serious interference with freedom of expression and impede the role of the media as a watchdog, preventing journalists and media practitioners from practising their profession without fear and in good faith.’

In September 2015, moreover, Jeff Radebe (then minister in the presidency and head of policy for the African National Congress), stated that the ANC planned to rid South Africa of criminal defamation rules, which it regarded as unconstitutional. Said Mr Radebe: ‘No responsible citizen and journalist should be inhibited or have the shackles of criminal sanction looming over him or her.’

However, the ruling party has since reneged on this commitment. No legislation putting an end to criminal defamation has been prepared. Instead, the ANC is planning to criminalise hate speech under an inordinately wide definition, as set out in the Bill.

The Bill’s inordinately wide definition

The Bill defines hate speech as any ‘communication’, to one or more people, which shows ‘a clear intention to be harmful or incite harm, or to promote or propagate hatred’ on race or 14 other listed grounds.

Under this definition, the elements of hate speech are disjunctive, not conjunctive. In other words, it is enough if the speech in question demonstrates an intention ‘to be harmful’ or to ‘incite harm’ or to ‘promote hatred’ or to ‘propagate hatred’.

Only one of these four elements needs to be shown. Hence, people can be arrested, remanded in custody, tried, convicted, and then fined and/or sent to jail for up to three years (on a first offence) and up to five years (on any subsequent one) for speech which shows a clear intention to be ‘harmful’.

There is little clarity on what ‘harmful’ means but it would clearly include psychological as well as physical harm.  

Hate speech in the context of Critical Race Theory

The concept of hate speech has been developed by proponents of the Critical Race Theory (CRT) ideology which has been evolving in the United States since the early 1990s and is now spreading to many South African schools.

At one such school (as my colleague Caiden Lang has written in The Daily Friend), an official code of misconduct bars everyone – from children as young as five years old to all parents and staff – from saying ‘that if someone works hard they will get ahead’ or that ‘we should just trust and respect each other’.

The problem with the first statement, according to CRT, is that it assumes that ‘structural discrimination does not exist’. The problem with the second is that it overlooks the fact that ‘trust for some has been broken many times before’.

Until very recently both statements would have been seen as innocuous and supportive. Now CRT characterises them as microaggressions with ‘hidden messages that reinforces negative stereotypes or the oppression of non-white people’, as Mr Lang writes.

Intrinsic to CRT is the notion that all whites are automatically part of the ‘oppressor’ group, while all blacks are automatically their victims. What this implies, at school level, is that white pupils, irrespective of their individual actions or attitudes, are viewed as morally compromised oppressors, while black pupils are seen as vulnerable but morally superior victims.

What if the Bill becomes law and parents or teachers want to object to CRT perspectives that pigeon-hole pupils in this destructive way – or bar statements recommending mutual respect and hard work as ways to get along and get ahead?  

Under the Bill, if parents or teachers were to criticise CRT for these damaging interventions, their criticisms could be seen as hate speech that shows a clear intention to be ‘harmful’ to black pupils by denying the ‘structural discrimination’ that CRT assumes to be all pervasive.

Parents and teachers charged with hate speech would not be able to rely on the defences included in the Bill, as these apply primarily to those engaged either in ‘fair and accurate reporting in the public interest’ or ‘academic research or scientific inquiry’.

Already, as Mr Lang has also pointed out in The Daily Friend, CRT has taken hold in some South African schools to the point where ‘liberal ideas like colour-blindness, individuality and meritocracy are discouraged in the name of inclusion’.

People at these schools who reject these CRT perspectives already have reason to fear being branded with the ‘racist’ brush. Under the Bill, however, they could also face arrest, prosecution, conviction, and imprisonment for the ‘crime’ of their ‘hate speech’. In this situation, most parents and teachers will be even more afraid to speak out against the damage being done by CRT.  

What about the free speech rights in the Constitution?

The free speech clauses in the Constitution should, of course, protect people from being silenced or punished in this way.

Under Section 16(1), everyone has ‘the right to freedom of expression’, which includes ‘freedom of the press and other media’ and ‘freedom to receive or impart information or ideas’. Under Section 16(2), however, this right does not extend to ‘(a) propaganda for war, (b) incitement to imminent violence, or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm’.

By contrast, the Bill prohibits speech that is intended be ‘harmful’ on racial (and 14 other) grounds. This is very different from speech that ‘advocates hatred’ on racial (and three other) grounds and which also ‘constitutes incitement to cause harm’.

According to the Constitutional Court judgment in the Islamic Unity case in 2002 – the ‘lodestar’ case on the right to free speech – ‘all expression is protected, save anything that falls within Section 16(2)’. Any legislation that limits protected expression must meet the ‘justification’ criteria laid down in Section 36 of the Constitution. The more a limitation departs from Section 16(2), the stricter the ‘justification’ scrutiny that must be applied.

The Bill’s limitation of protected speech is thus valid only if it is ‘reasonable and justifiable in an open and democratic society’. This in turn depends on a proportionality test, in which the purpose of the limitation must be weighed against the importance of the right. Much also depends on whether ‘less restrictive means to achieve the purpose’ can be found.

‘Less restrictive’ laws against hate speech are clearly available. Hate speech is already prohibited under Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) of 2000 (though Section 10 needs to be amended to bring it fully into line with Section 16(2) of the Constitution). It can also be curbed under the civil law of defamation.

On the Islamic Unity tests, the Bill’s definition of hate speech is clearly unconstitutional. How much, then, does it matter that this definition was effectively approved by the Constitutional Court in the Qwelane case?

The significance of the Qwelane judgment

The late Jon Qwelane was a journalist who wrote a newspaper article in 2008 in which he strongly criticised same-sex marriage and urged that it be ended before ‘some idiot’ (not necessarily a homosexual) decided to ‘marry’ an animal. The Human Rights Commission took him before an equality court, which found the article constituted hate speech under Section 10 of Pepuda. But Mr Qwelane contested the validity of the hate speech definition in Section 10 – and the Supreme Court of Appeal (SCA) in time upheld his challenge. This prompted a further appeal to the Constitutional Court, which handed down its ruling in July 2021.

Writing for a unanimous court, Judge Steven Majiedt found that Section 10 of Pepuda went too far in barring ‘hurtful’ speech. ‘Hurtful’ was so vague a concept that it undermined the rule of law. It was also so wide that it could be used to prohibit speech which merely ‘offends, disturbs, and shocks’.

However, all that was needed to achieve constitutional compliance was for Parliament to amend Section 10 to excise the ‘hurtful’ criterion. The judgment thus instructed the legislature to make this change within 24 months, pending which Section 10 should be read as if the excision had already taken place.

Since the definition in the Bill is largely the same as the Section 10 wording approved by Judge Majiedt, does this suffice to confirm the constitutionality of the definition in the Bill? The answer is ‘No’, for three key reasons.

First, Judge Majiedt failed to follow the ‘lodestar’ precedent on hate speech in the Islamic Unity case, as earlier described.

Second, Judge Majiedt’s ruling is fundamentally flawed in equating an intention to be ‘harmful’ with the ‘advocacy of hatred’ in Section 16(2)(c). It also brushes over the rest of this sub-section, which requires not only the ‘advocacy of hatred’ on a closed list of four grounds (not an open list of many more) but also ‘incitement to cause harm’.

Third, Judge Majiedt was dealing with civil law liability under Pepuda, a statute which (as he noted) aims ‘not to punish the wrongdoer, but [rather] to provide remedies for victims of hate speech’. By contrast, the Bill makes hate speech a crime that can be punished by prison terms of up to three years on a first offence and up to five years on any subsequent one.

The hate speech clauses in the Bill are thus unconstitutional and cannot be saved from invalidity by the Qwelane judgment. But the ANC will pretend that this is not so unless there is enough public resistance to make it reconsider.

The best way forward

The best way forward is clear, for the hate speech clauses in the Bill should simply be scrapped. As Mr Radebe said in 2015, no citizen or journalist ‘should be inhibited or have the shackles of criminal sanction looming over him or her’. This is particularly unacceptable for speech that is merely ‘harmful’ – and even more so now that the concept of what is ‘harmful’ is increasingly being skewed by CRT ideology.

CRT’s long-term aim is to destroy the capitalist system as well as core principles of Western democracy, including individual liberty and equality before the law. Prohibitions of ‘hate speech’ have been developed by CRT proponents to help undermine these principles and advance CRT’s ultimate objectives.

One of the surest ways of achieving these goals is to bar the teaching of these principles at schools, while simultaneously indoctrinating pupils in the core tenets of CRT’s quasi-Marxist ideology.

CRT is careful to avoid the outdated language of ‘class’ struggle, in which the proletariat is pitted against the bourgeoisie. It nevertheless uses a standard Marxist formula for understanding and then ending oppression.

According to CRT, the oppressor group is the white population with its systemic power and privilege. The victimized group is, of course, the black population, which is endlessly exploited so that it cannot advance. Both groups are socialised into an axiomatic acceptance of the status quo, so as to sustain the false consciousness that obscures the systematic oppression taking place. 

As CRT sees it, the only solution is for the oppressed to cast aside their false consciousness and bring about the violent overthrow of the oppressors. Once the oppressed have taken full control, all exploitation and suffering will end (though how this will be achieved is left obscure).

Many people may think that the hate speech rules in the Bill are a danger only to politicians, journalists, and other commentators. In fact, they are important to all South Africans with an interest in maintaining Western democracy and a capitalist system that (despite its flaws) has succeeded in curbing totalitarianism and bringing about the greatest liberation from poverty the world has ever known.

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Dr Anthea Jeffery holds law degrees from Wits, Cambridge and London universities, and is the Head of Policy Research at the IRR. She has authored 11 books, including People’s War: New Light on the Struggle for South Africa and BEE: Helping or Hurting? She has also written extensively on property rights, land reform, the mining sector, the proposed National Health Insurance (NHI) system, and a growth-focused alternative to BEE.