‘Defend Truth’ is the Daily Maverick’s unignorable declaration of intent, yet – for an online media organisation that likes to think of itself as bold and courageous – it has recently displayed an unaccountable timidity in guaranteeing the first essential requirement of pursuing the truth, which is to be open to all sides of every question, and to be willing to air them in the service of its own stated credo.

The issue arises over the Daily Maverick report of 29 March, Parliament holds first public hearings on hate crimes and speech bill.

The two paragraphs read:

‘Out of eight presentations to Parliament on Tuesday, only one organisation — the Institute of Race Relations (IRR) — argued that the department should “abandon the bill in its entirety”, saying that “race relations are generally sound” in South Africa.

‘“The hate speech clauses are unconstitutional, while the hate crime ones are confusing and inconsistent with the rule of law. Neither the hate speech nor hate crime clauses are necessary,” said Dr Anthea Jeffery, who gave the IRR’s presentation to Parliament.’

Realising that there now existed a risk of misapprehension, Dr Jeffery penned a letter in response, explaining key elements of the IRR’s position.

Given its motto, you might have thought the Daily Maverick would leap at the opportunity to advance the cause of truth-seeking.

Alas, despite two follow-up mails, the letter was never used, abandoned ultimately on the grounds that the opportunity to publish it was deemed to have ‘passed … a good while ago’. Some truths, it would seem, have a sell-by date.

All is not lost, fortunately, as you can still count on the Daily Friend. Below is the letter in which Dr Jeffery sets out important arguments about hate crimes, hate speech and the law. – Editor

Overlooking fundamental problems with hate crimes and hate speech bill does not make the IRR’s assessment incorrect

Dear Editor

A recent article in the Daily Maverick implies that the IRR is out of step with civil society in pointing out that the Prevention and Combating of Hate Crimes and Hate Speech Bill, currently before Parliament, is unconstitutional and unnecessary (Parliament holds first public hearings on hate crimes and hate speech bill, 29 March 2022).

That many of the organisations invited to make oral presentations on the Bill may have overlooked these fundamental problems does not make the IRR’s assessment incorrect. All it shows is that the Bill is likely to slide through the legislative process with far too little awareness of the damage it will do.

It is self-evident that crimes motivated by hate must be combated effectively. But the Bill will make it harder, rather than easier, to achieve this – which is why the risks it raises need to be acknowledged and addressed.

The Hate Crimes Working Group (the Group), which featured prominently in the Daily Maverick article, wants the urgent enactment of the Bill to stop what it describes as ‘a genocide against LGBTQI+ people’. It seems to think the Bill will usher in more convictions and harsher punishments for perpetrators ‘motivated by prejudice, bias or intolerance’ towards members of this community.

Under the Bill, however, hate crime convictions will generally be hard to secure as the motives of perpetrators are notoriously difficult to prove beyond a reasonable doubt. Having to provide this high level of proof will also make trials longer and more complex, adding to the burden on the criminal courts.

Under the existing common law, by contrast, a biased motive may be proved on a balance of probabilities – which is easier to do – while such a motive is already regarded by the courts as an aggravating factor warranting a harsher penalty.

These rules already reflect society’s strong rejection of crimes motivated by bias and prejudice, which is part of what the Group desires. That crimes of this kind nevertheless persist is the fault of ineffective policing and a failing criminal justice system – not the existing law.

Important too is a provision in the Bill that excludes a biased motive from counting as ‘an aggravating circumstance’ for crimes such as murder and rape, where minimum sentencing rules apply under Section 51 of the Criminal Law Amendment Act of 1997. This wording indicates that bias will no longer count as an aggravating factor for the most serious of violent crimes once the Bill becomes law.

What then will the Bill achieve? The Group seems to believe that the Bill will:

  • signal society’s rejection of ‘prejudice’ as a motive for crimes, but the common law already does this;
  • help police and prosecutors secure convictions for hate crimes, whereas proving a biased motive beyond a reasonable doubt will be difficult to do;
  • give the courts ‘meaningful sentencing guidelines’, when it will in fact prevent them from taking bias into account as regards murder, rape, and other serious crimes; and
  • allow ‘the effective recording of statistics’, when this could be achieved more simply by getting police, prosecutors, and courts to record all instances in which bias seems the key motive for crimes.

Proponents of the Bill seem confused, in short, as to what its hate crime clauses will accomplish. If anything – and particularly in the hands of astute defence lawyers – the Bill will weaken society’s existing weapons against violent and prejudiced crime.

There is also no gainsaying the validity of the IRR’s core criticisms: that the confusion flowing from the hate crime clauses is inconsistent with the rule of law – and that these clauses are unnecessary too, as the courts already take biased motives into account as aggravating factors in deciding on punishment.

Dr Anthea Jeffery

Head of Policy Research, Institute of Race Relations

[Image: https://pixabay.com/photos/justitia-goddess-goddess-of-justice-2597016/]

 If you like what you have just read, support the Daily Friend