By Lew Blank
This article is exclusive to the Online Edition 2 of VARSITY News.
Deputy Minister of Justice John Jeffrey advocated for the Hate Crimes and Hate Speech Bill at the University of Cape Town on March 11, arguing that the proposed law would not censor free speech and was necessary to protect marginalised South Africans from bigoted language.
The legislation, officially titled the Prevention and Combating of Hate Crimes and Hate Speech Bill, would impose prison sentences or fines on people who use language or commit acts that the courts determine to promote harm or hatred. The criteria for “hatred” includes language and acts that discriminate on the basis of colour, disability, ethnicity, gender, sexuality, language or religion, along with several other factors.
The bill would replace the Promotion of Equality and Prevention of Unfair Discrimination Act, which currently regulates discriminatory speech with civil remedies. PEPUDA does not give courts the power to combat hate speech with criminal remedies like fines or prison sentences, something which the new legislation hopes to change.
Presenters at the UCT event claimed that the bill is in line with the Constitution’s aim to protect South Africans from discrimination, while opponents argued that it would violate the Constitution by infringing on free speech.
In his presentation, Jeffrey said that the courts would be reasonable judges of what is and isn’t hate speech and would rarely censor legitimate, non-bigoted speech, if at all.
“The government cannot use [the act] for censorship because it’s not the government that’s going to be using the [act] to limit speech,” he said. “It’s going to be the prosecuting authority. It’s going to be the courts, the judges, the magistrates who are going to say ‘this was hate speech’ or ‘this wasn’t’.”
Questions remain, however, over where the courts will draw the line of what counts as hate speech and what doesn’t. In 2016, an art exhibit at the Iziko South African National Gallery displaying the words “fuck white people” was brought to court for potentially violating hate speech laws, according to Mail and Guardian. The court ruled that the exhibit did not qualify hate speech. Still, some fear that if the proposed legislation passes, those in power could use it to silence similar speech.
Jeffrey said that the bill avoids discussion over whether black people can be racist, and that this could pose a dilemma for the courts. However, he reaffirmed his belief that the bill was written in a way that would avoid censorship of non-hateful speech.
“Limitations to speech need to be dealt with carefully, but I think you would find that the bill is quite carefully crafted so as not to be used for censorship,” Jeffrey said.