President Cyril Ramaphosa recently signed the Preventing and Combating of Hate Crimes and Hate Speech Bill into law, criminalising hate speech sent on platforms like WhatsApp and social media.
The bill’s purpose is to provide for the offences of hate crime and hate speech and the prosecution of people who commit those offences.
First introduced in 2018, the bill states that an offence constitutes a hate crime where the offender is inspired by prejudice towards a victim due to specific or perceived characteristics such as race, gender, sex, religion, and liability, among other things.
In comparison, the bill defines hate speech as intentionally publishing something that can provoke or promote hate.
However, both relate to these specific or perceived characteristics. The bill provides an extensive list of characteristics, quoted below.
Age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality and migrant or refugee status, occupation or trade, political affiliation or conviction, race, religion, sex, or sexual orientation.
According to the bill, hate speech can take the form of any written, illustrated, visual display, utterance, representation or reference, or electronic communication.
As a result, WhatsApp messages that constitute hate speech can now be prosecuted.
“The law makes it an offence when speech material is intentionally distributed or made available in electronic communication, and the said person knows that such electronic communication constitutes hate speech,” the Presidency said.
The bill also highlights the consequences for anyone convicted of hate speech.
It says convicted persons can face a fine, imprisonment not exceeding three years, or both a fine and imprisonment.
Any subsequent conviction will earn them another fine, imprisonment not exceeding five years, or a combination of the two.
However, the bill specifies that these hate speech laws don’t apply to anything done in good faith, such as:
- artistic creativity, performance, or other form of expression;
- academic or scientific inquiry;
- fair and accurate reporting or commentary in the public interest; and,
- Interpretation and proselytising or espousing of any religious conviction, tenet, belief, teaching, doctrine or writings
The bill lapsed after its introduction in 2018 and was revived a year later.
Despite two Constitutional Court Judgements blocking its progress, parliament passed the bill and gave it to Ramaphosa in December 2023. He signed it in early May 2024.
The bill’s signing has faced backlash, with political parties and religious groups raising their concerns.
Executive director of Freedom of Religion South Africa, Michael Swain, says it will now be easier to be prosecuted and jailed for hate speech than it is to be successfully sued and made to apologise or pay a fine under the Equality Act.
He also criticised the bill’s definition of hate speech, which says a person can face fines or imprisonment for any content that causes “emotional harm”.
Swain said this is vague and subjective, and will ultimately come down to the perspectives of individual judges.
He added that the Preventing and Combatting of Hate Crimes and Hate Speech laws had been developed to punish racism.
However, this is already covered under the common law crime of crimen injuria, which is the act of unlawfully and intentionally impairing the dignity of another.
His organisation was behind one of the written submissions during the public comment process. It argues that the government didn’t do enough to engage with the public meaningfully.
“We continue to hold the view that this law is unconstitutional and that the views overwhelmingly expressed during the public participation process were not properly considered,” said Swain.
“We will now consider taking appropriate legal action to challenge the validity of this law.”