Hate Speech Bill “Unconstitutional”, Could Be Used For “Political Agendas”

Credit: Destiny Man In a welcome newsletter published by the Democratic Alliance’s Federal Leader, Mmusi Maimane, on Friday, 25 November 2016, it was announced that the DA’s opposes the controversial new Prevention and Combating of Hate Crimes and Hate Speech Bill (commonly known as the...

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Credit: Destiny Man
Credit: Destiny Man

In a welcome newsletter published by the Democratic Alliance’s Federal Leader, Mmusi Maimane, on Friday, 25 November 2016, it was announced that the DA’s opposes the controversial new Prevention and Combating of Hate Crimes and Hate Speech Bill (commonly known as the ‘Hate Speech Bill’). Writing in his periodical Bokamoso newsletter, Maimane writes:

“We must capacitate the current legislation, the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), to punish and deter perpetrators of racism. But the DA rejects the proposed Hate Speech Bill, a bad piece of legislation with good intentions. It is unconstitutional in that it curbs freedom of expression. It could even be used to abuse the judicial system to promote political and personal agendas.”

Maimane is presumptively referring to the many group characteristics the Bill aims to protect, including, quite bizarrely, ‘culture’, ‘belief’, and ‘occupation’. This, whereas the Constitution only protects four grounds in a closed list, meaning that if hate speech is not based on those four grounds, it is constitutionally-protected speech. It is certainly conceivable that the ‘belief’ and ‘occupation’ grounds might be used for political agendas, as ‘civil servant’ or ‘politician’ are recognized occupations. If one were to ‘insult’ politicians with the intention to ‘ridicule’ them, one might be guilty of hate speech. Furthermore, as the Bill does not define ‘belief’, anything from ideology to food preference might be considered a belief for purposes of punishment under the proposed law.

While the Rational Standard welcomes this development, it must be borne in mind that PEPUDA (the ‘Equality Act’) shares many of the concerns which we have raised regarding the Hate Speech Bill, the most important of which is that it, too, goes well beyond the Constitution’s four section 16(2) protected grounds, and prohibits speech which is ‘harmful’ to any one or more of a staggering seventeen grounds. Many in South Africa’s legal community consider the Equality Act unconstitutional, but it has to date not been tested in court.

Please click here to see some of our coverage and commentary on the controversial Hate Speech Bill.

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  1. Steven van Staden Reply

    What a relief that the DA has at last come out against this dreaded and mis-named ‘Hate Speech’ Bill. Initially it appeared that Maimane, like most people, had been taken in by the misleading title and approved the Bill. As pointed out in Rational Standard (and, shockingly, hardly anywhere else) its promulgation would be a very serious violation of freedom of expression. One can only hope that sufficient objections will be made to prevent it coming into law. I wonder if the EFF and other parties are objecting to the Bill. We see time and again that democracy is constantly under threat and only as good as those who are up to fighting for it every inch of the way. Thanks to all at Rational Standard for taking up these important matters.
    (Incidentally, it’s a coincidence that Martin and I share the same surname.)

    1. Martin van Staden Reply

      Thanks for your kind words, Steven.

      This is why we are open about our biases at the Rational Standard. We believe individual rights and freedom from state oppression should always be the first consideration in public policy and discourse. That is why we focused so heavily on the Hate Speech Bill, despite the fact that it doesn’t seem like the mainstream really cares that much.

    2. Vicky Reply

      The DA HAS NOT come out against this. Read : “good intentions”. Limiting the first amendment is evil, it can never be done with good intentions. Also: Pepuda is an evil Leninist document. The praise for Castro from SA politicians should make everyone reading this website very very worried about the “future”.

      1. Steven van Staden Reply

        The DA has come out against the Hate Speech Bill. Speaking very charitably, I think that what Maime meant to imply by the “good intentions” of the Bill was its purported intention to deal more stringently with the Malema variety of real hate speech, and fomenting of violence. I am aware that there are existing laws to deal with these and that they have seldom been enforced except against such as those guilty of the stupid sparrow twitterings, the depraved ‘coffin assault’ and the latest ‘big bang’ fireworks ranter.

        To digress here, while condemning the overt racism in these cases, it does seem grossly unfair that the provocation in each case was arguably sufficient to justify outrage or trauma in the parties who have been so pilloried by the Courts and mass media with little or no attention to the offenses that elicited the racist comments; in the first example, the beaches were left in an absolutely deplorable state and the behaviour of large elements in the crowds was in very many respects absolutely disgusting; in the second case, trespassing is illegal and intolerable, and was apparently a regular occurrence which certainly poses a threat to a landowner, especially in light of the high number of heinous farm murders and the increasing calls by Malema and others to invade farms; in the last instance, the ear-splitting explosions of illegal ‘big bang rockets’ from a near-neighbour are violations of the peace (and recognised as such in India where laws are in place to deal with excessively loud fireworks, as well as permitting fewer hours than SA during which they may be ignited), and these explosions are certainly an aural assault that traumatises humans and wild and domestic animals in close proximity. This I know from personal experience, and this year my partner booked into a B&B with our dogs to avoid the stress these next-door big bangs inflict on our pets.)

        To return to the main point, I agree that any legislation that purports to “promote equality” and “unfair discrimination” (Pepuda) is very worrying in SA where we cannot agree on what constitutes fair and unfair. Blanket quality, of course, cannot be “promoted” by “capacitating”
        legislation, because it does not exist in human beings who are not born equal. However, one area where equality can and should be applied (and there are of course others) is before the Law. We should all be equal before the Law, and there is sufficient suggestion in the above references to show that this is not the case. There is no need to add the example of our President and his corrupt cohorts in the ANC who remain above the law.

        Finally, praise by our politicians for Castro (and so many others of that ilk) underlines the reasons for SA being a failed state. However, one has to be optimistic, and the latest provincial elections provided more cause for hope than any in the past. More cause for hope, because at last the ANC is slowly being seen no longer as a liberation movement but as a venal, corrupt, incompetent political party.

        1. Vicky Reply

          On a side note: Is anything that Eusebius or Andile has ever said not technically “hate speech”. I dont think either of them have ever opened their mouths without breaching Pepuda. Someone on Politicsweb said today that SA is a mongrel Nazi/Leninist hybrid hell of a country. I agree. At least whites in EU Usa are starting to realise that whites in SA are third class citizens.

  2. Rory Short Reply

    Democracy is continuously under attack for two reasons. One, is attacks that are inadvertent because the attacker does not really understand the length and breadth of Democracy. Two, is the attacker who knows exactly what they are doing in their attack and rely on general ignorance of democracy to enable their attack to succeed. Thus public education is of central importance so more strength to Rational Standard’s elbow.

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