Submissions from the public to the National Council of Provinces (NCOP) on the controversial Hate Speech Bill, closed at 13:00 on Thursday, 25th May.  Despite the short 26-work-day comment period given for comment, well over 50 000 individual submissions have been delivered to the NCOP, many by organisations representing tens of thousands of members of the diverse faith communities of South Africa.

“This proposed law is a serious threat to our constitutional right to religious freedom and the fundamental democratic right of freedom of speech,” said Michael Swain, Executive Director of Freedom of Religion South Africa (FOR SA), “No one should face criminal sanctions for saying what they believe to be true, even if others find their views to be highly offensive or unacceptable”.

From its inception, this Bill has been opposed by advocates for free speech, including academics, political parties and civil society organisations such as the Campaign for Free Expression, the Free Speech Union of South Africa and the Institute on Race Relations. Critics have challenged the Bill as unconstitutional, highlighting the vague and overbroad definition of “hate speech”, which ironically fails to define “hate” and the wide list of protected categories, the draconian maximum sentence of up to eight years in jail for offenders, and the evident lack of a clear and robust clause protecting bona fide speech and expression.  

A clear indication of the unpopularity of this proposed law is evidenced by the tens of thousands of written submissions that have been made by individuals and organisations to oppose this Bill. Since its introduction by the Department of Justice in 2016, when the Bill received over 70 000 written submissions from the public. When it was opened again for comment in 2021 by Parliament’s first house, the National Assembly, over 100 000 submissions which opposed the Bill and recommended changes were then made. Many of these submissions called for the hate speech component of the Bill to be scrapped in its entirety.  The majority of these submissions were from the religious sector, which is keenly aware that this law has the potential of being weaponised against people who may offend others simply by expressing their sincerely held faith convictions.

FOR SA points out that South Africa already has existing laws that are used effectively to sanction hate speech. The Equality Act gives the Courts a wide range of powers to impose damages and other civil penalties, while the common law crime of crimen iniuria has been used to prosecute racist speech successfully in the recent cases of, for example, Vicky Momberg and Penny Sparrow.

“The Hate Speech Bill is not only unnecessary,” said FOR SA’s Legal Advisor, Daniela Ellerbeck, “but if passed into law in its current form, it will be easier to be sent to jail as a criminal than to be ordered to make a public apology.”

Despite the opposition, the Bill has already been passed by the National Assembly on 14 March 2023 and, if passed by the NCOP without amendments, will only await the signature of the President before it comes into force.

“We sincerely hope that the NCOP will listen to the voice of the people,” said Swain. “As a new democracy, we cannot afford to return to the dark days of censorship of the Apartheid era”.

Submitted by Freedom of Religion South Africa