New criminal intent in hate speech law: the Prevention and Combating of Hate Crimes and Hate Speech Bill in relation to the CC judgment in Qwelane v SAHRC

This is a third brief on hate speech law. The first brief dealt with the components of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and the second brief dealt with the interpretation of ‘harmful’ in PEPUDA. In this brief, we consider components of the Prevention and Combating of Hate Crimes and Hate Speech Bill (“the Hate Speech Bill”). We also explores the relationship of the Bill and the case of Qwelane v SAHRC (Qwelane). The Hate Speech Bill criminalises hate speech and creates a framework for hate crimes, therefore developing a ‘new’ crime. A new standard of proof is created, which is significantly different from the framework contained in the existing “PEPUDA”.

Introduction

In the first and second briefs, Qwelane’s interpretation of PEPUDA and the effect it has on the enforcement of hate speech law was interrogated. This brief considers the difference between civil and criminal liability for hate speech, by examining the Hate Speech Bill, which will, if enacted, significantly reshape hate speech law. We subsequently consider the impact of the Qwelane judgment on the further interpretation and regulation of hate speech. This brief considers whether the Bill has lowered the bar for the test of what constitutes hate speech in a democratic constitutional society.

History of the Hate Speech Bill

The Hate Speech Bill was first introduced in 2016 by the Department of Justice and Constitutional Development, with the first draft defining hate speech in such broad terms that it violated the right to freedom of expression. It was met with objection by stakeholders. The draft was then revised and reintroduced in 2018 for public comment. It was subsequently put on hold, awaiting the finalization of two judgments from the courts (in Qwelane and Masuku[2]). The purpose of the Bill, amongst others, is to criminalise hate speech and provide for a new category of hate offences called hate crimes in an attempt to prevent hate crimes and hate speech offences and to permit the prosecution of persons who commit these offenses.

The significance of the Hate Speech Bill

It is important at this stage to state that Qwelane was decided under PEPUDA in civil proceedings and the Constitutional Court ordered that Parliament remedy the defect in PEPUDA within 24 months by removing the word ‘hateful’ in it. The Hate Speech Bill does not repeal the hate speech component of PEPUDA (as set out in section 10) but it provides new provisions that criminalise the offences. In section 10(2), PEPUDA provides for the possibility of prosecution of hate speech in terms of common law or (unspecified) legislation (through a Court referring the case to the Director of Public Prosecutions). However, no clear framework was provided, and the Hate Speech Bill now provides a framework on how prosecution should occur.

New hate crimes

The Hate Speech Bill contains six significant components.

First, it introduces hate crimes as a new form of crime. While section 3 states that ‘a hate crime is an offence recognized under any law’ (which may therefore be derived from statutory or common law), it is inserted into existing criminal legislation in a schedule of amendments, which is annexed to the Bill. [3] The second element to be proven is that the crime must be (a) motivated by a person’s prejudice or intolerance towards the victim of the crime in question; (b) due to one or more of the listed characteristics or the perception of such characteristics.[4] 

Secondly, it does not redefine common law or statutory law crimes but adds a layer which relates to the impact of those crimes. It does so by providing for the admission of victim impact statements in the adjudication of such crimes. The victim impact statement is to contain the physical, psychological, social, economic or any other consequences of the offence as experienced by the victim and his or her family member or associate (the Bill is not clear on what constitutes an “associate” and does not address the remoteness of harm on an “associate”). This victim impact statement will also be necessary in the context of mitigation or aggravation for purposes of sentencing.

The third significant component of the Bill is that it provides for a hate speech offence.[5] It specifies two areas in which the offence can occur: by intentional distribution in cyberspace and [6] where any material is displayed which constitutes hate speech. This has the effect of including the means by which hate speech is propagated and distributed. The essential elements to prove the offence are the intentional publication, propagation, communication or advocacy, in a manner that can be reasonably construed to demonstrate a clear intention to be harmful or incite harm or promote or propagate hatred based on one or more of the recognized grounds (for example, race or religion). This section is couched in similar terms as section 16(2)(c) of the Constitution except for a more extensive number of recognized grounds.[7] This offense differs from PEPUDA in that it attracts criminal liability and not just civil liability.

Is the bar lower? Harm and standard of proof

The Hate Speech Bill defines ‘harm’ as any ‘emotional, psychological, physical, social or economic harm’. The definition extends further than the definition of ‘harm’ in Qwelane. In the second brief, the Constitutional Court’s interpretation of ‘harm’ in Qwelane was discussed, where the interpretation was made in the context of civil law. That constitutionally compliant interpretation would be apposite in the context of criminal proceedings. But in criminal proceedings, the determination of the offence would be different: the intention to be harmful would be interpreted in the context of criminal law. In the first place, the court would have to assess the harm from an objective perspective, i.e. how harmful is a statement according to the reasonable person standard? Secondly it would have to be determined whether there was intention to behave unlawfully, i.e. intention to incite the harm or to be harmful. Perhaps this makes it difficult to get a conviction as opposed to the lesser standard for civil liability in the context of PEPUDA.

The second aspect that would differentiate it from civil law is that of the standard of proof. In criminal cases, the intention to be harmful (i.e. to act unlawfully) must be proved beyond a reasonable doubt. In civil cases, this is done through the balance of probabilities/preponderances.

Damages v sentencing

The consequences of hate speech offense are different in the event of an adverse funding: PEPUDA requires damages, a retraction and/or apology, whereas the Bill in section 6 provides for the sentencing of offenders. For hate crimes, penalties include imprisonment, periodical imprisonment, declaration as a habitual criminal, committal to any institution established by law, a fine, correctional supervision or imprisonment as contemplated in section 297 of the Criminal Procedure Act. For hate speech offences, the perpetrator is liable in the case of a first conviction to a fine or imprisonment for a period not exceeding three years, or to both a fine and such imprisonment. For subsequent convictions, a convicted person is liable to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

Is crimen injuria different from the offence in the Hate Speech Bill?

The Bill also provides for a crime which is different from the common law crimen injuria. This is a crime defined as the intentional and unlawful impairment of dignity or privacy.[8]Crimen injuria requires that (a) the plaintiff’s self-esteem must have been impaired and (b) a person of ordinary sensibilities would have regarded the conduct as offensive (tested by the general criterion of unlawfulness or objective unreasonableness).[9] On this reading, one can safely assume that crimen injuria is the criminal alternative of the civil claim of defamation and that it is broad enough to encompass hate speech since the latter is also an impairment of dignity. This has not been the case in practice. Instead, hate speech has always been dealt with under PEPUDA and the consequences would be civil damages. Hate speech offences in civil guise (as distinct from criminal) are different from civil defamation law which is dealt with under common law. The test of crimen injuria is not a direct criminal offence of hate speech whereas the Bill makes the ‘crime’ of hate speech clear and actionable.

Conclusion: harm

The Hate Speech Bill introduces the criminalization of hate crimes and hate speech offences. It also lifts the standard of proof higher than that required in PEPUDA, where a civil claim can be instituted. It is therefore likely that PEPUDA will continue to be favoured to litigate for hate speech infringements, since the standard of proof is less burdensome. Under the Hate Speech Bill, the matter would have to be referred to the NPA for prosecution and intention to be harmful would have to be proved beyond a reasonable doubt in any trial. This is a commendable move by the Bill. The concern is perhaps the requirement that the harm can be inflicted also on third parties, an issue which the courts will no doubt have to consider in due course.

Mihloti Basil Sherinda
Legal Researcher
Mihloti@hsf.org.za

[1]Qwelane v South African Human Rights Commission [2021] ZACC 22 (hereinafter Qwelane v SAHRC).

[2]Masuku v SAHRC [2018] ZASCA 180 (Masuku).

[3] It should be noted that there is a proviso inserted in section 270 of the Criminal Procedure Act as “270A If the evidence on a charge for a hate crime as contemplated in section 3 of the Prevention and Combatting of hate Crimes and Hate Speech Act, 2018, does not prove the commission of the offense so charged but proves the commission of the underlying offense on which the crime is based, the accused may be found guilty of the underlying offence in question so proved’.

[4] Section 3(1) provides ‘a hate crime is an offense recognised under any law, the commission of which by a person is motivate by that person’s prejudice or intolerance towards the victim of the crime in question because of one or more of the following characteristics or perceived characteristics of the victim or his or her family member or the victim’s association with, or support for , a group of persons who share the said characteristics: age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, occupation or trade, political affiliation or conviction, race, religion, sex (including intersex) or sexual orientation.

[5] Section 4(1)(a) provides that any person who intentionally publishes, propagates or advocates anything or communicates to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to – (i) be harmful or to incite harm; or (ii) promote or propagate hatred, based on one or more of the following grounds: : age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, occupation or trade, political affiliation or conviction, race, religion, sex (including intersex) or sexual orientation.

[6] Para (b) and (c) provides ‘(b) any person who intentionally distributes or makes available an electronic communication which that person knows constitutes hate speech as contemplated in para (a), through an electronic communications system which is- (i) accessible by any member of the public; or (ii) accessible by, or directed at, a specific person who can be considered to be a victim of hate speech, is guilty of an offense.

‘(c) any person who intentionally, in any manner whatsoever, displays any material or makes available any material which is capable of being communicated and which that person knows constitutes hate speech contemplated in para (a), which is accessible by, or directed at, a specific person who can be considered to be a victim of hate speech, is guilty of an offence.

[7] Section 16(2)(c) the [freedom of expression] right in section (1) does not extend to – (c) advocacy for hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. 

[8] J Burchell ‘Protecting Dignity under common law and the Constitution: the significance of crimen injuria in South African criminal law’ (2014) 27(3) South African Journal for Criminal Law 250.

[9] Ibid page 258. See the analysis on whether the infringement of dignity has to be of a serious nature in order to lead to a successful criminal prosecution.