The following brief was submitted in response to The Department of Justice and Constitutional Development of South Africa’s Prevention and Combatting of Hate Crimes and Hate Speech Bill which was posted for public comment on October 24, 2016. It was prepared on behalf of a coalition of South African Comedians by Adv. Stuart Scott and Adv. Itumeleng Phalane of Group 621 Chambers, and Dr. Dario Milo of Webber Wenzel Attorneys. The brief provides an overview of the right to freedom of expression and examines the definition of hate speech under the South African Constitution. The authors demonstrate that the provisions under the Bill are impermissible because they not only expand on the definition of hate speech but also fail to satisfy the limitations clause under the constitution. They explain that there are less restrictive means of achieving the purpose of the bill, including inserting an exemption clause for artistic and comedic expression into the Bill. In conclusion, they provide suggested wording for an exemption for artistic and comedic expression from the Bill.
“What do you call 1000 lawyers chained together at the bottom of the ocean? A good start.”
(1) On 24 October 2016, the Department of Justice and Constitutional Development published the Prevention and Combating of Hate Crimes and Hate Speech Bill for public comment (“the Hate Crimes Bill” or “the Bill”). ((Notice 698 of 2016, Government Gazette No. 40367, 24 October 2016.))
(2) No person in an open and democratic society would seriously consider that the lawyer joke quoted above constitutes hate speech. Even less so, a hate crime. But under the broad definition proposed in the Bill, this well-known joke could arguably amount to both. Its utterance may be a crime. And the potential sentence that could be imposed is approximately 3 years in prison as well as a fine. ((Section 6(3)(a) of the Bill.))
(3) This is just one example of constitutionally protected speech that could be criminalised under the Bill. This was clearly not the kind of speech targeted by the Bill – but it appears to be an unintended consequence. It is these unintended consequences that these submissions primarily seek to address.
(4) These are the submissions of a coalition of well-known South African comedians and satirists, including: John Vlismas, Pieter-Dirk Uys, Jonathan Shapiro (also known as Zapiro), Joey Rasdien, Nina Hastie, Tumi Morake, David Kau, Nik Rabinowitz, Celeste Ntuli, Mark Banks, Kagiso Lediga, Jason Goliath, John Barker, Casper de Vries, Conrad Koch (and Chester Missing), Christopher Steenkamp and the creators of the satirical programme ZA News (“the Comedians”).
(5) We attach brief biographies of each artist to these submissions marked “Annexure A”.
(6) These submissions do not comment on the entire Bill but deal with particular provisions that affect the creation and distribution of particular kinds of artistic speech and works.
(7) In summary, the argument set out in these submissions is fivefold.
(8) First, for the purpose of these submissions the Comedians are prepared to accept that, only in so far as this conforms with the Constitution, prohibiting certain forms of hate speech may arguably be reasonable and justifiable in an open and democratic society. However, two significant points need to be emphasised at the outset:
(8.1) The manner in which these forms of hate speech are restricted should be narrowly tailored in order to ensure that legally protected speech is not stultified or accidentally captured in the net.
(8.2) Criminal sanctions for hate speech should only be reserved for the most extreme forms of hate speech, which either:
(8.2.1) incite imminent violence; or
(8.2.2) advocate hatred based on a listed constitutional ground which also constitutes incitement to cause harm.
(9) Second, we submit that hate speech is already sanctioned under section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act (“the Equality Act”). ((4 of 2000.)) This is particularly relevant to the present enquiry because as Dr Agnès Callamard, the Director of Columbia University Global Freedom of Expression, ((The Columbia University Global Freedom of Expression was established in 2014 “bringing together international experts and activists with the University’s faculty and students to survey, document, and strengthen free expression”. The organisation “seeks to advance understanding of the international and national norms and institutions that best protect the free flow of information and expression in an inter-connected global community with major common challenges to address”. See: https://globalfreedomofexpression.columbia.edu/about/.)) notes:
“[c]onsideration of new hate speech legislation should always be preceded by an analysis of whether existing legislation is in line with these standards and whether it is already sufficient to tackle the problem” (Emphasis added). ((Paper written by Dr Agnès Callamard entitled ‘Expert meeting on the links between articles 19 and 20 of the ICCPR: Freedom of expression and advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence’ UN HCHR, 2-3 October 2008, Geneva at p 24. Available at: https://www.article19.org/data/files/pdfs/conferences/iccpr-links-between-articles-19-and-20.pdf.))
(10) Accordingly we submit that the provision of the criminal offence under the Bill is not required and should be completely removed.
(11) Third, in the alternative, we submit that the definition in the Bill is overbroad and accordingly unconstitutional.
(11.1) It is unconstitutional to set the threshold for the harm as low as “ridicule” or “insult”.
(11.2) The definition of hate speech is also too broad at least insofar as it applies to speech relating to a person’s trade or occupation. As set out below, one of the distinctive characteristics of hate speech is that it targets inherent characteristics of a person as a member of a group (such as their race, sexual orientation or gender). A person’s trade or occupation is plainly not of the same kind.
(12) Fourth, and in any event, we submit that criminal sanction should not attach to bona fide artistic or comedic expression. This proposition is supported by legislation that already regulates hate speech in South Africa, by foreign law and by the text of the Constitution itself.
(13) On this score we note that both the Equality Act and the Films and Publications Act 65 of 1996 exempt artistic expression from the operation of their hate speech provisions. Such an exemption plainly balances the constitutional rights and values involved. But there is presently no parallel exemption in the Bill. We suggest wording for such an exemption below in these submissions.
(14) These submissions are structured as follows:
(14.1) First, we provide an overview of the right to freedom of expression.
(14.2) Second, we examine the definition of hate speech under the Constitution and demonstrate that the provisions under the Bill expand on this definition (and accordingly need to satisfy the limitations clause under the Constitution).
(14.3) Third – we demonstrate that the hate speech provisions under the Bill fail to satisfy the limitations clause under the Constitution and accordingly are impermissible.
(14.4) Fourth, we explain that there are less restrictive means of achieving the purposes of the Bill, including inserting an exemption clause for artistic and comedic expression into the Bill.
(14.5) Finally, we provide suggested wording for an exemption for artistic and comedic expression from the Bill.