Hate Speech Bill "Unconstitutional", Could Be Used For "Political Agendas"

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.

Martin van Staden is a South African classical liberal author and jurist whose work has appeared in national and international media. He is the Head of Policy at the Free Market Foundation.