Cabinet announced on Thursday that it had approved a bill that criminalises hate crimes and hate speech, which will now be submitted to Parliament – this, in the face of backlash from many human rights experts, lawyers and social commentators who believe the Prevention and Combating of Hate Crimes and Hate Speech Bill will only be a threat to South Africa's democracy.
Lawyers for Human Rights' (LHR's) Sanja Bornman, the chair of the Hate Crimes Working Group, says that although the bill is not "a silver bullet", it shows that the country is working on eliminating both hate speech and hate crimes.
According to Bornman, because there has never been an official legal definition for what a hate crime is in South Africa, if this bill is passed it could fill a "huge gap" with a law that civil society has been lobbying for.
"It sends a strong message about what kind of society we want to be," she told HuffPost on Friday.
She says this also presents the opportunity to quantify the problem, which could assist in combating incidents in the future.
"If we have a law that creates a reporting category for hate crime, over time we can gather stats and other information that tells us how often hate crimes happen, who the victims and perpetrators are, and where they happen."
She added: "With this sort of information, we can begin to combat and prevent hate crime in a smart and targeted way, as the state and civil society."
The Prevention and Combating of Hate Crimes & Hate Speech Bill will soon be passed into law, if you discriminate against someone based on the below (including where they're born or their culture) you face up to 3 years in prison. This law will need a nationwide awareness drive. pic.twitter.com/hd9KLadiGs— Tebogo Ditshego (@TebogoDitshego) March 15, 2018
While legal experts, government and civil society bodies agree that hate crimes need to be addressed, it is the bill's provisions regarding hate speech that many find problematic.
The bill states that the criterion for hate speech is "a clear intention to be harmful or to incite harm or promote or propagate hatred on the basis of age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality, migrant or refugee status, race, religion, sex – which includes intersex, sexual orientation, occupation or trade" according to a statement issued by the justice department.
A report in BusinessTech recently quoted Free Market Foundation legal researcher Martin van Staden saying that that this framing overextends the definition of hate speech to make "common insult" punishable by three years in prison. As such, many legal commentators feel it is in conflict with the constitutional right to freedom of expression, and this could impede the bill's passage into legislation.
"The Hate Crimes Working Group is opposed to the criminalisation of hate speech, using this particular bill."
Bornman says the punishment for hate crime has to be debated by society when the bill is published for public comment by Parliament.
"There are important legal decisions to be made in relation to hate crime, including sentencing arrangements, which we should agree on as people in South Africa," she says.
She does, however, echo other lawyers' concerns about hate speech been included in the bill, as it overshadows the importance of hate crimes.
"The Hate Crimes Working Group is opposed to the criminalisation of hate speech, using this particular bill," she says, adding that the organisation predicted that the inclusion of hate speech would cause "unnecessary controversy", and they were right.
"This is bad for victims of hate crime, who need protection now. People have lost their lives in hate crimes. This issue is urgent," Bornman insists.
South Africa has recently seen a spate of cases where discriminatory utterances have been thrown at black people.
Estate agent Vicki Momberg's case is a topical example.
The sentencing proceedings in the— Lehlohonolo Lehana (@Grooves_SA) March 16, 2018
case of former real estate agent Vicki Momberg are expected to take place in the Randburg Magistrate's Court this morning.
She was found guilty of the four counts of crimen injuria on November 3 following a racist rant. #VickiMomberg!
Momberg was found guilty of four counts of crimen injuria late last year, following her rant at Constable David Mkhondo. The policeman was trying to help her after an alleged smash-and-grab incident. The fact that people using hate speech can already be prosecuted under crimen injuria laws is another point that opponents of the "hate speech" provisions in the bill make.
In a video clip shared on social media, Momberg could be heard complaining about the "calibre of blacks" in Johannesburg.
"The calibre of blacks in this town [varies] from the calibre of blacks in Durban. They're opinionated, they're arrogant, and they're just plain and simple useless. I am happy for a white person to assist me, or a coloured person, or an Indian person. I do not want a black person to assist me," she screamed.
She was due to be sentenced on Friday at the Randburg Magistrate's Court.