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Intolerant and unsociable behaviour to be legislated against






By Terrance M. Booysen and reviewed by Osborne Molatudi (Partner: Hogan Lovells)  
South Africa’s first black President, the late Nelson Mandela famously said, “No one is born hating another person because of the colour of his skin, or his background, or his religion.  People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite.”  It is against this backdrop that the issue of racism needs to be tackled, especially in light of the recent racist utterances and numerous incidents of vicious crimes which have been perpetrated in South Africa under the guise of racial hate and the associated social intolerances. Strangely, these utterances continued unabated this past December holiday period despite the Bill being mooted.
"The base offences most often committed against victims of hate crimes are offences to the physical and emotional integrity of the person, as well as offences against the property of the victims.” - Justice Minister Michael Masutha
Source: New hate speech bill opened for public comment  (24 October 2016)
Notwithstanding the many pieces of international legislation, including a number of anti-racism treaties to which South Africa is a signatory, the scourge of racism and crimes of hate continue unabated.  Indeed, whilst the South African Constitution sets out numerous rights and freedoms, in reality, many people still suffer the same effects of discrimination as was the case in the ‘apartheid’ era and prior to Mandela’s release from twenty seven years of incarceration.  Principally, this is the reason why the South African government has published -- for public comment in the Government Gazette -- the Prevention and Combating of Hate Crimes and Hate Speech Bill (‘the Bill’) which was approved for public consultation by Cabinet on 19 October 2016. 
The Bill, as it is apparent from its Preamble, intends to right the wrongs of social intolerances through retributory justice, such that the rights of all South Africans are protected, and enjoyed on an equal level.  Without such fairness, and where the rights of personal freedoms such as those which are enshrined in the Constitution are not adequately protected, the democracy and the sustainably of a nation cannot thrive.
In recent months South Africa has experienced a plethora of racial cases of abuse and not that they are dissimilar to other international examples where the underlying abuses have been linked to overt racism and offensive public commentaries, hate speech and comments inciting violence, religious intolerances, derogatory language and xenophobic crimes continue.  These examples are typical hate crime and social intolerant offences which are covered in the Bill.  The underlying prejudice, bias or intolerant attitudes displayed by its perpetrators is usually based upon the following characteristics (or perceived characteristics) of the victim or the victim’s families or friends, namely: race, gender, sex, ethnic or social origin, colour, sexual orientation, religion, belief, culture, language, birth, disability, HIV status, nationality, gender identity, albinism and occupation or trade.
The Bill follows similar legislation found in other parts of the world, and its framework follows much of the thinking which the regulators of the Bill drew from the experience of other countries, as well as their findings in early 2016 when the National Action Plan (‘NAP’) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances was launched.  NAP provides the basis for the development of a comprehensive policy framework against racism, racial discrimination, xenophobia and related intolerance. 
We wish to indicate however that the Bill has not been without its controversy, and the general consensus amongst its critics is that a number of the Bill’s provisions, including its very broad definitions pertaining ‘racism’ and ‘hate speech’ do not meet constitutional muster.  Furthermore, it is argued that it tramples on the individual freedoms of South Africa’s citizens.  In its current form and existing provisions, hate speech now ranges from speech that incites violence and hatred, right through to insulting or making a mockery of a person, persons and even a group of people of whom the perpetrator does not know. 
“Darkness cannot drive out darkness: only light can do that. Hate cannot drive out hate: only love can do that.” - Martin Luther King Jr.
Source: A Testament of Hope: The Essential Writings and Speeches
Expectedly, as is the case with most legislation, the Bill reaches well beyond the scope of a person’s personal behaviour in civil society.  It will therefore become an absolute imperative for employers to carefully consider the implications this new legislation will have upon the organisation’s business operations, not least also its policies and practices, including its employee and other stakeholder interchanges. Those who step out of line will be dealt with, followed by severe consequences which could be monetary fines and even a jail sentence of up to ten years for repeat offenders. 
Whether the Bill will be passed in its current form or not, remains to be seen.  South Africa has had a very long history of racial imbalances and existing legislation -- such as the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 and the Criminal Procedure Act -- may not be enough on their own to curb racism and hence the consideration to pass this Bill into law.  This having been said, in our view the Bill in itself will also not end racism and other social intolerances.  However, there is no doubt that it will act as a further deterrent against those who blatantly practice acts of social hate as outlined in the Bill. 
In order to ‘normalise’ and correct the very many racial and social intolerances found in South Africa, in addition to legislation such as this Bill, the country, together with its captains of industry, will have to educate their subjects upon such matters which espouse fairness and ethical reasoning across its diverse group of people.  Essentially, this is what enriches a nation, collectively making the citizens strong, sustainable, patriotic and prosperous. Deadlines for commenting on the Bill ends on 31 January 2017.
Source: CGF Research Institute (Pty) Ltd
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