South Africa is on the brink of enacting a Bill that could make it a criminal offence to offend.

If there was ever a moment when the country was heading towards a future where thought was controlled and legislated by the State, the Prevention and Combating of Hate Crimes and Hate Speech Bill would be it.

The authors of the Bill have chosen to ignore the far-reaching consequences such a law would create as it would affect the very people it is trying to protect – the South African populace.

Ironically, it could criminalise South Africa’s current political lexicon, including the ubiquitous slogan White Monopoly Capital, which could offend some whites. Too, references about curry when talking about the Guptas could land you in chookie.

The word tenderprenuer, most often used to describe a black-owned business, sometimes amongst tenderpreneurs themselves, would be problematic.

In fact any word deemed distasteful to a person who believes the word, slogan or sentence is offensive to them and the group to which they belong would now go beyond weeping and gnashing of teeth.

The Bill clearly states that a person can be convicted of a hate crime if the incident or words offend, or have the possibility to incite or insult a person or group who belongs to a “race, gender, sex, ethnic or social origin, sexual orientation, religion, belief, culture, colour, language, birth, disability, HIV status, nationality, gender identity, albinism or occupation or trade”.

It is so broad that calling a redheaded, freckled person who wears glasses a ‘four-eyed ginger pizza face’ could see you end up in the clink. If you called that “carrot top” a “man” and they so happen to deem themselves “non-binary” you could be in further trouble.

Should the Act come to fruition, an offender could be sentenced to three to 10 years and/or a fine.

Furthermore the Bill allows several already violent crimes such as rape, robbery, murder and so forth the possibility to be deemed a hate crime; as if such crimes are performed as a labour of love.

The Bill was, until 31 January 2017, open for public comment. But like many things in modern day South Africa, it was crafted with haste as a matter of political expediency after the country witnessed several well-publicised racist rants, some of which have appeared before the Equality Court with the transgressors issued large fines.

They were tried on the Promotion of Equality and Prevention of Unfair Discrimination Act., also called the Equality Act and itself the subject of a court case questioning its constitutionality and the impediments it presents to freedom of expression.

The ANC government, being outflanked and outwitted in parliament and local government by the EFF and DA, is pushing through this Bill as a matter of urgency as a mechanism to strengthen its position as a moral compass as it ups its tempo on race-based politics which it hopes will galvanise its traditional support base resulting in a victory in the 2019 national polls.

Let me be clear: This Bill is an extension of a floundering political agenda, playing to populist whims instead of common sense.

There is no doubt we come from a divided past. We also come from a deeply controlled past where laws prohibited basic freedoms. Apartheid laws were used to control the media, allowed for apparent dissidents to be arrested and held without reason (columnist Harold Strachan will attest to this), were used as a ruse to search private property (Noseweek was no exception) and to generally enact control over thought and expression of the country’s citizenry by banning literature, plays and artwork, for example.

This Bill goes against and does not work towards Section 16 of the Constitution which provides for Freedom of the press, freedom to receive or impart information or ideas, freedom of artistic creativity and academic freedom and freedom of scientific research.

By limiting people on what they can think or say for fear of offending a particular group without knowing what might even cause offence, we inadvertently increase the fear of people to think and speak freely.

But one of the greatest threats this Bill presents is the loophole such a law will create to allow the state to snoop on our private communications.

Our state security apparatus is currently and continues to evolve into an extension of the political factional battles. There is ample evidence that the ANC-led government is using the State Security Agency, the SAPS, the National Prosecuting Authority and the South African Revenue Service to fight personal battles.

This Bill only requires a complainant as is normal in any criminal investigation. Therefore a critical journalist, an expressive artist, a satirical cartoonist, an outspoken politician or disagreeable businessman could easily be targeted for surveillance under the pretext of this Bill. Creating a fabricated charge through this bill does not require much of an imagination.

Naturally the state would need to read the suspects emails and listen to their phone-calls to confirm if the devious free-thinker was breaking the law.

They could then have their home or office raided on the pretext that the authorities were looking for evidence.

But most damaging is they would be labelled a hater of something by a compliant, unquestioning media.

The criminal case need not stick as the reputational damage to the individual would be immense. The case, like others, would drag on inordinately. The state would in all likelihood not only silence the individual but destroy their ability to find work, interact in public spaces, find legal representation and isolate them.

A rejection of this Bill does not mean you are protecting racists or homophobes as is likely to be the charge, for example, by the Bill’s proponents, it means you condemn the state’s attempt to police our thoughts, ideas and ability to express ourselves without fear of arrest.

This Bill is a threat to all free-thinking South Africans and should be rejected with the contempt it deserves.

♦ Note: This article was submitted to the Department of Justice and Constitutional Development during the prescribed public comment period in protest of the Prevention and Combating of Hate Crimes and Hate Speech Bill.



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