Prevention and Combating of Hate Crimes and Hate Speech Act, 2023

Act 16 of 2023

This Act has not yet come into force.
Citation
Act 16 of 2023
Date
14 May 2024
Language
English
Type
Act
Collections
South Africa

Prevention and Combating of Hate Crimes and Hate Speech Act, 2023

Act 16 of 2023

(English text signed by the President)ACTTo give effect to the Republic’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance, in accordance with international law obligations; to provide for offences as hate crimes and the offence of hate speech and the prosecution of persons who commit those offences; to provide for appropriate sentences that may be imposed on persons who commit hate crime and hate speech offences; to provide for the prevention of hate crimes and hate speech; to provide for the reporting on the implementation, application and administration of this Act; to effect consequential amendments to certain Acts of Parliament; and to provide for matters connected therewith.
SINCE the Constitution of the Republic of South Africa, 1996, commits the Republic of South Africa and its people to establish a society that is based on democratic values of social justice, human dignity, equality and the advancement of human rights and freedoms, non-racialism and non-sexism;AND MINDFUL THAT—section 9(1) of the Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law;section 9(3) and (4) of the Constitution provides that neither the State nor any person may, directly or indirectly, discriminate unfairly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, and that national legislation must be enacted to prevent or prohibit unfair discrimination;section 10 of the Constitution provides that everyone has inherent dignity and the right to have their dignity respected and protected;the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000), prohibits unfair discrimination, hate speech and harassment and requires the State to promote the constitutional imperatives enshrined in section 9 of the Constitution; andsection 16 of the Constitution gives everybody the right to freedom of expression, including—freedom of the press and other media;freedom to receive or impart information or ideas;freedom of artistic creativity; andacademic freedom and freedom of scientific research,but that the right to freedom of expression does not extend to—propaganda for war;incitement of imminent violence; oradvocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm;AND BEARING IN MIND THAT—section 7(2) of the Constitution provides that the State must respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights, which is the cornerstone of democracy in South Africa;section 8(2) of the Constitution provides that a provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right;the severity of the emotional and psychological impact of hate crimes and hate speech extends beyond the victim, to the group to which the victim belongs or is perceived to belong; andSouth Africa has committed itself to uphold the Declaration adopted at the United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban;AND SINCE the International Convention on the Elimination of All Forms of Racial Discrimination, to which the Republic is a signatory, requires States Parties to declare, among others, an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin,PARLIAMENT of the Republic of South Africa therefore enacts as follows:—

1. Definitions

In this Act, unless the context indicates otherwise—“characteristics” means any of the following characteristics:(a)Age;(b)albinism;(c)culture;(d)disability;(e)ethnic or social origin;(f)gender;(g)HIV or AIDS status;(h)language;(i)nationality, migrant, refugee or asylum seeker status;(j)occupation or trade;(k)political affiliation or conviction;(l)race;(m)religion;(n)sex;(o)sexual orientation, gender identity or expression or sex characteristics; or(p)skin colour;“communication” includes any—(a)display;(b)written, illustrated, visual or other descriptive matter;(c)utterance;(d)representation or reference; or(e)electronic communication,and “communicates” and “communicated” have a corresponding meaning;“data” means electronic representations of information in any form;“data message” means data generated, sent, received or stored by electronic means;“electronic communication” means a communication by means of data messages;“electronic communications system” means any electronic communications infrastructure or facility used for the conveyance of data;“grounds” means any of the following grounds:(a)Albinism;(b)ethnic or social origin;(c)gender;(d)HIV or AIDS status;(e)nationality, migrant, refugee or asylum seeker status;(f)race;(g)religion;(h)sex;(i)sexual orientation, gender identity or expression or sex characteristics; or(j)skin colour;“harm” means substantial emotional, psychological, physical, social or economic detriment that objectively and severely undermines the human dignity of the targeted individual or groups;“hate crime” has the meaning assigned to it in terms of section 3(1);“hate speech” has the meaning assigned to it in terms of section 4(1);“prescribed” means prescribed by regulation;“social detriment” means detriment that undermines the social cohesion amongst the people of South Africa;“this Act” includes the regulations made in terms of the Act; and“victim” means a person, including a juristic person, or group of persons, against whom an offence referred to in section 3 or 4 has been committed.

2. Objects of Act

The objects of this Act are to—
(a)give effect to the Republic’s obligations regarding prejudice and intolerance as contemplated in international instruments;
(b)provide for the prosecution of persons who commit offences referred to in this Act and provide for appropriate sentences;
(c)provide for the prevention of hate crimes and hate speech;
(d)provide for effective enforcement measures;
(e)provide for the co-ordinated implementation, application and administration of this Act;
(f)combat the commission of hate crimes and hate speech in a co-ordinated manner; and
(g)gather and record data on hate crimes and hate speech.

3. Offence of hate crime

(1)A hate crime is—
(a)an offence recognised under any law (hereinafter referred to as an “underlying offence”), excluding the common law offence of crimen injuria or an offence referred to in section 4(1); and
(b)committed by a person who is motivated by their prejudice or intolerance—
(i)towards the victim, the victim’s family member or the victim’s association with or support for a person with one or more characteristics or a group of persons who share one or more of the characteristics; and
(ii)which was based on one or more of the actual or perceived characteris­tics.
(2)
(a)Any person who commits an offence referred to in subsection (1), is guilty of the underlying offence as a hate crime and liable on conviction to a sentence as contemplated in section 6(1).
(b)The criminal record of a person who has been convicted of an offence referred to in paragraph (a) must explicitly record the underlying offence as a hate crime.
(3)Any prosecution in terms of this section must be authorised by the Director of Public Prosecutions having jurisdiction or a person delegated thereto by the Director concerned.

4. Offence of hate speech

(1)
(a)Any person who intentionally publishes, propagates, advocates, makes available or communicates anything to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to—
(i)be harmful or to incite harm; and
(ii)promote or propagate hatred,
based on one or more of the grounds, is guilty of the offence of hate speech.
(b)Any person who intentionally distributes or makes available an electronic communication which that person knows constitutes hate speech as contemplated in paragraph (a), through an electronic communications system which is—
(i)accessible by any member of the public; or
(ii)accessible by, or directed at, a specific person who can be considered to be a victim of hate speech,
is guilty of an offence.
(2)The provisions of subsection (1) do not apply in respect of anything done as contemplated in subsection (1) if it is done in good faith in the course of engagement in any bona fide—
(a)artistic creativity, performance or expression;
(b)academic or scientific inquiry;
(c)fair and accurate reporting in the public interest or the publication of any information, commentary, advertisement or notice; or
(d)interpretation and proselytising or espousing of any religious conviction, tenet, belief, teaching, doctrine or writings,
that does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds.
(3)Any prosecution in terms of this section must be authorised by the Director of Public Prosecutions having jurisdiction or a person delegated thereto by the Director concerned.

5. Victim impact statement

(1)For purposes of this section, a victim impact statement means a sworn statement or affirmation by the victim or someone authorised by the victim to make such a statement on behalf of the victim, which contains the physical, psychological, social, economic or any other consequences of the offence for the victim and the victim’s family member or a group of persons with whom the victim associates or supports.
(2)
(a)The prosecutor must furnish the court with a victim impact statement provided for in subsection (1).
(b)Where it is not possible to obtain a victim impact statement provided for in subsection (1), the prosecutor must provide the court with reasons for the absence of such a statement: Provided that a prosecutor may obtain a victim impact statement from—
(i)someone, in the event of the victim’s death, authorised by a family member of the victim or a group of persons with whom the victim associated or supported; or
(ii)an organisation or institution with expert knowledge or experience of the group to which the victim belongs or is perceived to belong.
(3)The contents of a victim impact statement are admissible as evidence, unless the court, on good cause shown, decides otherwise.

6. Penalties or orders

(1)Subject to subsection (2), any person who is convicted of an offence referred to in section 3 is liable, on conviction, to any of the following forms of penalties which the court sentencing the person considers appropriate and which is within that court's penal jurisdiction:
(a)Imprisonment, periodical imprisonment, declaration as an habitual criminal, committal to any institution established by law, a fine, correctional supervi­sion or imprisonment from which a person may be placed under correctional supervision, as contemplated in section 276 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977); or
(b)postponement or suspension of the sentence or a caution or reprimand, as contemplated in section 297 of the Criminal Procedure Act, 1977.
(2)If a person is convicted of an offence referred to in section 3, the court that imposes the sentence must—
(a)if section 51 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), is not applicable; and
(b)in the case of—
(i)damage to, the loss of or the destruction of property or the loss of money;
(ii)physical or other injury; or
(iii)loss of income or support,
suffered by the victim as a result of the commission of the offence,
regard the fact that the person has been convicted of an offence referred to in section 3 as an aggravating circumstance.
(3)Any person who is convicted of an offence referred to in section 4 is liable to a fine or to imprisonment for a period not exceeding five years, or to both a fine and such imprisonment.

7. National instructions and directives

(1)
(a)The National Commissioner of the South African Police Service must, after consultation with the Director-General: Justice and Constitutional Development and the National Director of Public Prosecutions, issue national instructions regarding all matters which are reasonably necessary or expedient to be provided for, and which must be complied with by all members of the South African Police Service who are tasked with investigating the alleged commission of hate crimes and hate speech in order to achieve the objects of this Act, including the manner in which—
(i)the reporting of an alleged hate crime or hate speech is to be dealt with by police officials; and
(ii)hate crimes and hate speech are to be investigated by police officials, including the circumstances in which an investigation in respect of a hate crime or hate speech may be discontinued.
(b)The National Commissioner of the South African Police Service must develop training courses, which must—
(i)include training on the national instructions referred to in paragraph (a);
(ii)include social context training in respect of hate crimes and hate speech; and
(iii)provide for and promote the use of uniform norms, standards and procedures, with the view to ensuring that as many police officials as possible are able to deal with hate crimes and hate speech cases in an appropriate, efficient and sensitive manner.
(2)
(a)The National Director of Public Prosecutions must, after consultation with the Director-General: Justice and Constitutional Development and the National Commis­sioner of the South African Police Service, issue directives regarding all matters which are reasonably necessary or expedient to be provided for, and which must be complied with by all members of the prosecuting authority who are tasked with the institution and conduct of prosecutions in cases relating to hate crimes and hate speech, in order to achieve the objects of this Act, including the following:
(i)The manner in which cases relating to hate crimes and hate speech are to be dealt with, including—
(aa)the circumstances in which a charge in respect of such an offence may be withdrawn or a prosecution stopped; and
(bb)the leading of relevant evidence indicating the presence of prejudice or intolerance towards the victim, in order to secure a conviction contemplated in section 3(2); and
(ii)the collection and analysis of information contemplated in section 8.
(b)The National Director of Public Prosecutions must develop training courses, which must—
(i)include training on the directives referred to in paragraph (a);
(ii)include social context training in respect of hate crimes and hate speech; and
(iii)provide for and promote the use of uniform norms, standards and procedures, with the view to ensuring that prosecutors are able to deal with hate crimes and hate speech cases in an appropriate, efficient and sensitive manner.

8. Reporting on implementation of Act

(1)The Cabinet member responsible for the administration of justice must—
(a)after consultation with the Cabinet member responsible for policing, prescribe the information that must be collected and collated by the South African Police Service;
(b)after consultation with the National Director of Public Prosecutions, prescribe the information that must be collected and collated by the National Prosecuting Authority; and
(c)prescribe the information that must be collected and collated by the clerks of the court and Registrars of the High Court,
in order to enable effective monitoring, analysis of trends and interventions in respect of the prevention and combating of hate crimes and hate speech.
(2)The information contemplated in subsection (1) must be made available in the prescribed manner and at the prescribed times to—
(a)Parliament;
(b)the Chairperson of the South African Human Rights Commission;
(c)the Chairperson of the Commission for Gender Equality; and
(d)the Chairperson of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

9. Prevention of hate crimes and hate speech

(1)The State, the South African Human Rights Commission, the Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities have a duty to promote awareness of the prohibition against hate crimes and hate speech, aimed at the prevention and combating of these offences.
(2)Without derogating from the general nature of the duty referred to in subsection (1), one or more Cabinet members, designated by the President, must cause programmes to be developed in order to—
(a)conduct education and information campaigns to inform the public about the prohibition against hate crimes and hate speech, aimed at the prevention and combating of these offences;
(b)provide assistance and advice to any person who wants to lodge a complaint of a hate crime or hate speech; and
(c)train public officials on the prohibition, prevention and combating of hate crimes and hate speech, which training must include social context training.
(3)The South African Judicial Education Institute established in terms of section 3 of the South African Judicial Education Institute Act, 2008 (Act No. 14 of 2008), must develop and implement training courses, including social context training courses, for judicial officers for purposes of presiding in court proceedings, for the purposes of this Act.

10. Regulations

(1)The Cabinet member responsible for the administration of justice may, where applicable, make regulations regarding any matter which is required or permitted by this Act to be prescribed by regulation or any other matter which is necessary or expedient to prescribe in order to achieve the objects of this Act.
(2)Regulations made under this section—
(a)must be submitted to Parliament for approval 60 days prior to the publication thereof in the Gazette;
(b)which are not approved within the 60-day period referred to in paragraph (a) are deemed to have been approved by Parliament; and
(c)which may result in expenditure for the State, must be made in consultation with the Cabinet member responsible for finance.

11. Laws amended

The laws referred to in the second column of the Schedule are hereby amended to the extent indicated in the third column of the Schedule.

12. Short title and commencement

This Act is called the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023, and comes into operation on a date fixed by the President by proclamation in the Gazette.

Schedule (Section 11)

Amendments

Number and year of lawShort titleExtent of amendment
Act No. 51 of 1977Criminal Procedure Act, 19771.The amendment of section 18—(a)by the substitution for paragraph (a) of the following paragraph:“
(a)murder, including murder which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023;”;
(b)by the substitution for paragraph (c) of the following paragraph:“
(c)robbery, if aggravating circum­stances were present or if the victim of the robbery was also a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023;”; and
(c)by the substitution for paragraph (f) of the following paragraph:“
(f)any sexual offence in terms of the common law or statute including any such offence which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023;”.
2.The insertion after section 269A of the following section:“

269B. Hate crimes

If the evidence on a charge for a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023, does not prove the commission of the offence so charged but proves the commission of the underlying offence on which the hate crime is based, the accused may be found guilty of the underlying offence in question so proved.”.
3.The amendment of Schedule 5 by the in­sertion after the item 10 of the following item:“Arson, housebreaking, whether under the common law or a statutory provision, with the intention to commit an offence, or an offence referred to in section 1 of the Intimidation Act, 1982 (Act No. 72 of 1982), any of which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023.”.4.The amendment of Schedule 6—(a)by the deletion in item 1 of the word “or” at the end of paragraph (b)(i);(b)by the insertion in item 1 of the word “or” at the end of paragraph (f)(ii);(c)by the addition in paragraph (b) of item 1 of the following subparagraph:“
(iii)a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023;”;
(d)by the substitution in paragraph (c) of item 1 for subparagraphs (i) and (ii) of the following paragraphs:“
(i)Rape or compelled rape as con­templated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amend­ment Act, 2007, respectively, including rape or compelled rape which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023; or
(ii)robbery with aggravating cir­cumstances or if the victim of the robbery was also a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023; or”;
(e)by the deletion in item 2 of the word “or” at the end of paragraph (b)(ii);(f)by the insertion in item 2 of the word “or” at the end of paragraph (b)(iii);(g)by the addition in paragraph (b) of item 2 of the following subparagraph:“
(iv)is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023; or”; and
(h)by the substitution for item 4 of the fol­lowing item:“Robbery[, involving]—
(a)involving the use by the accused or any co-perpetrators or participants of a firearm;
(b)involving the infliction of grievous bodily harm by the accused or any of the co-perpetrators or participants; [or]
(c)involving the taking of a motor vehicle; or
(d)where the victim is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023.”.
Act No. 105 of 1997Criminal Law Amend­ment Act, 19971.The amendment of Part I of Schedule 2—(a)by the substitution in item 1 for para­graph (b) of the following paragraph:“
(b)the victim was—
(i)a law enforcement officer performing his or her func­tions as such, whether on duty or not; [or]
(ii)a person who has given or was likely to give material evidence with reference to any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977), at criminal pro­ceedings in any court; or
(iii)a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023;”;
(b)by the substitution in paragraph (c) of item 1 for subparagraphs (i) and (ii) of the following subparagraphs:“
(i)Rape or compelled rape as con­templated in section 3 or 4 of the Criminal Law (Sexual Of­fences and Related Matters) Amendment Act, 2007, respectively, including rape or compelled rape which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023; or
(ii)robbery with aggravating cir­cumstances as defined in section 1 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) or if the victim of the robbery was a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023;”;
(c)by the substitution in paragraph (b) of item 2 for subparagraph (ii) of the following subparagraph:“
(ii)is a physically disabled person who, due to his or her physical disability, is rendered particu­larly vulnerable; [or]”;
(d)by the addition in paragraph (b) of item 2 of the following subparagraph:“
(iv)is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023; or”;
(e)by the deletion in paragraph (b) of item 3 of the word “or” at the end of subparagraph (ii); and(f)by the addition in paragraph (c) of item 3 of the following subpara­graph:“
(iv)is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023; or”.
2.The amendment of Part II of Schedule 2—(a)by the substitution for item 2 of the fol­lowing item:“Robbery—
(a)when there are aggravating circum­stances; [or]
(b)involving the taking of a motor vehicle; or
(c)where the victim is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023.”; and
(b)by the addition of the following item:“Arson, housebreaking, whether under the common law or a statutory provision, with the intention to commit an offence or an offence referred to in section 1 of the Intimidation Act, 1982 (Act No. 72 of 1982), any of which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023.”.
Act No. 75 of 2008Child Justice Act, 2008The amendment of Schedule 3—(a)by the substitution for item 3 of the fol­lowing item:“
3.Murder, including murder which constitutes part of a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023.”;
(b)by the substitution for items 6 and 7 of the following items, respectively:“
6.Robbery—
(a)where there are aggravating cir­cumstances; [or]
(b)involving the taking of a motor vehicle; or
(c)where the victim is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023.
7.Rape or compelled rape referred to in sections 3 and 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act No.32 of 2007), respectively, including rape or compelled rape which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023. ”; and
(c)by the addition of the following item:“
23.Arson, housebreaking, whether under the common law or a statutory provision, with the intention to commit an offence or an offence referred to in section 1 of the Intimidation Act, 1982 (Act No. 72 of 1982), any of which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023.”.
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History of this document

14 May 2024 this version
Published in Government Gazette 50652
06 May 2024
Assented to