This legislative measure gives effect to South Africa’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.

The Constitution sets out certain basic values, including human dignity, the achievement of equality and the advancement of human rights and freedoms and non-racialism and non-sexism.

The Bill of Rights, in Section 9 of the Constitution, prohibits direct or indirect unfair discrimination against anyone on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

“The Bill of Rights gives everyone the right to dignity and gives everyone the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources.”

The new Prevention and Combating of Hate Crimes and Hate Speech Act provides for the prevention of hate crimes and hate speech, effective enforcement measures, and the gathering and recording of data on hate crimes and hate speech.

A hate crime is committed if a person commits any recognised offence under any law that is motivated by prejudice or intolerance based on one or more characteristics or perceived characteristics of the victim, as listed in the legislation

The definition of the crime extends to offences targeting the victim’s association with or support for a person with one or more of the listed characteristics or a group of persons who share these characteristics.

The offence of hate speech applies to any person who intentionally publishes, propagates, advocates, shares or communicates anything to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred based on defined grounds.

The law also makes it an offence when speech material is intentionally distributed or made available in electronic communication, and the said person knows that such electronic communication constitutes hate speech.

However, the law does not consider actions undertaken in good faith during engagement as part of hate speech.

These actions include artistic creativity, performance or other form of expression; academic or scientific inquiry; and fair and accurate reporting or commentary in the public interest.

It also excludes interpretation and articulating or espousing of any religious conviction, tenet, belief, teaching, doctrine or writing that does not advocate hatred or constitutes incitement to cause harm.

CTL will be publishing a guideline in the near future on the various pieces of legislation that deal with discrimination, harassment, hate crimes and hate speech and how these impact the workplace.