A hate crime is when a person commits any recognised offence under any law, referred to as the ‘‘underlying offence’’. The commission of that offence is motivated by prejudice or intolerance on the basis of characteristics or perceived characteristics of the victim, as listed in the Bill, a family member of the victim or the victim’s association with or support for a group of persons who share the said characteristics. The common law offence of crimen injuria is excluded. Crimen injuria consist of unlawfully and intentionally impairing the dignity or privacy of another person.
Hate speech occurs when any person 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 be harmful or to incite harm and to promote or propagate hatred based on defined grounds. This includes when hate speech material is intentionally distributed or made available in cyber space, and the said person knows that such electronic communication constitutes hate speech. It excludes aspects of freedom of expression such as (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.
These exclusions cover “any bona fide interpretation and proselytising or espousing of any religious conviction, tenet, belief, teaching, doctrine or writings, except if it advocates hatred that constitutes incitement to cause harm based on any protected grounds.”
Submission from PATHSA
The Professional Association for Transgender Health South Africa (PATHSA) is an interdisciplinary health professional organisation working to promote the health, wellbeing, and self-actualisation of transgender and gender diverse people. PATHSA makes the following submissions and comments:
