‘‘harm’’ means any emotional, psychological, physical, social or economic harm;
- Objectives of Act
- (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.
Offence of hate speech
(a)Any person who intentionally publishes, propagates or advocates anything or communicates 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; or
- (ii) promote or propagate hatred
based on one or more of the following grounds:
(gg) ethnic or social origin;
(hh) gender or gender identity;
(ii) HIV status;
(kk) nationality, migrant or refugee status;
(nn) sex, which includes intersex; or
(oo) sexual orientation,
is guilty of an 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.
(c) Any person who intentionally, in any manner whatsoever, displays any material or makes available any material which is capable of being communicated and which that person knows constitutes hate speech as contemplated in paragraph (a), which is 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—
(a) any bona fide artistic creativity, performance or other form of expression, to the extent that such creativity, performance or expression does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds referred to in subsection (1)(a);
(b) any academic or scientific inquiry; fair and accurate reporting or commentary in the public interest or in the publication of any information, commentary, advertisement or notice, in accordance with section 16(1) of the Constitution of the Republic of South Africa, 1996; or
(c) the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds referred to in subsection (1)(a).
Offence of hate crime
A hate crime is an offence recognised under any law, the commission of which by a person is motivated by that person’s prejudice or intolerance towards the victim of the crime in question because of one or more of the following characteristics or perceived characteristics of the victim or his or her family member or the victim’s association with, or support for, a group of persons who share the said characteristics:
- (a) age;
- (b) albinism; 30
- (c) birth;
- (d) colour;
- (e) culture;
- (f) disability;
- (g) ethnic or social origin; 35
- (h) gender or gender identity;
- (i) HIV status;
- (j) language;
- (k) nationality, migrant or refugee status;
- (l) occupation or trade; 40
- (m) political affiliation or conviction;
- (n) race;
- (o) religion;
- (p) sex, which includes intersex; or
- (q) sexual orientation. 45
(2) Any person who commits a hate crime is guilty of an offence and liable on conviction to a sentence as contemplated in section 6(1).
(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 him or her.