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The Prevention and Combating of Hate Crimes and Hate Speech Act was signed into law in May 2024. The Department of Justice has now released the Draft Regulations which instruct the South African Police Service (SAPS) and the National Prosecuting Authority (NPA) on the practical “policing” of the Act.
These regulations create the administrative machinery for the Act, including:
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- The “Hate” Database: Compelling the Director-General to maintain a national database of all “hate” incidents.
- Police Recording Duties: Instructing SAPS officers to record specific personal details of accused persons—including their race, nationality, and the “grounds” of their alleged prejudice (e.g., political affiliation, religion).
- Sentencing Procedure: Mandating that prosecutors submit a “Victim Impact Statement” to the court to aggravate sentencing.
- Social Media Tracking: Creating specific forms (Form 3) to record the “distribution” of electronic communications, effectively targeting those who forward or share “hate speech” online.
Key issues for public consideration
The requirement for a Victim Impact Statement to “aggravate” sentencing means your punishment could be determined by the emotional resilience of the accuser rather than the objective facts of the crime.
The Trap is in “Aggravation,” not “Guilt”
The Act defines a “Hate Crime” as an existing crime (like assault or vandalism) where the offender is motivated by prejudice.
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- Guilt: To find you guilty, the court looks at your intent (did you mean to be hateful?).
- Sentencing: To decide your punishment, the court looks at the Victim Impact Statement.
The Danger:
The Act explicitly states that if a person is convicted of a Hate Crime, the court must regard it as an aggravating circumstance. The VIS is the tool used to measure that aggravation.
If the “severity” of the crime is measured by the victim’s feelings (via the VIS), you strictly argue that sentencing becomes a lottery.
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- Scenario A: You insult Person X. Person X writes a VIS saying they were annoyed but moved on. You get a fine.
- Scenario B: You insult Person Y with the exact same words. Person Y writes a VIS saying they are psychologically shattered. You get 3 years in prison.
The creation of a state database that records the “political” or “social” leanings of citizens accused (but not yet convicted) of hate crimes.
Concerns over whether SAPS officers are equipped to make complex legal determinations about “hate speech” when filling out the prescribed forms (Form 1 & 2).
Questions and answers
The Act has been signed by the President, but it is not yet fully operational. These Regulations must be finalized first because they tell the police and courts how to apply the law.
The regulations specifically include Form 3, which is designed to record “Distribution or making available electronic communication.” This implies that sharing or forwarding content can be treated as a distinct offence, and the police are instructed to record it as such.
In standard criminal law, you are punished for what you did. Under these regulations, prosecutors must provide a statement on how the victim feels to increase your sentence. This creates a risk where two people commit the same crime, but receive different jail times based purely on how “offended” or “hurt” the victim claims to be.
Yes. The regulations compel the Director-General to keep a database of all reported hate crimes and hate speech. The police are required to record your personal details as soon as a complaint is made, even before you are convicted.
The draft regulations
The Act
In the News
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- Rob Hutchinson — The Sentencing Lottery: Why your jail time may soon depend on your accuser’s feelings, not the law.
- Mamba Online — Progress at Last? South Africa’s Draft Hate Crimes Act Regulations Released
- Presidency of SA — President Ramaphosa assents to law on the prevention and combating of hate crimes and hate speech
- Daily Maverick — Free speech is the best weapon against hate speech
Hate Speech vs Free Speech | Landmark South African Court Ruling Explained by Simon Dippenaar On 9 May 2025, the Cape Town Equality Court handed down a landmark judgment in the case of Cape SA Jewish Board of Deputies v. Thomas Leyland Torr – a ruling that redefines the boundaries between free expression and unlawful hate in the digital age.
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