New hate speech laws in South Africa – what employers need to know

President Cyril Ramaphosa has signed the Preventing and Combating of Hate Crimes and Hate Speech Bill into law, and Cliffe Dekker Hofmeyr says that employers should read the new legislation about the nation’s employment laws.

The Bill states that a hate crime is an offence where the offender is encouraged by prejudice towards a victim of a crime due to specific or perceived characteristics, including race, gender, sex, sexual orientation, religion, language, disability, HIV status and more.

Hate speech is defined as the intentional publishing of anything that can incite or promote hate via any written, illustrated, visual display, utterance, representation, reference, or electronic communication.

The Bill states that a hate crime is an offence where the offender is encouraged by prejudice towards a victim of a crime due to specific or perceived characteristics, including race, gender, sex, religion, language, disability, HIV status and more.

Any person convicted of a hate speech offence will be liable to a fine, imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

The Bill has already faced criticism from political parties and religious groups, with many criticising the vague definition of hate speech.

Cliffe Dekker Hofmeyr said that the Act does not refer to any employment legislation.

“However, it is important to read the Act in relation to the Employment Equity Act 55 of 1998 (EEA) and the harassment code published under the EEA (Code),” said the legal firm

“The EEA prohibits unfair discrimination against an employee on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, (etc).”

“The EEA and the Code prohibit harassment on the basis of these grounds in the workplace and state that harassment is a form of unfair discrimination.”

Although the tests for harassment in terms of the code and the test for hate crimes and hate speech in the new law differ, the bona fide defences in relation to hate speech could be raised by an employee in disciplinary proceedings that involve verbal harassment or discrimination in the workplace.

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