n South African Journal of Criminal Justice - Regulating cases of 'extreme hate speech' in South Africa : a suggested framework for a legislated criminal sanction




This contribution investigates the merits of the introduction of a legislated criminal sanction for cases of extreme hate speech in South Africa and discusses the key parameters of a potentially new legal framework to do so. The distinction between hate speech and hate crimes is explored, followed by an analysis of the existing legal framework regulating hate speech in South Africa and a consideration of international law and the legal position in the European Union, the United States and Canada. The authors argue that a legislated hate-motivated crime serves a dual purpose. It protects the rights of the victim and the target group and also ensures that society is informed that hate speech is neither tolerated, nor sanctioned. The threshold test for the criminal sanction must, however, be strict in order to protect the integrity of the right to freedom of expression. Only the advocacy of extreme hatred in public against a group of persons on five prohibited grounds, namely race, ethnicity, gender, sexual orientation and religion, and which constitutes the wilful incitement to cause severe harm to the target group, should be criminalised. A criminal sanction for cases of extreme speech is needed to overcome the grave and substantial threat that pervasive hatred and discord causes to the achievement of the constitutional mandate.


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