New law is self-de­feat­ing


THE RIGHT to re­main silent is a corner­stone char­ac­ter­is­tic of any right­eous sys­tem of law, where in­di­vid­u­als are al­lowed to re­frain from in­crim­i­nat­ing them­selves not only in the pres­ence of a court, but also in the eyes of so­ci­ety.

In a free so­ci­ety, you can de­cide to speak, thus open­ing your­self up to ridicule and re­but­tal, or you can de­cide not to speak, which is a safer but of­ten less fulfilling op­tion.

The min­is­ter of jus­tice and the cab­i­net re­cently un­veiled the dreaded new Preven­tion and Com­bat­ing of Hate Crimes and Hate Speech Bill, ap­par­ently in re­sponse to the spate of racist so­cial me­dia posts made ear­lier this year.

The bill is ev­ery bit as bad as pro­po­nents of in­di­vid­ual lib­erty thought it would be.

For in­stance, sec­tion 4(1)(a)(ii)(bb) states that if you in­ten­tion­ally in­sult some­one based on his or her be­lief or oc­cu­pa­tion, you have com­mit­ted a crime for which you can spend up to three years (10 years if you are caught do­ing it again) in a South African prison.

In other words – and it is im­por­tant for you to re­alise the im­pli­ca­tions of this – if you post on my Face­book wall, “Martin, you lawyers are blood-suck­ing par­a­sites, and I think no­body should make use of your ser­vices”, you have com­mit­ted a crime.

You have (i) in­ten­tion­ally (sec­tion 4(1) (a)) (ii) in­sulted (sec­tion 4(1)(a)(ii)) me, with the in­ten­tion to (iii) bring le­gal pro­fes­sion­als into con­tempt (sec­tion 4(1)(a)(ii)(bb)).

Fur­ther­more, the fact that it can be con­sid­ered hate speech to ridicule some­one for their be­liefs un­der this same pro­vi­sion is at odds with the nar­row­est and most limited un­der­stand­ing of free­dom of ex­pres­sion.

In­deed, the bill is self-de­feat­ing, be­cause by the very na­ture of this pro­hi­bi­tion, we are hy­po­thet­i­cally no longer al­lowed to ridicule or “bring into con­tempt” the very group of per­sons this bill is aimed against, namely racists and big­ots.

For, in­deed, be­ing a racist is to be­lieve in the su­pe­ri­or­ity of one race over an­other, or to dis­crim­i­nate based on race.

But the bill, quite clearly, says we must not ridicule peo­ple based on their be­liefs.


This is sim­ply the most atro­cious pro­vi­sion in a bill that is rife with other atro­cious pro­vi­sions, such as the state’s obli­ga­tion to help peo­ple com­plain about this non­sense con­cep­tion of hate speech, in sec­tion 9(2)(c).

There is no doubt in my mind that this bill will not sur­vive its in­evitable jour­ney through the South African court sys­tem. And if it does sur­vive, the bill is the least of our con­cerns, for then it will be our judges who have be­come the lat­est vic­tims of so-called state cap­ture.

For­mer US Lib­er­tar­ian Party pres­i­den­tial can­di­date Austin Petersen made the point quite clearly dur­ing his cam­paign, that it is not pop­u­lar – or even very sat­is­fy­ing – to come to the de­fence of racists, sex­ists, ho­mo­phobes and other big­ots.

But, like it or not, these in­tel­lec­tual cretins in our so­ci­ety are rights-bear­ing in­di­vid­u­als, who not only have con­sti­tu­tion­ally guar­an­teed free­doms against state tyranny, but also nat­u­ral rights to think and be­lieve what­ever they want, no mat­ter how ques­tion­able those be­liefs are.

Friedrich von Hayek wrote in his es­say “The Case for Free­dom” that “free­dom nec­es­sar­ily means that many things will be done which we do not like. Our faith in free­dom does not rest on the fore­see­able re­sults in par­tic­u­lar cir­cum­stances but on the be­lief that it will, on bal­ance, re­lease more forces for the good than for the bad”.

The oft-quoted John Stu­art Mill – one of the in­tel­lec­tual fa­thers of the mod­ern-day “right to free speech” which ex­ists across the world – also wrote in his sem­i­nal On Lib­erty: “If all mankind mi­nus one were of one opin­ion, and only one per­son were of the con­trary opin­ion, mankind would be no more jus­ti­fied in si­lenc­ing that one per­son than he, if he had the power, would be jus­ti­fied in si­lenc­ing mankind.”

He also writes: “I deny the right of the peo­ple to ex­er­cise such co­er­cion, ei­ther by them­selves or by their govern­ment. The power it­self is il­le­git­i­mate. The best govern­ment has no more ti­tle to it than the worst.”

We are not be­ing friends of big­ots by op­pos­ing this mon­strous bill. The opin­ions of big­ots must see the light of day for us to be able to iden­tify them as big­ots. We will not only be do­ing our­selves a dis­ser­vice by mak­ing our so­ci­ety less trans­par­ent, but we will also be po­ten­tially cre­at­ing a false sense of virtue. For, in­deed, as Frank Meyer once re­marked, “un­less men are free to be vi­cious, they can­not be vir­tu­ous”.


IT’S SELF-DE­FEAT­ING: Min­is­ter of Jus­tice Michael Ma­sutha, far right, and the cab­i­net re­cently un­veiled the new Preven­tion and Com­bat­ing of Hate Crimes and Hate Speech Bill.

Hy­po­thet­i­cally we are no longer al­lowed to ridicule the peo­ple this bill is aimed against – racists and big­ots

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