SOUTH AFRICA , Johannesburg – While the Judicial Conduct Committee (JCC) continue deliberating whether suspended Judge Mabel Jansen has a case to answer to for the alleged hate speech she espoused last year, she could face criminal prosecution if a new bill is enacted.
Writer Gillian Schutte brought the misconduct complaint to the JCC after a private conversation she had with Judge Jansen on Facebook, where the latter stated that rape and murder were part of black people’s culture – which made her “feel like vomiting”.
But Judge Jansen could face criminal prosecution if the recently announced Prevention and Combating of Hate Crimes and Hate Speech Bill is enacted into law. The bill proposes a jail term of up to three years if a person is found to have made prejudicial remarks on someone’s race, gender, religion and almost 20 other characteristics listed in the bill. In the bill’s current format, Judge Jansen’s comments would be deemed as hate speech, as they appear to be sweeping and disparaging views about an entire race.
But AfriForum is vehemently opposed to the bill, and its deputy chief executive Ernst Roets told The Star on Tuesday that prosecuting Judge Jansen and other people who make incendiary remarks criminally would destroy democracy and violate the constitutionally enshrined freedom of speech.
“We cannot have freedom of speech and then throw people in prison if they say something that is insulting and offensive. Freedom of speech essentially means that you can say things which are offensive and insulting,” Roets contended.
However, Deputy Justice Minister John Jeffery said in a speech last week that the bill aims to debunk the notion that hate speech should be allowed under the pretence of freedom of speech. Jeffery added that freedom of expression, like all other rights, was subject to limitations, which were prescribed by the constitution.
“This limitation was also thoroughly expressed by the Constitutional Court’s pronouncement in the matter between the State v Mamabolo that freedom of expression is not to be afforded any primacy over any other constitutional rights, including dignity,” Jeffery explained.
Roets argues that there already exists legislation in the country which deals with hate speech, citing the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda), which allows for a civil case for acts of discrimination.
“We have Pepuda, where you can sue someone who has committed hate speech, like we, as AfriForum, did with Julius Malema in 2011,” he said.
But Jeffery said Pepuda dealt only with civil cases and “contains no provision itself specifically to either unfair discrimination or hate speech”, which was why they want the new bill.
Judicial Services Commission (JSC) secretary Sello Chiloane said the JCC should conclude its deliberations into Judge Jansen’s case “soon”.
If the complaints were found to be grave enough for further investigation, the JSC would conduct an inquiry.
Source iol.co.za
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