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09 May 2024
BY Jan Norval

President assents to new Hate Crimes Act - Changing the Landscape of On-Duty & Off-Duty Misconduct

On Thursday, 9 May 2024, the President assented to the Prevention and Combating of Hate Crimes and Hate Speech Bill (“the Hate Crimes Act”), after it was introduced as a Bill in the National Assembly more than six years ago. 

The Hate Crimes Act creates the criminal offences of “Hate Crime” and “Hate Speech”, which are defined as below:

  • A Hate Crime is committed if a person commits any recognised crime (excluding crimen injuria or Hate Speech), referred to as an “underlying crime”, and the commission of that underlying crime is motivated by prejudice and intolerance on one or more of the grounds listed in the Hate Crimes Act.
  • Hate Speech is committed if any person intentionally publishes, propagates or advocates anything, or communicates to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to: be harmful or to incite harm; or promote or propagate hatred, based upon the grounds listed in the Hate Crimes Act. The intentional distribution or displaying of Hate Speech is also a crime. This includes the forwarding or reposting of an electronic communication which a person knows is Hate Speech.

From an Employment Law context, the Hate Crimes Act has a number of consequences:

  • The Hate Crimes Act widens the possibility of off-duty misconduct.
    • Not only personal interactions, but online and particularly social media postings of employees can fall under the scope of the Hate Crimes Act.
    • This off-duty misconduct covered by the Hate Crimes Act would have been disciplined on various grounds, including bringing the employer into disrepute prior to the assent of the Hate Crimes Act. That the misconduct has now been criminalised could make it simpler to prove that the employer has been brought into disrepute, because the employee has committed a crime based upon prejudice, or intolerance, or has sought to harm or incite hatred.
    • It is important to note that employers could discipline in relation to the Hate Crimes Act even if no criminal complaint has been laid or guilty finding has been handed down, provided the employer has the necessary evidence.
  • The Hate Crimes Act expands upon the listed grounds found in the Employment Equity Act (EEA) related to discrimination and harassment. In relation to Hate Crime and Hate Speech, a list of “Characteristics” and “Grounds” are defined. The ”Characteristics” and “Grounds” found in the Hate Crimes Act that are not listed grounds in the EEA include:
    • Albinism
    • Occupation or Trade (only in relation to Hate Crime);
    • Migrant, Refugee or Asylum Seeker Status;
    • Gender Identity, Expression or Sex Characteristics and
    • Skin Colour
  • Defences created in terms of the Hate Crimes Act such as: bona fide artistic creativity; academic inquiry; reporting in the public interest; and the espousing of religious convictions will probably become defences in misconduct hearings which related to Hate Crime and Hate Speech.

Employers are advised to carefully consider their policies, to ensure that they align with the Hate Crimes Act, and  to ensure effective training for their employees regarding what will be expected of them, and how their conduct inside and outside of work may result in misconduct.

Jan Norval

Executive | Employment

jnorval@ENSafrica.com