Rabbis could fall foul of hate speech bill

PROF VICTORIA BRONSTEIN

In fact, this Bill’s new hate speech provisions have created concern about the future of freedom of expression in South Africa.  

There is broad consensus that hate speech that incites violence has no place in a democratic society. The problem with the proposed Hate Speech Bill is that it goes much further than prohibiting hate speech. It attempts to regulate a broad variety of offensive speech.

South African religious leaders will be vulnerable to prosecution if the Bill is passed in its current form, including rabbis.

Although most rabbis are both compassionate and cautious about their public statements, many standard pronouncements by mainstream Orthodox rabbis would violate the proposed Bill.

As recently as November 2015, Jerusalem Sephardic Chief Rabbi Shlomo Amar called homosexuality an “abomination”. He was quoted as saying: “I call on them, in warm and friendly language, to leave their bad path. The Torah has forbidden it [homosexuality] and calls it an abomination… It is a cult of abomination. It is clear that it is abomination. The Torah punishes it with death… There is no such thing as having understanding or tolerance for this.”

Any speaker who expresses similar sentiments in South Africa, will be at risk of facing a three-year prison sentence should this Bill be passed. The Bill visits criminal consequences on any “intentional communication…  which is insulting to any person or group” and “demonstrates a clear intention” to bring that group “into contempt or ridicule” on the basis of sexual orientation. 

The Bill also covers speech based on belief. Rabbi Amar was also reported to have said that Reform Jews are “evildoers”.  That would be a second offence under the proposed legislation and would justify an even longer prison term.

Much gender-based speech falls foul of the current draft Bill.  Rabbi Eyal Karim who was eventually sworn in as the Israel Defence Forces’ chief rabbi, is alleged to have remarked that “women cannot testify in court because their ‘sentimental’ nature does not allow it”. That statement could also be prohibited in terms of this Bill.

Some Jewish South Africans will view the Bill as a welcome innovation to protect the vulnerable. Others will be concerned about its chilling effect and its role in preventing honest debate.

South Africa already has broadly framed laws which aim to prevent people from making offensive statements. Our Equality Act brings hurtful speech under its ambit.

Although the provisions in the Equality Act are arguably much too wide, the remedies in the Act aim to effect reconciliation. Parties who violate the Equality Act might be required to apologise, pay damages or to take steps to stop the discrimination.

The Economic Freedom Fighters’ Julius Malema violated the Equality Act when he responded to allegations of rape against Jacob Zuma by saying: “When a woman didn’t enjoy it, she leaves early in the morning. Those who had a nice time will wait until the sun comes out, requests breakfast and taxi money.

“In the morning that lady requested breakfast and taxi money. You don’t ask for taxi money from somebody who raped you.”

He was required to apologise and pay an amount of R50 000 to People Opposing Women Abuse (Powa). The new Hate Speech Bill would be much more far-reaching as it aims to visit offensive speech with criminal consequences. 

Israeli gay rights activists responded to Rabbi Amar’s statements by draping a gay pride flag outside his office.

Ordinary women question and resist prejudicial statements by rabbis every day. Orthodox practice is constantly changing in response to multiple challenges.

In the South African context these rabbinical statements wouldn’t create a risk of physical violence. Criminal law has almost no prospect of shifting the attitudes of religious leaders and it seems counterproductive to silence their voices.

Victoria Bronstein is professor at the School of Law, University of the Witwatersrand.