Simelane moots law for racist crimes

04 September 2011 - 03:13 By WERNER SWART
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The National Director of Public Prosecutions, Advocate Menzi Simelane, has called for the introduction of race crime legislation following last week's story in the Sunday Times - and called for greater policing of social network websites.

Pulling no punches, South Africa's chief prosecutor said that, in most of these incidents, black people were the "victims".

He said: "It goes without saying that until race legislation is specifically enacted, South Africa will continue to have incidences of crimes committed where racism is a major factor."

Such legislation should seek to identify "those acts which, in their commission, exhibit blatant racism or actions which society finds repugnant in their racial bias".

This must also, Simelane said, extend to people who post offensive racist material on websites and social media networks.

"It is no longer an issue for debate only. This has been exhausted. Yet the racist conduct continues. It is now time for legislation to be put in place," he said.

Simelane said it was a fact that racism was behind many crimes.

"It is also a fact that, in all or most of these crimes, black people are victims. It is also a fact that the perpetrators are mostly white men. Our courts are full of people like these."

Simelane also bemoaned the perception that the law favoured the rich.

"The perception is informed by, among others, the fact that the perpetrators have the financial means to engage legal representatives to fight their cases. This is their right, of course. But, in our context, this is seen as the system being more favourable to them on account of financial means or race."

This week the SA Human Rights Commission also called for better control mechanisms and tighter legislation to be able to find and prosecute social media users who abuse the platforms.

Spokesman Vincent Moaga said the SAHRC had consistently been urging government to act on hate crime. "We remain concerned about people abusing social networks to propagate messages of hatred. There has been many complaints where people use fictitious names that are difficult to trace and (as a result) we had to close the file," Moaga said.

The justice ministry's Tlali Tlali said yesterday proposed legislation to deal with hate crimes would make racial discrimination, xenophobia, hate speech and other acts of intolerance an offence.

He said the Department of Justice was currently finalising research into the subject, after which it would consult with stakeholders.

But he said that despite SA not having specific legislation that criminalises hate crimes, there were certain legislative measures that could be used at present. These, he said, include:

  • Section 9 of the Constitution which guarantees the right to equality and prohibits unfair discrimination, while Section 10 guarantees the right to dignity. He said the violation of these rights can be prosecuted as a common law crime of crimen injuria;
  • Section 16(2) of the Constitution excludes propaganda for war, incitement of imminent violence, and advocacy of hatred based on race, ethnicity, gender or religion;
  • Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act prohibits hate speech, and;
  • Section 17 of the Riotous Assemblies Act permits the prosecution of a person guilty of actions that could cause public violence.

In response to the picture, Tlali said that the person who posted it could face all these charges as well as civil litigation.

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