Sending these WhatsApp messages could now land you in jail in South Africa

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Sending these WhatsApp messages could now land you in jail in South Africa

Sending hate speech over WhatsApp or social media can now result in jail time and a fine after President Cyril Ramaphosa signed the Preventing and Combating of Hate Crimes and Hate Speech Bill into law.

The Bill was first introduced into the National Assembly in 2018 and revived a year later after lapsing. Although two Constitutional Court judgements halted its progress, it was finally passed by parliament and sent to the President in December 2023.

The Bill states that a hate crime is an offence where the offender is encouraged by prejudice towards a victim of a crime due to specific or perceived characteristics, including race, gender, sex, religion, language, disability, HIV status and more.

Hate speech, on the other hand, is defined as the intentional publishing of anything that can incite or promote hate.

Depicting hate speech can be done in any written, illustrated, visual display, utterance, representation or reference, or electronic communication.

This means that WhatsApp messages or social media posts can be prosecuted under the new law.

“The law makes it an offence when speech material is intentionally distributed or made available in electronic communication, and the said person knows that such electronic communication constitutes hate speech,” said the Presidency.

Any person convicted of a hate speech offence will be liable to a fine or imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

That said, the hate speech laws do not apply in respect of anything done in good faith in the course of engagement in any bona fide:

artistic creativity, performance or expression;

academic or scientific inquiry;

fair and accurate reporting in the public interest or the publication of any information, commentary, advertisement or notice; or

interpretation and proselytising or espousing of any religious conviction, tenet, belief, teaching, doctrine or writings

The new law also contains directives for the training of the South African Police Service (SAPS) and the National Prosecuting Authority (NPA) to ensure sufficient processing of the new crimes.


The new legislation has not been without criticism, with political parties and religious groups raising red flags.

“It is bizarre that it will be easier to be prosecuted and jailed for the new crime of hate speech than to be sued successfully and made to give an apology or pay a fine under the Equality Act, said Michael Swain, Executive Director of Freedom of Religion South Africa (FOR SA).

Swain argued that the definition of “hate speech” is vague and ambiguous.

The new law states that someone may be prosecuted for any content that causes “emotional harm,” but he said that this is very subjective and will rely solely on the perspectives of the individual judge.

“This law was touted to punish racist expressions, but South Africa already has the common law crime of crimen injuria,” said Swain. This is the act of unlawfully, intentionally and seriously impairing the dignity of another.

“This was used effectively to sanction racist speech, as the recent cases of Penny Sparrow and Vicky Momberg made clear.”

FOR SA made one of the 200,000 written submissions during the public participation process but has argued that the government did not meaningfully engage with the public.

“We continue to hold the view that this law is unconstitutional and that the views overwhelmingly expressed during the public participation process were not properly considered.”

“We will now consider taking appropriate legal action to challenge the validity of this law.”


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