Abstract

The presidential signing of South Africa’s Prevention and Combating of Hate Speech and Hate Crimes Act 16 of 2023 in May 2024 marked the end of more than a decade of delays and uncertainty. This contribution examines some of the positive and challenging aspects of the hate crime provisions in the Act. The new law is commendable for its recognition of a wide range of victim characteristics. However, the hate crimes provisions will place an onerous burden on the South African Police Service (“SAPS”) and the National Prosecution Authority (“NPA”). As first responders, investigating officers tasked with investigating hate crimes will be required to incorporate evidence of bias into their initial statements. Furthermore, to secure convictions, prosecutors will have to prove the perpetrator’s biased motivation beyond a reasonable doubt. It is uncertain whether the police and prosecutors are currently equipped for these tasks. Further training and education will be essential for these role players to fulfil their obligations in terms of the new Act as per sections 7(1)(b)(i) and 7(2)(b)(i), which call for the training of members of SAPS and the NPA, respectively. This contribution considers these training requirements by referring to best international practices from foreign jurisdictions that enacted hate crime legislation and where police and prosecutors have undergone the requisite education and training to investigate and prosecute hate crimes. Some consideration will also be given to the victim characteristics identified in the Act, the classification of the Act in terms of existing hate crime law models and the sentencing or penalty provisions. The recommendations will also consider public awareness and educational campaigns, and the development of multidisciplinary hate crime courses at South African universities.