FORSA’s Ellerbeck: ANC’s proposed censorship law not about ‘Hate Speech’, but to criminalise ‘Speech’ elites ‘Hate’

After years of a slow and tortuous process, the ANC’s Hate Speech Bill is now within a few weeks of being promulgated. The Democratic Alliance has fought the proposal all the way because it says it is an attempt to criminalise dissent, rather than address something already well covered by existing laws. South Africans who agree with this the Official Opposition’s view have until Monday 22nd May to officially object, an action strongly recommended by Daniela Ellerbeck, legal advisor at Freedom of Religion South Africa. In this interview with Alec Hogg of BizNews, Ellerbeck urges citizens to comment of they will end up with a law which is a dressed up Trojan Horse which will remove important freedoms most citizens currently take for granted.

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Relevant timestamps from the interview

  • 01:04 – Daniela Ellerbeck on her interest in the ANC’s proposed Hate Speech Bill
  • 04:41 – On what legislature is currently in place to oppose harmful speech
  • 07:52 – On if the proposed bill is politically motivated
  • 10:10 – On why the ANC continues to push the bill despite public objection
  • 11:43 – On Zapiro’s “Lady Justice” cartoon and if he would be prosecuted under the proposed bill
  • 13:31 – On if the proposed bill is part of an ongoing “culture war”
  • 15:00 – On if the bill can be challenged in the constitutional court if passed
  • 18:08 – On parliament prioritising the proposed bill above more pressing issues for SA citizens
  • 19:15 – On the next steps in the bill-opposition process

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Excerpts from the interview

Daniela Ellerbeck on the opposition to the ANC’s proposed Hate Speech Bill

We’ve engaged with this bill all the way from the Department of Justice through the first House of Parliament to where it is now in the second House of Parliament, which is its last stop before it goes to the President’s desk to be signed into law. Some [are] expecting this bill to be passed by Parliament’s second House as soon as June [or] July, and to be signed into law by President Ramaphosa, perhaps even as early as August. We know that the Department of Justice has said they want this bill to be law before the 2024 elections. And as you’ve said, it sounds really, really great. I mean, who in a young democracy would be for hate speech? That is, until we started reading the bill. And you realise that the bill wants to criminalise hate speech, but it doesn’t even define what hate is. So [at this point] it’s not criminalising hate speech, [it’s] criminalising speech that people hate. 

If you open it up and you start realising, wait a moment, hate isn’t defined. The grounds for harm, which is one of the elements of the proposed crime of hate speech, are so broad that it includes speech that is emotionally hurtful. So speech that hurts feelings. It includes, for example, grounds such as anything that undermines the social cohesion of South Africa. So immediately that would threaten every form of political speech, in my mind at least.

Read more: Helen Zille on cancel culture: There’s nothing in our law or Constitution that gives people the right not to be offended

Ellerbeck on parliament prioritising the passing of the Hate Speech Bill

In spite of many people calling for the scrapping of the bill – I believe over 104 000 asked for the scrapping of the bill – instead of scrapping the bill, Parliament increased the proposed imprisonment sentence from three years to eight years, decided this bill was a really good idea and passed it through to the second House, which is now the final stop for public comments before it goes to President Ramaphosa’s desk to be signed into law. Looking at that situation, where numerous amounts of public comments were arguably not meaningfully considered by parliament, this bill was put through in spite of massive concerns with its unconstitutionality, because it arguably criminalises speech that the Constitution says the state needs to protect, and the fact that the Department of Justice has said they want this bill through before the 2024 elections and the fact that the bill is unnecessary, one can argue that there’s definitely something afoot here.

Read more: The paradox of cancel culture: A feature of free expression or a threat to it?

On the next steps in opposition to the bill

The public still has until [13:00 on] Monday the 22nd [of May] to make public comments to Parliament’s second House. As I’ve said, this bill started in the Department of Justice, and then it made its way through to Parliament’s first House and it’s now in the second House, which is the last stop before it goes to be signed into law by President Ramaphosa. And at each stop the public gets a chance to have their say because we live in a democracy. So we get a chance to have a say in laws that are made. So please, just because you have commented before, when this book was in front of the Department of Justice or Parliament’s first House, doesn’t mean you don’t need to comment again. The second House isn’t going to consider any of those comments. You need to comment to them specifically.

So FORSA is trying to make this really easy. We have made template submissions for people, which if they go to our website at they can download for either organisations or individuals. It downloads onto your laptop as a word Word file so you can edit it as you deem fit and email it off. Or you can go to Dear SA ( to make a comment as well. So have your say because all of this helps if one day this bill does need to be constitutionally challenged.

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