The Shaping , Enactment and Interpretation of the First Hate-Crime Law in the United Kingdom-An Informative and Illustrative Lesson for South Africa *

Hate crimes are crimes that are motivated by personal prejudice or bias. Hate-crime laws criminalise such conduct and allow for the imposition of aggravated penalties on convicted perpetrators. This article examines the historical, social and political factors which influenced the shaping and enactment of the first British hate-crime law. The South African context is also considered since the Department of Justice has recently released the Prevention and Combatting of Hate Crimes and Hate Speech Bill for public commentary and input. While Britain has had a long historical record of criminal conduct that was motivated by the race and the ethnicity of victims, it was only in the twentieth century that civil society first drew attention to the problem of violent racist crimes. Nevertheless, successive British governments denied the problem of racist crimes and refused to consider the enactment of a hate-crime law. Following a high-profile racist murder and a governmental inquiry, a British Labour Party-led government eventually honoured its preelection commitment and passed a hate-crime law in 1998. Some parallels are apparent between the British and the South African contexts. South Africa also has a long historical record of racially motivated hate crimes. Moreover, in the postapartheid era there have been numerous reports of racist hate crimes and hate crimes against Black lesbian women and Black foreigners. Despite several appeals from the academic and nongovernmental sectors for the enactment of a hate-crime law, and the circulation for public commentary of the Prevention and Combating of Hate Crimes and Hate Speech Bill, such a law has hitherto not been enacted in South Africa. This article posits that the enactment of a hate-crime law is a constitutional imperative in South Africa in terms of the right to equality and the right to freedom and security of the person. While the enactment of a hate-crime law in South Africa is recommended, it is conceded that enacting a hate-crime law will not eradicate criminal conduct motivated by prejudice and bias.


Debunking a British myth
The British have historically been portrayed as a peaceful, tolerant and fair nation. 7Waters 8 refers to a widespread "fiction" which captured the popular British imagination in the 1930's and 1940's at a time of increasing European Fascism and writes: The Britons were reinvented as members of an essentially unassuming nation ... a quiet, private and ordinary people, defined by their modesty, kindness to others, loyalty, truthfulness, straightforwardness and simplicity.
However, this myth is shattered by the historical accounts of foreign peoples, both light and dark-skinned, who have arrived in Britain since time 5 See, for example, the hate-crime law that was passed in France in 2003 that is commonly referred to as La loi no 2003-88 du 3 février 2003.6   The term "British" presently refers to the inhabitants of England, Wales, Northern Ireland and Scotland, who could belong to different racial groups.In the historical examples of hate crimes that are referred to in this submission, however, the terms "British" and "Britons" refers to White persons.It should also be noted that most of the historical literature refers to the perpetration of hate crimes in England.Several writers have alluded to a myth of British fairness, tolerance, and nonviolence.See for example Panayi "Anti-Immigrant Riots in Nineteenth and Twentieth-Century Britain" 1-2; Lawrence 2003 J Mod Hist 559 refers to a "myth of British peaceableness"; Jackson 1998 Geography 203 writes of a "British notion of fair-play"; Waters 1997 J Br Stud 238 refers to a "myth of British tolerance".immemorial and who have been subjected to discrimination and violent conduct that would presently be considered as hate crimes. 9The post-Second World War period is significant since this is when Britain became a veritable multiracial and multicultural society.

Post-Second World War Britain
Of significance in the period after the Second World War were several anti-Semitic riots which erupted in 1947 in the cities of Manchester and Liverpool when Jews 10 and Jewish-owned businesses were targeted for acts of violence and vandalism. 11During the post-Second World War period British colonial subjects from the Caribbean, India, Pakistan and Africa immigrated to Britain en masse. 12Most of the early immigrants were people of colour who contributed to a diverse British society in which sporadic incidents of racially and ethnically-motivated hate crimes have occurred. 13Bowling 14 has chronicled the violent London and Nottingham race riots against Jamaicans and Asians in 1958. 15There were also several subsequent outbreaks of racist violence against Asians, who were referred to by the 9 See for example Panayi "Anti-Immigrant Riots in Nineteenth and Twentieth Century Britain" 5 and Bowling Violent Racism 24 for some of the historical accounts of British hostility towards Jews which included a massacre of 30 Jews in London in the 12 th century.Also see: Brearly "Persecution of Gypsies in Europe" 354-355 for the historical accounts of how Gypsies or "Travellers" were persecuted and punished in England.Also refer to Fryer Staying Power 8-18 and Hiro Black British, White British 4 for a history of Blacks in Britain.It should be noted that the term "Black" is used in a narrow sense in this article to refer to persons of African origin.Despite a prohibition on slavery in Britain, Blacks were employed as household slaves and were subjected to corporal punishment until the 19 th century.In the 20 th century, a "colour bar" was in effect throughout Britain from the period of the First World War to the 1950s.The "colour bar" referred to a socially sanctioned form of discrimination in terms of which non-white persons were refused admission to hotels, restaurants, boarding houses, public houses, dance halls and public swimming pools.See further While nine White youths were charged with inciting the 1958 riots and received sentences of four years each for their role, the official government response was that the riots were not caused by racists, but were caused by hooligans who had no respect for law and order.See Bowling Violent Racism 32.It should be noted that reference to "Asians" in this submission is to persons whose origins lie in the Indian sub-continent, which includes India, Pakistan and Bangladesh.
derogatory term "Pakis". 16The post-Second World War period is also significant since Blacks and Asians, as opposed to Jews, became the targets of white-British hostility and violence. 17

The enactment of an anti-discrimination law
Despite the enactment of the Race Relations Act in 1965 18 , hate crimes, and in particular crimes motivated by race and ethnicity, were still not recognised as a specific category of criminal conduct in Britain.However, British judges had some discretion to consider a racist motivation as an aggravating factor at sentencing. 19In several cases, the British Court of Appeal alluded to the importance of considering a "racial element" as an aggravating factor at sentencing in crimes of violence. 20

Racial violence from the 1970s to the 1980s
Bowling 21 attributes the increase in racial violence in Britain in the early 1970s to the moral panic on immigration that had been caused by Enoch Powell, a Conservative member of parliament, the influence of the Skinheads 22 and the growth of the National Front, an openly racist and fascist British political party whose literature espoused anti-Semitism, antimiscegenation and the possible loss of White British identity. 23 several London schools.A racial motive was presumed in almost all the cases of murder, since the victims had not been robbed. 25 the absence of any official commitment from the British government to address the issue of violent racist crimes until the early 1980s, several community organisations led mass campaigns against racist crimes. 26After meeting with several anti-racist organisations, the British Home Office announced in February 1981 that it would launch an inquiry into racist organisations and racist crimes and would consider the possibility of establishing special police units to deal with racist crimes. 27The report commissioned by the Home Office in 1981 into racist organisations and racist crimes focussed on areas in Britain with high concentrations of immigrants and on incidents against persons and property where there was some indication of a racist motive. 28Released in late 1981, the report established that ethnic-minority communities 29 lacked confidence in the police, that they were subjected to police harassment, that the police were unresponsive to their needs, that White suspects were often released with a mere warning, and that the police underestimated the seriousness of violent racist crimes. 30The report also found that Asians were 50 times more likely than Whites to be the victims of racist crimes and that Blacks were 36 times more likely than Whites to be the victims of racist crimes. 31The publication of this report resulted in several positive outcomes.From 1986 the police began to recognise the problem of violent racist crimes and began recording incidents of a racist nature. 32According to Gadd, 33  There is a trend in some British literature to refer to all communities with foreign origins as "ethnic minority communities" or "ethnic minority groups".It should be noted, however, that the description "ethnic minority" could transcend skin colour since it could refer to White minority groups in Britain with foreign origins.Office report marked the official endorsement of more comprehensive research by the Home Office on racially-motivated violence.The issue of racial violence was also accorded priority by a number of government bodies including the Metropolitan Police, the Association of Chiefs of Police, the Home Office and the House of Commons. 34The reality, however, was that most rank and file police officers were reluctant to ascribe a racist motive to crimes, and considered lower-level, less violent racist crimes as unworthy of investigation. 35A significant legal development in the 1980s was the reformation of the offence of incitement to racial hatred 36 and its inclusion in the new Public Order Act of 1986. 37A two-year period of imprisonment or a fine could be imposed for a conviction of incitement to racial hatred. 38

The murder of Stephen Lawrence
Despite the increased public awareness of racially-motivated crimes after the publication of the 1981 Home Office report on racist violence, the British government was still reluctant to introduce a specific crime of racial violence, or a law that was comparable to an American hate-crime law.In 1994 the Home Secretary rejected calls by the Home Affairs Committee to introduce a hate-crime law since he was of the view that all violent crimes, irrespective of motivation, could be adequately addressed by the existing criminal law. 39e 1993 murder of Stephen Lawrence led to significant changes in official attitudes towards racist violence.On April 22, 1993 Stephen Lawrence, an 18-year old Black teenager, was accosted by a group of five White youths who directed racist insults at him and stabbed him twice. 40The attackers fled the scene and Lawrence died a short while later. 41The subsequent police investigation of Lawrence's murder has been described as flawed and incompetent. 42The police were aware that the five identified suspects had a history of racist violence in the area 43 but postponed surveillance of the five youths for two days. 44Moreover, the Stephen-Lawrence murder was not identified as a racially-motivated crime. 45ile the perpetrators of Stephen Lawrence's murder were never convicted despite a five-year investigation, the persistence of the victim's parents, the considerable media coverage and political support eventually resulted in a government decision in 1998 to hold a public inquiry into the murder, headed by Lord Macpherson. 46The most significant finding of the Macpherson Report was that institutional racism existed in the Metropolitan Police and in most British police departments. 47The report also recommended that the recording and investigation of racist crimes should be improved. 48The report further recommended that all government agencies across the criminal-justice system should adopt the same approach to racist crimes and that all role players in the criminal justice system should undergo antiracism and diversity-awareness training. 49

The enactment of the Crime and Disorder Act of 1998 and its interpretation by British courts
One of the commitments of the British Labour Party in its 1998 election manifesto was that it would ensure the passing of a new law to criminalise racially-motivated violence and harassment. 50The impetus for such legislation had come from the increase in racist incidents which had been reported to police since the 1980s and an increase in anti-Semitic incidents that were reported to the Board of Deputies of British Jews. 51Shortly after coming to power in 1998, the new labour government passed the Crime and Disorder Act. 52The Crime and Disorder Act of 1998 53 creates several "racially-aggravated" crimes and allows for enhanced sentences to be imposed for convictions of racially-aggravated crimes. 54The crimes that are capable of racial aggravation are assault, criminal damage, public-order offences and harassment. 55The racially-aggravated crimes in the Crime and Disorder Act were the first time that crimes in Britain were specifically characterised by a racist motive. 56According to Taylor, 57 the raciallyaggravated crimes are "all parasitical on existing offences ... but with the added ingredient of racial aggravation".The Crime and Disorder Act thus subjects a select group of crimes to enhanced penalties provided that these crimes were motivated by "racial hostility" as set out in the Act. 58A "racial group" in this act includes race, colour, nationality and the ethnic or national origin of the victim. 59 practice, many of the cases that have been prosecuted under the Crime and Disorder Act have involved the crime of racially-aggravated harassment. 60In the case of R v Jacobs 61 the White defendant had told an Asian policewoman who was attempting to conduct a search: "I don't want you (sic) ... filthy Paki hands on me!"The defendant continued to verbally abuse the policewoman.The Court of Appeal confirmed her conviction for racially-aggravated harassment and held that although the defendant had not actively gone out looking to victimise another person, it was the duty of the court to protect police officers on duty and in particular Asian police officers who should not be spoken to in such a manner. 62In R v White 63 the defendant had referred to an African female bus conductor as an "African bitch". 64He was convicted of racially-aggravated harassment.In DPP v Woods 65 the defendant was convicted of racially-aggravated harassment for referring to the doorman of a nightclub as a "black bastard".In the case of DPP v Pal 66 the court was faced with a man of Asian appearance who had been verbally abused by the defendant, who was also Asian and had called him, inter alia, "a Brown Englishman".However, the court found that the state had not shown that the racial hostility was materially based on the victim's ethnicity and thus found that the offence was not shown to be racially aggravated.
In Johnson v DPP 67 the court recognised the principle that the raciallyaggravated offences in the Crime and Disorder Act may be committed by minority ethnic-group members against members of the majority White population.In this case, a Black man had verbally threatened two White parking-lot attendants and told them to return to a "White area".His conduct was held to be sufficient to convict him of a racially-aggravated public order offence.The court held that reference to the skin colour of the parking-lot attendants constituted racial hostility.
While the cases prosecuted under the Crime and Disorder Act that have been referred to above would seem to suggest that hate crimes in Britain most often involve racist verbal abuse and are thus not serious crimes, a 2010 study published by the London-based Institute of Race Relations suggests otherwise. 68The study by the Institute of Race Relations found that between 1993, the year in which Stephen Lawrence was murdered, and 2009, "89 people lost their lives to racial violence". 69In more than half the incidents, young White men had attacked and killed Asians, Blacks and people of colour in "random acts of unprovoked violence".The victims were often taxi drivers, workers at takeaway food outlets, and shop workers who worked alone at night and were therefore more susceptible to violence. 70ne shortcoming of the Institute of Race Relations study is that case citations of the prosecutions are not included. 71However, from the study's reference to the imposition of aggravated penalties in the discussion of some of the cases, it is possible to gauge that the convicted perpetrators were sentenced in terms of the Crime and Disorder Act. 72 with an axe by a racist gang of Whites in Merseyside in July 2005. 73The murder was recorded as a racially-motivated crime by the police.In December 2005 Paul Taylor pleaded guilty to the murder and was sentenced to a 25-year period of imprisonment.His accomplice, Michael Barton, a teenager, was sentenced to an 18-year period of imprisonment.
In another case referred to in the study, Mohammed Pervaiz, an Asian taxi driver, died from head injuries following a racially-motivated attack. 74At the January 2007 trial of the four teenagers who were charged with Pervaiz's murder, the court found that the perpetrators had planned the attack and had used racist language.Two of the perpetrators, who the court established were the ringleaders of the attack, were found guilty of raciallyaggravated murder and sentenced to periods of 25 and 21 years of imprisonment.The Institute of Race Relations study also found that British police had improved their handling and investigation of racist murders. 75

Britain: preliminary conclusions
Within the British context, several ethnic-minority community organisations first raised the issue of the problem of racial violence.This led to greater public awareness of racially-motivated crimes and to the 1981 Home Office report on Racial Attacks.The high profile racially-motivated murder of Stephen Lawrence in 1993 and the subsequent Macpherson Report may be considered as the catalysts for the enactment of the Crime and Disorder Act.However, it was the British Labour Party which fulfilled its pre-election commitment to ensure the passing of a hate-crime law. 3 South Africa

Background
South Africa has a long historical record of racially-motivated crimes, which includes crimes against indigenous peoples, 77 slavery 78 and the policy of apartheid, which was explicitly based on race. 79Apart from institutionalising racial segregation 80 and denying the most basic human rights to the majority of the population, the apartheid policy also prevented meaningful interracial relationships and socialising between the races and perpetuated a colonial system of tribalism between African peoples. 81It is submitted that the perpetration of hate crimes in South Africa more than twenty years after the birth of democracy could be regarded as a vestige of the system of apartheid.
In the post-apartheid era, there have been sporadic reports of crimes that have been motivated by race. 82However, the perpetration of hate crimes against Black-lesbian women 83  South Africa prompted calls from the academic and non-governmental sectors for the enactment of a hate-crime law. 85The perpetration of such conduct has also contributed to the formation of the South African Hate Crimes Working Group in 2009. 86The Hate Crimes Working Group has made several submissions to the South African Department of Justice and numerous public calls recommending the enactment of a hate-crime law in South Africa. 87In 2013 a National Task Team consisting of government departments, chapter 9 institutions 88 and civil-society organisations was established by Jeff Radebe, the former Minister of Justice, in order to address the issue of hate crimes in South Africa. 89After intensive research and consultation the National Task Team formulated a draft policy document entitled "Combatting Hate Crimes, Hate Speech and Unfair Discrimination". 90After the Draft Policy had been presented to government in 2014 the cabinet decided that a debate on hate crime had the potential to cause further racial divisions in South Africa and refused to consider the Draft Policy. 91

Recent developments which have contributed to further delays in the consideration of a hate crime law
The consideration of a hate-crime law was further delayed because of a recent public debate on hate speech 92 and the government's publicised intention to include hate-speech provisions 93 in a future hate-crime law. 94In 2016 the government and the Hate Crimes Working Group reconsidered and amended the Draft Policy to include hate speech provisions. 95The amended Draft Policy which, since late 2016, is referred to as the Prevention and Combating of Hate Crimes and Hate Speech Bill 96 has since late 2016 been subjected to a process of broad public consultation. 97The Hate Crimes Bill provides that any existing offence may be regarded as a hate crime 98 when it is motivated by one of the recognised victim characteristics. 99 date, therefore, a hate-crime law has not been passed in South Africa.While hate crimes are not recognised in South-African criminal law, criminal conduct that is motivated by bias or prejudice towards the personal characteristics of a victim could still be prosecuted in terms of the existing common-law or statutory crimes. 100If for example an accused has committed a racially-motivated murder, he/she could still be charged with the common-law crime of murder.In cases where a perpetrator has violated the dignity of his victim by using derogatory terms or racial epithets, courts could prosecute and convict such a perpetrator of the common-law crime of crimen iniuria. 101An accused who has committed the crime of rape that was Section 3(1) of the Hate Crimes Bill contains an extensive list of victim characteristics that includes, inter alia, race, ethnicity and sexual orientation.Given the long history of racial discrimination in South Africa there can be no doubt about the inclusion of race as a victim characteristic in the Hate Crimes Bill.The inclusion of albinism as a victim characteristic is laudable in the light of the fact that several South Africans living with albinism have fallen victim to crimes of violence.Similarly, the inclusion of a victim's HIV status as a victim characteristic is commendable in the light of the fact that several HIV-positive South Africans have been victimised because of their HIV status. 100 In other words, specific crimes that are motivated by bias or prejudice towards personal victim characteristics are not recognised in South African criminal law.

101
The crime of crimen iniuria was referred to earlier in a case in which a White employer referred to his Black domestic worker as a "kaffir" (refer to fn 83 above).

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PER / PELJ 2017 (20) 15 motivated by the sexual orientation of the victim could be charged with the statutory crime of rape. 102The bias motivation of the perpetrators of these crimes may be considered as an aggravating factor at sentencing. 103art from an ostensible lack of political will to enact a hate-crime law in South Africa, the recent South-African debate on hate speech has also diverted some attention away from the issue of hate crimes. 104evertheless, it is the writer's submission that there are compelling constitutional reasons for the enactment of a hate-crime law in South Africa.

The enactment of a South African hate-crime law: a constitutional imperative
Within the American context 105 hate crimes are said to violate the right to equality, which protects the most cherished ideal in American society. 106quality is therefore the main prudential reason for the enactment federal hate-crime legislation in the United States of America.Delgado 107 believes that if the law does not specifically take cognisance of racist crimes and racist violence, minority groups become demoralised, since they receive a message that equality is not a fundamental principle.It is submitted that Delgado's argument could be extended to the perpetration of crimes, particularly violent crimes that are motivated by the sexual orientation, the ethnicity and other personal characteristics of the victims.
Crimen iniuria is defined as "… the unlawful, intentional and serious violation of the dignity or the privacy of another".See: Snyman Criminal Law 461.
See Mollema and Van der Bijl 2014 Obiter 672.However, the consideration of a perpetrator's motive as an aggravating factor at sentencing is left to the discretion of the sentencing officer.See for example the case of S v Matela 1994 1 SACR 236 (A), where the racial motivation of the accused on a charge of murder was considered as an aggravating factor at sentencing.

104
It is submitted that some confusion presently exists in South Africa between the terms "hate speech" and "hate crime".While the hate-speech provisions in the Promotion of Equality Act could apply, inter alia, to the dissemination and publication of racist words and expressions, they would neither apply to a racially-motivated murder nor to a rape that was motivated by the sexual orientation of the victim.The hate-speech provisions of the Draft Hate Crimes Bill are therefore not considered in this submission.
105 While this section focuses on South Africa, as has been stated in the introduction (refer to fn 4 above), reference to the American context and to American literature is unavoidable, particularly on the subject of the constitutionality of hate-crime legislation.It is therefore necessary to use the American context as a point of departure and as a point of comparison.
106 Lawrence 1998-2000 Nat'l Black LJ 164.Lawrence regards equality as one of the most important ideals in the USA since racial inequality was the catalyst for the American Civil War and the Civil-Rights Movement.In the light of the constitutional commitment to equality in South Africa, the non-recognition of hate crimes is lamentable. 108South Africa has an oppressive history which was based on racial, ethnic and gender inequality.It could therefore be argued that the right to equality protects a sacrosanct ideal in South Africa.It could further be argued that the state's failure to specifically criminalise conduct motivated by race, ethnicity, sexual orientation and personal victim characteristics could demoralise certain victim groups and that these victim groups would be unable to achieve their full potential in society.This would negatively impact on their self-worth, their self-esteem and ultimately on their dignity. 109Since dignity is a founding value of the South African Constitution 110 and a value that has informed the equality jurisprudence of the South-African Constitutional Court, 111 the enactment of a hate-crime law in South Africa should be regarded as a constitutional imperative in terms of the value of dignity and the right to equality.
The enactment of a hate-crime law should also be regarded as a constitutional imperative in terms of section 12(1)(c) of the South African Constitution, which provides: Everyone has the right to freedom and security of the person which includes the right ... to be free from all forms of violence, from either public or private sources.
Since the perpetration of violent crimes against the individual is a serious violation of personal security, it has been suggested that the state has a duty under section 12(1)( on the state to protect individuals from violence should not be extensively interpreted to include the protection of individuals from acts of racial, ethnic, and homophobic violence.This constitutional duty could be fulfilled to some extent by the enactment of a hate-crime law.

Conclusion and recommendations
Apart from South Africa's long historical record of racially-motivated crimes, in the post-apartheid period there have been reports of crimes motivated by the race, the ethnicity and the sexual orientation of victims.In this regard there are some similarities between South Africa and Britain, which also has an established historical record of crimes that were motivated by the race and the ethnicity of the victim.The efforts of the non-governmental sector in South Africa to raise awareness of hate crimes and its numerous calls to government to enact a hate-crime law are indeed laudable.Similarly, the non-governmental sector in Britain can also be commended for first raising public awareness of racist violence and racist crimes.It is lamentable that the South-African government has procrastinated with regard to the enactment of a hate-crime law, since compelling constitutional reasons were identified in this submission in terms of which the enactment of a hatecrime law in South Africa is a constitutional imperative.While no such constitutional obligation existed in Britain, successive British governments also ignored calls to introduce a hate-crime law.However, the British Labour Party eventually honoured its commitment to ensure the passing of such a law upon winning the national election in 1998.It must be conceded, however, that in the light of the fact that the Hate-Crimes Bill has been subjected to a process of public consultation the enactment of a hate-crime law in South Africa is quite likely.
The enactment of a hate-crime law in South Africa is therefore recommended in order that South Africa may fulfil its constitutional obligations.
It is recommended that a South African hate-crime law should criminalise conduct, particularly violent conduct that is motivated by the race, the ethnicity, the sexual orientation and other personal characteristics of the victim.In most of the post-apartheid accounts of hate crimes, the perpetrators have committed the crimes of murder, rape, robbery, assault, and damage to property. 113These are some of the violent crimes that should be subjected to enhanced penalties when they have been motivated by 113 Refer to para 3.1 above.

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PER / PELJ 2017 (20) 18 prejudice or bias towards personal victim characteristics. 114In this regard the British example is informative, since section 28 of the Crime and Disorder Act of 1998 allows for the most commonly reported hate crimes to be subjected to enhanced penalties.
While this submission has referred to hate crimes in South Africa that were motivated by race, ethnicity and sexual orientation, as has been mentioned above, the list of victim characteristics in the Hate Crimes Bill is extensive and includes all the grounds of discrimination that are to be found in section 9(3) of the Constitution of the Republic of South Africa, 1996 and several new grounds or victim characteristics such as albinism and HIV status. 115 is not the writer's contention that a hate-crime law will eradicate hate crimes in South Africa. 116However, the criminalisation of conduct motivated by personal prejudice and bigotry and the subjection of such conduct to enhanced penalties could be regarded as the ultimate means of denouncing abhorrent conduct. 117It is submitted that the imposition of enhanced or aggravated penalties on convicted hate crimes perpetrators is a reflection of a democratic society's denunciation of conduct motivated by bias or prejudice towards personal victim characteristics.Moreover, as has been explained earlier in this submission, if a racially-motivated crime has been committed, South-African criminal law presently allows for the perpetrator's racist bias motivation to be taken into consideration as an aggravating factor at sentencing.This is left, however, to the discretion of the sentencing 114 While the crimes of murder, rape, assault and robbery are presently subject to the minimum-sentence provisions of the Criminal Law Amendment Act 105 of 1997, as amended, this statute does not contain any provision which would compel a sentencing officer to consider the bias motivation of a hate-crime perpetrator (for example, a bias motivation based on the race or the sexual orientation of the victim) as an aggravating factor at sentencing.officer.According to Malik, 118 it is an insufficient denunciation of racist conduct to simply regard a bias motivation, and particularly a racist bias motivation, as an aggravating factor that is left to the discretion of a sentencing officer.He therefore suggests that it is necessary to create specific racially-motivated crimes.It is submitted that Malik's argument could also be extended to crimes that are motivated by the sexual orientation, the ethnicity and other personal characteristics of victims.
Hate-crime laws are therefore regarded as highly symbolic laws. 119The enactment of a hate-crime law in South Africa would also resonate with the approach to hate crimes that has been adopted in Britain and in a number of other western democracies. 7
The actual crime of harassment, however, is to be found in the Protection from Harassment Act of 1997, which creates offences relating to stalking and putting people in fear of violence.According to the definition of harassment in s 1 of the Protection from Harassment Act, 1997, "a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment".It has to be shown that the defendant had undertaken a "course of conduct" which led the victim to fear that violence would be used against him.See Herring Criminal Law 356.However, the fear of violence requirement neither requires "imminence" nor the need to show that a psychological injury was inflicted.See Ashworth and Horder Principles of Criminal Law 328.
55Sections 29-32 of the Crime and Disorder Act.According to parliamentary debates on the Crime and Disorder Act, 1998, these crimes were specifically chosen because they represented the most frequently reported racist crimes.56 See Walters 2006 UTSLR 67.57 See Taylor date unknown http://www.ucian.ac.uk/research/environment/projects/ assets/Racial_Aggravation_final_paper.pdf.58 It should be noted that s 82 of the Crime and Disorder Act enables a court to consider an accused's hostile motives as an aggravating factor at sentencing for any offence not listed in the Act.59 Iganski Hate Debate 3. 60 The crime of "racially aggravated harassment" is created by s 32 of the Crime and Disorder Act.63 R v White [2001] EWCA Cri 216, 1 WLR 1352, CA. 64 In hoc casu, both the defendant and the victim were Africans.65 DPP v Woods (2002) EWHC 85.
Reference is made to the murder of Anthony Walker, a Black teenager who was killed Bourne and Wood Racial Violence 3.According to the findings of the study, political parties in Britain deny the seriousness of racial violence in the United Kingdom.
66 DPP v Pal [2000] Crim LR 756.67 Johnson v DPP [2008] EWHC 509 (Admin).68 Athwal, Bourne and Wood Racial Violence 3-6.69 Athwal, 72 Under s 82 of the Crime and Disorder Act, a racist motive can serve as an aggravating factor in the prosecution of any offence not listed in the Act.
and Black foreigners 84 in post-apartheid Obiter 243-250 for the accounts of "corrective rape" that have been perpetrated against Black lesbian women."Corrective rapes" refer to rapes in which lesbian women are specifically targeted by heterosexual men in order to change or correct the sexual orientation of the victims.It is impossible to quantify the number of "corrective rapes" in South Africa due to a culture of non-reporting.Moreover, Naidoo and Karels estimate that at least ten Black lesbian women were murdered in South Africa between 2006 and 2009.
77 See Adhikari Anatomy of a South African Genocide 39-44 and Matthias 1980 Paideuma 123-128, which refers to the genocide of the Khoi and San peoples in the Cape from the 16 th century onwards.78SeeWorden2007 Kronos 15-17 for a discussion of some of the types of punishment that were imposed on Cape slaves, who were mostly Asians and Africans.79Apartheidwasdeclared a crime against humanity by the General Assembly of the United Nations in 1973.See:the International Convention on the Suppression and Punishment of the Crime of Apartheid (1973).80Theclassification of South Africans into races predates the commencement of the apartheid-era in the late 1940's.However, until the apartheid era there were no real legislative efforts to define race groups.See Posel 2001 Afr Stud Rev 88-90.81MangcuSundayTimes 21.82See Naidoo Historical and Comparative Legal Study 486-487for some of the accounts of racist crimes in the post-apartheid period.For example, in 2001 four White teenagers, referred to as the "Waterkloof Four", were convicted of murder after they had killed a homeless Black man.In 2015 Andre van Deventer assaulted his Black domestic helper and called her a "kaffir".He was convicted of assault and crimen iniuria.83 See Naidoo and Karels 2012a Constitution of the Republic of South Africa, 1996 in order to strengthen democracy.They include the Office of the Public Protector, the Human Rights Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and the Commission for Gender Equality.
http://www.timeslive.co.za/thetimes/2015/04/15/flames-of-hate.It is the writer's submission that Black foreigners are specifically targeted by Black South Africans because of their ethnicity.85 See further Breen and Nel 2011 SA Crime Quarterly 33; Naidoo and Karels 2012b Obiter 624; Mollema and Van der Bijl 2014 Obiter 679; Harris 2004 http://www.csvr.org.za/docs/racism/arrangingprejudic.pdf.86 The Hate Crimes Working Group is a multi-sectoral civil-society organisation which focuses on gender-based violence against the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, xenophobic hate crimes and hate crimes motivated by race, religion and disability.Several civil-society organisations and nongovernmental organisations are members of this organisation.See Hate Crimes Working Group http://hcwg.org.za/about/.87 See Nosarka The Citizen 4. 88 Chapter 9 institutions were established in terms of ch 9 of the This is extremely wide.In the British Crime and Disorder Act of 1998, only a select number of crimes may be regarded as hate crimes when a bias motivation is present.Refer to fn 55 and 56 above.
93Hate speech is presently prohibited by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter referred to as the Promotion of Equality Act).S 10(1) of the Promotion of Equality Act provides: "No person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred".S 21 of the Promotion of Equality Act provides a civil remedy for hate speech in the form of damages.94 See Peterson The Star 4. The government intends criminalising hate speech and subjecting those found guilty of hate speech to a harsher criminal sanction.95 Jeffrey 2016 http://www.justice.gov.za/m_speeches/2016/20160330_HateCrime.96 And hereinafter referred to as the Hate Crimes Bill.97 Jeffrey 2016 http://www.justice.gov.za/m_speeches/2016/20160330_HateCrime.98 Refer to s 3(1) of the Hate Crimes Bill.
c) of the South African Constitution to protect individuals by restraining itself and by restraining private individuals from violating personal security.112Therearenocompellingreasonswhythe duty108The right to equality is enshrined in s 9 of the Constitution of the Republic of South Africa, 1996.Equality is also recognised in s 1(a) of the Constitution as one of the values upon which the Republic of South Africa is founded.arguedthathate-crimevictims suffer more psychological, emotional and traumatic effects than the victims of crimes that are not motivated by personal prejudice or bias.SeeLevin 1992-1993 Stan L & Pol'y Rev 167-168 and  Scotting 2000-2001Akron L Rev 862.Moreover, according to Lawrence Punishing Hate 150, hate-crime victims are attacked for personal and often unchangeable reasons.They cannot change their race, ethnicity or sexual orientation in order to avoid future victimisation.Constitution of the Republic of SouthAfrica, 1996.
109 Several authors have 110 See s 1(a) of the The present Hate Crimes Bill allows for any offence to be regarded as a hate crime when a bias motivation is present.According to the Hate Crimes Bill, once convicted of a hate crime, if the provisions of the Criminal Law Amendment Act 105 of 1997, as amended are inapplicable and if the victim has suffered damage to or loss of property and money, physical or other injury or loss of income and support, then these factors can be considered as aggravating factors when sentencing the hate-crime perpetrator (refer to s 6 of the Hate Crimes Bill)./www.justice.gov.za/m_speeches/2016/20160330_HateCrime.The Hate Crimes Bill therefore recognises more victim characteristics than the British Crime and Disorder Act of 1998.116 See for example, Gerstenfeld Hate Crimes 25-26, which expresses some doubts about the deterrent effects of hate-crime laws.Moreover, despite the existence of several hate crime laws in Britain, since a referendum in June 2016 in which most Britons voted in favour of Britain leaving the European Union there has been an increase in xenophobic and anti-Muslim hate crimes.See Dewan 2016 http://edition.cnn.com/2016/07/08/europe/brexit-britain-hate-crime.