Manfred Van H. - South Africa

South Africa

Blasphemy is a common law offence in South Africa, defined as "unlawfully, intentionally and publicly acting contemptuously towards God." Several legal writers have suggested that the criminalization of blasphemy has become unconstitutional as a result of the adoption in 1994 of the Bill of Rights, which includes the right to freedom of expression. It has also been suggested that it is unconstitutional because the criminal prohibition only applies to blasphemy against Christianity, and therefore discriminates on the basis of religion. No prosecutions for blasphemy have been reported since the adoption of the Bill of Rights.

Blasphemy prosecutions have been rare since the start of the twentieth century, to the point that writers in the early part of the century suggested that the crime had been abrogated through disuse. However, in 1934 a newspaper editor was convicted of blasphemy for publishing a story in which a nun has a vision of a sexual relationship with Jesus Christ, and the validity of the conviction was affirmed by the Appellate Division. In 1962 Harold Rubin was prosecuted for a painting depicting Christ naked on the cross along with inversions of Biblical sayings, but he was acquitted. In 1968 the editor of Varsity was prosecuted for publishing a report of a symposium on the topic "Is God Dead?", which quoted statements that "We must write God off entirely" and " is beginning to stink". He was convicted, but at sentencing received only a caution and discharge.

The Promotion of Equality and Prevention of Unfair Discrimination Act forbids hate speech, which is defined as "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." The "prohibited grounds" include religion, and thus some blasphemous speech falls within the scope of hate speech. The prohibition of hate speech is, however, not a criminal prohibition, and only civil penalties would result.