SOUTH AFRICA’S PROPOSED ‘PEPUDA’ AMENDMENT BILL RAISES CONCERNS
By Katelin Coetzee
South Africa’s Department of Justice and Constitutional Development (DOJ) recently published the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (known as PEPUDA, or the “Equality Act”) Amendment Bill, for public comment. PEPUDA was legislated in 2000 to give effect to section 9 of South Africa’s Constitution, addressing these matters (including hate speech and harassment). The Amendment Bill seeks to address the weaknesses of PEPUDA after it was recently reviewed.
While the Government’s dual objective of promoting equality and preventing unfair discrimination may be well-intended, how the proposed amendments aim to achieve this purpose has been widely criticised by multiple sectors of society.
Proposed changes and legal concerns raised
Among the many changes, some amendments that are the most controversial relate to the redefinitions proposed in the first part of the Bill.
According to the DOJ, clauses 1 to 3 of the first part of the Bill aims to improve the protection of complainants against discrimination by broadening and amending the scope of the definitions of:
- ‘equality’ by indicating that it includes equal rights and access to resources, opportunities, benefits, and advantages; and
- ‘discrimination’ by indicating that intention to discriminate is not required. It is the effect that matters, and this makes it easier for complainants to make out a case of discrimination.
The Bill proposes that two new subsections are added to section 6, namely that:
- The scope of the prohibition of unfair discrimination is extended to any person who causes, encourages, or requests another person to discriminate against others. This enables legal proceedings against such a person.
- Provision is made in the Bill for joint and several liability which entails that both the employer and the employee can be held liable for discrimination.
It appears these inclusions seek to enhance social justice and reduce the systemic inequality prevalent in South Africa. However, legal experts warn of the unintended consequences of over-broadening definitions. In terms of rulings of unfair discrimination not being dependent on intention, it is important to note that serious harm can be caused without intention, but there are concerns that the expanded definition of discrimination may make it more difficult for defendants to prove that any discrimination in which they may (perhaps even unintentionally) have engaged is not unfair. These expansive definitions, along with several strenuous obligations imposed by the Bill on non-governmental organisations, community organisations, traditional leaders, and institutions, and those contracting with the state are seen by some commentators as nearly impossible to fulfil if implemented.
Concerns regarding religious freedom
Some Christian leaders, legal experts, and analysts are particularly concerned about the Bill’s implications for religious freedom in South Africa. One of the leading objectors to the draft legislation is Freedom of Religion South Africa (FOR SA), a non-profit, legal advocacy organisation that works to uphold the rights of religious freedom conferred by the South African Constitution. FOR SA and other concerned parties have argued that, given the weightiness of the Act (PEPUDA ranks second only to the Constitution), and the drastically expanded scope and reach of the original Act, the proposed amendments represent the most significant threat to freedom generally, and to religious freedom in particular, since 1994. In addition, they argue that the broad definition of “hate speech” can be used to target people of faith and those with conservative values to a greater extent. They argue that the test for whether discrimination is fair or unfair is biased against the fundamental right to religious freedom. The input that groups like FOR SA have provided on this matter is a useful guide to understanding some of the implications of this Amendment Bill and can assist in the decision-making process of whether to submit a comment or not.
From a Christian perspective, it is important to remember that the government is not the enemy, and these laws are in essence meant to protect people. Christians can attest that part of loving God and our neighbour is treating all people in a non-discriminatory and equally respectful way. Thus, to encourage this ethos in all sectors of society is in essence part of the Church’s mandate. Simultaneously, in the interest of finding better solutions to South Africa’s challenges, it is also important to ensure that potential legislative flaws are not overlooked. This includes equally considering the position of companies, NGO’s, faith-based organisations, and churches (including their religious rights) and not placing unrealistic burdens on them. South Africans have the democratic right to give their opinion on these proposed amendments if led to do so.
Opportunity to comment
The initial deadline for public comment submissions was 12 May 2021, but after several organisations requested an extension, the DOJ is accepting submissions until 30 June 2021.
A template submission (both for individuals and for organisations) is available on the FOR SA website, at: https://forsa.org.za/pepuda-amendment-bill-draft-submissions-for-individuals-and-organisations-can-be-found-here/.
The template can be used in its existing form, or adapted, and e-mailed to the DOJ, at email@example.com
There are also options to post, fax, or deliver the submission by hand. This information can be found at: https://www.justice.gov.za/legislation/notices/2021/20210326-gg44402gen143-Equality-Comments.pdf
There is no copyright on this document but please acknowledge the source: