REPORT. The Department of Justice and Constitutional Development invited the public to comment on the proposed amendments to PEPUDA, the Promotion of Equality and the Prevention of Unfair Discrimination Act.
The amendments deal with two key elements:
1. The prevention of unfair discrimination;
2. The promotion of equality.
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FOR SA has expressed multiple concerns about the PEPUDA Amendment Bill and the impact that this will have on people of faith and conservative views if passed in its current form.
Although we all agree that equality is a central value and that unfair discrimination is unacceptable, the dramatic expansion of the scope and resulting liability of this Bill may well open wide the opportunity for litigation, with severe sanctions for those found to be in breach.
Here is a short summary of some of our main concerns:
- The definition given to “discrimination” is so subjective and so broad and far-reaching that the word no longer has its ordinary meaning. It covers “any act or omission, whether intentional or not, directly or indirectly … causes prejudice or otherwise undermines the dignity of any person” on one of the multiple “prohibited grounds”.
- “Equality” is defined to include “equal right and access to resources, opportunities, benefits and advantages”. In other words, everyone is equally entitled to everything.
- It specifically removes the requirement of “intention” for unfair discrimination, as a result of which people may be found guilty of breaching the law without them even being aware of it.
- In the workplace, if an employee contravenes the Act, the employer may well be equally liable and subject to the same sanctions, even though they did not condone what the employee did or said, or were not even aware of it.
- If you “cause, encourage or request” another person to discriminate against a third person, you will be liable. So where a religious leader teaches a message and a member of the congregation acts on it or repeats it, if someone feels prejudiced by it or that their dignity has been undermined, the congregation member and the religious leader and the religious institution are all potentially equally liable.
- Government Ministers must pass regulations and codes of practice to implement measures to eliminate discrimination and promote equality, and organisations (including religious organisations) will be compelled to promote their view of equality. This will effectively end the institutional autonomy of religious organisations (as well as faith-based independent schools) to determine their own doctrine, and internal workings, free from interference by the State.
- Activists will be given access to State funding to bring litigation under this Act, while those defending themselves will pay their own (often massive) legal costs and face severe sanctions.
The prevention of unfair discrimination
The first part of the Bill (clauses 1 to 3) aims to improve the protection of complainants against discrimination.
This will be done by broadening and amending the scope of the definition of ‘equality’ by indicating that it includes equal rights and access to resources, opportunities, benefits and advantages.
The definition of ‘discrimination’ will also be broadened by indicating that intention to discriminate is not required. It is the effect that matters, the department said, and this makes it easier for complainants to make out a case of discrimination.
The bill plans further to amend section 6 of the Act, which deals with the general prohibition of unfair discrimination, by adding two new subsections as follows:
- 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.
The amendment bill will also insert section 9A in the Act which will prohibit retaliation against a person who exercised his or her remedies in terms of the Act.
The promotion of equality
The second part of the bill (clauses 4 to 9) seeks to do the following:
- Clarify and reduce certain duties relating to the promotion of equality of the state and public bodies, for example by not requiring municipalities to provide assistance, advice and training on issues of equality so that they can focus on their main mandate namely municipal service delivery to the people.
- State departments (national and provincial), municipalities and certain public bodies will in terms of the Bill have to provide certain information in their strategic, corporate and business plans instead of having to prepare and develop additional and separate equality plans and action plans as required by the Act.
- Strengthen accountability for the implementation of measures aimed at promoting equality by ensuring that Annual Reports of organs of state contain information on what they have done in this regard.
- To enhance co-ordination and prevent overlapping actions and duties, a Minister must, before issuing regulations and codes of practice or charters, have regard to other measures aimed at promoting equality which are already in place before additional duties are conferred upon bodies. For this purpose, the Department of Justice and Constitutional Development must make available on its website a list of all the codes issued by the ministers.
- To strengthen enforcement of the provisions of the Act, the Bill now criminalises the willful submission of false information by any person.