PRESS RELEASE

PRESS RELEASE BY CAUSE FOR JUSTICE: 1 JULY 2021

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SUBJECT: PROPOSED AMENDMENTS TO ‘EQUALITY ACT’ ABSURDLY MAY INCREASE INEQUALITY AND UNFAIR DISCRIMINATION

Since its publication on 26 March 2021, the Department of Justice and Constitutional Development’s controversial Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill has provoked strong reactions from advocates for freedom of expression and freedom of religion alike.

Human rights organisation Cause For Justice, delivered written submissions to the Department emphasising the importance of protecting freedom of expression and freedom of religion in a pluralistic society and constitutional democracy such as South Africa. It argued that in the absence of a recognised constitutional hierarchy of rights, conflicting fundamental rights must be balanced in a reasonable and justifiable manner while ‘being different’ is reasonably accommodated.

This is especially important in those instances where the ‘being different’ relates to sincerely held beliefs that are foundational to who people see themselves to be and that informs how they want and are able to live meaningful lives – i.e. where their particular ‘difference’ is inseparable from their human dignity.

According to its drafters, the purpose of the Bill is to prevent ‘unfair discrimination’ and ‘promote equality’ – both laudable objectives. Unfortunately, even a brief inspection of the proposed amendments reveals that these are likely to have a chilling effect on the enjoyment of fundamental rights and freedoms, and absurdly, is likely to lead to more inequality and unfair discrimination.

Problematic proposals

The Bill contains several problematic proposals and aspects, including:

• Expanding the definitions of ‘equality’ and ‘discrimination’ beyond Constitutional (and logical) limits.
• Generally failing to distinguish between ‘mere’ and ‘unfair’ discrimination – while the Constitution only prohibits ‘unfair discrimination’.
• Making the “test” for ‘discrimination’ subjective and removing the ‘intentionality’ requirement for proving legal fault –  practically, this means a person who unknowingly and without any intention to do so, may incur civil (or even criminal) liability for offending another’s subjective perception of hurt/harm to their human dignity!
• Expanding the liability for discrimination beyond Constitutional (and logical) limits to employers and any person who causes, encourages or requests another to discriminate as defined in the Bill.
• Imposing hefty administrative and financial obligations on persons, organisations and institutions to promote ‘equality’ and eliminate ‘discrimination’ as defined in the Bill.
• Imposing unwarranted and unjustifiable state regulation on persons, organisations and institutions – which poses a direct threat to their rights to freedom of religion and of association.
• Empowering government ministers to discriminate between people, companies, and organisations depending on their size, resources and influence – which increases the risk of abuse of power and ‘state capturing’.

 Adequacy of public participation

There are concerns that the Department may also be falling foul of its constitutional obligation to facilitate effective public participation in the law-making process, which exposes the Bill to constitutional challenge on procedural grounds. This is especially troubling given the significant impact the proposed amendments are expected to have on South African society.

The call for public comments was open between 26 March 2021 and 12 May 2021, a time during which there were four public holidays (including the Easter holidays) and many South Africans also take additional leave – i.e. very little time to properly consider and comment on the proposed amendments. On specific request, the Department granted Cause For Justice and some other stakeholders an extension to deliver submissions by 30 June 2021. However, this was not a ‘general extension’ granted or made known to all South Africans.

In addition, given the public outcry against the proposed amendments, the Department was flooded with submissions to the extent that its provided ‘dedicated submissions email address’ was at one stage no longer receiving emails as its associated inbox was full (an issue that has since been resolved).

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The Department will now consider the submissions it received in respect of the Bill to produce a final version which it will present to Cabinet for approval to be tabled in Parliament. Given the multitude of objections against the proposed amendments, it may also decide to withdraw the Bill in its entirety.

Cause For Justice will closely follow the progress of the Bill and seize opportunities to engage the Department and stakeholders to ensure South Africans’ fundamental rights and freedoms will not be violated. The Constitution acknowledges and celebrates diversity – and likewise should all South African laws.

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For further queries, contact CFJ at:

Email:    info@causeforjustice.org

Tel:         074 355 0775