The laws are changing

Know your rights 
and be part of the process! 

SA – After the Firearm Amendment Bill was published in the Government Gazette on Friday 21 May, the country was up in arms. The proposed bill reads… “to provide that no firearm licences may be issued for self-defence purposes”.

All interested persons and organisations were invited to submit written comments on the draft Bill to: comments.fcabill@csp.gov.za no later than 45 days from date of publication… which is on 4 July. Did you submit yours? But… before all this, another amendment bill was published in the Government Gazette on 26 March which almost went unnoticed. 

This was an invitation for public comments on amendments to The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), 2000.

The purpose of the amendment PEPUDA is to address certain problems that have been identified following a review process of the Act. The amendments look innocent enough and the big, complicated words they use to addresses inequality – which is a big issue in our country make it sound very solemn.

These changes are most likely very well-intentioned, but once you put it in layman’s terms and you think of practical situations where this law might have an effect, the law seems to be contradictory to the values enshrined in our Constitution.

You can find the full notice at https://www.justice.gov.za/legislation/notices/2021/20210326-gg44402gen143-Equality-Comments.pdf 
Platinum Bushvelder spoke to attorney Pulane Manyama who gave us a better understanding as to why these amendments might become problematic. She wholeheartedly agrees with Van Velden Duffey Inc attorney Rego Marakalla who set it out as follows:

 “The PEPUDA Act seeks to promote equality and prevent unfair discrimination. It came about as a result of section 9 of the Constitution that broadly deals with all of us being equal, deserving of the protection of law and prohibiting unfair discrimination against anyone based on their race, sex, marital status, colour etc.

The Constitution further dictated the Legislature to bring about laws to promote equality and prevent unfair discrimination.

There are two sections of amendments – the first being the amendments dealing with prevention of unfair discrimination and secondly the amendments dealing with the promotion of equality.”

1. PREVENTING UNFAIR DISCRIMINATION

Broadening the definition of ‘discrimination’… The current definition of “discrimination” in the Act states:
“‘discrimination’ means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly – 
imposes burdens, obligations or disadvantage on; or 
withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.” 

Amendment (changes in bold)
“‘discrimination’ means any act or omission, including a policy, law, rule, practice, condition or situation which, whether intentionally or not, directly or indirectly – 

• imposes burdens, obligations or disadvantage on; or 
• withholds benefits, opportunities or advantages from; or 
• causes prejudice to; or 
• otherwise undermines the dignity of, any person related to one or more of the prohibited grounds; irrespective of whether or not the discrimination on a particular ground was the sole or dominant reason for the discriminatory act or omission.” 

The change to the definition of discrimination seeks to make it clear that it is not necessary for a person to act with intention before they can be guilty of unfair discrimination. The reason why the members of the public strongly object to this is because both elements, discrimination and unfairness, must legally be determined objectively in the light of the facts of each particular case. 

Discrimination could be found whether or not it had been intentional and could be direct or indirect. You cannot accidentally discriminate – for instance if you fall on the rug on the floor instead of the bed, you did not discriminate towards the bed in favour of the rug.

The fall was unintentional. If a person discriminates already, he has made his choice, and there cannot be an unintentional choice. According to the proposed legislation companies would also be held liable whether the discrimination was intentional or not.

Broadening the definition of ‘equality’ 
The definition of “equality” in the current Act reads: 

 “’equality’ includes the full and equal enjoyment of rights and freedoms as contemplated in the Constitution and includes de jure and de facto equality and also equality in terms of outcomes.”

Amendment (changes in bold)
“’equality’ includes- 

• the full and equal enjoyment of rights and freedoms as contemplated in the Constitution; 
• equal right and access to resources, opportunities, benefits and advantages; 
• de jure and de facto equality; 
• equality in terms of impact and outcomes; and 
• substantive equality.” 

Objectivity applies in determining a defence for claims of unfair discrimination. An example of this would be banks that charge a higher interest to people who pose a higher risk of default. They would have to prove justifiability and reasonableness.

Once the bill comes into force, there is a duty to eliminate discrimination. Many companies and business would find it difficult to grant the equal access to opportunities and resources and might be exposed to countless penalties. The objective criteria defence will still be available, but companies may nevertheless find it harder to show the fairness of their conduct when the definition of discrimination is so much wider than before. 

Expanding the general prohibition of unfair discrimination 
The current wording of section 6 of the Act regarding the general prohibition of unfair discrimination reads: 
“Prevention and general prohibition of unfair discrimination 
Neither the State nor any person may unfairly discriminate against any person.” 

Amendment (changes in bold)
6. (1) Neither the State, a public body nor any person may unfairly discriminate 
against any person. 
(2) Any person who causes, encourages or requests another person to discriminate against any other person, is deemed to have discriminated against such other person. 
(3) If a worker, employee or agent of a person contravenes the Act in the course of his or her work or while acting as agent, both the person and the worker, employee or agent, as the case may be, are jointly and severally liable for a contravention and proceedings under the Act may be instituted against either or both of them unless the person took reasonable steps to prevent the worker, employee or agent from contravening the Act.” 

Companies would now have to tread carefully as they might face unfair discrimination practice which is committed unintentionally by their employees, forcing them to change their policies. 

This can also affect our freedom of religion like in a situation where a non-religious person attends a church meeting and feels offended by what the pastor said. He can lay a claim against the organisation. That is because the effect of the definition of discrimination would become subjective. 

 The non-religious person can allege discrimination and that he felt prejudiced or that his/her feelings have been hurt, and that will be all it takes to establish discrimination. That would amount to strict liability. In other terms, it will not be necessary to prove that the church was at fault (either because they acted with intent, or negligently) before they will be found guilty of ‘discrimination’. The pastor and the church can be taken to the Equality Court.

The Bill proposes the insertion of a new section, 9A: 
“Prohibition of retaliation
or wishes to institute proceedings in terms of or under the Act. 
9A. No person may retaliate or threaten to retaliate against a person who- 
(a) Objects to a discriminatory act or omission; or 
(b) Instituted

The accused (loosely used) might end up being acquitted of discrimination on several grounds of unfair discrimination but will have to cover his own legal costs as he has no right to retaliate. Whereas the complainant can receive free legal services from legal aid. This is in direct contrast to the entire concept of equality which the Act aims to achieve. 

2.    AMENDMENTS TO THE PROMOTION OF EQUALITY 
Specified bodies or entities – namely organs of state, public bodies, constitutional institutions, persons under contract with the State, non-governmental organisations, community-based organisations or traditional institutions; as well as entities in the private sector – are required to comply with the promotion of equality.

In a comment submitted by the National Employer’s Association of South Africa (NEASA) against the amendments of section 24 of the Act regarding the general responsibility to promote equality, it is stated: “The second ‘leg’ of the Act, which deals with the promotion of equality by organs of state, as well as public and private bodies, is not yet in operation.

The legislator, in the Background Note to the Bill, states that: “This is due, in part, to the regulatory burden placed on all sectors of society, both public and private.” The cause for the non-implementation being the regulatory burden, was so identified by the Regulatory Impact Assessment conducted by National Treasury. What the Background Note fails to address or confirm, is whether or not a Regulatory Assessment was performed on the proposed amendments themselves.

Common sense would lead to the conclusion that provisions in the Act which were not set in operation, due to the regulatory burden they would create, should not be added to, extended and broadened and then served up as a solution to the initially experienced implementation and regulation problems. Why would one create an even more difficult to regulate provision for an already impossible-to-regulate and implement provision?”

On the proposed substitution of section 28 of the principal Act  NEASA’s comment notes: “The sheer extent of this amended provision of State responsibility and obligation is cumbersome. The State already suffers from inefficient enactment of law and implementation of policy and legislation. To further administratively burden the State, will most certainly not achieve any goal contained in the PEPUDA. 

Whilst all other bodies, apart from the Minister and State, are forced to prove their attempts and financial implications of actively promoting equality and eliminating discrimination, the Minster is allowed to discriminate against different institutions and organisations based on their size, resources and influence. If this in itself does not illustrate discrimination and inequality, then what does?”

The Bill further proposes the insertion of a new section in the principal Act, after section 29:
“Special measures to promote equality with regard to race, gender and disability 
29A If it is proved in the prosecution of any offence that unfair discrimination on the grounds of race, gender or disability played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence.”

If the main focus of the equality legislation in this country is merely to regulate and adjudicate the incidences of racism and hate speech, the Act is sufficient as is, and amendments thereto would not make any difference and are consequently irrelevant and unnecessary.

Conclusion
Inequality is a burning issue for South Africa. These amendments will create loopholes. Should these amendments pass, it will go against the very fibre of our constitutional rights to equality. 
We will see ourselves face heavy court battles for exercising our right to religious freedom, freedom of speech  and many other freedoms enshrined in our Constitution. Whether or not discrimination is fair or not, expensive litigation will be our future if this bill passes, so you better start saving now. 

Make sure to submit your objections!
Due to technical problems with the email address provided an extension was granted, and objections and comments must be submitted before 30 June.
You can send your comments:
By post: The Director-General: Justice and Constitutional Development
Private Bag X81
Pretoria
0001
By hand: SALU Building, Room 23.23
316 Thabo Sehume Street
Pretoria
Email: fbhayat@justice.gov.za
Fax: 086 754 8493.
For further information contact Dr I Botha on 012 406 4756

Fair and legal discrimination

The law sets out four grounds on which discrimination is generally allowed:

• Discrimination based on affirmative action
• Discrimination based on the inherent requirement of a particular job
• Compulsory discrimination by law; and
• Discrimination based on productivity.

Discrimination based on Affirmative Action
Affirmative action measures are designed to promote employment equity (fairness in favour of the designated groups — blacks, women and disabled persons).

Affirmative action aims to achieve equality at work without lowering standards and without unduly limiting the prospects of existing employees, for example by getting rid of discrimination in company polices, procedures and practices. Its main aim is generally to ensure that that the previously disadvantaged groups are fairly represented in the workforce of a particular employer. 

Discrimination based on the inherent requirement of a job
Any discrimination based on the inherent requirement of the particular job does not constitute unfair discrimination. An inherent requirement of a job depends on the nature of the job and required qualifications.

If such requirements can be shown, discrimination will be fair, for example a person with extremely poor eyesight cannot be employed as an airline pilot.

Fair compulsory discrimination by law
The law does not allow the employer to employ children under the age of 15 years, or pregnant women four weeks before confinement and six weeks after giving birth.

Discrimination based on productivity
It is also fair by law for the employer to discriminate on the basis of productivity when giving an increase, for example increases based on merit. This, of course, would be dependent on the fairness of the criteria utilised for assessing performance and productivity.

Information by LabourMan Consultants senior associate and legal advisor Wallace Albertyn.

Know your rights and contact Pulane Manyama Attorneys on 083 442 2714 for more information.