DOCUMENTS

Submission: PEPUDA Bill will have deadly impact on our freedoms - FW de Klerk Foundation

Will point SA in the direction of totalitarianism, censorship and severely diminished freedom of expression

THE PEPUDA AMENDMENT BILL - MAKE YOUR VOICE HEARD

30 June 2021

The FW de Klerk Foundation has submitted its concerns about the recently published Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill (PEPUDA).

The Bill will have a deadly impact on political freedom, freedom of expression and freedom of association in South Africa and will point South Africa in the direction of totalitarianism, censorship and severely diminished freedom of expression.

This will be aggravated by a wide range of strenuous obligations imposed by the Bill which, if implemented, will be virtually impossible to fulfil and it will also be very costly and burdensome because ‘equality’ as suggested by the Bill cannot be quantified.

While the Foundation - like all South Africans - is fully committed to the achievement of equality in South Africa in line with the Constitution, the Bill will - in its current format - rather than promote actual equality, have an adverse effect on how this is interpreted, promoted and achieved in South Africa.

It must be asked - if the state is so focused on promoting equality and preventing discrimination - why it does not utilize the existing legal framework in place to do so - as set out in section 9 of the Constitution and the existing PEPUDA?

The Foundation has raised a number of core concerns with the Bill, including -

- the vagueness of the definition of equality and the fact that it far over-reaches the definition in section 9 of the Bill of Rights;

- the negative impact and over-reach of the definition of hate speech and discrimination making it susceptible for abuse and also irreconcilable with section 16 of the Bill of Rights;

- the unacceptable proposal by the Bill that crimes can be committed even if there is no intention to do so;

- the principle of vicarious liability as set out in the Bill; and

- the gross intrusion of the state into the legitimate functioning of NGOs and other organizations considering section 31(1)(b) of the Bill of Rights.

The Foundation is also of the view that the Bill will intrude in a most unacceptable manner with section 15 of the Bill of Rights - the right to freedom of religion, belief and opinion - democratic societies cannot function without free and untrammelled freedom of expression and independent institutions and NGOs.

The Foundation’s submission on the Bill can be accessed here:

Submission on the PEPUDA Amendment Bill

SUBMISSION

Amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000

Submitted by: Adv Jacques du Preez Chief Executive Officer

FW de Klerk Foundation

28 June 2021

The Director General – Justice and Constitutional Development Per email:

SUBMISSION: Amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000

Honourable Members of the Committee,

[1] Introduction and Synopsis

[1.1] The FW de Klerk Foundation was established in 1999 to support, protect and promote the Constitution and Bill of Rights of the Republic of South Africa.

[1.2] The Foundation promotes and preserves former president FW de Klerk’s legacy by supporting the causes for which he worked during his presidency and promotes unity in diversity in South Africa by working for cordial inter-community relations and national unity.

[1.3] The Foundation also supports charities that care for disabled and disadvantaged children and provides information on FW de Klerk’s presidency and the factors that led to South Africa’s transition to a non-racial constitutional democracy.

[1.4] The Centre for Constitutional Rights (CFCR) is a unit of the FW de Klerk Foundation which supports and promotes the Constitution, the Bill of Rights and the rule of law.

[1.5] Synopsis of this submission and the Promotion of Equality and Prevention of Unfair Discrimination Act Amendment Bill:

The CFCR -like all South Africans- is fully committed to the achievement of equality in South Africa in line with the Constitution. The CFCR however respectfully submits that this Bill will

-in its current format- rather than promote actual equality, have an adverse effect on how this is achieved and promoted in South Africa. The CFCR further submits that the way in which the Amendment Bill seeks to do this will have an adverse effect on South Africa’s already frayed race relations and cohesive community fostering efforts.

The CFCR wishes to indicate the following main issues with the Bill, which will be dealt with in more detail throughout the body of this submission:

- the vagueness of the definition of equality and the fact that it far over-reaches the definition in section 9 of the Bill of Rights;

- the really negative impact and over-reach of the definition of hate speech and discrimination and the fact that it is not reconcilable with section 16 of the bill of Rights;

- the unacceptable proposal by the Bill that crimes can be committed even if there is no intention to do so;

- the principle of vicarious liability as set out in the Bill; and

- the gross intrusion of the state into the legitimate functioning of NGOs and other organizations considering section 31(1)(b) of the Bill of Rights.

The CFCR submits that the Bill will intrudes in a most unacceptable manner with section 15 of the Bill of Rights – the right to freedom of religion, belief and opinion. Indeed, democratic societies cannot function without free and untrammelled freedom of expression and independent institutions and NGOs.

The CFCR accordingly welcomes the opportunity to present a number of short and concise submissions on the Amendment Bill.

Most Sincerely,

Adv Jacques du Preez Chief Executive Officer FW de Klerk Foundation

[2] Equality, Discrimination and Hate Speech in South Africa: General Legal Framework

[2.1] Equality, and the promotion thereof, is one of the foundational values underpinning the South African Constitution. It is inextricably linked to other core values such as human dignity, non-racialism, non-sexism as well as the advancement of human rights and freedoms.1

[2.2] Equality is also specifically addressed as a separate subsection in the Bill of Rights and this is set out in section 9 thereof –

Equality

9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed

Chapter 2: Bill of Rights6

to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

[2.3] Section 9(4) determines that national legislation must be enacted to prevent or prohibit unfair discrimination. Building on this the Promotion of Equality and Prevention of Unfair Discrimination Act was enacted.2 The act is often referred to as the ‘Equality Act’ or by its acronym PEPUDA.

[2.4] PEPUDA defines ‘discrimination,’ ‘equality’ and ‘harassment’ and as follows –

Discrimination means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly--

(a) imposes burdens, obligations or disadvantage on; or

(b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds.3

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.4

Harassment means unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to--

(a) sex, gender or sexual orientation; or

(b) a person’s membership or presumed membership of a group identified by one or more of the prohibited

grounds or a characteristic associated with such group.5

[2.5] The prohibited grounds listed in PEPUDA are as follows –

(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; or

(b) any other ground where discrimination based on that other ground--

(i) causes or perpetuates systemic disadvantage;

(ii) undermines human dignity; or

(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a);

[2.6] The South African Constitution determines the general parameters of freedom of expression (and a prohibition of hate speech) in section 16 of the Bill of Rights -

16. Freedom of expression -

(1) Everyone has the right to freedom of expression, which includes—

(a) freedom of the press and other media;

(b) freedom to receive or impart information or ideas;

(c) freedom of artistic creativity; and

(d) academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to—

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

[2.7] PEPUDA regulates hate speech and determines in section 10(1) thereof that -

Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds (e.g. race, gender, sex, ethnic or social origin, colour, sexual orientation, belief, culture, and language) against any person, that could reasonably be interpreted to demonstrate a clear intention:

(a)  to be hurtful;

(b)  to be harmful or to incite harm; or

(c) to promote or propagate hatred.

[2.8] Section 12 of PEPUDA, in turn, determines that -

No person may—

(a) disseminate or broadcast any information;

(b) publish or display any advertisement or notice,

that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person: Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.

[2.9] Hate speech is also regulated in the employment context in South Africa in terms of the Employment Equity Act (EEA)6 although this pertains more, in a legalistic sense, to the prohibition of unfair discrimination based on race, than ‘hate speech’ per se.

[2.10] The EEA determines that -

Every employer must take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice7 and further that

No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language, birth or on any other arbitrary ground.8

[2.11] The EEA also places an obligation on employers in South Africa to take reasonable steps to address and eliminate unfair discrimination in the workplace -

60. Liability of employers

(1) If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any

conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of

this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2) The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

(3) If the employer fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

(4) Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act.9

[3] The PEPUDA Amendment Bill, 2021

[3.1] In background documentation to the Bill it is indicated that -

The purpose of the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, 2021 is to address certain problems that have been identified with the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, following a review process of the Act.

The first part of the Act, which deals with, among others, the prevention of equality through the equality courts in which complaints about discrimination are adjudicated. These sections are in operation and a few amendments are proposed in the Bill to improve the protection of complainants.

The second part of the Act, which deals with the promotion of equality by Organs of State and public and private bodies, is not yet in operation. This is due, in part, to the regulatory burden on placed on all sectors of society, both public and private. This was identified in a Regulatory Impact Assessment conducted by the National Treasury.

The Bill intends to address these challenges.

[3.2] Further to the above the purpose of the Amendment Bill is explained as follows -

The first part of the Bill (clauses 1 to 3) aims to improve the protection of complainants against discrimination. This is done as follows:

(a) Broadening and amending the scope of the definitions of:

(i) “equality” by indicating that it includes equal rights and access to resources, opportunities, benefits and

advantages; and

(ii) “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.

(b) Amending section 6 of the Act, (which contains the general prohibition of unfair discrimination), by adding two new subsections as follows:

(i) 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.

(ii) 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.

(c) Inserting section 9A in the Act to prohibit retaliation against a person who exercised his or her remedies in terms of the Act.

The second part of the Bill (clauses 4 to 9) seeks to do the following:

(a) Clarify and reduce certain duties relating to the promotion of equality of the State and public bodies to some extent, 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.

(b) An integrated approach is followed by making use of existing financial reporting and monitoring mechanisms provided for in the PFMA and the Local Government Municipal Systems Act, 2000 (Act) 32 of 2000) to ensure proper planning, budgeting and reporting on measures implemented to promote equality by Organs of State and public bodies falling under the ambit of these Acts. 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.

(c) 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.

(d) 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 26 March 2021 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.

(e) To strengthen enforcement of the provisions of the Act, the Bill now criminalises the wilful submission of false information by any person.

[4] Submissions by the CFCR on the Amendment Bill – General

[4.1] As indicated above the Amendment Bill will, in a number of core respects, seek to replace the existing PEPUDA and provisions therein.

[4.2] The CFCR is concerned that if the Amendment Bill is to become law in its current format it will have far reaching implications for all South Africans as it contains a range of suggested amendments which are not only unconstitutional, but also very worrying.

[4.3] While the CFCR, like all South Africans, is fully committed to the achievement of equality in South Africa in line with the Constitution, the CFCR respectfully submits that the Bill in its current format will, rather than promote actual equality, have an adverse effect on how equality in South Africa is promoted – the CFCR also submits that the way in which the Amendment Bill seeks to do this will have an adverse effect on South Africa’s already frayed race relations and cohesive community fostering efforts.

[4.4] The CFCR submits that a core number of suggested amendments in the Bill will, in an unjustifiable manner, infringe on a number of fundamental constitutional and human rights, if it is passed in its current format. This will include, but may not necessarily be limited to -

- Freedom of religion, conscience and thought;10

- Freedom of expression;11 and

- Freedom of association.12

[4.5] Core CFCR submissions on the Amendment Bill

[4.5.1] Amendment of the definitions of ‘discrimination’ and ‘equality’ (Section 1 of the Amendment Bill)

[4.5.1.1] The Amendment Bill proposes the following amendments to both ‘equality’ –

'equality' includes—

(a) the full and equal enjoyment of rights and freedoms as contemplated in the Constitution;

(b) equal right and access to resources, opportunities, benefits and advantages;

(c) [and includes] de jure and de facto equality;

(d) [and also] equality in terms of impact and outcomes; and

(e) substantive equality;"

[4.5.1.2] As can be seen from the above, the Amendment Bill broadens the definition of both ‘equality’. Equality is redefined to also include “equal right and access to resources, opportunities, benefits and advantages”. The CFCR submits that it can be argued from a legal perspective that this suggested definition of ‘equality’ is much wider as than what is contemplated in the Constitution and therefore unconstitutional.

[4.5.1.3] Added to the above the CFCR submits that “equal right and access to resources, opportunities, benefits and advantages” as concepts and as listed in the Bill are not only vague and indeterminable – it is also very subjective.

[4.5.1.4] Coupled to the above -and perhaps more concerning- is the suggested amendment of the definition of what will constitute ‘discrimination’ by removing the so-called intention requirement (to discriminate). If the Bill is passed as it stands with this amendment included, the practical effect will be that even unintentional conduct can be construed as ‘discrimination’ and subsequently be made liable to prosecution. In this regard the Amendment Bill proposes the following definition for ‘discrimination’ -

'discrimination' means any act or omission, including a policy, law, rule, practice, condition or situation which, whether intentionally or not, directly or indirectly—

(a)  imposes burdens, obligations or disadvantage on;[or]

(b)  withholds benefits, opportunities or advantages from[,];

(c) causes prejudice to; or

(d)  otherwise undermines the dignity of,

any person [on] related to one or more of the prohibited grounds13[;], irrespective of whether or not the discrimination on a particular ground was the sole or dominant reason for the discriminatory act or omission;

[4.5.1.5] Flowing from the above it can be seen that aside from the core phrase “whether intentionally or not” the suggested amended definition also includes the words “causes prejudice to” and “or otherwise undermines the dignity of any person”.

[4.5.1.6] The CFCR resepectfully submits that the above opens the door for a very subjective interpretation -and application- of what constitutes ‘discrimination’. Subjectifying the question of whether or not ‘discrimination’ in fact occurred is dangerous as it is susceptible to abuse and will lead to vast legal uncertainty as it will be unclear for individuals or organizations if, and even when, they contravene the Act.

[4.5.1.7] The CFCR submits that this scenarion, from a common law and criminal law perspective, will infringe on the well-established legal principle of nullum crimen sine poenalege – in that a person can not be proecuted and ultimately punished for his/her conduct if such was not a criminal act when it was committed. Such a development will also not be in accord with accepted international legal norms and standards and it does not follow that unintended (or unintentional) conduct (even prejudice that may possibly infringe the dignity of another) is criminalized.

[4.5.1.8] The CFCR is concerned that the suggested wording and definitions may lead to an unbalanced application of the Bill’s provisions by one party against another. Stated differently – as a result of the vague and subjective wording of the definitions there is the risk that the Bill – rather than promoting actual equality – will negate it by opening the door for victimization.

[4.5.1.8] The above concern is substantiated by the suggestion that any complainant who wants to litigate in terms of the Bill will be provided with legal assistance to do so but those who stand accused of committing discrimination in terms of the Bill will not enjoy this recourse and will have to source, and pay for, their own legal representation.

[4.5.1.9] The Bill currently suggests the provision of legal aid to complainants (especialy those who are ‘disadvantaged’ which is not defined in the Bill) through Legal Aid South Africa as well as so called Chapter 9 Institutions – for example the South African Human Rights Commission.14

The CFCR is particularly concerned about this because although it seems innocuous and progressive:

[A] There is a purported unbalanced and differential way in which, for example, the SAHRC and even the Equality Court, has seemingly treated certain groups of South Africans guilty of hate speech more harshly, whereas other groups of South Africans committing the same acts, are treated less harshly.

[B] The CFCR’s submission in the above regard is substantiated by comments recently made by a representative of the SAHRC, in an interview with the media, and intimated that the SAHRC is "purposefully lenient to black offenders in incidents concerning racial utterances made to white victims because of the historical context" and that "racism from whites towards other races was more pervasive."15

[4.5.1.10] A further danger of the Bill in its current form is that the suggested definition of

‘discrimination’ includes the words “causes prejudice to” and “or otherwise undermines the dignity of any person”. The inclusion of these phrases -furthermore in the alternative to each other- creates the scenario that ‘discrimination’ is in effect left completely open- ended. It creates the real risk of subjectively including potentially almost any conduct – also conduct that is not necessarily limited to the listed grounds.

[4.5.1.11] The CFCR is concerned about the chilling effect of the above in that it theoretically means that almost anything can be interpreted as ‘discrimination’ if it “ causes prejudice to or otherwise undermines the dignity of any person”.

[4.5.1.12] Connected to the above is the submission that the Bill’s suggested definitions of ‘equality’ and ‘discrimination’ are wide enough -and indeed amount to- censorship (which will not pass muster in terms of sections 16 and/or 36 of the Constitution).

[4.5.1.13] As it stands the definitions are wide enough to criminalize contexts where an individual, individuals or an organization or groups of organizations conduct themselves or express themselves in a way that may -subjectively- be interpreted or construed as ‘discrimination’ or is deemed to be ‘anti-equality’ or as the erosion thereof. The CFCR respectfully submits that such an approach is not just unacceptable – it directly infringes on freedom of expression as enshrined in the Constitution.

[4.5.1.14] In light of South Africa’s existing legal framework regulating unfair discrimination, harassment and hate speech (in terms of section 9 of the Constitution and PEPUDA) the question must be asked why the state wishes to change and regulate this aspect in such a draconian manner?

[4.5.2] Vicarious liability for harassment, discrimination and hate speech (Section 6(3) of the Amendment Bill)

[4.5.2.1] The Bill proposes that employers in South Africa will be vicariously liable for any harassment, discrimination or hate speech that is committed by their employees – except where it can be proved by the employer that it took all reasonabel steps to prevent such conduct from taking place.

[4.5.2.2] The CFCR submits that this places employers in a particularly exposed position as it is simply not practically feasible to effectively monitor employees at all levels all the time.

This impossible position is excacerbated by the legal vagueness and uncertainty created by the proposed definitions of ‘equality’ and ‘discrimination’ as set out supra.

[4.5.2.3] The CFCR also submits there is an economic and productivity concern coupled to this for employers who are already operating in an increasingly difficult economic landscape in South Africa – can employers really afford to be drawn into legal proceedings which may often be unnecessary and/or frivolous, and incur expensive legal costs coupled to legal representation when sued before the Equality Court?

[4.5.2.4] The question must also be asked why the state is seemingly bent on imposing further onerous obligations and regulations on employers in the workplace if such a framework already exists?

[4.5.2.5] The CFCR submits that this suggested proposal in the Bill is unnecessary in light of the Employment Equity Act which already makes provision for vicarious liability in this regard -

60. Liability of employers

(1) If it is alleged that an employee, while at work, contravened a provision of this Act, or engaged in any

conduct that, if engaged in by that employee’s employer, would constitute a contravention of a provision of

this Act, the alleged conduct must immediately be brought to the attention of the employer.

(2) The employer must consult all relevant parties and must take the necessary steps to eliminate the alleged conduct and comply with the provisions of this Act.

(3) If the employer fails to take the necessary steps referred to in subsection 2, and it is proved that the employee has contravened the relevant provision, the employer must be deemed also to have contravened that provision.

(4) Despite subsection (3), an employer is not liable for the conduct of an employee if that employer is able to prove that it did all that was reasonably practicable to ensure that the employee would not act in contravention of this Act. 16

[4.5.3] Regulation of private and public institutions by the state (Articles 24(4), 26(5)(b), 27(1)(b), 28(2) en 28(4) of the Amendment Bill)

[4.5.3.1] The Bill envisages a broad range of extended responsibilities and duties for all persons (natural and legal), businesses, NGO’s, traditional leaders, community based organizations, traditional institutions (which will include churches and/or other religious institutions) as well as entities doing business with the state to “promote equality in

general”.

[4.5.3.2] The above includes, for example, the following -

[4.5.3.2.1] Public institutions will have to budget and set aside funding to ‘eliminate

discrimination’ and to “promote equality”. If this is not done -or if it is considered not to have been done- these bodies are accountable to the state as to why not. The CFCR submits that this again an example of how the Bill seeks to completely subjectify of what constitutes ‘discrimination’ and/or ‘equality’ and this obfuscation will lead to far reaching legal uncertainty due to its indeterminability – at what level will it be decided -and by whom- that real ‘equality’ has been attained or that an organization has done, or not done, enough to “promote equality”?

[4.5.3.2.2] The Bill has the aim of providing the state with the power to draft and enforce various different codes and/or regulations regarding ‘equality’ and government ministers will have the task -and power- to not only draft these codes and/or regulations but also to direct such against specific institutions and/or entities (including NGO’s and/or religious institutions and traditional institutions);

and

[4.5.3.2.3] Businesses, NGO’s community based organizations and traditional institutions (despite their size) will have to prove that they budgeted and set aside funds for “the

promotion of equality” and as set out in the Bill. The CFCR submits that this is unacceptable unless the state makes such funds available to these private and public institutions – considering that it, as the state, also carries a general responsibility in terms of the Constitution- to promote ‘equality’ and combat ‘discrimination’.

[4.5.3.2.4] The CFCR submits that if the Bill becomes law, it will be small and medium-sized business owners, instituions and entities -with very limited budgets- who will be the hardest hit by the provisions of the Bill considering its strenuous financial implications. Again – if the state makes available such funds, these proposals could perhaps be considered in a different view.

[4.5.4] PEPUDA Amendment Bill – Impact on South Africa’s broader societal levels as a whole

[4.5.4.1] Aside from the aspects highlighted supra sections 25(3) and 25(6) of the Bill are concerning as they seemingly envisage a broad and sweeping reorganization of South African society and its landscape. Section 25(6) of the Bill proclaims that –

“The measures to be adopted by the State to achieve equality must proactively address systemic and multidimensional patterns of inequality and discrimination found in social structures, rules, attitudes, actions or omissions which prevent the full and equal enjoyment of rights and freedoms as contemplated in the Constitution, including equal access to resources, opportunities, benefits and advantages and social goods.”

[4.5.4.2] Not only is the above completely indeterminable -in line with many other provisions of the Bill as stipulated- it is also written in very idealogical language. The CFCR respectfully submits that if the state is not able to realize ‘equality’ and/or effectively combat ‘discriminatio’ within the current and existing legal framework for doing so, it is hardly foreseeable how it will do so if the Bill in its current form is enacted.

[4.5.4.3] This is further of concern because PEPUDA is considered pre-eminent piece of legislation in South Africa as it owes its origins to section 9(4) of the Constitution. If the Bill - with its numerous concerns and unconstitutional proovisions- becomes law it will require the state to progressively amend all legislation policies, codes and societal structures along the lines of the Bill – specifically where these are not fully aligned with the contents of the Bill as well as its determinations as to what constitutes ‘equality’ and/or ‘discrimination’.

[4.5.4.4] The CFCR submits that this suggestion dangerously infringes on section 1 and 2 of the Constitution -indeed a foundational infringement- as it creates the impression that all the above concepts must be aligned not to the Constitution, but the amended PEPUDA Bill.

[4.5] Concluding observations and submissions regarding the Bill

[4.5.1] The CFCR respectfully wishes to question the feasability and practical achievability of the Bill and a number of core goals – if the state is so focused on promoting equality and preventing discrimination, why does it not simply utilize the existing legal framework in place to do so (ie, section 9 of the Constitution and the existing PEPUDA )?

[4.5.2] This approach by the state is not altogether dissimilar to the current process involving the suggested amendment to section 25 of the Constitution to allow for the expropriation of property without compensation (EWC). Section 25 of the Constitution already constitutes a proper legal framework to allow for effective land reform in South Africa, yet the government and certain others are creating an incorrect narrative that EWC is needed to speed up land reform -and equality- in South Africa.

[4.5.3] The CFCR respectfully submits this PEPUDA amendment process follows a similar vein – the proper legal framework to effect equality and prevent discrimination (and more accurately unfair discrimination) exists – the question is why is the govenment so lackasdaisical in properly utilizing it?

[4.5.4] The CFCR must also point to the Bill in a broader context. Why is the state so focused on strenuously overregulating certain micro-levels of societal life in the country and South African communities in light of South Africa’s much more pressing macro challenges which it seemingly cannot effectively address - including unacceptable high levels of violent crime, unacceptable high levels of government corruption and state capture, maladministration, failing SOE’s, economic downgrades, a failing economy and extremely high levels of unemployment?

[4.5.5] The CFCR resepctfully submits that the Bill is constitutionally defective and will not pass constitutional muster for a number of different reasons (as indicated above). The Bill is also, from a legal perspective, premature – it envisages new definitions for ‘equality’ and ‘discrimiination’ while South Africa is waiting for the long anticipated Constitutional Court judgment in the Jon Qwelane-matter17 in which it is anticipated that the apex court will address these concepts and definitions in its determination of whether PEPUDA’s existing definition of hate speech is unconstitutional or not.

[4.5.6] It must lastly be asked whether it is pure coincidence that this Bill is in an advanced legislative stage at the same time as the 18th Constitutional Amendment Bill and the Expropriation Bill – which seek to allow for EWC and now also, possibly, that the state will act as custodian of all land in South Africa? The CFCR is concerned about the ideological undertones and language of the PEPUDA Amendment Bill (as well as the other two mentioned Bills related to EWC) against the backdrop of the ANC’s policy of radical economic transformation (RET), the context of its national democratic revolution (NDR) as well as its implementation of national demographic representivity.

[4.5.7] The PEPUDA Amendment Bill – especially in its current format – is unacceptable as it will have a deadly impact on political freedom, freedom of expression and freedom of association in South Africa and will point South Africa in the direction of totalitarianism, censorship and severely diminished freedom of expression.

[4.5.8] The CFCR thanks the Committee for the opportunity to express these views and submissions on the Bill and would welcome the opportunity to deliver verbal presentations thereon.

Most sincerely,

Adv Jacques du Preez Chief Executive Officer FW de Klerk Foundation

1 Section 1, Constitution of the Republic of South Africa, Act 108 of 1996

2 Act 4 of 2000

3 Section 1, PEPUDA

4 Section 1, PEPUDA

5 Section 1, PEPUDA

6 Act 55 of 1998

7 EEA Section 5

8 EEA Section 6(1)

9 EEA Section 60

11 Article 16, Constitution of South Africa

 

13 The listed grounds are the following:

(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status; or

(b) any other ground where discrimination based on that other ground—

(i) causes or perpetuates systemic disadvantage;

(ii) undermines human dignity; or

(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a);

14 Articles 25(8) 26(4)(2) of the Amendment Bill

15 Hlatshaneni 2019 https://citizen.co.za/news/south- africa/general/2119286/my-combi-court-rant-wasnt-racist-mazibuko-tells- sahrc/.

16 Act 55 of 1998

17 Qwelane v South African Human Rights Commission and Another (686/2018) [2019] ZASCA 167; [2020] 1 All SA 325 (SCA); 2020 (2) SA 124 (SCA); 2020 (3) BCLR 334 (SCA) (29 November 2019) (saflii.org)

ENDS

 

Issued by the FW de Klerk Foundation, 30 June 2021