PEPUDA Amendment Bill – extending the scope of legal liability beyond the person who actually discriminated

by Adv Nadene Badenhorst
3 June 2021

This is the fourth article in our series on the PEPUDA Amendment Bill (“the Amendment Bill”) and its potentially detrimental and far-reaching implications for religious freedom in South Africa, if passed into law in its current form.

In this article, we look at the way in which the Amendment Bill proposes to extend the category of persons who can be held liable in terms of the existing Act (i.e. the Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000, otherwise known as “PEPUDA” or “the Equality Act”). We also mention some examples of what this may practically mean for organisations and persons of faith.

Persons who “cause, encourage or request” discrimination:
Clause 6(2) of the Amendment Bill extends the scope of persons who can be held liable for (unfair) discrimination by stating that, in addition to the one who may be primarily accused of discrimination:

any person [which includes natural and legal persons] who causes, encourages or requests another person to discriminate against any other person, is deemed to have discriminated against such other person”.

In other words, any person or organisation who caused, encouraged or requested (none of which are defined in the Bill) the discrimination, will be liable to the same extent (and potentially suffer the same punishment, including fines or even potential jail time) as the person who actually discriminated.

Here is an example of how this clause could impact persons and organisations of faith:  Let’s say a pastor, during his Sunday morning preach, makes the statement (based on John 17 verse 3) that Jesus is the only true God, and one of his congregants – really inspired by the preaching – then shares the same statement on Facebook.  If a person of another faith sees this post and takes offence, and asks “what do you base this discriminatory statement on?” and the congregant replies “this is what my pastor says“, the pastor could be held equally liable for the allegedly discriminatory statement.

Or, let’s say a church teaches that God created human beings male and female (Genesis 1 verse 27). Based on this teaching, a medical doctor who is also a congregant of that church, declines a request to perform sex-reassignment surgery on a transgender person. In that instance, the transgender person could potentially institute a case of unfair discrimination not only against the doctor, but also against his/her church who “caused” or “encouraged” him so to discriminate.

Clearly, this opens up the door to a flood of litigation against churches and other religious organisations, particularly also in view of the Amendment Bill’s explicit removal of “intention” as a requirement for “discrimination”. (In this regard, see the third article in our series).

As such, the Bill will have a chilling effect on freedom of religion, and freedom of religious expression in particular. Churches and other religious organisations may stop preaching or teaching certain Scriptures which may be regarded as “offensive” or “politically incorrect”, for fear that they themselves may be accused of unfair discrimination simply because their congregants may choose to respond to the teaching in a particular way which is seen as “discriminatory”. Sanctions will potentially apply even if the church or religious organisation did not know about it, and had no intention of “discriminating” against the person themselves!  

Employers liable for the acts of their employees (“vicarious liability”):
Another way in which the Amendment Bill seeks to extend liability, is by making an employer liable for the discriminatory speech or conduct of his/her employee – even if the employer did not know about it, and/or the employee had no intention to discriminate against the person.

An example of this would be where a Christian radio station conducts an interview with a person and during the interview, the interviewer asks the person a question which he/she feels undermines his/her dignity. In that case, the interviewer could be held liable for discrimination – even if he/she did not intend to discriminate against the person. Equally, the Christian radio station could also be held liable and sanctioned – even if they did not know about the interview or the question asked.

This is yet another way in which the Amendment Bill seriously threatens the rights of believers in South Africa to freely – and without fear of persecution or punishment – say what they believe, and live out their beliefs (not only in the privacy of their own homes, but out there in the public space).

Call to action:
Clearly, this Bill has radical implications for our religious rights in South Africa and we must oppose it. FOR SA therefore calls upon every individual and every denomination, church and other faith organisation, to make your voices heard on this Bill by making a submission to the Department of Justice before Friday, 30 June 2021.  (Although the deadline for submissions on the Bill was on 12 May 2021 already, the Department has indicated to FOR SA that it would accept submissions until 30 June 2021).

A template submission (both for individuals, and for organisations) is available on the FOR SA website, which can be used “as is” or adapted and e-mailed to fbhayat@justice.gov.za

For more articles like this that explain what the PEPUDA Amendment Bill is about, and why it is such a major threat to religious freedom, visit our website at forsa.org.za  or follow us on Facebook at “Freedom of Religion SA”. 

Please like and share this article far and wide so we can push back against this unnecessary and unconstitutional government overreach into our lives!

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Adv Nadene Badenhorst

Adv Nadene Badenhorst is an Advocate of the High Court of South Africa. She serves as FOR SA’s full-time Legal Counsel. For her full bio, see https://forsa.org.za/about-us/our-team/

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