PEPUDA Amendment Bill – overbroad definitions remove any possible defence against a claim of unfair discrimination

by Adv Nadene Badenhorst
3 June 2021

This is the third 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 proposed amendments to the definitions of “equality” and “unfair discrimination” 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.

The (proposed) definition of “equality”:
Section 1(1)(ix) of the existing Act defines “equality” as:
the full and equal enjoyment of rights and freedom as contemplated in the Constitution and includes de jure [i.e. legal] and de facto [i.e. in fact] equality, and also equality in terms of outcomes”.

Clause 1(b) of Amendment Bill proposes a broadening of this definition to also include, amongst other things:
equal rights and access to resources, opportunities, benefits and advantages”.

While this may sound like a good thing, this proposed amendment in fact goes much further than the substantive equality, or equality of outcome, that our Constitution has in mind.

To give a practical example in the context of religious freedom, it means that all persons will have an equal right to become a member of a church or other religious institution, to serve as a leader in the church, or to be employed by the church.  The fact that that person’s own religious convictions and beliefs may go directly against the religious convictions and beliefs of the church or religious institution, would be completely irrelevant.

This effectively cancels religious organisations’ right to institutional autonomy (section 15 of the Constitution, read with sections 18 and 31). This includes their right to determine their own doctrines and to regulate their own internal affairs, free from interference by the State. If the State were to be able to dictate to religious organisations who they should accept as members, or appoint as leaders or employees, it will overrule the Constitutions of religious organisations which they might as well throw out of the backdoor as State regulation comes through the front door!

This concern is exacerbated by Clause 28(2) of the Amendment Bill, which compels the Minister to issue regulations and/or codes of practice that will prescribe to, amongst others, religious organisations how they should eliminate discrimination and promote equality in their organisations. (For more on this particular aspect, see the fifth article in our series on the Amendment Bill).

The (proposed) definition of “discrimination”:
Section 1(1)(viii) of the existing Act defines “discrimination” as:
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 (including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth).

Clause 1 of the Amendment Bill proposes that this definition be broadened, as follows:

  • discrimination” also means if someone “causes prejudice to” (which is not defined in the Bill) another person on any one or more of the prohibited grounds (subclause (c));
  • discrimination” also means if someone “otherwise undermines the dignity of” another person on any one or more of the prohibited grounds (subclause (d));
  • intention is completely irrelevant in establishing whether or not there was discrimination;
  • it is also irrelevant whether a particular ground (e.g. sex, gender, etc) was “the sole or dominant reason” for the discrimination

The net effect is that the definition of “discrimination” becomes increasingly subjective – i.e. if the person who alleges discrimination says they feel prejudiced, or that their feelings have been hurt, then that is enough to establish discrimination.  The fact that the person, church or religious institution against whom the complaint is made, had no intention whatsoever to discriminate against the person (in their speech or action), and did not treat them differently because of their sex, gender, sexual orientation, religion or for whatever reason they allege, makes absolutely no difference. In fact, the Amendment Bill specifically says that intention is completely irrelevant.

An example of this in practice would be an usher on door duty on a Sunday who accidentally overlooks the couple who is standing in front of the queue to enter the building and helps the couple behind them to their seats first.  If the couple in front of the queue happened to be part of the LGBT+ community, they could allege that they feel prejudiced, or that their human dignity was undermined, because they were not the first to be shown to their seats. They would be able to lodge an unfair discrimination claim against both the usher and the church – even if their sexual orientation had nothing to do with the matter and there was no intention to discriminate!

This is potentially very dangerous because it effectively imposes strict liability. In other words, it is not necessary to prove that a person or organisation was at fault (either because they acted with intent, or negligently) before they will be found guilty of “discrimination”. This proposed “no fault” liability is at odds with the general principle in our law that people should only be held liable for harm which they caused through their own fault and is more reminiscent of the type of liability that was imposed on people during the Apartheid years!

Ultimately, the Amendment Bill removes any possible legal defence to an allegation of discriminatory speech or action. And once “discrimination” has been established, the only way to escape liability is to show that, even though discrimination took place, the discrimination was nonetheless for a fair reason in law (sections 13 and 14 of the existing Act).

It is also important to note, as various cases have already shown, a defence based on one’s religious convictions and beliefs is not easy to prove and will be even more difficult if the Amendment Bill is passed into law.

So, for example, in the case of Strydom v NG Gemeente Moreleta Park (2005), the Court found that the church’s termination of a music teacher’s contract on grounds of his homosexual orientation amounted to unfair discrimination, and ordered the church to pay him R75,000 in damages for the impairment of dignity and emotional and psychological earnings. The fact that the church’s belief was that marriage can only validly exist between one man and one woman, and that it was a requirement for persons in the church’s leadership to support church doctrine, did not make the discrimination “fair” – in this instance particularly because the church could not prove that the complainant was in a position of spiritual leadership, or was employed to teach any Christian doctrine.

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 www.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!

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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