PEPUDA Amendment Bill – State regulation through the front door

by Michael Swain
3 June 2021

This is the fifth 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 how the Bill extends the scope of the existing Promotion of Equality and Prevention of Unfair Discrimination Act (“PEPUDA” or “the Equality Act”)   to such an extent that it will be practically impossible to escape the net of an accusation of unfair discrimination.  The test is so subjective and the liability so strict and far-reaching that – if passed into law – you will live every day with the imminent threat of facing ruinously expensive and disruptive legal action.   

Activists eagerly await the opportunities this Bill presents to bludgeon people of faith simply for holding traditional faith-based or conservative views.  In a recent Daily Maverick opinion piece, Professor Pierre de Vos – who teaches Constitutional law at the University of Cape Town Law Faculty, where he is head of the Department of Public Law – wrote an article entitled “The religious fig leaf that conceals the justification of hate crimes against the LGBTQ community”. He enthusiastically declared that this Bill will not allow individuals or organisations “to escape censure for their outrageous and harmful views, merely because these are couched in religious terms”.

He has good reason to celebrate, because this Bill will give activists greater access to State funding to attack “the corrosive impact of … religious teachings and the harm caused by them”.  Any defence or attempt to justify something you may do or say on the grounds of your faith and sincerely held beliefs, is seen by activists as “self-serving nonsense”. This Bill has the chilling potential to give their views the full force and backing of the law.

If you think that this is worrying, then your troubles are only just beginning.  The Bill goes further into the dystopian realms of controlling thought and behaviour by imposing a positive duty on all individuals, businesses and religious organisations to mirror, parrot and promote the Bill’s definition of “equality”.

Clause 28(1) and (2) state that:
All persons [which includes natural and juristic persons], non-governmental organisations, community-based organisations or traditional institutions must promote equality in their relationships with other bodies and in their public activities.” (Own emphasis.)

The Bill states that “equality” must demonstrate equal distribution on all grounds (e.g. race, sex, gender, sexual orientation, religion, etc) – so possibly all approximately 17 different types of representation will need to find placement and expression in those who you employ, accept as members, appoint to leadership, or whose marriages a religious officer may be compelled to solemnise.

What this duty entails, will be defined by the “responsible Minister” (who will most likely, in the case of religious organisations, be the COGTA Minister) who must, in term of Clause 28(2) of the Bill,  through Regulations or otherwise, determine the measures to be adopted and implemented and issue a Code of Practice dealing with the elimination of discrimination and promotion of equality.

This Bill pushes State regulation of religion through the front door by giving it the power to, through regulations, impose its own definition of “equality” on persons, businesses and non-government organisations (including religious organisations) – which must then be complied with.  Organisations from across the faith spectrum who have fought the spectre of State interference, will no longer be free to govern themselves or to define their own beliefs and practices.  Instead, they will be accountable to Government and policed by activists.

Perhaps even more concerning is that clause 28(4) of the Bill gives the Minister the power to discriminate between people, companies, and organisations by imposing different codes of conduct upon them depending upon “their size, resources, and influence”.  It gives the Minister the discretion to regulate at a micro-level.  Government can literally cherry-pick whichever organisation it wants to regulate.  It makes it possible for Government to target specific organisations who may be speaking or functioning in a way that is (perhaps) contrary to State’s agenda and to make it very problematic for them to operate.

The net result will be that religious organisations (which includes independent faith-based schools and places of training and education) will effectively have their Constitution or tenets of faith or practice eliminated and overridden.  You must simply obey the regulations decreed by the “responsible Minister” – or face the consequences.

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!

Michael Swain

Michael Swain has been a successful businessman and also spent over 30 years in Christian ministry. He serves as FOR SA’s Executive Director and its (primary) media spokesperson. For his full bio, see https://forsa.org.za/about-us/our-team/

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