SAHRC notes with concern that misinformation regarding the PEPUDA Amendment Bill is circulating on media

Thursday, 24 June 2021

The South African Human Rights Commission (the SAHRC or the Commission) has noted with concern that misinformation regarding the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) Amendment Bill has been circulated widely on social media and now also in traditional media news articles. As a primary implementer of PEPUDA, the Commission welcomes the Amendment Bill, particularly in so far that it aims to bring the currently inoperative promotional aspects of PEPUDA (contained in Chapter 5 of the Act), into effect.

Misinterpretations of the PEPUDA Amendment Bill include alarmist sentiments expressed about the explicit inclusion of substantive equality, the amendment of the definition of discrimination, the introduction of vicarious liability for discrimination, and the revised promotional aspects in Chapter 5.

From the outset, it is important to underscore that the current amendment largely clarifies the current status of our law, and more explicitly reflects our constitutional vision. “Intent” is already not a requirement for discrimination or any other prohibition contained in PEPUDA, while “substantive equality” is already envisioned in the Constitution of the Republic of South Africa, 1996 (Constitution). The PEPUDA Amendment Bill thus merely reflects the current legal and constitutional position in South Africa in this regard.

Regarding the addition of “equal rights and access to resources, opportunities, benefits and advantages” and “substantive equality”, it should be noted that everyone already has a right, in terms of section 9 of the Constitution, to the equal enjoyment of all human rights and freedoms, including economic and social rights.

A right to equal “access” to resources therefore is not a guarantee of the equal distribution of resources, opportunities and advantages, but aims to ensure that everyone has a fair chance at accessing societal goods. This language reflects the concept of “substantive equality”, which means treating people in different circumstances differently, to ensure a substantively equal (not perfectly equal) outcome. Substantive equality is already reflected in our Constitution, and the current amendment therefore reflects our constitutional provisions.

Regarding the amendment of the definition of “discrimination”, it should be noted that the prohibitions of unfair discrimination, hate speech and harassment currently contained in PEPUDA do not require “intent” as an element. This amendment therefore simply clarifies that intent is not a requirement. The introduction of a prohibition of incitement to discriminate, and the introduction of joint and several liability for discrimination, aims to offer additional protection to vulnerable groups, include race-, linguistic- and religious-minorities.

In this regard, it is important to note that the provision on determining the fairness or unfairness of discrimination, contained in section 14 of PEPUDA, remains as it is presently written. One of the relevant factors in section 14 is “context”, which will allow alleged perpetrators of unfair discrimination to explain why conduct was not discrimination in a particular instance.

Finally, it is worth noting that the promotional aspects adopted by the State, public bodies and all members of society will be proportionate to the stakeholder at issue. For example, whereas the State and public bodies will need to justify the failure to make budgetary allocations towards the elimination of discrimination and the promotion of equality, private bodies will merely need to abide with issued codes in their relationship with other bodies and in their public activities. When issuing such codes, relevant Ministers will have regard to the size, resources and influence of the organisations at issue.

The Commission has submitted comments on the PEPUDA Amendment Bill to the Department of Justice and Constitutional Development. The Commission implores members of the public to carefully read PEPUDA, as well as the PEPUDA Amendment Bill, before making submissions on the Bill – instead of relying on templates that may contain misinterpretations or inaccuracies. The Commission welcomes broad societal participation in this important legislative process.

Statement issued by SAHRC, 24 June 2021