New discrimination and equality laws proposed for South Africa

The Department of Justice and Constitutional Development has invited interested parties to submit written comments on the proposed amendments to the Promotion of Equality and the Prevention of Unfair Discrimination Act.

In an explanatory notice published on Friday (26 March), the department said that the amendments deal with two key elements:

  • The prevention of unfair discrimination;
  • The promotion of equality.

The prevention of unfair discrimination

The first part of the Bill (clauses 1 to 3) aims to improve the protection of complainants against discrimination.

This will be done by broadening and amending the scope of the definition of ‘equality’ by indicating that it includes equal rights and access to resources, opportunities, benefits and advantages.

The definition of ‘discrimination’ will also be broadened by indicating that intention to discriminate is not required. It is the effect that matters, the department said, and this makes it easier for complainants to make out a case of discrimination.

The bill plans further to amend section 6 of the Act, which deals with the general prohibition of unfair discrimination, by adding two new subsections as follows:

  • 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.
  • 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.

The amendment bill will also insert section 9A in the Act which will prohibit retaliation against a person who exercised his or her remedies in terms of the Act.

The promotion of equality 

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

  • Clarify and reduce certain duties relating to the promotion of equality of the state and public bodies, 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.
  •  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.
  • 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.
  • 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 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.
  •  To strengthen enforcement of the provisions of the Act, the Bill now criminalises the willful submission of false information by any person.

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New discrimination and equality laws proposed for South Africa