Planned changes to South Africa’s discrimination laws raise red flags for legal experts

Legal experts have raised concerns around the Promotion of Equality and Prevention of Unfair Discrimination bill which was recently published for public comment.

The main purpose of the Act is to realise the constitutional right to equality so that people do not face unfair discrimination by either the state or anyone else.

However, in an analysis of the bill for the FW de Klerk Foundation, advocate Mark Oppenheimer said that the bill will have major consequences, including:

  • The bill redefines the terms “equality” and “discrimination” to be much broader. Specifically, the bill proposes to amend the definition of “discrimination” to make it clear that it is not necessary for a person to act with intention before they can be found guilty of unfair discrimination.
  • The definition of ‘equality’ has been broadened to include equal rights and access to resources, opportunities, benefits and advantages.
  • The draft legislation departs from the fault requirement found throughout South African law by creating liability for unintentional acts or omissions which cause prejudice to or undermine the dignity of a person.
  • It will make persons vicariously liable for contraventions of the act performed by their workers, employees, or agents. This would include discrimination, hate speech and harassment.
  • A series of hefty obligations will be placed on non-governmental organisations, traditional leaders and institutions, community organisations, and those contracting with the state, and the executive will be empowered to create codes to regulate these sectors. Government ministers will be empowered to discriminate between people, companies, and organisations depending on their size, resources, and influence.
  • It requires the state to overhaul all laws, policies, codes, practices, and structures which do not conform to the newly proposed definitions of equality and discrimination.

The FW De Klerk Foundation said that it shares these concerns about the bill and is of the view that the strenuous obligations imposed by the Bill, if implemented, will be virtually impossible to fulfil.

It will also be very costly and burdensome because the ‘equality’ suggested by the Bill cannot be quantified, it said.

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Planned changes to South Africa’s discrimination laws raise red flags for legal experts