South Africa observes new discrimination laws

A REVIEW OF DRAFT AMENDMENTS TO THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT

Earlier this month, the nation caught wind of the latest draft amendments to the Promotion of Equality and Prevention of Unfair Discrimination Act. These new amendments are geared towards offering better protection to members of society who oppose and contest unjust discrimination, and those individuals who have been and are victims of hate crimes.

Acting Minister in the Presidency, Khumbudzo Ntshavheni had announced that Cabinet approved the publication for public comment of the Promotion of Equality and Prevention ofUnfair Discrimination AmendmentBill of 2021, on Friday 26 February.

“The proposed amendments seek to address the weaknesses that are in the Promotion of Equality and Prevention ofUnfair Discrimination Act, 2000(Act 4 of 2000). The proposed amendments will strengthen its ability to prevent discrimination and promote equality for all SouthAfricans, as enshrined in Section9 of the Constitution of theRepublic of South Africa of 1996.” The Acting Minister said the Bill will be gazetted and made available through the Department of Justice and Constitutional Development’s website at justice.gov.za.

Intention to discriminate not required

The Bill, which aims to amendSection 6 of the Act, has been published for public review and comment by the Department of Justice and ConstitutionalDevelopment, and is expected to make significant alterations to the existing Act. The driving objective behind the Act is to ascertain and amplify the constitutional right to equality in an effort to eradicate unfair (whether direct or indirect) discrimination by the state, or anyone else for that matter. The proposed Bill aims to to revise the underpinning definition of the term ‘discrimination’ in order to stipulate and reiterate that it is not a necessity for an individual to ‘act with intention’ before they being found guilty of unjust discriminatory practices and behaviour.

Employers become liable for their workers’ behaviour

A major addition to the Act is the introduction of a law or policy that will render employers liable for any unfair discrimination that is perpetrated by individuals legally employed at their business establishment. This recommendation does, however, indicate that employers will not be liable or prosecuted should they be able to prove that they implemented ‘reasonable’ measures in order to make certain that their employees do not unfairly discriminate against persons whilst fulfilling their duties in the workplace. The Bill also proposes that any individual who causes, incites or solicits another individual to unfairly discriminate against others will be found guilty of unfair discrimination themselves.

Additional provisions made by the Bill

One protective measure that has been added condemns any forms of retaliation enacted against individuals who challenge unfair discrimination or who inducts proceedings under the Act to contest unfair discrimination. Another provision suggests that should gender, race or disability play a role in the discriminatory crime, then then unjust discrimination needs to be recognised as ‘aggravated’ offense factor when sentencing or punishing a perpetrator.

Subsequently, it has been proposed that Legal Aid approach the Minister of Justice with recommendations of regulations that may be sanctioned to offer financial support to under privileged individuals who wish to fight against unfair discrimination in our courts.

The Department of Justice and Constitutional Development has invited all interested parties to submit written comments on the Promotion of Equality and the Prevention of Unfair Discrimination Amendment Bill by Wednesday, 12 May 2021.