The Department of Justice and Correctional Services says that proposed changes to the Promotion of Equality and Prevention of Unfair Discrimination Act (Pepuda) are necessary as they will help improve ‘substantive equality’ as provided for under the country’s Consitution.
In an opinion column for the Daily Maverick, the department’s Chrispin Phiri said the Pepuda Amendment Bill redefines discrimination and clarifies that intention will not be a requirement to establish discrimination.
Phiri said that the bill will also place an obligation not only on the state and public bodies but also on private bodies to promote equality and prohibit unfair discrimination.
“The state will have to commit its budget towards these ideals. The private sector will have to uphold various sectoral codes which promote equality and seek to eliminate unfair discrimination. No one serious about justice and equality should oppose this project,” he said.
Phiri added that the South African labour market is currently heavily racialised and gendered.
“The Pepuda Amendment Bill, though not a panacea, can go a long way to ensuring that these types of injustices and unfair discrimination do not continue into perpetuity.
“In spite of the aspirations of the Constitution, we cannot wish away the past or pretend that we are rebuilding South Africa on a new foundation.”
Civil society and business groups have warned that the bill will introduce ‘idealised’ requirements to achieve its stated goal of equality, and effectively broaden the definition of discrimination.
The opposition Democratic Alliance said it is concerned about these amendments and warned that the removal of ‘intent’ will have unforeseen and far-reaching consequences, whereby individuals might break the law either without knowing they have done so or without ever intending to do so.
The proposed definition of discrimination is simply too broad and will overwhelm South Africa’s already overburdened justice system, it said.
This was echoed by the National Employers Association of SA (Neasa) which said that the expanded definition of discrimination in the bill may make it more difficult for companies to prove that any discrimination, in which they may have unintentionally engaged, is not unfair.
“The objective criteria defence will still be available, but companies may nevertheless find it harder to show the fairness of their conduct when the definition of discrimination is so much wider than before,” it said.
The second major point of contention relates to “vicarious liability”, where the bill will make businesses liable for contraventions performed by their workers, employees, or agents. This includes discrimination, hate speech and harassment.
The introduction of vicarious liability in clause 2 will put an unreasonable responsibility on employers to police the actions of their employees, even during non-working hours, the DA said.
“Employers should not be unreasonably held liable for the discriminating behaviour of their employees. In a country where the numbers of unemployment grow daily, the government should not be introducing legislation that will discourage employment in any way or form.”