On 26 March 2021, the Department of Justice and Constitutional Development gazetted an invitation to interested parties to submit written comments on a proposed draft Bill that would amend the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.
Summary
The Constitution states that the Republic is founded on values which include dignity, achievement of equality, and the rule of law. The Constitution’s Bill of Rights affirms the values of dignity and equality.
Unfair discrimination
The Bill of Rights stipulates that the state may not unfairly discriminate directly or indirectly against anyone on any specified ground including race and gender. No person may unfairly discriminate directly or indirectly against anyone on a specified ground. Discrimination on such a ground is unfair, unless it is established the discrimination is fair.
The Bill of Rights required legislation to prevent or prohibit unfair discrimination to be enacted. The Promotion of Equality and Prevention of Unfair Discrimination Act was passed.
The Act states that neither the State nor any person may unfairly discriminate against anyone.
The Act, currently, defines discrimination as any act or omission imposing burdens on or withholding benefits from any person on a prohibited ground.
(A prohibited ground is a listed ground (race, sex, etc) or any ground if discrimination based on it causes systemic disadvantage or undermines dignity, or adversely affects equal enjoyment of anyone’s rights in a serious manner akin to discrimination on a listed ground.
(The Act requires an aggrieved person to make out only a prima facie case of discrimination. She is not required to prove it on a balance of probabilities, or any unfairness. She need only show she has a reasonable chance of success. The presiding officer need merely be of opinion that available evidence might be found to be credible and acceptable and could (if not disproved) show that the conduct of the respondent against whom she instituted proceedings is unfair discrimination. It is for the respondent to prove that discrimination did not take place, or that his conduct was not on a prohibited ground, or that the discrimination is fair.
(In determining if he has proved the discrimination is fair, account must be taken of: The context; factors including—likely impact of the discrimination on the complainant, whether she belongs to a group suffering from patterns of disadvantage, the nature and extent of the discrimination, whether it is systemic, whether it has a legitimate purpose, the extent to which it achieves its purpose, whether there are less restrictive means to achieve the purpose, and to what extent the respondent has taken reasonable steps to address the disadvantage related to a prohibited ground or to accommodate diversity; and whether the discrimination reasonably and justifiably differentiates on objectively determinable criteria intrinsic to the activity.)
The Bill would expand the Act’s definition of “discrimination” to include conduct that causes prejudice to anyone or undermines their dignity. These two varieties of discrimination are subjective, in contrast to the Act’s existing forms of discrimination (conduct which imposes burdens on or withholds benefits from a person). This subjectivity will enable a complainant to allege discrimination on any plausible assertion that the respondent undermined her dignity or prejudiced her. The respondent would have the heavy onus of proving he had not. This differentiation between discrimination on an objective ground and on a subjective ground would violate his right to equal protection of the law. The respondent’s practical inability to prove that his conduct did not undermine a complainant’s dignity or prejudice her would violate the Rule of Law, because he bears the onus of having to disprove her subjective allegation. Adjudicative procedures should be fair.
The Bill would also amend the definition to cover conduct that, even unintentionally, has any such objective or subjective consequence, even if that was not the reason for the conduct. A statute placing a reverse onus on the respondent is all the more objectionable if he is in practice unable to discharge it even though any discrimination was unintentional and incidental. As said, adjudicative procedures should be fair.
Equality
The Bill of Rights equality clause declares everyone is equal before the law and entitled to equal protection of the law, and equality includes equal enjoyment of all rights and freedoms.
The clause provides that, to promote achievement of equality, legislative measures may be taken to protect or advance categories of persons disadvantaged by unfair discrimination.
The Promotion of Equality and Prevention of Unfair Discrimination Act was enacted. It currently defines “equality” as including equal enjoyment of rights and freedoms, de jure and de facto equality, and equality in terms of outcomes (i.e., consequences or results).
The draft Bill would expand the Act’s equality definition to include “equal right and access to resources, opportunities, benefits and advantages”, equality in terms of “impact”, and “substantive equality”.
These proposed inclusions (although their meaning is unclear) go beyond the Constitution’s equality clause (equality before the law and entitlement to its equal protection, and equal enjoyment of rights) and beyond the Act’s current equality definition of equal consequences.
The Bill’s proposed inclusions in the Act’s definition of equality (i.e., equal right to resources, equality of impact and substantive equality) go further than mere equality of consequences, and contemplate an entitlement to material equality.
The overall meaning of these envisaged inclusions in the Act’s equality definition is elusive. This violates the Rule of Law, which requires laws to be clear.
Currently, the Act imposes on all persons a duty and responsibility to “promote” equality. It is unclear what this entails. To promote something means to further or advance it. But in the context of the Act, the meaning of a duty to further or advance equality is uncertain.
This uncertainty would be aggravated if the Bill’s amendments of the Act’s “equality” definition were implemented. It is unclear how a person would discharge her obligation to promote equal access to resources, equality of impact and substantive equality.
This vagueness would violate the principle of the Rule of Law that a citizen should have an adequate indication of the legal rules applicable to a given case.
The Bill would amend this provision of the Act imposing a duty and responsibility on all persons to promote equality, so that it would stipulate that all persons also have a duty and responsibility to “eliminate discrimination”. Everyone would then be obliged to eliminate any conduct that, intentionally or not, imposes burdens on, withholds benefits from, causes prejudice to or undermines the dignity of any person related to a prohibited ground, whether the discrimination on a particular ground was the reason for the conduct or not. To “eliminate” means “get rid of”. But the meaning of a duty to get rid of discrimination is unclear. This would violate the Rule of Law. A citizen should have an adequate indication of the law applicable.
The Bill will not require all persons to eliminate “unfair” discrimination. They will have to eliminate discrimination even if it is fair.
The Act’s current provisions about the promotion of equality have not yet been brought into operation. A reason may be uncertainty about the meaning of the duty to promote equality. The Department’s note about the background to the draft Bill says a reason that the Act’s provisions about promotion of equality are not in operation is the regulatory burden placed by them on society, and the Bill addresses it. On the contrary, the Bill increases the burden.
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