Media release: New equality bill leaves too much unexplained, threatens constitutional coherence, argues FMF

29 June 2021

Chris Hattingh
083 600 8688

Gail Day
076 836 5661

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New equality bill leaves too much unexplained, threatens constitutional coherence, argues FMF
Johannesburg – The Free Market Foundation (FMF) believes the proposed Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill is vague and unclear, does not comport with provisions of the Constitution, and worsens a burden government wanted to lessen. The FMF wants the bill withdrawn.
In its submission to government on the proposed bill, the FMF, per Senior Researcher, Gary Moore, argues that because the Rule of Law is a foundational principle of the Constitution, all law must be clear and precise about its content and implications, and must be consistent with the Constitution’s definitions of legal concepts.  
The bill’s first major change to existing discrimination law is to significantly weaken due process in discrimination cases. The law already contains a reverse burden of proof – meaning the person accused of unfair discrimination must prove that they did not in fact so discriminate, rather than the person alleging the unfair discrimination proving it – but the bill goes further.
It adds subjective elements to the definition of unfair discrimination that exclusively relate to the mindset of the person alleging discrimination. In other words, the person accused of unfair discrimination can never, for example, “prove” that they did not “undermine the dignity” (a proposed inclusion in the bill) of the alleger.
Moreover, the bill removes the requirement of intention from discrimination. As discrimination is nothing more than a choice between two or more alternatives (with unfair discrimination being an unfair choice), it can never logically be divorced from the intention of the purported discriminator. Moore writes: “A statute placing a reverse burden of proof on the respondent is all the more objectionable, if the respondent is unable to discharge it even though any discrimination was unintentional and incidental.”
It will be virtually impossible for anyone to defend an accusation of unfair discrimination, thereby empowering malicious actors in society to simply allege wrongful conduct without any basis in reality. The Rule of Law requires fairness and due process, and the bill falls far short of that with the proposed provisions relating to unfair discrimination.
The FMF’s submission also addresses the bill’s provisions relating to the “promotion of equality”. In this respect, the bill redefines what is meant by equality.
Whereas the Constitution defines equality as everyone being equal before the law, having the right to equal protection and benefit of the law, and full and equal enjoyment of all rights and freedoms, the bill adds equal access to resources and equality of impact and outcomes.
Moore argues that this new definition leaves much vague and unclear. The implications of the application of this definition are unpredictable, when law is precisely meant to be predictable. Moreover, because the definition goes beyond the constitutional definition of equality, the bill is likely unconstitutional to the extent of the incoherence.
This new definition of equality is more problematic in light of the bill’s proposal to impose a general obligation on all sectors of society to “promote equality”. What is the implication of this duty if it is unclear what “equality” entails according to the bill?
As Moore writes, “It is unclear what a person would have to do to discharge her obligation to promote equal access to resources, equality of impact and substantive equality. This vagueness would violate the Rule of Law. It is a principle of the Rule of Law that the law must be adequately accessible, so that the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.”
Finally, the Department of Justice has explained that the bill will help lessen the “regulatory burden” imposed by existing equality law. Moore notes, however, that “the Bill does not address the burden placed on society by the Act’s equality provisions. On the contrary, the Bill would make the burden more oppressive.”
The FMF’ submission can be read

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