Lumiere Charity: SOUTH AFRICA: RELIGIOUS FREEDOM POTENTIALLY AFFECTED BY PEPUDA AMENDMENT BILL

SOUTH AFRICA: RELIGIOUS FREEDOM POTENTIALLY AFFECTED BY PEPUDA AMENDMENT BILL.

The proposed Pepuda Amendment Bill has posed the concern that, if accepted, it may adversely affect religious freedom within South Africa.

PEPUDA

Pepuda is an acronym for the Promotion of Equality and Prevention of Unfair Discrimination Act. It was passed into law in 2000; Alleged News.

FREEDOM OF RELIGION SOUTH AFRICA

Freedom of religion for South Africa (FOR SA), a non-profit legal advocacy organisation dedicated to upholding the rights to religious freedom conferred by the South African Constitution, [1] states that "the Department of Justice has released the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill (the Amendment Bill) for public comment; Alleged News. [2]

From a religious freedom point of view, FOR SA states,

Section 1(1)(ix) of the existing Act defines 'equality' as:

"the full and equal enjoyment of rights and freedom as contemplated in the Constitution and includes de jure [i.e. legal] equality, and also equality in terms of outcomes".

Clause 1(b) of Amendment Bill proposes a broadening of this definition to also include, amongst other things:

"equal rights and access to resources, opportunities, benefits and advantages."

While this may sound like a good thing, this proposed amendment in fact goes much further than the substantive equality, or equality of outcome, that our Constitution has in mind.

To give a practical example in the context of religious freedom, it means that all persons will have an equal right to become a member of a church or other religious institution, to serve as a leader in the church, or to be employed by the church. The fact that that person's own religious convictions and beliefs may go directly against the religious convictions and beliefs of the church or religious institution, would be completely irrelevant.

This effectively cancels religious organisations' right to institutional autonomy (section 15 of the Constitution, read with sections 18 and 31). This includes their right to determine their own doctrines and to regulate their own internal affairs, free from interference . . ." [3]

FOR SA states, "The Amendment Bill seeks to address weaknesses in the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (PEPUDA or 'the Equality Act'). However, in the process it:

- significantly broadens the definitions of 'discrimination' and 'equality' found in the Act;

- seeks to extend the scope of the prohibition of unfair discrimination; and

- provides for 'joint and several liability'. This means that employers will be liable for the discriminatory actions of their employees, even if the employer did not know about it and even if the employee did not act intentionally," Alleged News. [2]

FOR SA states that the Pepuda Amendment Bill has "implications for our religious rights in South Africa" and "calls upon every individual and every denomination, church and other faith organisation, to make your voices heard on this Bill by making a submission to the Department of Justice before Friday, 30 June 2021. (Although the deadline for submissions on the Bill was on 12 May 2021 already, the Department has indicated to FOR SA that it would accept submissions until 30 June 2021)," Alleged News. [3]

AFRICAN CHRISTIAN DEMOCRATIC PARTY

From a religious freedom point of view, the African Christian Democratic Party (ACDP) has called on South Africans to oppose the Pepuda Amendment Bill; Alleged News. [4]

NEDERLANDSE GEREFORMEERDE KERK

The Nederlandse Gereformeerde Kerk (NGK) (Dutch Reformed Church) stated that "Pepuda 'bedreig demokrasie, vryheid' - NGK" (Pepuda threatens democracy, freedom - NGK); Alleged News. [5]

A statement with regard to the PEPUDA 2021 Amendment Bill was issued by Dr Gustav Claasen, general secretary of the NG Church, on 15 June 2021, from which the following was drawn:

"Section 9 of the Constitution already recognises the existence of indirect unfair discrimination. PEPUDA already makes provision for the prohibition of unfair indirect discrimination, but the Amendment Bill adds the ... prohibition of unintentional discrimination," Alleged News. [5]

"According to some legal experts the bill may have major consequences, including:

- 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 (the bill) will make persons vicariously liable for contraventions of the act performed by their workers, employees, or agents . . .

- a series of hefty obligations will be placed on non-governmental organisations, traditional leaders and institutions, community organisations, religious organisations and the executive will be empowered to create codes to regulate these sectors . . .

- The Amendment Bill will also empower ministers to prescribe regulations and 'codes of practice' for all manner of civil society formations, including non-governmental organisations and private businesses . . . Alleged News. [5]

Democratic Alliance Party

The Democratic Alliance (DA) states that it "strongly objects to the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill (PEPUDA) which seeks to amend the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000. We have been invited to make comments on this Bill by 30 June 2021, and will use this as an opportunity to object to the Bill.

After an in-depth study of the Bill, the DA has the following fundamental problems with it.

- Expanded definition and removal of requirement of intent

The DA is concerned that the amendments to the definition of 'discrimination' and the removal of 'intent' will have unforeseen far-reaching consequences whereby individuals might break the law either without knowing they have done so, or without ever intending to do so. The current definition of 'discrimination' in PEPUDA is simply too broad and will overwhelm South Africa's already overburdened justice system

- Vicarious liability

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. Employers should not be unreasonably held liable for the discriminating behaviour of their employees. In a country where the numbers of unemployment grows daily, government should not be introducing legislation that will discourage employment in any way or form.

- Obligations placed on private institutions

Clause 9 of PEPUDA gives government the power to prescribe how NGOs, community-based organisations, and traditional organisations promote equality in their dealings with other organisations and in their public activities. . .The DA will vehemently oppose this Bill at every opportunity and encourages all South Africans to do the same when the opportunity for public participation arrives," Alleged News. [6]

RELIGIOUS FREEDOM

South Africans are people of faith who have deep respect for the holy faiths which acknowledge Reality higher than humanity. There is strong pushback in South Africa for religious freedom, on the grounds of the basic rights with regard to religion contained in the South African Constitution.

To this end, comments are being submitted to The Department of Justice in South Africa by concerned parties.

Chapter 2 of the Constitution of South Africa, the Bill of Rights, contains a number of provisions dealing with religious freedom; Alleged News. [7] Section 15 states that everyone has the right to freedom of conscience, religion, thought, belief and opinion; Alleged News. [7]

PROTECTION OF CONSTITUTIONAL RIGHTS

FOR SA has teamed up with the "dear SA" platform to make submission to the Department of Justice in South Africa.

WHY NOT SUBMIT A COMMENT

BY 30 JUNE 2021?

Comments for submission on the Pepuda Amendment Bill can be made at the following link

https://forsa.org.za/

or by email submission

https://forsa.org.za/pepuda-amendment-bill-draft-submissions-for-individuals-and-organisations-can-be-found-here/

by no later than 30 June 2021

(the deadline for submissions).

DEMOCRACY IS THE RIGHT TO

RELIGIOUS FREEDOM!