Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]

It is not merely "forms of structural and systemic inequality that persist. It is all forms of structural and systemic inequality. Also, "Still" is misleading in the sentence "still persist". It implies that only residual elements persist. Recommendation: Delete "forms of" and "still".
·AND BEARING IN MIND THAT -

national legislation must be enacted in terms of section 9 of the Constitution to prevent or prohibit unfair discrimination;

Agreed.
* there is a need to make provision for the advancement and protection of persons "previously disadvantaged" by such discrimination;
"Previously disadvantaged" is another ideological legitimation, which gives the mischievous impression that there is "a previous" instead of

"a continuum" especially for Africans. "Previously disadvantaged" is an ideological construct not supported by objective reality in South Africa. There is inconsistency between South Africa’s social reality and its ideological representations. The phrase has soporific effects.

Our recommendation: Delete "previously".
* South Africa has international legal obligations in terms of binding treaties and customary international law in the field of human rights relating to the promotion of equality and the prohibition and prevention of discrimination;
This is good. Now we must develop local or domestic perspectives.
IN ORDER TO -
* actively promote the building of a South African society that is rich in its diversity, that is covering, compassionate and that strives progressively to achieve equality and live in peace with itself, its neighbours in other African countries and the rest of the world community;
* give effect to the right to equality as contemplated in the Constitution;
RECOMMENDATION: Delete 1) "give effect to the right to" and replace with "enforce"; 2) Delete "contemplated" and replace with "entrenched".
* set out measures for the promotion and achievement of substantive equality;

* prevent and eliminate any unfair discrimination generally, and being mindful of the history of South Africa, particularly the legacies of the past and discrimination based on race and gender, to focus specifically on the prevention and elimination of unfair discrimination relating to race and gender;

"legacies of the past" is an unhelpful phrase. All "legacies" belong to the ''past" The phrase 'legacies of colonial confiscations, expulsions, evictions (Land Acts, Bantu Education, Group Areas Act, Job Preservation Act) is historically true

RECOMMENDATION: Delete all. Replace with No. 1. Name the "race"; include the category of "indigenous people".

* conform to the international agreements referred to in section 2, particularly the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women; and
RECOMMENDATION. Replace "referred to" with "acknowledged"
* address and eliminate the imbalances and inequalities, particularly in respect of race and gender, existing in all spheres of life as a result of present and past unfair discrimination brought about by the Apartheid system, thereby contributing to the total transformation of South African society from one characterised by the inequalities and injustices inherent in apartheid to one where the universal principles of equality, fairness, justice and human dignity apply to everyone;
National Newpapers

REPRESENTATIONS BY NATIONAL NEWSPAPERS ON THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL

Honourable Chairperson and Members

Justice Portfolio Committee

Thank you for the opportunity to address you on this most important Bill. In summary, we respectfully petition you to consider the following :
(1) not to include media limitation clauses 6(2), 8(a) and (e) and 14(a) – matters addressed by other institutions (Code and common law);
(2) not to include the “unjustifiable hardship” clause 43(3) – excessive limitation on defence;
(3) to amend the definition of “prohibited grounds” in clause 1 and to amend clause 45 (burden of proof) so that a heavier onus would rest on the complainant;
(4) to amend the sanction clause 48 in so far as damages are concerned;
(5) to reconsider the viability and potential success of Equality Courts;
(6) to remove overbroad and vague provisions which are, it is submitted, unconstitutional;
(7) to exclude detailed provisions concerning specific sectors and, in any case clause 14, which falls under the Labour Courts.
1. INTRODUCTION

1.1 In the light of the injustices of the past, the prevention or prohibition of unfair discrimination is one of the fundamental rights of our democracy, which is based on human dignity, equality and freedom.

1.2 Our democracy is, however, also founded upon the rule of law. The rule of law, among others, requires that the law must be reasonably precise so that it permits individuals to plan their lives so as not to fall foul of the law. This is especially true when limits are placed on another core right, such as freedom of the press. A statute must give citizens fair notice about the consequences of their conduct and should give persons enforcing the law sufficient direction as to how to exercise their discretion. Some laws are so involved that their content is only ascertainable after legal advice; others are reasonably clear without such advice; while others are so overbroad that neither reasonable inspection thereof by a lay person or a lawyer could lead to a reasonable forecast of what it would mean to a judge or tribunal. The latter category is generally regarded as constitutionally over-broad. Thus, Mokgoro J in the Case and Curtis Constitutional Court case, 1996 (3) SA 617 (CC) held that the terms “indecent or obscene” were constitutionally overbroad and invalid since they were open to arbitrary application.
1.3 We submit, with respect, that several terms employed in the Promotion of Equality and Prevention of Unfair Discrimination

Bill, fall within the category of terminology that is overbroad and unconstitutional.

1.4 Another core constitutional right is freedom of the press and other media. We cannot afford to go back to the dark days of dictatorial censorship. Clamping down on speech is only justifiable when clear harm can be shown to be a likelihood or a fact. Sadly, ideology and propagandist ideals of dictatorial governments have, at times, killed the very function of the press as the fourth pillar in a democracy. We are privileged today to live in a society where such laws are nonexistent or, where they still exist, are not applied in such a manner owing to the guidance of the Constitution.
1.5 We accordingly request this Committee, with respect, to require greater precision in terminology. It is submitted that it would be in the interests of democracy to rather not attempt to address everything – words such as “includes” in a definition clause should therefore be eliminated. The Act could always be amended so as to deal with omissions.
1.6 According to section 36 of the Constitution less restrictive means to achieve a purpose must be taken into account in determining whether a restriction on a fundamental right is acceptable. Accordingly, it is, with respect, imperative to consider alternative remedies which are to be found in industry-based control and which would be less restrictive, but nevertheless provide speedy redress. Where common law already provides effective remedies, the statute should not intervene. Common law has the elasticity to continuously adapt to new situations, without ignoring the basic principles.
2. INDUSTRY-BASED CONTROL

2.1 It is of primary importance for us to impress upon the Honourable Portfolio Committee that South African newspapers have over the last 30 years established industry-based control. Newspaper Press Union Papers initially had the Press Council, which became the Media Council, and then reverted to the Press Council. Presently they have the Press Ombudsman, an office which was set up in 1997 after wide consultation.

2.2 The Association of Advertising Agencies has, with others, set up the Advertising Standards Authority (ASA), which deals with advertisements in all, except the political, sectors of South African life.

The ASA is explicitly recognised in section 57 of the IBA Act.

2.3 The National Association of Broadcasters has set up the Broadcasting Complaints Commission of South Africa, which has all the television channels, plus most of the commercial radio stations under its jurisdiction. It, inter alia, deals with accuracy, bias, indecency and also with political advertisements during nonelection periods. The BCCSA has been recognised by the IBA in terms of section 56 of the IBA Act.
2.4 Furthermore, there is the (statutory) Broadcasting Monitoring and Complaints Committee of the Independent Broadcasting Authority, which deals with complaints against other broadcasters and complaints about all political material during election periods.
2.5 It is submitted that industry-based control for the press is best suited for a democracy based on openness, freedom and equality. The State should, in general, not be involved in the control of media content so that the press may truly act as the fourth pillar of democracy. Where there are defects in Codes, they could be addressed. In fact, the Appeals Panel of the Press Ombudsman, in its first judgment in 1998, widened the right to reply in so far as injustices to previously disadvantaged persons are concerned. This approach which would address several of the press-related issues set out in this Bill. The Broadcasting Code also places a duty on broadcasters to grant a right to reply when a person has been criticised regarding a matter of public interest and also where there has been bias. The ASA Code prohibits exploitation on the basis of race, gender or religion. The Films and Publications Act, which is, of course, not industry-based, prohibits the advocacy of hatred based on race, ethnicity, gender and religion and which constitutes incitement to harm. It applies to all films screened in public, all videos distributed, publications (except NPU newspapers) and the internet.
A particular benefit of industry-based control is that a successful complainant can obtain speedy redress by having a correction printed or broadcast at the instance of the industry body.
2.6 The drafters of this Bill must be commended for having omitted the Media Chapter in the present version of the Bill. Nevertheless, there are still certain clauses which would, to our mind, curb the media unreasonably and would best be left to industry-based control, the ordinary courts or the Films and Publications Board.
3. CLARITY

3.1 We shall address words regarded as too vague as we proceed, and add some instances in the first three clauses of the Bill which have not been addressed in an annexure.

3.2 It will be in the interest of the public if the prohibitions are combined, clarified and shortened in a Code at the end of the Act. For example, Clause 6 of the Bill requires referring to the definitions in section 1 of the Act in rather lengthy respects: subsections (ix), (x), (xxi) (xxvi) and (xxvii). Such a Code would make the Act more consumer friendly.
3.3 Below we will address matters which directly concern the press as a medium. We support the view of those who argue that the Bill is far too detailed. The legislation should be of a much more general nature. Each Ministry should rather address the matter in amending legislation, in so far as it is necessary. The prohibitions concerning the labour sector are not only vague and confusing, but can best be addressed in terms of the Labour Relations Act 1995, which also protects the rights of job applicants.
4. COMMENT ON CLAUSE 6: PREVENTION AND GENERAL PROHIBITION OF UNFAIR DISCRIMINATION

4.1 Clause 6 provides as follows :

“(1) No person may unfairly discriminate directly or indirectly against any person.
(2) No person may :
(a) disseminate or broadcast any information;
(b) publish or display any advertisement or notice

that indicates or could reasonably be understood to indicate an intention to unfairly discriminate.”

4.2 Comment: in principle we have no problem with subclause 6(1). It lies at the core of our Constitution and is part of the open democracy built on equality, freedom and dignity. However, the following suggestions are made:
Firstly, the definition of “unfair discrimination” in Clause 1 (xxvi): it would be sufficient to provide for an act or omission instead of referring to what it “includes”. This word creates uncertainty.
Secondly, the definition of “prohibited grounds” in Clause 1 (xvii) to which the definition of “unfair discrimination” refers, is overbroad in that it includes the very vague “or any other recognised ground”. If an addition has to remain, it would be constitutionally correct to place a heavier onus on a complainant in the case of an unspecified ground – see our proposal in para 6.7 hereof.
Thirdly, the definition in Clause 1(x) of “harassment on the grounds of race” should not include the word “includes”. The definition of the said harassment should revert to the wording of Section 16(2) of the Constitution and read as follows :
“means an act which advocates hatred based on race and constitutes incitement to harm.”
“Harm” is wide enough to include serious contempt and severe ridicule.
4.3 We, with respect, have a substantial problem with subclause (2). Subclause (2) refers to “information”. If that information is factually correct, and it is in the public’s interest that they should be informed about it, then such information should be published. The clause is confusing in that it would seem to have a bearing on the intention of a quoted person and also of a newspaper. Newspapers have a duty to reveal racial prejudice to the public, especially if it is intentional. Given the wide variety of perceptions of what is published, some could read a published item as having been published with the intention to unfairly discriminate, while others would regard it as unbiased information. If an item is biased that would be a matter for the Press Ombudsman in the case of newspapers, or for the Broadcasting Complaints Commission of South Africa in the case of a broadcast. It is submitted that the provisions against bias (or exploitation in the case of the ASA), would take care of complaints mentioned in the clause. The effectiveness of industry-based bodies is manifested especially in the speed with which they can have a matter rectified as prescribed by them.
4.4 It is submitted, with respect, that by including this section in a new Act, the press would be unreasonably limited as a result of the vague content of this provision, and as a result of the fact that complaints could easily be lodged with the Equality Courts. The press could be harassed and be subjected to complaints which could be quite frivolous. Since the correct application of this clause would also be open to conjecture, it is submitted that only the public would ultimately lose. The public’s right to information in terms of section 16(1) of the Constitution will be placed in jeopardy.
Proposal: that the clause be omitted and complaints be addressed to the industry bodies, the Films and Publications Board and the Broadcasting Monitoring Committee of the IBA.
4.5 In so far as clause 6(2)(b) is concerned, the provision is likely to cause substantial confusion for newspapers. Newspaper staff would simply not know what the background to each advertisement is. The Advertising Standards Authority would, following a complaint, order that the advertisement be stopped when it amounts to exploitation based on race, gender or religion.
Where such an advertisement is broadcast, the ASA and the Broadcasting Monitoring and Complaints Committee of the IBA would take steps against a broadcaster.
We accordingly propose that 6(2)(b) also be deleted.
The same argument would apply to Clause 14(a). A newspaper would simply not know what the background is. The words “and intentionally” should, in any case, be added after “unjustly” in 14(a).
5. COMMENT ON CLAUSE 8 : PROPAGANDA AND IDEAS

5.1 Clause 8 provides as follows :

“All forms of racial discrimination or racism, including the following are prohibited :
(a) the dissemination of any propaganda or idea, suggesting the racial superiority or inferiority of any person or group of persons, including incitement to, or participation in, any form of racial violence;
(b) …..;
(c)…..;
(d)…..;
(e) the use of language which is recognised as being, and is intended in the circumstances to be, hurtful and abusive, including, amongst others, the use of words such as “kaffir”, “kaffer”, “kaffermeid”, “coolie”, “hotnot” and their variations.” (Our emphasis.)
5. In so far as paragraph (a) is concerned, it should be noted that this is, once again, an area for the Press Ombudsman, the Broadcasting Complaints Commission, the Advertising Standards Authority and the Broadcasting Monitoring and Complaints Committee of the IBA; and, in so far as incitement is concerned, the Criminal Courts (incitement to commit a crime being a crime in itself).
5.3 It should, with respect, be borne in mind that section 29 of the Films and Publications Act, 1996 already prohibits under threat of a fine or a prison sentence, or both, the advocacy of hatred based on race, ethnicity, gender or religion. This prohibition applies to all publications (excluding newspapers of the Newspaper Press Union), all broadcasters, public entertainment, films and videos and the internet. For newspapers of the NPU, this is a matter for the Press Ombudsman.
Section 29, however, lists a number of exceptions in favour of bona fide documentary material, bona fide literature, bona fide drama and bona fide art. Clause 8(a) could lead to complaints demanding the prohibition of much valuable historical material as well as newsworthy material on eg. New Nazism. It would also place an unjustifiable limitation on ideas. One realises that the whole idea of racial superiority is obnoxious, but the past history of censorship has shown that it is better to ventilate than to suppress them. To ensure that we and future generations never become part of such ideology, it is imperative that these ideas not be buried by the law, so that we and future generations would know the evil when we see it. When such ideas incite harm or violence, the common law and section 29 of the Films and Publications Act, 1996 would be applicable.
Subjecting this kind of material to an enquiry by an Equality Court and placing the onus on a newspaper to prove that publication was justifiable, places the press under extraordinary pressure in a society where information and freedom of the press are extremely valuable. To prohibit the dissemination of an idea,

even if it is an abhorrent idea, places freedom of expression and information at tremendous risk.

It is particularly informative that the African Charter on Human Rights and People’s Rights (1981) provides in section 9 that “every individual shall have the right to express and disseminate his opinions within the law.” (Our emphasis.) The Charter illustrates the respect for (or tolerance of) ideas.
Furthermore, the United Nations Declaration of Human Rights emphasises in article 19 the freedom to receive and impart information and ideas through any media, regardless of frontiers.
Where an idea advocates hatred or incites violence, the necessary legal mechanisms exist in South Africa.
The second part (in bold) of clause 8(a) is catered for by Criminal Law. It is unnecessary and unwise, with respect, to repeat it in a new act.
5.4 In so far as clause 8(e) is concerned, the common law will take care of the said words and other derogatory words. To list a few words, even adding the word “including”, creates the impression that these instances are the worst. Every situation, however, has its own accents. It is commendable that this subclause now includes the requirement of intention to be hurtful or abusive, while the previous draft did not include such a reference. It is submitted that the prohibition of these words should rather be left to the ordinary courts of the country to apply common law. If complaints are received in this regard, such a matter should be referred to the Director of Public Prosecutions for action. The requirement of intention has, of course, limited the application of this subclause. However, many people could, simply by reading such a word, even if it had not been intended to hurt, be offended by it and lay a complaint under this act, which could lead to a time-consuming enquiry.
5.5 The word “including” in clause 8(e) also leads to uncertainty; common law with its protection of dignity will take care of all instances where derogatory words are intentionally directed at a person – see Mbatha v Van Staden 1982 (2) SA 260 (N); S v Bugwandeen 1987 (1) SA 787 (N).
5.6 It is submitted that our society should rather cleanse itself from these words by moral re-examination and education and not seek rectification under an act such as the proposed one. Where necessary, the matter should be left to common law, where the office of the Director of Public Prosecutions would exercise his or her discretion as to when to prosecute for crimen iniuria.

6. DEFENCES

6.1 Clause 43 provides as follows :
“(1) It is a defence to a claim of unfair discrimination that the act or omission is reasonable and justifiable in the circumstances.
(2) The factors to be taken into account in deciding whether the act or omission is reasonable and justifiable in the circumstances include :
(a) the purpose of the unfair discrimination;
(b) the nature and extent of the unfair discrimination, including the nature and extent of the resultant disadvantage;
(c)the relationship between the unfair discrimination and its purpose; and
(d) whether there are less restrictive and disadvantageous means to achieve this purpose.
(3) If unfair discrimination is alleged, there may be no finding that it is reasonable and justifiable in the circumstances unless it is established that the person or group affected by the discrimination cannot be accommodated without unjustifiable hardship.
(4) In determining the term “unjustifiable hardship” all relevant circumstances must be taken into account, including :
(a) the nature of the benefit accruing to, or disadvantage suffered by any person;
(b) the effect of the disadvantage suffered by the person unfairly discriminated against;
(c)the financial circumstances of the person who has a duty not to discriminate unfairly in the particular circumstances;
(d) the estimated costs involved in addressing the unfair discrimination;
(e) any plan of action.”
6.2 Clause 44, “Acts done for more than one reason”, provides as follows:
“It is not a defence to a claim of unfair discrimination in terms of or under this Act that the complainant’s membership of a group identified by one or more of the prohibited grounds was not the dominant or the substantial cause of the unfair discrimination.”
6.3 Clause 45, “Burden of Proof”, provides as follows :
“(1) If the complainant makes out a prima facie case of unfair discrimination in terms of this Act, the respondent must :
(a) prove that the discrimination is not based on one or more of the prohibited grounds; or
(b) if it is proved that the discrimination is based on one or more of the prohibited grounds, that the unfair discrimination is reasonable and justifiable in terms of section 43.
(2) For purpose of this section the requirements to make out a `a prima facie case of unfair discrimination’ include a differentiation or failure to differentiate on a prohibited ground which causes prejudice to a person of a disadvantaged group or which causes violation of the right to dignity.”