Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]
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| 16.5 Another procedural aspect that will be especially problematic is that the complainant will only have to prove a prima facie case of discrimination, whereupon the respondent must prove, by utilizing the defences in clause 43, the absence of discrimination. This process is problematic for the following reasons:
16.5.1 The proof required for a prima facie case is not very onerous. It is in fact extremely easy to prove a prima facie case, which would be conducive to a multiplicity of complaints. 16.5.2 The reversal of the onus of proof could be unconstitutional if the provisions of sections 12(1) and 35(3)(h) of the Constitution are applied. 16.5.3 The powers of the equity courts are, justifiably, very extensive, but the principles of the onus of proof, coupled with these powers, creates the possibility of serious consequences for advertisers and advertising agencies. 17. We wish to point out that extensive self-regulation of possible discrimination already exists in the Advertising Standards Authority Code of Advertising Practice ("the Code"). The Code is subscribed to by, amongst others, the Association of Advertising Agencies, The Association of Marketers, The Outdoor Advertising Association, National Association of Broadcasters of South Africa, Print Media Association, Direct Marketing Association of South Africa and Cinemark. 18. The Advertising Standards Authority is an effective and highly efficient self-regulating body of the advertising industry that works in the public interest. It is highly respected in the advertising and marketing industries and the cumulative effect of its penalties and sanctions are severe. 19. The Advertising Standards Authority Code presently prohibits advertisements that will be offensive to the susceptibilities of consumers, unless it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom (par 3.4 of the ASA Code). This provision has substantially the same aim as the Bill, but would, if the Bill becomes law, be ineffective as most complaints, especially from a competitor, is bound to be brought before the equality court due to the difference in powers between the ASA and the equality courts. RECOMMENDATION 17. In light of the above concerns, the Freedom of Commercial Speech Trust requests that commercial communications be excluded from the ambit of the Bill and that regulation in this sphere of communications should be done by the Advertising Standards Authority. Freedom of Expression Institute PROMOTION OF EQUALITY AND THE PREVENTION OF UNFAIR DISCRIMINATION BILL, 1999 SUBMISSIONS TO THE PARLIAMENTARY COMMITTEE ON BEHALF OF THE FREEDOM OF EXPRESSION INSTITUTE 17 NOVEMBER 1999 INTRODUCTION These submissions are made on behalf of the Freedom of Expression Institute (FXI), a not for profit organisation established in 1994 to protect and foster the Constitutional rights to freedom of expression and access to information. FXI welcomes the opportunity to make written submissions to Parliament in respect of the Promotion of Equality and the Prevention of Unfair Discrimination Bill. Furthermore, the FXI appreciates and welcomes the Bill in its endeavour to eliminate unfair discrimination and to promote equality. However, the FXI can not support certain provisions in the Bill which seriously undermine and unjustifiably infringe the constitutional right to freedom of expression. Freedom of expression lies at the heart of democracy and the democratic principles of tolerance and openness. Furthermore, a recognised rationale for protecting the right to freedom of expression is based on considerations of moral responsibility, autonomy and human dignity. The Bill, by undermining freedom of expression, indirectly undermines the rights to equality and dignity which it seeks to protect and promote. Prejudice and discrimination can only be addressed in a society committed to freedom of expression. In essence, the FXI recommends that s 6(2), s 8(a) and s 8(e) of the Bill, be excluded from the final legislation and that sections 48(2)(f), (g), (i), (k),(l) and (o) and 48(5) be amended to exclude expressive activity that falls outside of section 16(2) of the Constitution. The FXI acknowledges with thanks the assistance and contribution from Advocate Derek Spitz in the preparation of this submission. GENERAL Section 16 of the Constitution (Act 108 of 1996) provides: “ (1) Every one has the right to freedom of expression, which includes -
(b) freedom to receive or impart information or ideas; © freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. (2) The right in sub-section (1) does not extent to: -
(b) incitement of imminent violence; or © advocacy of hatred that is based on race, ethnicity, gender or religion, or that constitutes incitement to cause harm.”
“ (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.”
Section 6(2) of the Bill does not require actual intention. The word “indicates” sets a lower threshold than what would be required if the standard of proof was actual intention. This lower threshold is likely to have a “chilling” effect on freedom of expression. Section 6(2) in its entirety is likely to have a “chilling effect on freedom of the press in particular, in that members of the press will be required to scrutinize not only the content of their own articles and editorials but also that of advertisements and notices placed in their publications. The practical implications of the section for the press are enormous, it would for example be extremely difficult to screen all advertisements etc. to ensure their compliance with the section. SECTION 8(a) “ (8) 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 members, including incitement to, or participation in, any form of racial violence.”
“ (8) All forms of racial discrimination or racism, including the following, are prohibited: (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”, “kaffermaid”, “coolie”, “hotnot” and their variations”.
Constitution and is therefore constitutionally objectionable. Section 8(e) of the Bill is in any event unnecessary in that adequate protection against the use of insulting words already exists in the common law of injuria. There is no need for additional statutory prohibition. Section 8(e) of the Bill arbitrarily singles out certain words for prohibition even where the words would not fall within the ambit of section 16(2)(c) of the Constitution. Equally insulting and abusive words are not prohibited. The section is also extremely vague and wide in is ambit, providing no guidelines as to how words have been and will in the future be selected for prohibition. SECTION 48 Sections 48(2) and 48(5) provide: “After holding an enquiry, the Court may, if it is satisfied that unfair discrimination has taken place, as alleged, make an appropriate order in the circumstances, including - (f) an interdict restraining unfair discriminatory practices; an order directing that specific steps be taken to stop the unfair discrimination; (I) an order for the implementation of special measures to address the unfair discrimination in question; ... (k) an order that an unconditional apology be made; (l) an order requiring the respondent to undergo and audit of specific policies of practices; ... (o) a directive requiring the respondent to make regular progress reports to the court or to the relevant constitutional institution regarding the implementation of the court’s order. (5) The Court has all ancillary powers necessary or reasonably incidental to the performance of its functions and the carrying out of its powers, including the power to grant interlocutory orders or interdicts.” Sections 48(2)(f) and 48(5) authorise the granting of interdicts by the equality Courts. Interdicts are widely recognised as amounting to prior restraints upon freedom of expression and, because of the “chilling effect” on freedom of expression, are considered a more drastic infringement on freedom of expression than subsequent civil or criminal punishment. Interdicts to prohibit the expression referred to in sections 6(2), 8(a) and 8(e) would constitute an unjustifiable infringement on the right to freedom of expression. Sections 48(2)(g), (k), (l) and (o) enable the equality Courts to order the taking of specific steps. The provisions constitute far reaching powers which may be appropriate in the context of certain forms of unfair discrimination but in the context of freedom of expression amount to a serious inroad into editorial independence and grant wide powers to the state to regulate the content of the print media. CONCLUSION On the basis of the above, the Freedom of Expression Institute submits that the constitutionally objectionable provisions in the Bill should be ommitted or amended in the final legislation. Free Market Foundation FREE MARKET FOUNDATION OF SOUTHERN AFRICA SUBMISSION ON THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL (B57-99) PREPARED FOR THE HEARINGS BY THE Ad Hoc JOINT COMMITTEE OF PARLIAMENT - NOVEMBER 1999 Introduction This submission is made on the assumption that all legislation adopted by Parliament is intended to improve the quality of life of all South Africans by fostering economic growth, peace and justice for all. The Preamble to the Constitution states its intentions to, amongst other things: "Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law" and "Improve the quality of life of all citizens and free the potential of each person". Parliament is duty bound to take the contents of the Preamble to the Constitution into account in deciding whether to approve Bills that come before it. Does the "Equality Bill" result in citizens being "equally protected by the law" and will it be consistent with the concept of an "open society"? This submission contends that the Bill does not pass that test and that it is consequently contrary to the spirit and the provisions of the Constitution. Equality before the law Different citizens and alternative forms of activity must be treated impartially by the law. Some citizens should not be singled out for either preferential treatment or harsh treatment merely because they are considered by government to be of greater or lesser importance or for any other reason. Such even-handed treatment is absolutely necessary for the rule of law to prevail. It is also essential if a free and open society is to eventuate. The rule of law requires that government should enact only such laws as are general in nature, are applicable to everyone including itself, and which do not attempt to bring about particular outcomes. The rule of law was described by Nobel Laureate Friedrich Hayek in his book The Constitution of Liberty: The conception of freedom under the law ... rests on the contention that when we obey laws, in the sense of general abstract rules laid down irrespective of their application to us, we are not subject to another man's will and are therefore free. It is because the lawgiver does not know the particular cases to which the rule will apply, and it is because the judge who will apply them has no choice in drawing the conclusions that follow from the existing body of rules and the particular facts of the case, that it can be said that laws and not men rule. Because the rule is laid down in ignorance of the particular case and no man's will decides the coercion used to enforce it, the law is not arbitrary. This, however, is true only if by "law" we mean the general rules that apply equally to everybody. The rule of law has never applied in South Africa In South Africa, for centuries, lip service has been paid to the rule of law, and this was especially true of the half century prior to the installation of the country's first democratic government in 1994. If the rule of law had really applied, apartheid could not have occurred as the courts would have struck down all discriminatory legislation.
Looking into the future, present legislators should realise that they are creating the environment that will shape that future. They have important fundamental decisions to make if they wish to ensure that the next generations will inherit a country of which everyone can be proud - a country that is harmonious, productive and has a dynamic economy. Government's most important function is to protect people and their property from violence, fraud and theft and to act as an arbiter in disputes. In carrying out that function the democratic government of South Africa must attempt to build a body of law designed to grant true liberty to a people that has never experienced it. Yes, there is anger over the past. Yes, there is a temptation to use the power of the law to take some form of revenge. Yet anger and revenge embodied in unjust legislation will not produce liberty, not for the people who suffered in the past, and certainly not for the generations to come. Rather, it raises the danger that unjust laws will become a habit and that injustice will be heaped upon injustice for the very people who suffered most in the past. Equality Individuals have different talents, abilities and interests. They are born different and exercise their choices differently. To be different does not mean superiority or inferiority, it merely means not being the same. No law can change this. Legislation that attempts to make people equal will necessarily have to treat people unequally and this is what the Equality Bill does. For example, an intendent partner is to be allowed to demand or refuse to demand that a partnership takes her/him in as a partner, whilst the partnership is not to be allowed a similar choice. The provision in the Bill therefore obviously discriminates against partners and is contrary to the Constitution in that it negates the section that guarantees equality before the law. The proposed Bill cannot succeed. If, for instance, legislation were to attempt to make Hansie Cronje and Frankie Fredericks equal over 100 metres on the track it would have to provide that lead weights be tied to the sprinters' legs. On the other hand, trying to make Frankie equal to Hansie on the cricket field would be impossible. No amount of legislation and discrimination against Hansie would make them equal in bowling, batting and fielding. However, if legislation attempted to do the impossible, it can be predicted that Frankie and Hansie would end up hating each other, and they would either give up their respective sports or go somewhere else where they were not being interfered with. And if the response to that proposition is "good riddance" then this country is going to lose a lot of talented and able people. Liberty A false assumption in this Bill is that it is good for blacks and women and bad for white males. On the contrary, anything that destroys or detracts from individual liberty is bad for the whole nation. It is equality before the law that allowed certain nations to rise out of the squalid poverty and misery they lived under for centuries. Most people forget that it is only in the last 300 years that ordinary people in what are now the most advanced countries have gained any degree of liberty. And the crucial factor in their liberation was equality before the law. As Professor Hayek said elsewhere in his book The Constitution of Liberty when discussing equality and liberty: Equality of the general rules of law and conduct, however, is the only kind of equality conducive to liberty and the only equality which we can secure without destroying liberty. Not only has liberty nothing to do with any other sort of equality, but it is even bound to produce inequality in many respects. This is the necessary result and part of the justification of individual liberty: if the result of individual liberty did not demonstrate that some manners of living are more successful than others, much of the case for it would vanish. Conclusion South Africa can become a great country. It can lead the African Renaissance that President Mbeki speaks about. But it will not do so if it continues to produce legislation that is overtly or covertly racist. South Africa must show to the rest of Africa and the world how a nation that has been weighed down by bigotry and racism can rise above these scourges. The route to a free and prosperous nation lies in equality before the law and economic freedom. This is necessary, not for the present adult population of this country, carrying the hurts, shame and grudges arising from our history, but for the youth who will hopefully grow up unscarred, future-oriented, confident and without bias. This Bill should be reconsidered with a view to replacing it with a programme to ensure equality before the law as guaranteed by the Constitution of South Africa. Prepared by: Temba Nolutshungu and Eustace Davie Directors Free Market Foundation General Council of the Bar COMMENTARY ON THE PROMOTlON OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL COMMENT OF THE GENERAL COUNCIL OF THE BAR DATE: 17 NOVEMBER 1999 The Parliamentary Committee of the GeneraI Council of the Bar has considered the above-mentioned Bill, as introduced by the Minister of Justice and Constitutional Development, and now wishes to comment thereon as follows: 1. The purpose of the Bill, as described in paragraph I of the Memorandum on the Objects of the Bill, is to give full effect to the right to equality as contemplated in section 9(4) of the Constitution. 2. In terms of Item 23(1) of Schedule 6 to the Constitution this legislation has to be enacted within three years of 4 February 1997, the date on which the Constitution commenced. 3. The current Bill is so convoluted, complicated, repetitive and inconsistent with the Constitution and Constitutional Court pronouncements that it seems impossible to re-draft or to draft a completely new Bill in time to meet the three year deadline. We would therefore propose that item 23(1) of Schedule 6 to the Constitution be amended to extend the three year period. 4. The Committees initial intention was to furnish detailed commentary on the Bill, but it soon became apparent that this would involve more work than went into the drafting of the Bill itself. 5. Accordingly, it is proposed to offer the following general comments in order to convey a sense of the complete inadequacy of the Bill. 5.1 The Memorandum indicates that it is the intention that the Bill should be passed in terms of section 75 of the Constitution and not as a Bill affecting provinces (section 76). It is noted, however, that in terms of Schedules 4 and 5 of the Constitution some of the functional areas dealt with in the Bill, for example housing, health care and education (except at tertiary level), are functional areas of concurrent national and provincial legislative competence. Accordingly it is advised that the Bill be passed in accordance with the procedure as set out in section 76 of the Constitution and not that provided for in section 75. 5.2 There are many provisions of the Bill which simply do not make any sense at all. 5.3 There are many instances of drafting inconsistency, references variously to unfair discrimination per se as well as direct and indirect discrimination, and references sometimes to international agreements and sometimes to international treaties. Yüklə 1,52 Mb. Dostları ilə paylaş:
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