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

6.4 Our main criticism against Clause 45 is that the weight of the burden of proof unjustifiably lies with the respondent.
6.5 Section 9(5) of the Constitution provides that :
“discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair”.
From judgments of the Constitutional Court, it is clear that a mere prima facie case would not be sufficient. There would have to be something more than a mere prima facie case before discrimination is presumed to be present. Only then does a duty arise to counter that presumption. When the grounds are not specified the onus on the complainant is substantially heavier. See National Coalition for Gay and Lesbian Equality and Another vs Minister of Justice and Others 1999 (1) SA 6 (CC) at paragraph 15.
6.6 It is proposed that it would be fair to eliminate the words “prima facie” and simply depend on section 45(2) as the guiding force as to when a case is made out. The words “prima facie” have attained an established meaning in criminal and civil law and could lead to too light an onus on the complainant, paving the way for frivolous claims. There should also be a clear distinction as to when the specified grounds are present (more onerous duty to counter) as opposed to when unspecified grounds are alleged, when there is a more onerous duty on the complainant.
6.7 It is proposed that the definition of “prohibited grounds” in section 1 be amended to read as follows, so as to differentiate between the onus in the case of specified grounds and unspecified grounds:
(xvii) prohibited grounds are specified or unspecified:
(a) specified grounds are race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth;
(b) unspecified grounds are grounds which the complainant proves on a balance of probabilities to be based on attributes or characteristics which have the potential to impair the dignity of a person or affect him or her adversely in a manner comparable to a specified ground.
Note: Approach based on National Coalition for Gay and Lesbian Equality v Minister of Justice and Others 1999 (1) SA 6 (CC) at paragraph 15.
6.8 If the above constitutionally justifiable amendment to the definition of prohibited grounds is accepted, the burden of proof clause (clause 45) need not be amended substantially. The words prima facie are, however, confusing and should be deleted:
“45. If the complainant or complainants proves that the respondent differentiated against him or her or them on a prohibited ground which caused prejudice to him or her or them or which caused a violation to his or her or their right to dignity, the respondent must prove on a balance of probabilities that
(a) the differentiation was not based on a prohibited ground; or
(b) where the respondent fails to prove (a), that the differentiation did not amount to unfair discrimination in terms of section 43.
6.5 In so far as the defences in clause 43 are concerned, the requirement that justification can only be proved if “unjustifiable hardship” for the respondent is absent, amounts to providing that even if justification exists, it should be ignored. This is an unduly oppressive requirement and, it is submitted, should be deleted. It is also unconstitutional. Section 9 of the Constitution requires fairness and not the absence of unjustifiable hardship for the respondent.
7. EQUALITY COURTS

7.1 From a financial and accessibility perspective, the concept of Equality Courts which are set up within existing structures (the Magistrates’ Courts and the High Court) is, on the face of it, a tempting option. We, however, submit with respect, that it is unlikely that such a system would work well. It would mean that there would be numerous presiding officers all over the country, who would, in spite of training which the Bill provides for, be isolated from colleagues in their decisions on certain matters (especially as to the interpretation of the law). Ultimately consistency, precision and equality of persons before the law would be placed in jeopardy. If regard is had to the onerous duties placed on a presiding officer as to foreign and international law in clause 3 of the Bill, it would be realised that it would, with respect, generally be impossible for such an officer to decide an issue on a well-informed and consultative basis. A High Court judge would be in a much better position to make decisions, but the bulk of the cases will commence in the lower courts. It is submitted that alternatives to the Equality Courts should be explored. The proposed system, it is submitted, also places farther onerous duties on a legal system which is already overlooked.

7.2 The Canadian experience of part-time members of their Human Rights Tribunal illustrates how difficult it is to come to decisions where adjudicators are inexperienced or do not constantly work in this complex area of the law.
7.3 In so far as conflicting jurisdiction is concerned, clause 14 employment rights are already covered by the Labour Relations Act. It is submitted that clause 14 be deleted. The Labour Courts have jurisdiction and concurrent Equality Courts’ jurisdiction is likely to lead to confusion in approach and even to forum shopping by complainants.
8. SANCTIONS

8.1 Although the list of sanctions in clause 48(2) is wide, they are more or less in accord with what is done in other jurisdictions in this regard.

8.2 If damages are awarded, the subsection should read as follows, so as to ensure that the onus requirement in civil law plus the common law requirements of negligence or intention (as the case may be) are maintained:
“(d) an order for the payment of damages in respect of financial loss or in respect of the impairment of dignity, pain and suffering or emotional and psychological suffering, as a result of the unfair discrimination in question: provided that the onus shall be on the complainant to prove such loss on a balance of probabilities and that the common law requirements in regard to blameworthiness are present.”
8.3 It is proposed that clause 48(2)(e) be omitted. This order is nothing else than a punitive order and is in conflict with the ordinary civil procedure, where punitive damages are not awarded.
9. DESIGNATION OF PRESIDING OFFICERS BY THE MINISTER

The Minister’s designatory role of judges as presiding officers would probably be unconstitutional. The matter should be dealt with by the President on the advice of the Judicial Services Commission.

We thank you for the opportunity of addressing you.
_______________________________________

Kobus van Rooyen SC

Chambers, Pretoria
On behalf of and in consultation with National Newspapers

Briefed by Jan S de Villiers (Cape Town)

16 November 1999
Print Media Association

THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL

SUBMISSIONS TO THE PARLIAMENTARY COMMITTEE ON BEHALF OF THE PRINT MEDIA ASSOCIATION
1. INTRODUCTION

1.1 These submissions are presented to the Parliamentary Committee appointed to consider the Promotion of Equality and Prevention of Unfair Discrimination Bill (“the Bill”).

1.2 The submissions are presented on behalf of the Print Media Association which is an association not for gain which has been incorporated as a company in terms of section 21 of the Companies Act 61 of 1973. The Print Media Association was formed to represent the interests of a broad range of media publications including daily, weekly and community newspapers and consumer, trade, technical, professional and other specialist magazines. The Print Media Association is representative of many of the participants in the print media industry.

1.3 The Print Media Association is supportive of legislative endeavours to eliminate unfair discrimination and promote formal and substantive equality. At the same time, however, it has serious concerns that certain of the provisions of the Bill unjustifiably infringe the constitutional right to freedom of expression protected by section 16 of the Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”). It believes that the provisions in question should not form part of the final legislative package enacted by Parliament.

1.4 Paragraph 2 of the memorandum on the objects of the Bill records that its objects include to “give effect to the letter and spirit of the constitution, especially to the founding values of equality, human dignity and freedom of expression.” But the Bill does not give effect to the founding value of freedom of expression at all. On the contrary, the provisions in question seek to regulate or prohibit a wide range of expression which undeniably enjoys Constitutional protection. Similarly, section 2(a)(vi) of the Bill purports “to give effect to the prohibition of advocacy of hatred, based on race, ethnicity, gender or religion, that constitutes incitement to cause harm as contemplated in section 16(2)(c) of the constitution ...” But the provisions in question stray well beyond this limited objective. They prohibit expression which falls outside the exclusion embodied in section 16(2)(c) of the Constitution.

1.5 In certain instances the reasons that may be offered in support of the prohibitions do not constitute valid justifications. In others, notwithstanding the fact that the constitution does not establish a hierarchy of rights, the balance that has been struck between the rights to equality and dignity, on the one hand, and the freedom of expression, on the other, unjustifiably favours dignity and equality and at the expense of freedom of expression.

1.6 The first part of these submissions identifies the constitutionally objectionable provisions of the Bill from the perspective of freedom of expression. In the second part, certain of the underlying principles behind the protection of freedom of expression are set out. The third part of these submissions identifies further threats posed to freedom of expression by the provisions in question, and the fourth part identifies the specific objections to the specific provisions in question.
2. THE CONSTITUTIONALLY OBJECTIONABLE PROVISIONS

2.1 Several provisions of the Bill impact negatively on the right to freedom of expression. They are deeply at odds with the principle of democratic tolerance which extends protection to opinions and ideas that may be considered distasteful or even offensive. They conflict with the principle of moral autonomy that underlies freedom of expression. They create a chilling effect which encourages self-censorship. They interfere with rights of editorial independence. In seeking to silence some speakers in the interests of others they mark a dangerous step on the slippery slope towards sanitizing public discourse. The effort to sanitize public discourse is the essence of censorship.

2.2 The constitutionally objectionable provisions of the Bill are set out below.

2.3 Section 6(2) and (3) provide:

“ (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.
(3) In the prosecution of any offense, if it is proved that unfair discrimination played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence”.

2.4 Section 8 of the Act prohibits racial discrimination or racism. The relevant sections provide:

“ (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.

...
(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”.

2.5 Section 14 contains a prohibition of unfair discrimination in employment. It provides:

“ (14) No person may unfairly or unreasonably discriminate against any person in any manner, including the following:

(a) By advertisement in a manner which unjustly excludes or disadvantages potential applicants from any group of persons”.

2.6 Section 48 allocates certain powers and functions to equality courts. Section 48(2) provides:

“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;
(g) 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.”

3. CERTAIN UNDERLYING PRINCIPLES BEHIND THE PROTECTION OF FREEDOM OF EXPRESSION WHICH ARE PUT AT RISK BY THE PROVISIONS IN QUESTION

3.1 Section 16 of the constitution provides:

“ (1) Every one has the right to freedom of expression, which includes -
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity; and
(d) academic freedom and freedom of scientific research.
(2) The right in sub-section (1) does not extent to: -
(a) propaganda for war;
(b) incitement of imminent violence; or
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, or that constitutes incitement to cause harm.”

3.2 The constitutional rights to dignity, equality and freedom of expression are all equally important. None of these rights has axiomatic supremacy over any other right. This much has been affirmed by the Supreme Court of Appeal.1

3.3 The importance of freedom of expression is based on several complimentary rationales. The most important of these are:

3.3.1 Firstly, the instrumental rationale that the democratic imperative and the common good is best served by the free-flow of information and therefore that it is a vital function of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion.2

3.3.2 Secondly, the rationale for free expression is based on considerations of moral responsibility, autonomy and dignity. This rationale has been articulated by the legal philosopher Ronald Dworkin as follows:3
“The second kind of justification of free speech supposes that freedom of speech is valuable, not just in virtue of the consequences it has, but because it is an essential “constitutive” feature of a just political society that government treat all its adult members, except those who are incompetent, as responsible moral agents. This requirement has two dimensions. Firstly, morally responsible people insist on making up their own minds about what is good or bad in life or in politics or what is true and false in matters of justice or faith. Government insults its citizens, and denies their moral responsibility, when it decrees that they cannot be trusted to hear opinions that might persuade them to dangerous or offensive convictions. We retain our dignity, as individuals, only by insisting that no one - no official and no majority - has the right to withhold an opinion from us on the ground that we are not fit to hear and consider it. For many people moral responsibility has another, more active, aspect as well: a responsibility not only to form convictions of one’s own, but to express these to others, out of respect and concern for them, and out of a compelling desire that truth be known, justice served, and the good secured. Government frustrates and denies that aspect of moral personality when it disqualifies some people from exercising these responsibilities on the ground that their convictions make them unworthy participants. So long as government exercises political dominion over a person, and demands political obedience from him, it may not deny him either of these two attributes of moral responsibility, no matter how hateful the opinions he wishes to consider or propagate, any more than it may deny him an equal vote. If it does, it forfeits a substantial ground of its claim to legitimate power over him. The wrong is just as great when government forbids the expression of some social attitude or taste as when it censors explicitly political speech; citizens have as much right to contribute to the formation of the moral or aesthetic climate as they do to participate in politics”.
A similar view has been expressed by Cameron J in Holomisa v Argus Newspapers Ltd.4

3.4 Both of the rationales referred to above have been approved by the Constitutional Court in South African National Defence Union v Minister of Defence:5

“[7] ... freedom of expression lies at the heart of a democracy. It is valued for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.
[8] As Mokgoro J observed in Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC); 1996(5) BCLR 609 (CC) at para 27, freedom of expression is one of a “web of mutually supporting rights” in the Constitution. It is closely related to freedom of religion, belief and opinion (section 15), the right to dignity (section 10), as well as the right to freedom of association (section 18), the right to vote and to stand for public office (section 19) and the right to assembly (section 17). These rights taken together protect the rights of individuals not only individually to form and express opinions, of whatever nature, but to establish associations and groups of like-minded people to foster and propagate such opinions. The rights implicitly recognise the importance, both for a democratic society and for individuals personally, of the ability to form and express opinions, whether individually or collectively, even where those views are controversial. The corollary of the freedom of expression and its related rights is tolerance by society of different views. Tolerance, of course, does not require approbation of a particular view. In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views.”
3.5 The importance of freedom of expression derives partly from the mutability of social values and from a recognition of human fallibility.6 Thus, the Supreme Court of Canada has adopted a content-neutral approach to the freedom of expression. This means that expression cannot be denied constitutional protection because of its content. As long as the expression in question intends to convey a meaning or to communicate, that expression (except where it amounts to physical violence) will enjoy constitutional protection. It may then be limited only in accordance with the criteria for justifying the limitation of fundamental rights contained in the limitation clause of the Canadian Charter. Expression enjoys constitutional protection “however unpopular, distasteful or contrary to the main stream”.7

3.6 The Supreme Court of the United States is, if anything, even more jealously protective of speech, irrespective of its content. The constitutionality of restrictions upon speech because of its content are extremely rarely upheld and strict scrutiny of such restrictions is applied:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion ...”8

3.7 Given this context, official conduct that amounts to the regulation of speech on the basis of its content, is the antithesis of freedom in a democracy:

“But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, its content ... To permit the continued building of our politics and culture, and to ensure self-fulfilment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on any expressive activity because of its content would completely undercut the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open ...”.”9

3.8 Nor is freedom of expression the sole preserve of those who would express lofty, noble or even merely inoffensive sentiments. As the European Court of Human Rights has emphasised, freedom of express is:

“... applicable not only to “information” or “ideas” that are favourably received or are regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.”10

3.9 The “right to speak freely and to promote diversity of ideas and programmes” is one of the chief distinctions between open and democratic societies and totalitarian regimes. And one of the purposes of freedom of expression is to invite controversy and dispute, to create dissatisfaction and to be provocative.11

3.10 It is of the essence of any system that respects freedom of expression and of the press that there be scope for the expression of the diversity of views. That does not mean that the expression of certain types of views are beyond criticism. On the contrary, integral to the freedom of expression is the freedom to criticise opinions with which one does not agree. It is only by argument and counter-argument and by open and robust debate that people are free to come to their own conclusions. In this regard, and in the context of regulating “obscenity”, the observations of the dissenting judgment of Douglas J in Paris Adult Theatre v Slaton are particularly apposite:12
“People are, of course, offended by many offerings made by merchants in this area. They are also offended by political pronouncements, sociological themes, and by stories of official misconduct. The list of activities and publications and pronouncements that offends someone is endless. Some of it goes on in private; some of it is inescapably public, as when a government official generates crime, becomes a blatant offender of the moral sensibilities of the people, engages in burglary, or breaches the privacy of the telephone, the conference room, or the home. Life in this crowded modern technological world creates many offensive statements and many offensive deeds. There is no protection against offensive ideas, only against offensive conduct.
Obscenity at most is the expression of offensive ideas. There are regimes in the world where ideas “offensive” to the majority (or at least to those who control the majority) are suppressed. Their life precedes at a monotonous pace. Most of us would find that world offensive. One of the most offensive experiences in my life was a visit to a nation where book stores were filled only with books on mathematics and books on religion”.