Barry Streek
A legal nightmare is about to be visited on South Africans in the form of a draft law which will severely curtail press freedom and put the onus on individuals to disprove charges of discrimination made against them.
It will also outlaw affirmative action advertisements and give men the legal right to join all-woman groups.
The draft Promotion of Equality Bill proposes setting up equality divisions or courts in each of the provinces as well as an equality tribunal, which will not be bound by rules of evidence and will be empowered to act “without regard to technicalities and legal forms”.
It also gives the overstretched South African Human Rights Commission large additional responsibilities, including the power to ask for temporary orders, implement rulings and initiate conciliation proceedings.
The draft Bill has been submitted to Minister of Justice Penuell Maduna by the drafting committee chaired by Justice Johan van der Westhuizen, the former head of the Centre of Human Rights at the University of Pretoria.
The Bill was to be submitted to Parliament this year and it was on the department’s legislative programme for this year, according to Ministry of Justice representative Paul Setsetse.
It has been drawn up to give effect to the provision in the Constitution that national legislation must be enacted to prevent or prohibit unfair discrimination within three years of the adoption of the Constitution.
The confidential “framework document” on the proposed Bill says legislation is “now required to promote equality, prevent and prohibit all forms of discrimination and to make provision for the advancement and protection of persons previously disadvantaged by unfair discrimination”.
The purpose of the Bill is “to promote substantive equality” by preventing and prohibiting unfair discrimination, making provision for remedies by victims of unfair discrimination, providing for positive measures for the elimination of unfair discrimination, educating and raising awareness about “the nature and meaning of equality” and ensuring that South Africa meets its international obligations to outlaw and redress unfair discrimination.
Prohibited grounds include discrimination based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, domestic and family responsibility or status, birth, social and economic status, nationality and any other ground.
Many of the clauses in the draft Bill are aimed at different sectors of society. It attempts to define discrimination in employment, education, health care, land, housing, accommodation, insurance, pensions, goods, services, facilities, associations, partnerships, clubs, the professions and the media.
The state and “any person, natural or juristic”, will be bound by the law.
One of the major problems with the 126- clause draft Bill is that it tries to encompass everything, and even includes a provision that if its provisions conflict with any other law apart from the Constitution, the provisions of the new Act will apply.
So, when it comes to the media, the Bill’s provisions are so wide that it will clearly restrict what can be reported. For instance, the media will be prevented from “violating the privacy of another on any of the prohibited grounds by publishing information without permission or regard to their dignity or in a manner that suggests discrimination which has the effect or is perceived to have the effect of discriminating against another on any of the grounds specified”.
The media will also be prevented from “making utterances or by publishing or causing to be published propaganda, ideas or theories based on unfair racial stereotypes, or promote inequality of persons within the various categories or which justify, promote or incite hatred or prejudice against others on account of race, ethnicity, gender or religion, or which cause or encourage discriminatory practices”.
So, if someone were to say at an election meeting that “white liberals” were responsible for the economic situation or “black criminals” were responsible for the attacks on farms, these statements could not be published without contravening the proposed measure.
No club, its committee or management will be allowed to unfairly discriminate in determining who to admit, who to refuse membership to or by the way members are recruited or processed. No club may discriminate in conditions of membership by denying or limiting access to any benefit arising from membership.
Barring membership to a club on grounds of race or sex is out. Single-sex book clubs better look out!
In regard to employment, no person or organ of state will be allowed to discriminate “against anyone in any manner” by “advertising in a manner which unjustly excludes or disadvantages potential applicants from any group”. That clause alone would rule out any affirmative action advertisements.
No one will be permitted to discriminate “by creating informal barriers to equality of access to employment opportunities”. So, even informal affirmative appointments by excluding people because they are white males would also be illegal, according to these stipulations.
The last word on the Promotion of Equality Bill is, clearly, a long way off.