Howard Barrell and Barry Streek
The Cabinet has approved a wide-ranging draft law to guarantee equality among all South Africans. If passed, the legislation will give vast powers to the courts to intervene against discrimination, which it defines very broadly.
The Bill, which is softer than a version that was circulated among interested parties earlier this year and publicised in the Mail & Guardian, is likely to prove controversial when MPs debate it in coming weeks.
The Bill’s stated aims are likely to be widely applauded, but the manner in which it sets out to achieve them is likely be heavily disputed by opposition parties and civil rights groups.
The final version of the Bill no longer contains a special section dealing with the media, but it does say that no person may ”disseminate or broadcast any information, publish or display any advertisement or notice that indicates or could reasonably be understood to indicate an intention to unfairly discriminate”.
It aims, among others, to ”actively promote the building of a South African society that is rich in its diversity, that is caring, compassionate and that strives progressively to achieve equality”. It also sets out to ”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”.
It goes on to prohibit what it terms ”unfair discrimination” in any area of life, specifically in employment, education, health care, accommodation, land and property, insurance, pensions, goods, services and facilities, associations and partnerships, clubs and sports, and professions.
It defines racial discrimination as ”any distinction, exclusion, restriction or preference, based on race, colour, descent, national or ethnic origin, which is aimed at or has the effect of nullifying, impeding or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other sphere of life”.
It explains racism as ”any act, practice or policy which denies or is calculated to deny or undermine the inherent dignity of a person or a group of persons on the basis of race, language, religion or ethnicity, as manifested in violence against such person or group of persons, the denial of free and equal access to, and participation in, all spheres of life”.
It specifically outlaws the use of words such as ”kaffir”, ”coolie”, ”hotnot” and what it terms ”their variations”.
There are similarly broad definitions of gender or disability discrimination. These include the prohibition of ”female genital mutilation”, ”the system of preventing women from inheriting family property” and what it calls ”pregnancy discrimination”.
A clause that is likely to prove particularly controversial is the burden of proof the Bill places on the person or organisation accused of discrimination. It states that, if a complainant makes out a prima facie case of discrimination, the respondent has to ”prove that the discrimination is not based on one or more of the prohibited grounds” or, if that is the case, ”that the unfair discrimination is reasonable and justifiable”. The Bill does not, however, give much guidance on what might be ”reasonable and justifiable”.
This could be a tricky judgment in the case of clubs and sport. Among other things, it provides that all clubs or sports structures which benefit from public resources ”must identify all forms of inequality and discrimination in this sector and take steps to eradicate such inequality, paying particular attention to recruitment and equitable representation of designated groups in selection, administration, coaching and refereeing”.
Designated groups are defined as ”persons previously classified as Africans, Coloureds or Indians, women or persons with disabil-ities”. This could pave the way for women and people in wheelchairs to be represented in rugby teams.
If passed into law, the Bill could go a long way towards removing discriminatory practices in, for example, the letting of property, and the granting of bank loans and mortgage bonds. But the all- encompassing provisions could, equally, become a legal nightmare.
The Bill provides for courts to make orders for damages and costs, or to reconcile parties in actions over discrimination. It does not, however, provide for any direct criminal sanctions, such as fines or jail terms.
The justice ministry suggests in a memorandum attached to the Bill that R50- million be set aside to cover the costs of expanding the Human Rights Commission and training personnel to assist in the implementation of the Bill.
The Democratic Party’s constitutional affairs representative, MP Dene Smuts, says the Bill ”misses the point” and ”reads like a poor imitation of an international convention designed for states, not persons”.
She also said the preamble ”larded with words like gross violation, ubuntu, peace, reconstruction, sounds like a mixture of the Truth and Reconciliation Commission and the Reconstruction and Development Programme; and occasionally like a cross between Archbishop [Desmond] Tutu and Superman: truth, justice and ‘libberdy’ for all”.
Smuts added that the Bill would effectively prohibit Charlize Theron’s recent anti-rape advertisements.