South Africa

New discrimination laws will most likely cause major problems in South Africa

In South Africa, the government has proposed changes to the Equality act in ways that will affect the religious rights of South Africans in a way that will affect Christians to practice their faith without
facing unfair arrests.

Legal experts in South Africa have raised concerns around the Promotion of Equality and Prevention of Unfair Discrimination bill which was recently published for public comment. The main purpose of the Act is to realise the constitutional right to equality so that people do not face unfair discrimination by either the state or anyone else.

The amendments to the Equality Act have far reaching consequences for religious practice in South Africa. It prohibits discrimination on the basis of both sexual orientation and gender identity across multiple sectors of the South African life, including employment and housing, public education and financing.

If left to continue it is likely to get to a point where it will prohibits anyone from even arguing that its enforcement interferes with the fundamental right to practice religion as is the case in America’s Equality Act.

It is vital for us to understand just how far reaching the amendments to the Equality Act are. The freedom to practice one’s religion is not just an optional, take-it-or-leave-it right. It is both fundamental and primary. The right to freedom of religion is enshrined in the Constitution of South Africa.

Chapter 2 of the Constitution of South Africa, containing the Bill of Rights, states that everyone has the right to freedom of religion, belief and opinion. Section 9, the equality clause, prohibits unfair discrimination on various grounds including
religion.

Section 15 allows religious observances in state and state-aided institutions, provided they follow public authority rules, they are conducted on an equitable basis and attendance is free and voluntary, and also provides for the recognition of religious legal systems and marriages that are not inconsistent with the Constitution. Section 31 protects the right of persons belonging to a religious community to practise their religion together with other members of that community and form voluntary religious associations.

One way to see the importance of something is to note the measures taken to protect it and clearly what I have just outlined shows just how important the right for someone to exercise their religion is. So various other provisions of South Africa’s constitution relate to religion and religious
freedom.

Sections 185 and 186 provide for a commission for the promotion and protection of the rights of cultural, religious and linguistic communities. In addition, human rights such as the right to human dignity, the right to freedom of expression and the right to freedom of association relate indirectly to the protection of
religious freedom.

The right to freedom of expression does not extend to hate speech based on various grounds including religion. On close examination PEPUDA will have major consequences South Africans. The bill redefines the terms “equality” and  “discrimination” to be much broader.

Specifically, the bill proposes to amend the definition of “discrimination” to make it clear that it is not necessary for a person to act with intention before they can be found guilty of unfair discrimination. The definition of ‘equality’ has been broadened to include equal rights and access to resources, opportunities, benefits and advantages.

What this means is that an employer could be found guilty if a prospective employee highlights discrimination on the basis of skin colour or sexual orientation. Companies, on the other hand, face greater
responsibilities.

If the amendment passes in its current form, employers and employees acting in the course of their work would be equally liable for unfair discrimination by an employee, and action would be possible against “either or both of them unless the person took reasonable steps to prevent the worker, employee or agent from contravening” the law.

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