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The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) has come under scrutiny. Some believe the proposed change will see the ACT unfairly harm the business sector within South Africa.
The Act’s primary purpose is to ensure everyone’s constitutional right to equality, thereby seeing no one facing unfair discrimination by the State or anyone else, irrespective of their race, religion or sexuality.
However, there are some concerns about a new proposed bill that will introduce new requirements to achieve this goal while broadening the definition of discrimination.
The Bill proposes to broaden and amend the scope of the definition of equality and discrimination. One way it intends to change the meaning of discrimination is by indicating that a person does not need to act with intention to discriminate before being found guilty of discrimination.
Furthermore, provision is made in the Bill for joint and several liabilities, which entails that both an employer and an employee can be held liable for discrimination if the employee is found guilty.
The Democratic Alliance (DA) has stated that it strongly objects to the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill (PEPUDA). In a statement, the political party says, “We have been invited to make comments on this Bill by 30 June 2021 and will use this as an opportunity to object to the Bill.”
After an in-depth study of the Bill, the DA has found fundamental problems with it. This includes the expanded definition and removal of the requirement of intent. The DA says it is concerned that the amendments to the definition of ‘discrimination’ and the removal of ‘intent’ will have unforeseen, far-reaching consequences. For example, individuals might break the law without knowing they have done so or ever intend to do so. “The current definition of ‘discrimination’ in PEPUDA is simply too broad and will overwhelm South Africa’s already overburdened justice system.”
Moreover, the DA says the introduction of vicarious liability in clause 2, will put an unreasonable responsibility on employers to police the actions of their employees, even during non-working hours.
The DA states, “Employers should not be unreasonably held liable for the discriminating behaviour of their employees. In a country where the numbers of unemployment grows daily, government should not be introducing legislation that will discourage employment in any way or form.”
Additionally, the DA points out that Clause 9 of PEPUDA gives the government the power to prescribe how NGOs, community-based organisations, and traditional organisations promote equality in their dealings with other organisations and public activities. “Ironically, this clause will give government ample opportunity to discriminate against any organisation when prescribing their code of equality. This may result in a selective and politically motivated application of codes upon organisations which the State may find undesirable,” the political party says.
Furthermore, Rob Russell of SA Mediations and Labour Advice & Dispute Resolution says that he fears the Act will harm businesses in SA. “The proposed definition of discrimination is simply too broad. The second point of contention relates to vicarious liability where the Bill will make businesses liable for contraventions performed by their employees even during non-working hours.”
Adding to this, Faizel Cassim of ActionSA explains the political party is concerned about the effects PEPUDA will have on the country and is currently looking into the matter.”As ActionSA, we are truly non-racial and we believe in merits and strengths, as South Africans working together in a craft and coordinated effort to drive the country forward.”
As the new proposed Bill promises to have far-reaching consequences, what are your thoughts on the matter?
Share your views in the comment section below.
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