SA says ‘NO!’ in record public response to PEPUDA Amendment Bill

South Africans have sent an unprecedented loud and clear message to the Department of Justice

And that message is: “NO!” to the Promotion of Equality and Prevention of Discrimination Amendment Bill — commonly known as the PEPUDA Amendment Bill.

By the end of Tuesday June 30, the closing day for public comment on the bill, the department had received well over 150 000 submissions — possibly more than 200 000. It is an overwhelming record response as a result of citizens heeding the call from the religious and other sectors to reject a bill which Freedom of Religion South Africa (FOR SA) have called the greatest threat to religious freedom they have seen to date and human rights organisation Cause For Justice, has said, absurdly, would in fact promote inequality and unfair discrimination. The massive public pushback raises hope that the bill — at least in its present form — will be withdrawn.

FOR SA say in a media statement that the Department of Justice have told them that they will consider all comments received until June 30.

By late Tuesday nearly 90 000 submissions had been made via the combined FOR SA and Dear South Africa website platform, and according to Michael Swain, executive director of FOR SA, a traditional African spirituality movement he has worked with to build consensus has sent in 63 000 submissions.

“We have also worked with the broad Islamic faith institutions and they have also mobilised and submitted many thousands of submissions.”

The business sector and some political parties have also spoken out against the bill, which among other problems could result in individuals being found guilty of unfair discrimination even if they had no such intention, and in employers falling foul of the law as a result of the behaviour of their employees.

Also of great concern to the faith community is that you can be liable if you “cause, encourage or request” another person to discriminate against a third person. So where a religious leader teaches a message and a member of the congregation acts on it or repeats it, if someone feels prejudiced by it or that their dignity has been undermined, the congregation member and the religious leader and the religious institution are all potentially equally liable.

These factors, as well as the bill’s overbroad definition of discrimination and a provision that gives access to state funding to those bringing litigation under the Act but not to defendants who would face potentially crippling financial consequences and censures, make it no surprise that the draft legislation has been welcomed by activists who are hostile to the faith community.

“So we we foresee, literally a tsunami of litigation can result out of this,” said Swain, who pointed out that FOR SA is already assisting defendants in a number of matters where they are being sued aggressively under the current PEPUDA Act.

The amendment bill also empowers government ministers to pass regulations and codes of practice to implement measures to eliminate discrimination and promote equality, and organisations (including religious organisations) would be compelled to promote their view of equality. This would effectively end the institutional autonomy of religious organisations (as well as faith-based independent schools) to determine their own doctrine, and internal workings, free from interference by the state.

Swain said that as PEPUDA is the principal piece of legislation in South Africa, proposed amendments require special scrutiny, because once implemented all other legislation is reviewed to conform with it. “And that’s very serious because it literally is a fundamental reset of the whole legislative framework of South Africa.”

He said that In recent years religious freedoms had been lost when the religious community — and the church in particular — failed to speak up, such as in the case of the Civil Union Amendment Bill whereby state marriage officers have been compelled to solemnise all marriages irrespective of their faith convictions.

 On the other hand religious freedoms had been protected when the religious community made their voice heard — such as with the Hate Speech bill when nearly 76 000 public submissions were made resulting in a religious exemption clause being added to the bill.

“We firmly support the promotion of equality and the prevention of unfair discrimination but not to the extent that it eliminates religious freedom rights in the process,” said Swain.

He said that no matter what good intentions the drafters of the bill may have had, if the bill became law in its present form it would mean the death-knell of religious freedom in the country.

“Given the extensive legal protection already provided by PEPUDA – as well as other labour law legislation and the common law protections such as crimen injuria – FOR SA cannot understand the need for haste to push through a law which will fundamentally rewrite South Africa’s legal system and drastically infringe upon other rights, including the right to religious freedom”, he said. “Our sincere expectation is that the Department will listen to the clear message they have received and acknowledge that what they have proposed has been soundly rejected by the vast majority of the submissions they have received.”

Tuesday was also the final day for comment on the draft Marriage Policy for South Africa published by the Department of Home Affairs. FOR SA has also been calling on the religious community to comment on this policy which will potentially force religious marriage officers (of whatever faith) to solemnise marriages which are contrary to their, and/or their organisation’s, religious convictions and beliefs.

Commenting on the need to be proactive about ongoing threats to religious freedoms, Swain said: “We have rights that have been very hard won. We don’t live in a democracy the way we do, enjoying the freedoms that we do, simply by happenstance. This is the culmination of literally centuries of blood sweat and tears. and if we don’t look after our rights — if we don’t stand upon our rights — then we will very quickly lose them.”

He said we should note that it was not only our rights and the rights of our church or business that are at stake but it was also those of the next generation. “Whatever we do or don’t do now, our children are going to be living with the effect of this.”

He said the most important thing for people of faith to do is “always, at the very earliest stage, to make sure that you send a very loud and clear message” about your religious freedom concerns. “Rather fight a battle a hundred miles from the city wall than when the enemy is at the gates.”