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The FW de Klerk Foundation has submitted its concerns about the recently published Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill (PEPUDA).

The Bill will have a deadly impact on political freedom, freedom of expression and freedom of association in South Africa and will point South Africa in the direction of totalitarianism, censorship and severely diminished freedom of expression.

This will be aggravated by a wide range of strenuous obligations imposed by the Bill which, if implemented, will be virtually impossible to fulfil and it will also be very costly and burdensome because ‘equality’ as suggested by the Bill cannot be quantified.

While the Foundation - like all South Africans - is fully committed to the achievement of equality in South Africa in line with the Constitution, the Bill will - in its current format - rather than promote actual equality, have an adverse effect on how this is interpreted, promoted and achieved in South Africa.

It must be asked - if the state is so focused on promoting equality and preventing discrimination - why it does not utilize the existing legal framework in place to do so - as set out in section 9 of the Constitution and the existing PEPUDA?

The Foundation has raised a number of core concerns with the Bill, including -

• the vagueness of the definition of equality and the fact that it far over-reaches the definition in section 9 of the Bill of Rights;
• the negative impact and over-reach of the definition of hate speech and discrimination making it susceptible for abuse and also irreconcilable with section 16 of the Bill of Rights;
• the unacceptable proposal by the Bill that crimes can be committed even if there is no intention to do so;
• the principle of vicarious liability as set out in the Bill; and
• the gross intrusion of the state into the legitimate functioning of NGOs and other organizations considering section 31(1)(b) of the Bill of Rights.

The Foundation is also of the view that the Bill will intrude in a most unacceptable manner with section 15 of the Bill of Rights - the right to freedom of religion, belief and opinion - democratic societies cannot function without free and untrammelled freedom of expression and independent institutions and NGOs.

Issued by The FW de Klerk Foundation