Cheryllyn Dudley, Member of Parliament in South Africa (June 1999 to May 2019) and currently serving as Political Analyst at dia-LOGOS, responded by addressing the following two questions:

• Does it present a threat to FREEDOM OF RELIGION AND BELIEF and
• How can Christians respond to it?

DOES IT PRESENT A THREAT?

The short answer to whether or not PEPUDA (The Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, 2021)  poses a threat to freedom of religion or belief (FoRB) is that some, like many in the Jewish Community who feel threatened by what they call ‘hate speech’ on the basis of their race and religion, are likely to support these amendments while others who are accused of ‘hate speech’ themselves on the basis of their religion and belief, will perceive it as a threat.

It is good for people to be aware and alert to opportunities and threats in order to ensure maximum protection for affected persons; to retain maximum freedom in general; and to protect freedom of belief in particular. It is therefore important to participate in the legislative process by expressing views and making suggestions.

It is not necessarily true however that the proposed amendments will result in entirely adequate protection or that they will result in an entirely abusive situation such as the State telling people and institutions of faith what to believe and how to run their internal affairs as has been claimed by some.  State regulation of religion and religious practices, in my view, is not desirable and this matter certainly does require careful consideration of the unintended consequences of over-broadening definitions etc, and as such the well-considered input of FORSA is a useful guide and they are to be commended. 

I would caution however that the enthusiasm with which their concerns are presented in order to inspire people to be alert and to respond does in itself present a problem if it causes people to act out of fear in a manner that disrespects other people’s concerns and produces decidedly unchristian behaviour in responses. It can also close the ears of the very people we would all like to influence in the interests of achieving better (if not perfect) remedies to the perceived problems the legislation aims to address.

In my experience, it is never a good idea to assume that the department or the legislators are the enemy or to treat them as such.  There is a far greater chance of persuading people when you do not position yourself as an enemy of the good that is intended, for example, equal rights and access to resources, opportunities, benefits and advantages, or preventing discrimination, prejudice or undermining someone’s dignity.

This does not mean we should shrug our shoulders and look the other way either.  This is an opportunity to humbly face the problems and at the very least attempt to find ways together to address them.  In responding we need to be praying all the time for the right words and attitudes in ourselves and for ears and hearts to be open to wise input.  For example, the “no fault” liability proposed by the Bill is at odds with the rest of our law and could punish people for saying or doing things that they did not know to be wrong and where they had no intention to break the law!  This and many other aspects flagged for our attention will need our response and careful handling. 

I feel compelled to say here however that as Christians we should also understand that harm can be done to others even when a person does not do so intentionally and that we would do well not to imply that this excuses us.

As Martin Illes has been at pains to remind us lately, there may well come a time that we will be required to obey God rather than Government as Daniel eventually had to do. Let’s remember that Daniel had first honoured God by respectfully working with and obeying the Government in every other way possible, building trust and a good reputation that made his action which was the exception and not the rule a testimony – it was not an act of self-protection or fighting for one’s own comfort.

In our responses, we should not forget that the Bible speaks decisively to this issue. Romans 13:1-2 says: “Obey the government, for God is the One who has put it there. There is no government anywhere that God has not placed in power. So those who refuse to obey the law of the land are refusing to obey God, and punishment will follow.”  It seems that we are expected to be good citizens and that the church and state should work together for good.  Chapter 13 of the Apostle Paul’s Letter to the Romans, reads, in part: “Let every person be subject to the governing authorities; for there is no authority except from God, and those authorities that exist have been instituted by God.”

We can choose to see this whole process as an opportunity for us as Christians to model a behaviour that is not in line with our natural human inclination to be defensive, rebellious and to fight.  We can choose to let our words spread hope and not fear, love and not enmity, wisdom and not folly, humility and not superiority and arrogance.

The purpose of the Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, 2021 is to address problems identified following a review of the Act. (The second part of the Act, for example, is not yet in operation due, in part, to the regulatory burden placed on all sectors of society, both public and private.)

The first part of the Bill (clauses 1 to 3) aims to improve the protection of complainants against discrimination by:

* Broadening and amending the scope of the definitions of:

(i) “equality” by indicating that it includes equal rights and access to resources, opportunities, benefits and advantages; and

(ii) “discrimination” by indicating that intention to discriminate is not required. It is the effect that matters and this makes it easier for complainants to make out a case of discrimination.

* Amending section 6 of the Act, (which contains the general prohibition of unfair discrimination), by adding two new subsections as follows:

  (i) The scope of the prohibition of unfair discrimination is extended to any person who causes, encourages or requests another person to discriminate against others. This enables legal proceedings against such a person.

(ii) Provision is made in the Bill for joint and several liability which entails that both the employer and the employee can be held liable for discrimination.

* Inserting section 9A in the Act to prohibit retaliation against a person who exercised his or her remedies in terms of the Act.

The second part of the Bill (clauses 4 to 9) seeks to:

(a) Clarify and reduce certain duties relating to the promotion of equality of the State and public bodies, for example by not requiring municipalities to provide assistance, advice and training on issues of equality so that they can focus on their main mandate namely municipal service delivery to the people.

(b) Make use of existing financial reporting and monitoring mechanisms to ensure proper planning, budgeting and reporting on measures implemented to promote equality. State departments, municipalities and certain public bodies will have to provide certain information in their strategic, corporate and business plans instead of having to prepare and develop additional and separate equality plans and action plans as required by the Act.

(c) Strengthen accountability for the implementation of measures aimed at promoting equality by ensuring that Annual Reports of Organs of State contain information on what they have done in this regard.

(d) Enhance co-ordination and prevent overlapping actions and duties, a Minister must, before issuing regulations and codes of practice or charters, have regard to other measures aimed at promoting equality which are already in place before additional duties are conferred upon bodies. For this purpose, the Department of Justice and Constitutional Development must make available on its website a list of all the Codes issued by the Ministers.

(e) Strengthen enforcement of the provisions of the Act, the Bill now criminalises the wilful submission of false information by any person.

The amendments make the law more realistically implementable and seeks to clarify and reduce certain duties for the state.

The focus of our submissions should be to ensure the burden on Companies, NGO’s and Faith based organisations are equally considered and do not have unrealistic burdens placed on them either.  Once the department has considered the submissions and determined whether or not to make any further recommendations, the bill will be submitted to Parliament and considered in the relevant committee where another round of public participation will ensue  before proposals are considered and debated and the majority in the committee decide to send it to the National Assembly or NCOP to be debated in the house.  If it passes in the one house (which is presently the likelihood due to a solid majority) it then goes to the other and the process begins again with more opportunities for public input and debate. Only once the legislation passes both houses, does it go to the President to be signed into law.  Then the department has to make regulations that will assist implementation before the changes can actually be implemented. This is a long process which creates many opportunities for true Christianity to shine through when the object is to win hearts and not necessarily those things we feel entitled to.

HOW CAN WE RESPOND?

Speaking truth to power whether you are an MP, an NGO, CBO or individual requires you to firstly state your concern clearly and precisely (long preambles do not help). Express your concerns respectfully and graciously, briefly, honestly, accurately (without exaggeration, grandstanding or fear mongering). It will make you so much easier to listen to.

Working together with legislators and the community on issues, I have found, produces results and increased success in engaging the hearts and minds of decision makers. With all the noise, agendas, attention-seeking, speaking for the sake of speaking, uninformed and ill-informed propagandists, it is a great blessing to find people that have applied their minds responsibly to the specific issues and offer information and recommendations that are informed by Biblical standards, academic research, an understanding of the law of the country and feedback from relevant stakeholders, not just hearsay.

Explain how your concern will affect people and what you are asking Parliament or government to do about it. Recommend what you believe is the best way to solve the problem and how you think this can be done in the simplest and most effective way. Link your recommendation to what relief it would bring and how consequences for others could be avoided. Make available the names of who you have consulted and who you represent on the issue.

FOR MORE INFORMATION

The Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, 2021

(PEPUDA) is available free online at www.gpwonline.co.za.   The Department of Justice and Constitutional Development has invited interested parties to submit written comments on the proposed amendments to the Act

Comments must be submitted to the Department of Justice by WEDNESDAY, 30 JUNE 2021

• For the attention of Ms F Bhayat
• addressed to The Director-General: Justice and Constitutional Development Private Bag X81 Pretoria 0001
• delivered at SALU Building, Room 23.23, 316 Thabo Sehume Street, Pretoria
• emailed to: fbhayat@justice.gov.za or
• faxed to 086 754 8493.