Prohibition Through Confusion: Section 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
Jurisdiction | South Africa |
Published date | 27 May 2019 |
Pages | 245-268 |
Author | Joanna Botha |
Citation | (2017) 28 Stell LR 245 |
Date | 27 May 2019 |
245
PROHIBITION THROUGH CONFUSION:
SECTION 12 OF THE PROMOTION OF
EQUALITY AND PREVENTION OF UNFAIR
DISCRIMINATION ACT 4 OF 2000
Joanna Botha
BA LLB (Rhodes), LLD (NMMU)
Lecturer, Department of Public Law, NMMU
Avinash Govindjee
BA LLB (Rhodes), LLM (UPE), LLD (NMMU)
Executive Dean, Faculty of Law, NMMU
1 Introduction
Section 12 of the Promotion of Equality and Pr evention of Unfair
Discrimin ation Act 4 of 2000 (the “Equality Act”), which prohibits the
dissemination and publication of infor mation that u nfairly discrimi nates, is
seldom applied in practice and has been called “by far the most perplexi ng
section in this area of t he Act”.1 The uncertainty see ms to be caused by a
misundersta nding of the provision’s somewhat complex requirements and a
related confusion as to whether it prohibits hate speech per se or spec ic ty pes
of expression as a form of unfair disc rimination.
Denitional i mprecision aggravates the position. Section 12 does not
expressly ban hate speech (either as dened in the Constitution of the Republic
of South Africa, 1996 (“Constitution”)2 or in the E quality Act) a nd practica lly
most “hate speech” cases are dealt with by invoking section 10(1) of the Equality
Act, even when the speech in question could conceivably be dealt with in terms
of section 12.3 It is accordingly debat able whether this provision ha s a role to
play as a speech regu lator in the Equality Act. Moreover, section 12 is w idely
cast a nd exceeds the boundaries for constitutionally excluded expression as
prescribed by section 16(2) of the Constitution. Its c onstitutionality must,
therefore, be tested in ter ms of section 36 of the Constitution.4
1 C Alber tyn, B Gold blatt & C Ro ederer (eds) Intr oduction to the Promot ion of Equality and Pre vention
of Unfair Discr imination Act , Act 4 of 2000 (2001) 100-111, but compare the view of M Ma rais T he
Constitut ionality of Categor ical and Conditiona l Restrictions on Ha rmful Expression Re lated to Group
Identity LL D thesis, Universit y of the Free State (2014) 332.
2 S 16(2)(c) of the Constitution.
3 See, eg, Thiem v Mac Kay SAHRC 18-09-2013 case no FS/1314/0083 (post er of a black politician
alongside baboons); Democra tic Alliance v Volkr aad Verkiesing Ko mmissie SAHRC 05-12-2013 case
no M P1213/0024 (racist pla cards at a d emonstration); Van Niekerk v Living Ho pe Ministri es S AHRC
02-05-2013 case no FS/2010/0060 (disseminat ion of a racist book depicting black people as lesser being s).
4 S Teichner “The Hate Speech Provisio ns of the Promoti on of Equality a nd Prevention of Un fair
Discrim ination Act 4 of 200 0: The Good, the Bad and the Ugly” (20 03) 19 SAJHR 349 353; A Kok “The
Promotion of Equalit y and Prevention of Unfair Discrimi nation Act: Why the Controversy?” (2001) TSAR
294 297.
(2017) 28 Stell LR 245
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In this contribution, we aim to resolve these problems, offering much needed
clarity in the p rocess. We do so by considering previous attempts to interpret
the threshold test i n section 12, as read with the proviso. Thereaf ter, and with
reference to the Equality Act’s objectives a nd comparative intern ational and
foreign law (in particular Canadia n law),5 we end eavou r to pro vide a de nit ive
interpretat ion of section 12 (in its cur rent form). We also explore whether the
provision is a constitutionally justi able limitat ion to f reedom of expression
and whether it has a r ole to play as a remedial measure in t he Equality Act.
Finally, we suggest proposals for the amendment of section 12 and the reform
of the South African law in t his respect.
2 Section 12: Prohibition of dissemination and publication of
information that unfairly discriminates
Section 12 of the Equality Act provides that:
“No person may –
a) disseminate or broadcast any information;
b) publish or display any advertisement or notice
that could reasonably be construed or reasonably be understood to demonstrate a clear intention to
unfairly discriminate against any person.”
This section, like section 10 (the hate speech prohibition), is subject to a
proviso, which provides t hat the “bona de engagement in artistic creativit y,
academic and scientic inquiry, fair and accurate reporting in the public interest
or publication of any information, advertisement or notice in accord ance with
section 16 of the Constit ution is not precluded by this section”. Section 12
must also be read with the den ition of “discri mination” in the Equal ity Act
and should be understood to prohibit communications that demonst rate an
intention to discri minate unfairly against a person on a p rohibited ground.6
3 An interpretative dilemma?
Section 12 has been the subject of much inter pretational academic debate.
It is similar to section 7(a) of the Equality Act in that it classies and prohibits
expressive conduct as a form of un fair discrimination. Alb ertyn et al contend
that the provision creates a four-par t threshold test, namely:
a) is there conduct in the form of dissemination or a broadcast of information
or the publication or display of an advertiseme nt or notice;
b) could such conduct reasonably be constru ed to demonstrate an intention
to discrimi nate unfairly against any person;
5 The Equality Act was enacted to give effect to Sout h Af rica’s obligat ions i n ter ms of Inter national
Convention on the Elimination of all Forms of Racial Discrim ination (“ICERD”) and the Convention on
the Elim ination of al l Forms of Di scriminati on against Women (“CEDAW”). S 3(2) of the Ac t provides
that inter national law (specifi cally the ICERD and CEDAW) and compa rable foreign law must infor m its
interpre tation. See too ss 39 an d 233 of the Constitution .
6 Discrim ination is d efined in s 1(1)(viii) of the Equ ality Act a s “any act or omission, i ncluding a p olicy,
law, rule, practice, cond ition or situation which directl y or indirectly – (a) imposes burdens, obligation s or
disadvantage on; or (b) withholds benefits, opportunities or advantages from any person on one or more
of the prohibited g rounds.” [own emphasis].
246 STELL LR 2017 2
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