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 ic ty pes

of expression as a form of unfair disc rimination.

Denitional i mprecision aggravates the position. Section 12 does not

expressly ban hate speech (either as dened 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 scientic 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 den 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 classies 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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