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Prevention of Unfair Discrimination Bill on Track

July 12, 2021

Department of Justice and Constitutional Development

The Draft Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill will be tabled in parliament in 2022.

In a statement, the justice and constitutional development department added that the draft bill garnered much public and media interest during public consultation in March 2021.

According to the department, the submissions are being studied following which a revised draft bill will be drawn up.

The draft bill is designed to address certain problems that have been identified with the Promotion of Equality and the Prevention of Unfair Discrimination Act (PEPUDA) following a review process.

Amendments are proposed to improve the protection of complainants.

The draft bill also aims to address challenges in the promotion of equality.

Two new subsections are proposed for section 6 of the act focused on the extension of the scope of the prohibition of unfair discrimination to any person who causes, encourages or requests another person to discriminate against others and provision for joint and several liability which entails that both the employer and the employee can be held liable for discrimination.

The insertion of section 9A will prohibit retaliation against a person who exercised his or her remedies in terms of the act.

The draft bill also proposes criminalizing the willful submission of false information by any person.

In the statement, the department points out that Chapter 5 of PEPUDA which “deals with the promotion of equality was never put into operation due to concerns about, amongst others, the regulatory burden that will be placed on all sectors in respect of reporting requirements”.

“The amendments now seek to address these concerns, noting that promotion of equality is essential to the affirmation of equality as a foundational value of our Constitution and as such must be operationalized through legislation.”

Meanwhile, the home affairs minister, Dr Aaron Motsoaledi, in a speech at the recent National Colloquium on the Green Paper on Marriages in South Africa, declared that it is “beyond any dispute that this country needs a modern Marriage Policy”.

The Green Paper was published for comment in May 2021.

According to the department, the Draft Marriage Policy is designed to “establish a policy foundation for regulating the marriages of all persons that reside in SA”.

“The envisaged marriage statute will enable South Africans and residents of all sexual orientations, religious and cultural persuasions to conclude legal marriages that will accord with the principles of equality, non-discrimination, human dignity and unity in diversity, as encapsulated in the Constitution.”

The department emphasized that the “current marriage statute still deprives certain cultural and religious communities from concluding legally recognised marriages”.

This includes Islamic and Hindu marriages, customary marriages concluded in some African communities and marriages of transgender persons.

Marriages in SA are regulated through the following legislation:

• The Marriage Act 25 of 1961 (monogamous marriage for opposite sex couples);
• The Recognition of Customary Marriages Act 120 of 1998 (polygamous marriages for opposite sex couples who are black South Africans); and
• The Civil Union Act 17 of 2006 (monogamous partnerships for both same and opposite sex couples).

The Green Paper focuses on policy overview; statistics on marriages and divorces; policy framework and implementation strategy and intersectionality of family law.

The department plans to submit the Draft Marriage Policy to cabinet for approval by 31 March 2022, submit the Draft Marriage Bill to cabinet for approval by 31 March 2023 and submit the Draft Marriage Bill to parliament for approval by 31 March 2024.

The minister declared that it is for the “first time since the dawn of democracy that the nation is having a conversation on the key elements of an inclusive marriage regime”.

Key proposals on the table following consultation include that the country must consider introducing an inclusive customary and religious marriage legal framework for all polygamous marriages, including Muslim, Hindu, Shembe, KhoiSans marriages; recognition of customary marriages that are practiced in some African communities, including royal families; registration of customary marriages to be compulsory and adopting an inclusive marriage legislation that will accord all marriages a similar status.