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AD-HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATIN BILL
18 January 2000
PREAMBLE, PROMOTION OF EQUALITY CHAPTER, IMPLEMENTATION
Documents handed out
Re-draft No E9
The Committee considered the amended Preamble, the definitions of "prohibited grounds", "State" and the Promotion of Equality chapter.
Afternoon and evening session
The Promotion of Equality chapter was looked at and thereafter Chapter 7 dealing with General Provisions and Implementation of Act and Chapter 9. New drafts of sections 29 (social commitment to promote equality) & 32 (special disability provision) were discussed. Chapter 5 dealing with Equality courts followed, with emphasis on section 18 regarding labour matters. The proposed restriction on the Magistrates’ Courts to create new prohibited grounds was debated: an additional section 25(4) & (5) provides for this. A lengthy proposal by the Chair regarding Chapters 2 & 4: sections 7 (unfair discrimination) and 8 (positive measures and differentiation) should be included in a revised chapter 4.
The Committee agreed that the revised Preamble would stand with the following amendments :
There would be a comma after "other measures"
The law advisors would consider if each paragraph should start with capital letters.
"Prohibited Grounds" : Mr M Moosa (ANC, Chair) asked Professor S Gutto if it is necessary to include a reference to "disadvantaged groups" in (b) as this overlaps with the definition of "discrimination". It was agreed that a mechanism would be built in to avoid the repetition in the definitions of prohibited grounds and discrimination . Professor Gutto explained that (b) is necessary as the list of prohibited grounds is open-ended. He expressed a concern that it is dangerous to allow Magistrates to continue to expand the prohibited grounds particularly as a Magistrates’ Court decision will not be binding whereas a decision of the High Court or the Constitutional Court will establish a precedent.
There followed a discussion about whether it should only be the Constitutional Court which could add a prohibited ground and, if so, where this should be provided for in the Bill. Ms T Madonsela raised a concern that this may give the impression that an additional ground will not be such until it has been determined by the Constitutional Court and will prevent complainants from bringing claims on potentially new grounds. She also expressed the reservation that the Magistrates Courts would then have less powers than the Commission for Conciliation, Mediation and Arbitration which under the Employment Equity Act do have the power to determine additional grounds.
Mr R Davies (ANC) raised the matter of the cost to the complainant in society and suggested that the complainant should not have to bear this. Ms S Botha (DP) asked how the respondent defends himself against what only becomes a prohibited ground in Court.
It was agreed that the drafter would redraft this clause to take into account all these points.
"State" : the definition was considered again following the discussion the previous day. Mr Basset explained that the definition of "State" had been taken from the definition of "organ of state" in the Constitution. It includes constitutional institutions. Ms D Smuts (DP) said that there was a difference between the State and organs of the State in terms of the promotional sectors. The Chair said that surely the bodies such as the Human Rights Commission and the Commission for Gender Equality should bear the responsibility of promoting equality. Ms Smuts replied that this was not what they were there for. It was agreed that the clause would be left as it is for the time being.
Chapter 6 : Promotion of Equality
Section 27 Duty of the State to promote equality
S.27(1) Ms D Smuts (DP) said that s.27(1) should be limited only to government departments whereas if State is defined to include organs of State this includes a myriad of different kinds of bodies who derive their powers from legislation. The Chair stated that everyone has to promote equality. Mr R Davies (ANC) stated that the obligations contained in s.21(1) a-g apply to everyone but that (h) applies to the State as a whole and this could be clarified by inserting "where appropriate" to (h). This was agreed.
S.27(2) Mr S Grove (ANC) asked whether the obligations in (2) apply to all the organisations in (1). Ms Smuts stated that this provision was talking about the State in the narrower sense. Mr Grove said that it must mean more than just State departments, which was too narrow, but less than any organ of the State, which was too wide.
Mr Bassett suggested that the clause be amended along the lines of "any component falling within the definition of State". It was agreed that the clause would be reworded along these lines.
S.27(3) Ms Smuts asked who it was intended that recommendations should be made to, what rules govern investigation? The clause is too brief. Mr B Turok (ANC) suggested that this should be in a manner set out by regulation. The Chair suggested that the Court should be able to prescribe the manner of the investigation. There followed a discussion around whether it was appropriate for the Court to determine the manner of the investigation and, if so, whether the investigation should be limited to cases of systemic discrimination. The consensus was that this was not necessary. It was agreed that a task team would look at this clause.
S.27(4) Ms Smuts stated that these are socio-economic rights. She asked what aspect of equality was being referred to here. Ms Madonsela suggested the clause be amended to the effect "all Ministers must implement measures aimed at the progressive realisation of equality within available resources in their area of responsibility". There was a discussion around the need to include available resources and it was agreed that it was necessary.
Mr C Aucamp (AEB) queried (a) which provides for the elimination of perpetuation of all forms of inequality. The Chair explained that the law provides a defence of fairness. Mr C Hanekom (ANC) explained that the definition of equality answers this concern. Mr Turok suggested that the following be inserted to resolve the issue: "inequality in any practice for which the Minster is responsible".
In S.27(4)(b) it was agreed that there was no need to be so wordy and the clause would be redrafted. Mr Turok asked whether s.27(b)(ii) was necessary as it gives an unnecessary burden on the Minister of Finance to consult. The consensus was that the clause would be retained.
S27(5) The chair stated that the current clause is badly drafted and needs to be revised to clarify the powers of the Human Rights Commission and the Commission on Gender Equality.
S.27(6) the Chair suggested that this clause should be deleted. Ms Madonsela said it was necessary as otherwise there was no emphasis on race, gender and disability in the promotional sectors. She cited the example of Canada where there was no special emphasis and there was no direction on which grounds should be given priority when implementing the promotional provisions.
It was agreed that the emphasis would be included at the start of s.27(4) and (6) would be deleted.
Section 28 Responsibility of functionaries and [private bodies] juristic and non-juristic persons operating in public domain to promote equality and Section 29 Social commitment by all persons to promote equality
In Clause 28 the Chair asked why functionaries were needed. It was agreed to replace this with "persons operating in the public domain"
Ms Smuts was concerned at the reference to "persons providing goods and services". She reminded the Committee that this would include small businesses just when the Minister of Labor was trying to soften the effect of the Employment Equity Act. She also expressed concern that the Committee was going against the undertakings given when the EEA was negotiated. She said there was a problem with binding the public and private sphere in such a vague way. She suggested s.27 should apply to a narrow definition of the State and s.28 should apply to the wider category.
There followed a discussion around the different obligations which should apply to the State, other organizations and natural persons. Ms S Camerer (NNP) said that while the non-discrimination provisions of the Bill should apply to everyone it was nonsensical to require tiny businesses to comply with the reporting provisions. She gave the example of the lady who knits and sells at the local fleamarket. She should not be overburdened with reporting requirements. It makes the law laughable. Mr C Aucamp (AEB) suggested that "goods and services" should be removed as a solution. Mr R Davies (ANC) suggested that the reporting mechanisms be qualified by "where appropriate".
Mr B Turok (ANC) stated that there appeared to be three categories: the first is a government institution and a high obligation should be imposed. The second is organizations exercising a public power such as non-governmental organisations. Many were very large and influential and it was also reasonable to impose and obligation on them to promote equality. The third was small businesses and natural persons where it was not appropriate. Mr Davies expressed a concern that this may mean that a small organisation contracting with the government would have a higher obligation than a large bank which did not contract with government. Ms S Camerer (NNP) suggested a proviso to the third category of "subject to available resources and ability to practically implement bearing in mind the objectives of the Act". Mr D Hanekom (ANC) agreed the clause is ambiguous and needs to be broken down. Mr Aucamp suggested that it would be easier to work back from the general obligation imposed on everyone by s.29.
An ANC member suggested that the Act should stop short of setting out the detail, it should merely state the principle and criteria on which the different levels of the duty should depend (such as the size of the organisation, its relationship with the State) and leave it to regulation to work out the detail. Ms Smuts agreed with this idea. It was agreed that a task team would rework ss27-29 taking into account these suggestions.
Section 30 Special measures to promote equality with regard to race
S.30(1) Ms Smuts suggested that this should be dealt with by criminal statute as it was a large step which required in-depth deliberations. Mr Turok explained that it was intended to cover situations such as the recent shooting case in Pretoria where it was suggested that the motive for the shootings was racial. The Chair explained that it covered situations where it had been actually proved (rather than suggested) that the motive was racial. It was confirmed that there was no other law catering for that element of the crime. Ms Camerer said that, although she had no problem with the clause in principle, the Criminal Procedure Act dealt with aggravated matters in sentencing provisions and asked whether this needed to be amended. The drafters confirmed that they had taken advice on this issue and there was no need to amend the CPA.
Mr Aucamp had three problems with the clause : firstly it was not clear that it referred to criminal proceedings and this needed to be clarified. Secondly, it was not appropriate to deal with rulings in a criminal court in a civil Act. Thirdly, was the clause really necessary? The consensus was that the clause was necessary.
S.30(2) It was agreed that the words "non racialism" would be used instead of "racial harmony".
S.30(3) The Committee had no comment.
S.30(4) Ms S Botha (DP) asked whether this clause was desirable given the media report of the mixed reaction of the Human Rights Commission. Was it desirable to ask them to give a judgment on the state of race relations in South Africa? The Chair said that it was as they are specialists on the matter. It was agreed that the word "input" would be changed to "assessment".
S 30(5) The Chair expressed reservations about s.30(5) and it was agreed that this would be deleted.
Section 31 Special measures to promote gender equality
S.31(1) The Committee approved the clause.
S.31(2) It was agreed that "in all fields" would be taken out.
S.31(3) It was agreed that this would be reformulated in the same way as the race provision. The word "input" would be changed to "assessment".
S.31(4) This clause would be deleted.
Section 32 Special measures with regard to the promotion of equality in the area of disability
Ms Smuts suggested that the requirement that the Human Rights Commission make an assessment should apply to disability as well. This was agreed.
The committee returned to Sections 28 and 29 of Chapter 6 to finalise certain contentious provisions that had been looked at by a task team:
Section 28 Responsibility of functionaries and [private bodies] juristic and non-juristic persons operating in public domain to promote equality
Professor S Gutto of the Drafting Team suggested this section should now read, ‘It is the responsibility of functionaries and any person contracting with the State or exercising public power to promote equality by…’
Section 29 Social commitment by all persons to promote equality
Professor S Gutto advised that this section has now been divided into two parts. Section 29(1) reads, ‘All persons, including non-governmental organisations, community-based organisations and traditional institutions, must endeavour and strive to promote equality in all spheres of their relationships with others and within the institutions to which they belong or have responsibility over'. The old Section 29 becomes Section 29(2).
Chapter 7 General Provisions and Implementation of Act
Section 33 Regulations
Mr L Basset from the Department explained that Section 33 (1)(a) to (m) is detailed as it was important that the empowering provisions be very clear about what the Minister can do. This would ensure that the Minister does not go beyond his scope.
Concerning part (n) Mr Basset said the Department will consult with the Legal Aid Board and the Minister of Finance and see what is possible. Mr L Basset noted that Section 33(1)(o) and 33(1)(p) also address the question of legal assistance.
Mr C Aucamp (AEB) complained that Section 33(1)(t) is very broad. He said he felt what the drafters wanted were administrative provisions. In defence Mr Basset said that it is absolutely normal to have a provision such as Section 33(1)(t).
The Committee discussed the possibility of forming a watchdog committee to see to it that the legislation functions properly. Mr Surty (ANC, NCOP) argued against any inclusion of a clause that will create a committee that will oversee this work. The Chairperson said no decision on this has been taken but it had been advanced only as a consideration.
The Committee agreed to reinstate Section 33(3).
Section 34 Implementation of Act
Ms S Camerer (NNP) proposed that the final discretion to designate presiding officers must be removed from the Minister. Ms D Smuts (DP) echoed the same sentiments saying that the Minister’s power must be removed because it is not constitutionally sanctioned. She described any attempt to give the Minister such wide powers as ill advised. Ms T Madonsela of the Drafting Team supported the way the section has been formulated. Mr Surty concurred with Ms Madonsela.
The Committee proposed that the section should be altered and read, ‘Despite section 18(1)(a) and (b), and until the Minister determines by notice in the Gazette, no proceedings may be instituted in any court unless-
a presiding officer is available who has been designated as such by the Minister after consultation with the Judge President or the head of an administrative region defined in Section 1 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), concerned, as the case may be, by reason of his or her training, experience, expertise and suitability in dealing with equality and human rights’.
Mr M Madasa (ACDP) pointed out that academically it is not correct that the Minister should have the powers he has in the section but practically that is what happens. He concluded by saying that it does not help to oppose the powers of the Minister in the section. The Chairperson stressed that academically or otherwise there is nothing sinister about the section. He reminded the Committee members that there are precedents in place where judges and magistrates have been appointed by the Minister to perform certain tasks.
Ms N Tsheole (ANC) reasoned that the Act should be made available in all official languages. The Chairperson supported this idea.
Section 34 - implementation of the Act
S.34(3) - It was agreed to delete ‘the progressive realisation of’.
S.34(4) - Ms Smuts questioned whether it was normal practice for the Minister to issue policy directives in this respect. It was generally agreed that this was unproblematic and Mr Surty observed that policy directives issued by the Minister would create unified guidelines. Ms Camerer expressed the opinion that the judiciary should be responsible for training presiding officers and that from her understanding the Judicial Services Commission was against the Minister’s control over the process. The Chair disputed that this was the view of the JSC. Prof Gutto questioned that it be put on record that if the members of the JSC had objections to the clause, these should have been expressed through the proper channels. Ms Camerer repeated her concern and stated that the clause should read ‘in consultation with’ rather than ‘after consultation with’. The Chair concluded hat that this would place too heavy a burden on the JSC and Magistrates Commission.
S.34(5) - It was agreed that ‘policy directives’ should be phrased in the singular and that it was not necessary to have training courses tabled in Parliament.
Chapter 8 was omitted from the discussion
Chapter 9, Review of the Act, Short Title and Commencement
Section 36 - establishment of review committee
Mr Turok raised the issue of the inclusion on the Review Committee of a member from each house. It was pointed out that this had been agreed. The Chair expressed concerns regarding 36(d) - it could result in a "mass meeting". He expressed the view that a small, efficient group was required. The composition of the Review Committee was further discussed. Mr Hanekom raised the concern that by including a member from each house, the Committee will be playing two opposed roles: overseeing and advising the Minister. Mr Turok disputed this and argued that this was a good way of keeping Parliament informed. It was agreed to delete ‘a member of any relevant constitutional institution’ and to include a member from each house.
Section 37 - functions of review committee
S. 37(1)(c) - Mr Davies suggested including a maximum time period for the submission of reports. The Chair doubted whether this could be done. Ms Madonsela suggested replacing ‘review committee’ with ‘Equality Review Committee’. After discussing alternative titles, this was agreed (applies also to s.36).
Mr Pheko questioned why s.37(1)(b) uses ‘may’ while (a) uses ‘must’. It was discussed whether the advising of the Minister about any law relating to equality (b) should be made mandatory by including ‘must’. The concern was raised that this may not make sense if there are no other laws. The drafters were not opposed to using ‘must’ and it was agreed to alter it.
It was agreed not to qualify the impact that laws may have on equality by including ‘negatively’ after ‘impacts’ in s.37(1)(b).
S. 37(1)(d) - Adv Madasa questioned what is intended by ‘any other function’. Mr Rutman drew attention to section 33(s) which makes provision for this to dealt with in the regulations.
Mr Davies’ point regarding setting a time period in (c) was returned to. It was agreed to leave it as ‘as soon as practicable’. Following the suggestion of Mr Qokweni (UDM), it was agreed to swap the order of (c) & (d).
Section 38 - short title and commencement
S.38(1) - Ms Botha (DP) suggested reversing the order of ‘Promotion of Equality’ and ‘Prevention of Unfair Discrimination’. The Co-Chair questioned whether the ANC had any problems with this. There were no objections.
S.38 - Mr Basset noted that all legislation was presumed not to operate retrospectively and suggested deleting this paragraph. Mr Aucamp motivated for its inclusion. Ms Madonsela remarked that while she believed the Act would not operate retrospectively despite the exclusion of , she felt that it did no harm to include it. Mr Basset offered to check this.
The wording of s.38(1) was returned to and discussed. After the ANC expressed some reservation regarding reversing the wording, it requested that a decision not be taken on this to allow the ANC some time to consider it.
Section 29 - new draft - social commitment by all persons to promote equality
A new draft was presented which reads:
‘29(2) Companies, close corporations, partnerships, clubs and associations providing goods and services to the public may be required, in a manner proportional to there size, resources and influence, either by regulations under this Act or any other law, to prepare equality plans or abide by prescribed codes of practice or report on measures to promote equality to a designated body or institution.’
Ms Camerer suggested inserting ‘where appropriate’ after ‘size, resources and influence’. Mr Hanekom supported this. Ms Camerer also suggested inserting ‘available’ before resources so that these bodies would be treated in the same way as the State. Mr Davies argued that this would leave the provision very watered down. Ms Madonsela noted that the use of ‘resources’ relates to a determination of a body’s size and influence and not to the financial capability to realise rights as is the case where the State is given this allowance.
Section 32 - special measures regarding disability
A new draft was handed out and discussed. It reads:
‘1. The State and all persons have a responsibility to take steps to progressively realise the equality for persons with disabilities.
2.(a) The State must take steps to eliminate any from of discrimination based on disability, in accordance with relevant national policies including the National Integrated Strategy on disability.
2.(b) All relevant ministers must review the existing policies, laws and regulations regarding disability including the SABS code of practice and regulations that govern environmental access.
3. The SAHRC must in it’s(sic) report refer(sic) to in Section 15 of the Human Rights Act of 1994 (Act no. 54, 1994), include a report on:
I. the extent to which discrimination exists in the Republic;
II. the effect of such discrimination and;
III. recommendations on how best to address the problems identified’
It was suggested that ‘National Integrated Strategy an disability be replaced with ‘National Integrated Disability Strategy’ (s.32(2)(a)). Ms Camerer remarked that persons, corporations and the state had different levels of responsibility but that s.32(1) gives them all the same level of responsibility. She suggested a provision stating that this is subject to s.29. Mr Turok noted that if this is done, it must be done throughout the Bill and that this would be cumbersome. There was a suggestion that the clause should read: ‘The State has a duty and all other persons have a responsibility...’
Mr Basset noted that there was an attempt at consistency with sections 30 & 31 at that ‘institutions performing a public function’ should be included.
Ms Madonsela suggested using one section for sections 30,31 & 32 and that where there were differences, these would be provided for.
Mr Basset suggested inserting ‘especially concerning race, gender and disability’ after ‘equality’ in section 26. Ms Botha suggested using the phrase ‘the State has a responsibility and persons should endevour..’ in s.26.
Ms Madonsela pointed out that the responsibility to promote equality lies with everyone as in the Employment Equity Act and that it was only how it is promoted that varies between categories of persons. She concluded that s.26 was fine as set out.
Ms Camerer pointed out that ‘unfair’ should be inserted before ‘discrimination’ in throughout section 32 and observed that it had been decided to change ‘input’. The Co-Chair agreed and it was agreed to insert ‘unfair’ and to change ‘input’ to ‘assessment’.
S.32(3) - The Co-Chair noted that the apostrophe needed to be removed from ‘it’s’ and refer should read ‘referred’.
It was suggested that the Article 4 of the UN Convention on the Elimination of All Forms of Discrimination be referred to. The Department was requested to look into the legal consequences of doing this and to look at this section generally.
Chapter 5 Equality Courts
The Co-Chair noted that some ideas had been raised in the morning and that there needed to be some polishing up.
Section 18 - Equality courts and presiding officers
S.18(2)(a) & (b) - Ms Madonsela suggested omitting these clauses until there had been consultation with the Labour Court and CCMA. Mr Hanekom noted that the inclusion of these clauses had been suggested by the Chair and that a decision regarding there omission should not be made in his absence. The idea of consultation was supported but the Co-Chair was concerned about the length of time that this would take. Ms Madonsela suggested that during consultations the question of how independent contractors are to be dealt with should also be discussed. It was noted that there was a proposal for either the Chair or Co-Chair to consult with the Minister of Labour.
Mr Basset drew the members’ attention to the morning’s discussions regarding the limitation of the power of the Magistrates’ Courts to decide on the creation of a new prohibited ground. It was proposed that this be dealt with by means of a proviso in the definition of ‘prohibited grounds’ in section 1(xv)(b). He suggested that it may be more appropriate to include this proviso in chapter 5.
Ms Madonsela raised concerns regarding how this would operate vis the CCMA. She noted that the CCMA should be able to look at discrimination broadly and make determinations based on unlisted grounds of discrimination.
Mr Davies raised concerns over the process which would be followed in practice if the proposal is adopted. He queried whether the matter would need to go to the High Court and then be returned to the Magistrate’s Court and remarked that access would be a problem if only the High Court could make a determination. Ms Madonsela noted that even if the High Courts only are permitted to make a determination on a new unlisted ground, there may still be conflicting decisions from different benches.
Ms Botha remarked that much time had been spent on deciding which grounds to list and that to allow magistrates to overturn this would be problematic. Ms Camerer observed that this proviso was not necessary as, in the ordinary course of events, if there are conflicting decisions from magistrates, these would be resolved when the matters were appealed and the High Court made a decision.
After some debate, Prof Gutto proposed a middle ground to the effect that if there are conflicting decisions from different courts, the Minister should be able to refer the matter to the Constitutional Court for a final determination.
The Chair returned and emphasised that the problem with the proposal that determinations regarding new grounds should be made by the High Court was that persons may be turned away from Magistrates’ Courts and be forced to go to the High Court. On the other hand, to allow magistrates to make a determination may result in a proliferation of new grounds. He Suggested that in certain ‘benign’ matters, magistrates should be able to make a determination. It was noted from the floor that it then became an issue of determining when a matter was ‘benign’. the Chair indicated that this needed to be teased out.
Mr Grove suggested that the point was being missed and that the use of listed grounds was merely a procedural device and that a person should be a able to go to a Magistrate’s Court to obtain a ruling on an unlisted ground. The Magistrate would not be creating a new ground, rather, all that would occur would be that the complainant would not be given the benefit of the shift of onus. He supported the proposal that any new ground should only be created by the High Court but that magistrates would nevertheless be able to decide on matters involving unlisted grounds without creating new grounds.
Ms Camerer supported this. If there are conflicting judgements from different Magistrate’s Courts the matters would be appealed and the High Court would make a determination on the creation of a new ground. She stated that the proposal makes sense.
Ms Madonsela continued saying that if Magistrates Courts powers are to be fettered, this was a decision for the committee to make. She pointed out that if magistrates can make a decision on an unlisted ground, there may be conflicting decisions from different courts. However, this problem could also arise regarding conflicting decisions of the High Courts if the proposal is adopted. She noted a further problem if the proposal is adopted - a Magistrate’s Court can make a decision on unlisted grounds in terms of s.9(2) of the Constitution but will not have the same power under the Act.
The Chair doubted Mr Grove’s observations. He stated his support for the position that a person should be entitled to relief from the Magistrates Court and that if there is a new ground created, this should be referred to the High Court for confirmation. He suggested that this be included together with the earlier suggestion that Minister be empowered to refer a matter to the Constitutional Court where a precedent needed to be set.
Mr Surty questioned whether it was wise to have grounds listed in the Act which are not in the Constitution and requested that this be flagged for discussion at a later stage.
Prof Gutto raised two matters: Firstly, that the President of the Constitutional Court had recommended that certain reviews and appeals should be referred directly to the Constitutional Court and that this could be included in the Act. Secondly, that s.34 of the Constitution requires access to the courts and that to limit access could be problematic. He argued that greater access should be facilitated.
The Chair then put forward a proposal to add two new provisions (paragraphs 4 & 5) to section 25. Section 25(4) should deal with an automatic review to the High Court of a Magistrate’s Court decision creating a new ground and paragraph 5 should provide that the Minister be able to take the matter to the Constitutional Court or Supreme Court of Appeals if conflicting judgments arise. He added that this would allow for the building up of a body of jurisprudence for the magistrates to use.
Mr Gruve protested that this was making matters more difficult than they need to be. Ms Camerer agreed with the Chair’s proposal regarding automatic review to the High Court - this would create certainty at the Magistrate’s Court level, but disputed the provision providing for the Minister to refer a matter to the CC or SCA. She noted that the Minister would be able to do this anyway.
Mr Gutto questioned who should bear the costs of an automatic review and whether they should be borne by the Magistrates’ Courts. The Chair pointed out that there would be automatic reviews only regarding decisions on unlisted grounds.
The Chair emphasised that the Minister should be empowered to refer a matter to the CC or SCA and that both s.25(4) & (5) be added. Ms Camerer questioned whether other bodies should similarly be able to refer a matter. the Chair dismissed this suggestion.
The Chair confirmed that the proviso regarding the powers of the Magistrates’ Courts be removed from the definition of ‘prohibited grounds’ and that the question would be dealt with in section 24 through the use of the two additional paragraphs (4 & 5).
The Chair returned to the question of the Labour Court and CCMA (section 18(2). Mr Davies noted the suggestion that the Chair consult with the Minister of Labour.
The Chair noted that he had spoken to the Minister who had given a neutral reaction. The indication was that s 18(2) was acceptable as it stands - to allow employment matters to go to the Labour court and CCMA. He noted that there was an unresolved issue of the Minister’s powers regarding the designation and training of the Labour Court and CCMA officers. Mr Davies repeated a suggestion that there be a political consultation between the Chair and the Minister of Labour, particularly regarding whether the Labour Courts should be designated as Equality Court and the implications of regarding the CCMA as a court.
BREAK FOR CAUCUS
Chapter 2 - Prevention, Prohibition and Elimination of Unfair Discrimination
The Chair set out the position as it stands and made a lengthy proposal: He drew the members attention to the mechanism of the Act - Chapters 2,3 & 4. There had been a choice between a two or three stage inquiry and the decision had been made to adopt a two stage inquiry. There had been a decision made to use a simple definition of ‘discrimination’. ‘Discrimination’ is now defined and has two components - disadvantage and the withholding of benefits. He remarked that it needed to be established how this definition worked with sections 13,14 & 15. A decision had also been made to omit a definition of ‘unfair discrimination’. In the definition of ‘prohibited grounds’ (s.1(xv)(a)), ‘includes’ had been dropped in favour of ‘prohibited grounds are...’. The Chair voiced his preference for the deletion of the words ‘one or more’ but that this would be returned to. The list of grounds in (xv)(a) is flagged and there has been a suggestion that the constitutional grounds be stuck to.
Section 1(xix)(b) - The Chair noted that ‘disadvantage’ could not be used as it is dealt with under ‘discrimination’. There had been a proposal to use ‘systematic disadvantage’ in order to qualify and distinguish ‘disadvantage’. There had been a further proposal to break down (b) and to link the various alternatives by ‘or’ rather than the present ‘and’.
Section 6 - Prevention and general prohibition of unfair discrimination
The Chair suggested that the words ‘directly or indirectly’ be deleted as they are included in the definition of ‘discrimination’. What would be left would be a ‘clear crisp statement’.
Section 7 - Unfair discrimination
The Chair noted that Chapter 2 has turned out to be a list of prohibitions included in which is a definition of ‘unfair discrimination’. Looking at how the determination of fairness (s.17) works with this, there is an overlap which results in a prima facie case being more difficult for the complainant to establish. The Chair proposed deleting 7 & 8 (positive measures and differentiation) from Chapter 2 and placing them in Chapter 4.
Chapter 4 - Burden of Proof (and determination of fairness and unfairness).
Continuing with the mechanism of the Act, the Chair them explained the consequences of moving sections 7 & 8 to Chapter 4.
Section 15 - Discrimination on prohibited grounds
The Chair proposed dividing the section into two parts. The first deals with overcoming the hurdle of the listed grounds and the second with the hurdle of the unlisted grounds: ie ‘15(1) Discrimination on one ore more of the listed grounds is unfair unless it is established to be fair. 15(2) Discrimination contemplated in section 1(xv)(b) is unfair if the conditions specified in (xv)(b) are satisfied unless it is established that the discrimination is fair.’
Section 16 - Burden of Proof
Regarding the footnote (11), the Chair concluded that the word ‘show’ shouldn’t be used and that the phrased ‘or the act or omission..... section 8’ should be deleted if the proposal is accepted.
The Chair noted that section 17 would change radically if his proposal is adopted. If a prima facie case has been established by the complainant. The new 17(a) would bring in the Affirmative Action provision up front as the first option a respondent could consider. The new 17(b) would then set out the test for determining fairness and would read something like: "In determining fairness, the following must be taken into account: (a) the context, (b) the factors now referred to in s.17 and (c) whether the discrimination reasonably and justifiably differentiates etc..". There should then be a separate paragraph listing the factors referred to in (b).
Mr Aucamp remarked that this proposal would only allow for a determination of the fairness of an instance of differentiation at the end of the process whereas it could have been decided earlier. Ms Camerer remarked that she would only comment once the proposal was on paper. Ms Smuts was happy that this was a reversion to a neater formulation. She had no final position on it and had one remark - that the differentiation clause should be brought up front.
Ms Madonsela also wanted to see the proposal on paper first. She remarked that this Act must be directed at policy makers as well as the public. She supported the consolidation but expressed reservations regarding the Chair’s proposal.
Mr Surty emphasised his preference for the 2-stage approach. However, he repeated the concern raised regarding whether the public would follow the mechanism. He urged for creative ways of making the Act more accessible.
Prof Gutto suggested that the drafters put the proposal on paper, taking into account the concerns raised. He remarked that it contemplated a serious shift. He emphasised that drafting directed at policy-makers and drafting directed the potential litigator are different but that the two different perspectives could be drawn together.
The Chair disagreed - the policy directives should be stated at the beginning of the Act in the Objects and the Preamble. The rest of the Act, although not a "lawyers’ Act", must work in court.
Mr Moonsamy remarked that the 2-stage inquiry is generally accepted and that the draft should be looked at the following day.
The Chair concluded by saying that the committee would resume work at 9h00 the following day (Wednesday 19 January) and that the issue of sectors required discussing then.
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