The Committee held public hearings on the Commission for Gender Equality Amendment Bill but only one oral submission was made, by Sonke Gender Justice Network on behalf of a collective of organisations working for the advancement and enforcement of women’s human rights through the provision of direct services, public education, capacity building, law and policy reform, and various forms of advocacy. It was explained by the Chairperson that the main purpose behind the amendment Bill was to align the Commission on Gender Equality Act with the final Constitution, to regularise the names, and to deal with other issues highlighted by the ad hoc committee that had previously considered the position of the Commission. There was general support for the amendments, but concerns were raised surrounding the potential impact of some amendments, and in particular the apparent conflict between the Commission having oversight over the Department of Women, Children and People with Disabilities yet the Minister for that Department being in charge of the administration of the Act. Another concern related to the fact that the Commission still was received a budget via the Department. There were concerns on the process to nominate members to the Commission, and it was believed that the public should have a greater right to participate, with more civil society members being permitted to broaden the pool. The Network commented on the amendment to the Preamble, and suggested that the word “shall” should replace the word “must”, although it was later explained that “must” was a drafting convention that had a defined meaning in law. Further suggestions were made to broaden the discretionary powers. The Network also suggested that instead of reporting to Parliament, it would be useful to have an ad hoc committee considering, every year, the performance of this Commission.
The Members required time to deliberate over the submissions on the Amendment Bill and thus put forward no enquiries or comments, although the Parliamentary Legal Advisor did clarify some of the issues.
The women of the Masimanyane Women’s Support Centre in Eastern Cape, a social justice and equality organisation established in 1996, had requested an audience with the Committee as part of an advocacy and training programme. The group’s central concerns were those of violence against women as well as linkages to sexual and reproductive health rights, and HIV AIDS concerns. It provided support services through eleven offices in the Eastern Cape and simultaneously supported ten other women’s organisations. The women in attendance at the meeting represented 40 other women who had undergone training. Over this year, training had focused on the critical issues of equality, non discrimination and state accountability.
The women then shared their stories according to thematic relevance, dealing with the education system and its impact on women and their children, the way rape survivors were alienated in the school environment, lack of infrastructure in villages, particularly those affected by flooding that hindered medical treatment and funeral services. Safety and security were major concerns, with minimal access to police stations, and often women and children raped were not able to have the necessary post-rape treatment or have evidence taken within the prescribed period and were also deprived of socio-psychological support. Police stations also tended to protect the perpetrators of violence, and some investigations were fraught with irregularities. There were little access to healthcare or even to mobile clinics, resulting in high mortality rates at childbirth. The organisation was trying to focus on food security, and it was committed to the “One Woman One Hectare” initiative, facilitated by the CGE. Concern for the vulnerable aged was also prevalent. Members bemoaned the decaying social fibre of rural areas, asked about the role of traditional leaders and local councillors, asked for more elaboration on the practice of ukuthwala, asked about the achievements of Masimanyane, where it obtained funding, its offices, and its relationship with other entities. They enquired about the organisation’s involvement with women with disabilities, and it was acknowledged that more work was needed here. It was suggested that similar organisations should try to combine and coordinate resources and Members encouraged closer relationships with relevant stakeholders such as local and provincial government.
Introduction by the Chairperson
The Chairperson set out the rationale for the Commission for Gender Equality (CGE) Amendment Bill, which followed the findings of an ad hoc committee established by the Speaker on 19 October 2010, t investigate and report on irregularities in the Gender Equality Commission and receipt of a qualified audit. This committee had reported that the CGE Act was based on the Interim Constitution, and it was found appropriate to amend the Act in order to align it with the final Constitution of 1996, and to make other changes to bring it in line with current developments.
Sonke Gender Justice Network submission
Ms Cherith Sanger, Policy Development and Advocacy Manager, Sonke Gender Justice Network, explained that her oral submission was being presented on behalf of a working group of human rights, women’s rights and gender equality organisations. The working group that submitted the joint submission comprised:
AIDS Legal Network, Childline South Africa, Domestic Service and Allied Workers Union, Democratic Rights and Governance Unit (UCT), The Federation of Unions of South Africa, Gender, Health and Justice Research Unit (UCT), Her Rights Initiative, Intersex Society South Africa, Legal Resources Centre, MOSAIC Training Service and Healing Centre for Women, New Women’s Movement, People Opposing Women Abuse, Rape Crisis Cape Town, Resources Aimed at the Prevention of Child Abuse and Neglect (RAPCAN), South African Faith and Family Institute (SAFFI), Sonke Gender Justice Network, Sex Workers Education and Advocacy Task team (SWEAT), Tshwaranang Legal Advocacy Centre, Triangle Project, Women’s Hope Education and Training Trust (WHEAT Trust) and the Women’s Legal Centre. The collective had a direct interest in an independent Commission for Gender Equality that successfully fulfilled its mandate, and hence the submission worked towards the advancement and enforcement of women’s human rights through the provision of direct services, public education, capacity building, law and policy reform, and various forms of advocacy.
There was general support that the Commission for Gender Equality Act must be brought in line with the final Constitution. There were, however, concerns around the possible impact of some of the other amendments.
She noted that with regard to the changes to section 2(c) of the CGE Act (the principal Act), there were concerns as to the proposed change in the definition of Minister, from the Minister of Justice and Constitutional Development to the Minister of Women, Children and People with Disabilities. The working group believed that the CGE, as a Chapter 9 Institution that must remain impartial, should not to report to a Minister. Further, the role of the Minister of Women, Children and People with Disabilities in particular, seemed to be too closely related to the mandate of the Commission. It was possible that for CGE to exercise oversight over such Department’s activities, and then have to report to this Department’s Minister, could be problematic. This was coupled with the prospect of the public perception of a conflict between the Commission’s oversight function and direction from the Minister.
There were concerns on clauses 3(B)(a) and (b) of the Bill, which were seen as disenfranchising the public in terms of nominating Commission members. The power of appointment was decidedly vested with the Minister and the National Assembly. This was of concern as it was thought crucial for the public to participate in such nominations, as was fitting in a democracy. More specifically, within civil society there were knowledgeable and experienced candidates who would broaden the pool of nominated Commission members. Democracy and upholding the Constitution were key concerns in these considerations.
The recommendations submitted also comprised comments on the amendment of the Preamble of the principal Act. The proposed wording was explicitly to provide that the CGE, in exercising its duties, upheld and promoted the founding values of the Constitution and that it practised a democratic system of institutional governance that was open, transparent, responsive and accountable to the citizens of South Africa. It would then be ensured that South Africa’s constitutional democracy was furthered and the CGE promoted the interests of South African society, specifically women and other marginalised groups who remain susceptible to unfair gender discrimination.
Section 11 of the principal Act provided for the CGE’s discretionary powers, specifically that the CGE “shall investigate any gender-related issues of its own accord or on receipt of a complaint”, and shall endeavour to resolve any dispute, or rectify any act or omission, by mediation, conciliation or negotiation. The submission recommended that this section should be amended to strengthen the obligations of the CGE. The submission requested that ‘shall’ be replaced with ‘must’, and the phrase ‘of its own accord’ with the phrase ‘at its discretion and that is necessary to fulfil its objectives’. It was thought that these changes would better equip the Commission to tackle gender related issues that civil society had identified and that were deemed to warrant priority status, as they arose.
As to the functionality and performance of the CGE, the working group felt that many of the issues pointed out in the 2007 report were still present, but acknowledged that there had been a new appointment of Commission members in June 2012.
It was understood that the CGE reported to Parliament, yet it was recommended that an ad hoc committee, similar to that led by Professor Kader Asmal, should be constituted annually to follow up on the findings and recommendations, including those of the CGE. The cost of the committee could be included in the budget of the CGE.
There were also suggestions made about the financing of the CGE, which it was believed would strengthen its independence and assist in mitigating its perceived lack of authority. A process that rethought the current financing structures was imperative. The CGE received its funding from National Treasury, currently through a government department. Whilst it was acknowledged that this Department had no say over the allocation of the budget within the CGE, it was still believed that independence could be compromised in that the Department was subject to oversight by the CGE.
The Chairperson was of the opinion that the Portfolio Committee members required time to deliberate.
Mr Gary Rhoda, Parliamentary Legal Advisor, felt that the rationale behind some of these submissions suggested that it would be useful for CGE and the Sonke Gender Justice Network to discuss the issues.
Mr Rhoda noted the comment that “must” be replaced with “shall”, but commented that it was standard legislative drafting practice to use “shall” and this was generally linked to empowering provisions. The questions of independence and oversight, particularly in relation to the budget, were under discussion at a broader policy level. There was an annual report to Parliament already, and in his opinion the Portfolio Committee was better equipped to deal with matters, rather than an ad hoc committee of Parliament. Further, it was doubtful whether the setting up of that committee fell within the subject matter of the Bill.
Ms H Lamoela (DA) concurred that further deliberation was necessary, and agreed with what Mr Rhoda had outlined.
Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Adviser, concurred also with Mr Rhoda and commented that some of the comments seemed to be based on a limited understanding of the origin of the Bill. It was submitted that the Constitution of 1996 laid out a process of nomination for Commission members, and he reminded Members that the main purpose of this Bill was to ensure that the CGE Act was aligned with the final Constitution. The Constitution was thus the guiding document for the appointment provision and thus the Act could not contradict it. He clarified also that the CGE was not answerable to the Minister of Women, Children and People with Disabilities, but that this Minister was merely responsible for the administration of the Act.
Ms Jennifer Williams, Director, Women’s Legal Centre, responded by raising a technical point on the use of “must” and “shall”. The working group had found case law existed on the use of “shall”, which equated this term to “may”, whereas the use of “must” produced a much stronger obligation.
With regard to the nomination process, it was observed that the Constitution did not seem to stipulate that the National Assembly had to nominate members, or that the public could not nominate members. It was to be recalled that the Constitution was a document that itself called for public participation, and in the absence of an express provision which limited that, the interpretation should rather favour the public’s participatory rights.
She noted that the change of Ministers had wider implications than the question of which Department would administer the Act. The change also had a bearing on which Minister would call for nominations and the roles of the departments were significant. The Department of Justice and Constitutional Development was seen as a delivery mechanism, whereas the Department of Women, Children and People with Disabilities was seen as a co-ordinating body. Thus, the perception of a conflict would be created where an administrative function was given to an oversight or co-ordinating Department over an independent oversight body to which the department should be accountable.
The Chairperson reiterated the need for further deliberation by the Portfolio Committee on these submissions, and expounded that the Office for Institutions of Democracy located in the Speaker’s Office was currently working on the recommendations of the Asmal report alluded to in the submissions. Hence, the Committee found it wise to narrow its focus and not repeat the efforts where policy issues were concerned.
Interaction with the Masimanyane Women’s Support Centre from Eastern Cape Province
Ms Lesley-Ann Foster, Executive Director, Masimanyane Women’s Support Centre, explained that Masimanyane meant “Let’s support each other”. It was a social justice and equality organisation established in 1996 in the Eastern Cape. The organisation’s central concerns were those of violence against women as well as linkages to sexual and reproductive health rights, and HIV AIDS concerns. It provided support services through eleven offices in the Eastern Cape and simultaneously supported ten other women’s organisations. It provided prevention and advocacy work, yet its most important mandate was that of the development of female leadership in the Eastern Cape. As an impoverished area, the Eastern Cape lacked resources, which were therefore being provided by the women at community level.
The Head Office was situated in East London. It was also the secretariat for the regional organisation Amanatare Sexual Rights Network, which was operational in six African countries. The past three years saw funding from the European Union which developed support mechanisms and services among 70 organisations. The past year had been spent with the women present at the meeting. They, in turn, represented 13 groups and had been to 105 villages. The women in attendance at the meeting represented 40 other women who had undergone training. Over this year, training had focused on the critical issues of equality, non discrimination and state accountability.
The women then shared their stories according to thematic relevance. The first experience relayed was that of the impact of the education system on the women in the Eastern Cape. The redeployment of teachers which took place in that province, without consultation, had an adverse impact on the women and their families. For instance, schools nearby were closed as a result of redeployment of teachers and women and their children then had to wake up very early to ensure the children’s safe travel to considerably distant schools. This hindered the Constitutional right to access to education. Another occurrence was that children being passed through the lower grades only for it to be discovered in high school that they were functionally illiterate and ill equipped for high school, which resulted in many children remaining at home and forfeiting education. Another concern that arose out of the school environment was the event and effects of rape. Girl children who were rape survivors, would be alienated and effectively forced out of that school, whereas the perpetrators would continue schooling there. This impacted on the mothers who then had to obtain alternative schooling for her daughter, often at great inconvenience. There was a need for better security at the schools.
The next concern was the lack of infrastructure in the villages. That issue had significant impact on the community because there was a river which impeded vehicular entry into the village especially when the river had flooded. This meant that essential services such as ambulances could not access the village and the sick. Where there was a death, for instance, the undertaker also could not access the village hence the men of the village were forced to strip and wade across the river bearing the coffin on their shoulders. This detracted from the dignity of the proceedings, especially when the deceased’s mother had to witness this indignity. An incident was recounted where two school children lost their lives when they had tried to cross the river on the way to school.
On the issue of safety and security, the group was concerned as there was minimal access to police stations and, in villages where there were stations, they would be located an average of 10km away from the community. There was a high rate of rape among women and children and the limited access to law enforcement facilities resulted in the prescribed 72 hours elapsing before the survivor could receive PEP treatment and have evidence gathered. This resulted in valuable evidence being lost. Due to the lack of police stations and the distances involved in accessing them, the community relied on the traditional systems of arbitration. This method was thought to be ill-fitting for rape cases as there was no counselling and HIV testing. Where there was a police station, the lack of privacy was bemoaned, especially with regard to the delicate nature of rape cases.
One of the group then preceded to recount her experience with the police in an assault case where she was the victim. The perpetrator was a soldier and his sibling worked at the police station in question. It was thus apparent that she would not have access to justice, as the soldier’s employment was being protected at her expense and the investigation was fraught with irregularities.
With regard to healthcare, the villages had no access to clinics and the mobile clinics arrived only once every quarter. The mobile clinics themselves offered no privacy and were medicinally under-resourced, including infant vaccination. For instance there was no clinic in the village and transport was hard to access. This had a particularly adverse impact on women as they had no access to family planning, antenatal care. For HIV positive expectant mothers; there was no access to Nevirapine. Women were routinely subject to unassisted births, resulting in high mortality rates among women and children. Chronically ill patients were subject to defaulting on their medication, therefore exacerbating their illnesses.
Ms Foster rounded off the discussion by highlighting the issues that had been most prominent for the organisation after its work in the area for a year. These were the interlinked issues of access to healthcare, education, justice and transport. Other issues such as food security were imperative. The organisation had committed to the “One Woman One Hectare” initiative, facilitated by the CGE. There was great concern around the vulnerability of elderly women in the rural areas, where they were often left alone on homesteads, and old age homes were not allowed within the communities. It was then requested that the Portfolio Committee guide the organisation on how to feed through such information and for the Committee’s influence where necessary.
The Chairperson urged that the delegation remained mindful of the Committee’s mandate as an oversight body, and not an implementing body. The input was indeed valuable in that it assisted with the identification of relevant issues. The Committee had been particularly galvanised by the issues of abuse and violence against women and children.
Mr D Kekana (ANC) lamented the decayed social fibre of the rural areas. Local councillors were supposed to address infrastructure issues but it could be that Local Government was under resourced, and there were problems with funding allocations from provincial and national government. It was noted that social cultural institutions had guided behavioural patterns in the past, and it was enquired why such institutions were ineffective. The role of traditional leaders and the communities’ acquiescence was also questioned.
Ms Albertina Sam, Representative from the Centre, outlined the difficult relationship with the headmen of the area as the traditional patriarchal discourse pervaded efforts at meaningful engagement, coupled with the fact that permission had to be asked for any endeavour the women sought to undertake.
Ms M Nxumalo (ANC) bemoaned the rampant rape of elderly women as well as the killing of the elderly and children. She asked for more elaboration on the practice of ukuthwala, as it was not mentioned. She also asked for more elaboration on the role of Masimanyane on these social issues.
Ms Nonkosi Mntu answered stated that in terms of ukuthwala, women had no say in the proceedings and it was a great concern among mothers in the Eastern Cape.
Ms G Tseke (ANC) asked about the achievements of Masimanyane. She enquired where the organisation obtained its funding, and whether it had satellite offices in the areas where it was functional. In terms of infrastructure and service delivery concerns, she asked whether the organisation sustained a relationship with various stakeholders, such as councillors, Community Development Workers, Parliamentary constituency offices and circuit managers, particularly to deal with the case of teacher redeployment, as they would be instrumental in addressing those immediate concerns. It was stressed that the members of the Centre had a right as mothers, women and concerned citizens to raise their concerns with the Provincial government and other relevant stakeholders.
Ms Foster replied that the relationship between Masimanyane and Provincial Government was very close, particularly with the Departments of Social Development, Justice, Health and Education, so programme development and implementation was co operative. Masimanyane sat on the Provincial AIDS Council and coordinated the women’s sector for the province on that council. They had established the Women’s Ikwelo Network (WIN). The organisation was working with the JCPS Cluster to develop an anti-rape strategy. The services at the Thuthuzela Centres were run by the organisation. Masimanyane had done seminal work as five women trained by Masimanyane were taken up into local government following the elections in 2006. The group had organised the first 16 Days of Activism march in 1996. The organisation was instrumental in drafting the Domestic Violence Act.
In terms of funding, the group was funded by the Department of Social Development for all the victim empowerment programmes. The funding for that programme, which had facilitated the trip to Parliament, had come from the French Embassy’s tender for work on the democratic engagement of women which Masimanyane completed in 2012. The excess funds for that project were used for the trip.
The offices were located in the Magistrate’s Court in Mdantsane and East London, in various police stations and partnered with the police in development of programmes.
She reiterated that the organisation was conversant with provincial government and had raised these issues. The trip to Parliament was part of the training programme, and was calibrated to expose all possible avenues of access. An undertaking was made to draft and deliver a document or presentation to the Committee.
Ms I Ditshetelo (UCDP) noted that some provinces did not have a substantial presence of the Department of Women, Children and People with Disabilities. The visit to Parliament was seen as an act of desperation. The Department was seen as having let the women down.
Ms P Maduna (ANC) enquired about the organisation’s involvement with women with disabilities.
Ms Foster acknowledged that the work done with people with disabilities was confined to the work on sexual reproductive health and rights. This held true for the LGBT communities as well. More attention was required in that regard.
Ms Lamoela identified with the women’s plight and viewed the trip to Parliament as an attempt to address the issues, borne out of desperation and failure of government in responsiveness. The women were entitled to enjoy their constitutionally entrenched rights of access regardless of their location in the rural areas, yet they were being denied. She was of the opinion that education was the key to breaking the cycle of poverty. Great expectation was expressed at the One Woman One Hectare initiative and an undertaking was made to ensure the programme was implemented. It was for the Committee to enforce the oversight function with increased rigour and the non performing departments be held to account. It was opined that Departments such as Rural Development and Education needed to be scrutinised.
Ms C Diemu (COPE) had observed that in the vast province of the Eastern Cape, many similar organisations existed, dealing with the same issues but it was difficult to ascertain whether any links existed between these groupings and whether there was any means of co ordination with such groups and local authorities. It was thought that the interaction should start at the level of local and provincial government. The issues of ukuthwala and people with disabilities were touched on and finally, it was asked where the organisation obtained its support, particularly its financial resources.
The Chairperson noted that time constraints prevented further questions.
The meeting was adjourned.
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