Commission for Gender Equality Amendment Bill: briefing by Department of Women, Children and People with Disabilities

Meeting report

The Chairperson welcomed everyone present in the meeting, and remarked that a written apology had been received from the Deputy Minister for Women, Children and People with Disabilities, who was unavoidably absent, as she had to attend another meeting.

Commission for Gender Equality Amendment Bill: Department of Women, Children and People with Disabilities (DWCPD) briefing
Ms Modjadji Seabi, Deputy Director-General: Women Empowerment and Gender Equality, DWCPD, presented the Commission for Gender Equality Amendment Bill 2012 (the Bill), and remarked that the Commission for Gender Equality (the Commission) was established through the Commission on Gender Equality Act 39 of 1996.  She stated that the Commission on Gender Equality Act 39 of 1996 (the Act), provided for the establishment, composition, powers and functions of the Commission, in terms of the 1993 Interim Constitution (Act No. 200 of 1993). The mandate of the Commission was to promote gender equality, and to advise and make recommendations to Parliament or any other legislature with regard to any laws or proposed legislation which affected gender equality and the status of women. On 19 October 2010, the Acting Speaker of Parliament had established the Ad hoc Committee on the Commission for Gender Equality Forensic Investigation (the Ad hoc Committee) which was mandated to consider and report to the National Assembly on specific issues that were highlighted in reports of the Auditor-General and the Public Protector. The Ad hoc Committee had its report adopted by the National Assembly on 23rd June 2011, and the Ad hoc Committee recommended in the report, a revision of the Gender Equality Act No 39 of 1996, to ensure its alignment with the Constitution of the Republic of South Africa, 1996 (the Constitution).  The Bill thus sought to give effect to the recommendations of the Ad hoc Committee. The proposed amendments were mainly technical in nature and did not affect the establishment, composition, powers and functions of the Commission for Gender Equality. The Bill also substituted the reference to the Exchequer Act, 1975 (Act No. 66 of 1975) with reference to the Public Finance Management Act No. 1 of 1999.

Ms Seabi expounded on the provisions of the Bill and indicated that the Bill, through clause 1, substituted the Preamble of the Act to reflect the provisions of the Constitution. Also, section 181 and item 20(2) of Schedule 6 of the Constitution provided for the continued existence of the Commission, and replaced section 119 from the Interim Constitution, section 187 provided for the functions of the Commission and replaced section 120 from the Interim Constitution, while sections 193 and 194 replaced section 120 from the Interim Constitution and provided for a mechanism for the appointment and the removal of a member of the Commission. Similarly, clause 2 amended section 1 of the Act in order to substitute, insert and amend a definition. As a result, section 1(ii) amended the definition of “Commission” to mean the Commission for Gender Equality established by section 181 of the Constitution, while section 1(vi) amended the definition of “Minister” to mean the Minister responsible for Women, Children and People with Disabilities, replacing Minister of Justice.

Ms Seabi stated that the provisions of clause 3 of the Bill amended section 3 of the Act to align with section 193(5) of the Constitution, which among others, provided for the appointment of Commissioners for the Commission. Also, the clause amended section 3(1) of the Act, deleting Section 119(2) Act 39 of 1996, while section 3(2) was amended through the substitutions of subsections (a), (b), and (c), thus empowering the National Assembly to nominate, approve and recommend members of the Commission. The Bill, through clause 3, also deleted section 3(3) of the Act, while section 3(5) was substituted to reflect the grounds by which any member of the Commission can be removed from office, and procedures to be taken to effect the person’s removal.

Ms Seabi also highlighted the amendments in clauses 4 to 9 of the Bill made to the Act. While clause 4 amended section 9 of the Act in order for the Act to align with the Public Finance Management Act No.1 of 1999, clause 5 amended section 11 of the Act by correcting a reference to section 119(3) of the Constitution of the Republic of South Africa, 1993 (Act No. 2000 of 1993), to refer to section 187 of the Constitution. Furthermore, clause 6 amended section 19 of the Act to correct reference made to the short title of the Act, thus reading as Commission for Gender Equality Act (and replacing “on” with “for”); clause 7 catered for cross-reference to the Act contained in other legislation by correcting reference to the Act; clause 8 amended the long title of the Act to correct the name of the Commission for Gender Equality; while clause 9 specified the title of the amendment, and would be called the Commission on Gender Equality Amendment Act 2012.

Ms Seabi remarked that the Department and State Law Advisers were of the opinion that the Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contained no provision to which the procedure set out in section 74 or 76 of the Constitution applied. The State Law Advisers further opined that the Bill should not be referred to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003) since it did not contain provisions pertaining to customary law or customs of traditional communities. She further stated that the Bill was submitted for tabling in Parliament in October 2012, and was presented to the Portfolio Committee on Women, Children and People with Disabilities in January 2013. Public hearings on the Bill were held by the Portfolio Committee in April 2013.

Discussion
The Chairperson asked Members for contributions or questions on the Bill. However, Members were satisfied with the provisions of the Bill. The Chairperson reiterated that the Bill was meant to effect some corrections on the technical part of the Act. It did not border on the powers and functionality of the Commission.

Ms A Qikani (ANC, Eastern Cape) moved the motion for the adoption of the Bill, and Mr G Mokgoro (ANC, Northern Cape) seconded the motion for the adoption of the Bill.

Mr Kamray Anirucha, working with the Commission for Gender Equality, affirmed to the Committee that the deletion of section 3(3), which provided for the involvement of civil society in the nomination of members of the Commission, was unconstitutional. Referring to section 193(6) of the Constitution, Mr Anirucha noted that the Constitution provided for the involvement of civil society in the recommendation for appointment into the Commission, as envisaged in section 59(1)(a) of the Constitution. Section 59(1)(a) also stated that the National Assembly must facilitate public involvement in the legislative and other processes of the Assembly and its committees. The Constitution thus provided for public participation in the appointment of members of the Commission.

The Committee noted the issue highlighted by Mr Anirucha, and the Chairperson thanked him for drawing the Committee’s attention to the deletion.

The Chairperson stated that the Committee adopted the Bill in principle, with the exception of Section 3(d). The Committee agreed with the Commission on Gender Equality Amendment Bill in principle, but noted that it must afford the NCOP and civil society the opportunity to be involved in the process of nominating members for the Commission.

The meeting was adjourned.