The Minister for Women Children and People with Disabilities stated that it was a constitutional right for all South African citizens to be heard and as such DWCPD had spent quite some time going through each submission to ensure that the different views were heard before the WEGE Bill was finalised. The key concerns raised in the submissions pertained to duplication of existing legislation and that it was duplicating the functions of the Commission for Gender Equality. Submissions were also made about the Bill’s lack of clear definitions; the exclusion of lesbian, gay, bisexual, transgender and intersex persons (LGBTI); and the Bill’s failure to incorporate the intersectionality of different sectors that disadvantaged women such as race, gender, sexual orientation, sex work and unpaid labour.
The Department for Women Children and People with Disabilities (DWCPD) went through Clauses 1 to 4, responding to the submissions pertinent to each clause and noted those recommendations it accepted and those it did not which the department felt were outside its mandate.
Members expressed concern about the way the responses were presented as in some instances it appeared as if the department was rejecting the proposed recommendations when in fact it had been accepted. Members noted that many of the submissions had stated that the WEGE Bill was a duplication of existing legislation and perhaps it would be beneficial to review existing legislation and enforce their implementation rather than enacting new legislation which had cost implications for the already constrained financial and human resources in the DWCPD. Another concern was about compliance - what was the penalty for non-compliance? A matter of contention amongst Members was whether a full, formal presentation on costing had been given to the Committee rather than a rough figure verbally. Other questions raised were about the WEGE Bill consultative workshops; where these workshops conducted in all provinces and why was the Committee not informed about these workshops? The Democratic Alliance pointed out that deliberations on the Bill was a waste of time because from the Department’s response to these public submissions, the inputs were deemed unnecessary. The Chairperson said it had a every right to raise any concern, however the Department had the duty to look at and evaluate public submissions but that did not mean that the Department was accepting all the submissions made.
The Department was requested to submit a working document with all the proposed amendments to the Bill to the Committee on 12 February 2014. The Committee had initially intended to begin with the deliberations on the Bill but due to time constraints, the deliberations were postponed to the 18 February 2014.
The Chairperson welcomed the Minister and all those present. The Committee would be receiving responses from the DWCPD and interacting with them about the submissions from 29 and 30 January public hearings.
Minister Lulu Xingwana said that the department was thankful for the opportunity to respond to the many comments, concerns and recommendations made by different organisations and the public on the WEGE Bill. Democracy was founded by the Constitution which was the supreme law of the land and provided for all citizens the opportunity to be heard regardless of their persuasion. The DWCPD was humbled that participants ranging from women in rural areas to research institutions had taken advantage of the parliamentary public hearings to ensure that different views were considered before the WEGE Bill was finalised. It was clear from the consultation process that many people agreed that the transformative laws passed by the government which advocated for the advancement of women needed an intervention to bridge the gap between policy and the reality of women on the ground. The WEGE Bill was intended to do just that.
Minister Xingwana stated that a number of critical points were raised and the DWCPD had spent quite some time considering all the submissions. Key amongst the concerns was that the WEGE Bill carried duplications of other laws, the functions of the Commission for Gender Equality, lack of implementation of existing legislation and the failure of the Bill to incorporate the intersectionality of different sectors that disadvantaged women such as race, gender, sexual orientation, sex work and unpaid labour. The Committee was assured that different Ministers had already been engaged through deliberations in cabinet and also one on one meeting in particular with the Minister of Labour, Minister and Deputy Minister for Justice, Minister for Trade and their advisors. Areas of concern and alleged duplication had been ironed out with the Ministers who had agreed to cooperate so that unnecessary reporting processes were not created for the designated bodies. She assured members of the Committee that Cabinet could not have approved the Bill for submission to Parliament if there were areas of concern for Ministers that the Bill was duplicating their mandates. The DWCPD was therefore going to give detailed responses to the Portfolio Committee on the submissions and public hearings. The Minister submitted that the DWCPD had consulted thoroughly with the public and private sector but also with the NGO’s even before the Bill had been submitted to Parliament. In addition Ministers and their advisors had also been consulted on any duplication especially with the Ministers for Justice, Labour and Trade and the DWCPD had been assured that there would be duplication in terms of areas that they would need to cooperate and mechanisms had been planned to ensure onerous work was not given to companies, NGO’s and the public sector.
The Chairperson thanked the Minister for her presentation and asked members if they had any questions for the Minister or areas that needed clarity. The Director General for DWCPD was invited to give the responses.
Ms Veliswa Baduza, Director General, DWCPD, she thanked the Committee for the opportunity to respond to the submissions that were given to the department. The department had gone through all the submissions and recommendation and clustered them according to sections of the Bill, thereafter they were taken into consideration and the DWCPD decided on how to deal with the submissions i.e. if in agreement it was indicated how they would be dealt with and if not the reasons were also indicated. She was of the view that the process would assist members to deliberate further with the Bill. As the Minister had already alluded to, as the Bill was drafted as before it was submitted to cabinet the DWCPD consulted widely with women from different sectors. After the Bill was approved by Cabinet and submitted to parliament more consultations were carried out throughout the Provinces women from various sectors such as agriculture, widowed women and businesswomen. She proposed to the Committee that Advocate Joyce Maluleke, who was the special advisor to the Minister and had assisted in the development process of the legislation, should lead the Committee through the responses.
Ms Joyce Maluleke, Special Advisor to the Minister, DWCPD, thanked the Minister and the Chairperson for the opportunity to give the responses. She started with the Preamble of the Bill and said that no inputs had been received on this.
Clause 1 Definitions
Ms Maluleke stated that a lot of inputs had been received under definitions as follows:
CGE/Triangle Project/ International Liaison and Dialogue Research/SWEAT: recommended that the definition list should be extended to embrace Lesbian Gay Bisexual Transgender Intersex (LGBTI) individuals. The DWCPD did not object to amending the definition of Gender Based Violence to include acts of violence committed against LGBTI due to actual or perceived sexual orientation.
CGE: recommended a broader definition of what constituted empowerment because referring to Section 9(2) would lead to a narrow application of empowerment. The DWCPD objected the proposal because The Bill focused on women empowerment.
Sonke Gender Justice (Sonke)/ The Southern African Liaison Office: submitted that the definition of GBV should be extended to include acts of violence committed against LGBTI as they constitute a group of people disadvantaged by unfair discrimination historically and currently due to actual or perceived sexual orientation/gender identity. As it was, the definition excluded violence against LGBTI. Violence committed to LGBTI amounted to GBV as it was committed on the bases that the targeted person did not conform to social and cultural gender norms. The DWCPS did not have any objections to the recommendations.
Sonke: submitted that the definition of gender discrimination should be revised and include LGBTI who were subjected to discrimination, because discrimination against LGBTI amounted to gender discrimination as they were targeted persons due to failure to conform to socially and culturally accepted gender norms. The DWCPD accepted the proposal and agreed that the definition would be amended to include sexual orientation and gender identity.
Sonke/Business Engage: made a few submissions that gender equality should be amended to explicitly state that women and girls constituted a group of people disadvantaged by unfair discrimination and that gender equality was sought to provide women and girls with equality in terms of rights and access which they continue to be denied. The reason for the submission was that gender equality is generally accepted but was also a gender-neutral definition of the term. The DWCPD objected the recommendation because the current definition was already aligned to the SADC Protocol as some definitions were taken as they are from the international protocols.
Sonke: Gender mainstreaming – the definition should be extended to ensure that women and girls’ needs must be prioritised through gender mainstreaming The definition of gender mainstreaming is gender neutral, it omits to recognise women, girls and a group of people disadvantaged by unfair discrimination. This proposed extension would bring the Bill in line with Section 9(2) of the Constitution. Not accepted. The current definition is aligned to the SADC Protocol
Sonke/ Retailer’s Association: submitted that substantive gender equality should be amended to include reference to equality in terms of outcomes to accord it with the definition of substantive equality. This was currently not in alignment with the definition of substantive equality, in that it did not speak to equality in terms of outcomes. Generally substantive equality referred to equality on substance rather than in form.
The DWCPD was of the belief that “in fact” included the outcomes a substance. It would still consider extending the definition. The definition referred to in law and in fact referred to the reality of the person. There was no objection to adding outcome but it would mean the department had to look at how to remove one and add the other. This was more of a question of semantics.
Sonke: submitted that women empowerment should be amended and include the definition of substantive equality to align the Bill with the Constitution and the definition needed to be qualified in the context of the Constitution. There was no objection to the proposal and the DWCPD would consider extending the definition to cover substantive equality and the State Laws Advisor could make the changes.
People Opposing Women Abuse (POWA)/ The Southern African Liaison Office/Community Law Centre (UWC): submitted that the current definition of gender was limited, as it failed to include LGBTI. The proposal was not accepted because the definition of gender is about how roles and responsibilities were ascribed to men and women in terms of culture and culture did not ascribe any roles and responsibilities to LGBTI persons. Instead of amending the current definition it would be better to include the definition of LGBTI under gender discrimination to show how the definition of gender discriminated against LGBTI.
Centre for Applied Legal Studies (CALS): submitted that women empowerment should use the United Nations Population Fund (UNFPA) definition which read that; women empowerment had five components: women’s sense of self-worth; their right to have and to determine choices; their right to have access to opportunities and resources; their right to have the power to control their lives both within and outside the home; and ability to influence the direction of social change to create a more just social economic order, nationally and internationally, While noting that the Bill referred to the Constitution Section 9(2), the term should be clearly defined in a manner that articulated the Ministry’s understanding of Women’s Empowerment and the ways in which the proposed positive measures would meet the needs of women; address inequality and remedy the historical definition. The proposal was accepted and the department supported the recommendation to be incorporated in the current definition.
CALS: submitted that a new definition of discrimination against women should be inserted and be defined according to Article 1 of the Convention on the Elimination of Discrimination against Women (CEDAW) where the terms would mean any distinction, exclusion or discrimination made on the bases of sex which had the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the bases of equality of men and women, human rights and fundamental freedom in the political, economic, social, cultural, civil or any other activity. CALS urged the DWCPD to consider including a clear definition of discrimination. The proposal was rejected as the Bill did not use the term discrimination against women anywhere in the body therefore only terms used in the body of the Bill could be defined.
CALS: submitted that the definition or criterion to be used when designation of a public and private body was made should be provided for. The proposal was not accepted, however, the Department would consider providing a criteria under the Application of the Bill and a new section: 2(4) would be introduced to cover the criteria for designation. The DWCPD could apply the criterion that was used in the Employment Equity Act (EEA) that sets a threshold.
CALS: submitted that a new term intersectional and multiple form of discrimination should be added to the definitions. The DWCPD rejected the proposal as it could not define a term that was not used in the body of the Bill.
CALS: submitted that a new term meaningful participation of women should be added. The DWCPD did not object and a definition would be provided in the Bill.
Justice Alliance of SA: suggested that under private body, churches that did not carry on trade should be excluded as they didn’t fall under sub (a) and (b) some may fall on (c). The proposal was accepted. The Department did not object to the exclusion of churches and charitable organisations in the definition. The Department suggested the inclusion of the exclusion of public benefit organization as defined in the Income Tax Act, 1962 (Act 58 of 1962).
FOR SA: submitted that private body should exclude churches and charitable organisations. The proposal was accepted and the definition would be revised to exclude churches and charitable organisations.
BWA: submitted that the definition of discrimination must be deleted as the Bill referred to the definition in Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), it would be better not to use a separate definition by relying on the Constitutional definition of discrimination. The suggestion was rejected as the definition of discrimination in PEPUDA was broad enough and aligned to Section 9 of the Constitution.
Legal Resource Centre (LRC)/ BWA: submitted that the definition of substantive gender equality should be deleted or amended as it did not cover what was generally regarded as substantive gender equality. The Proposal was accepted and the Department would consider revising the current definition.
Tshwaranang: submitted that many of the definitions in the Bill were weak, unclear and seemed contrary to the promotion of women empowerment, these include terms like gender equality and gender mainstreaming. The proposal was accepted and the definition on gender mainstreaming would be aligned to SADC protocol. The definition of gender equality would be amended. All definitions aligned to international protocols would be kept so that whenever the country reported to the international organisations it would be done in an aligned way.
POWA: submitted that women empowerment should also include the advancement of women by other legislation, international and regional treaties. The department would align the definition to the UNFPA as it was generally accepted.
LRC: submitted that gender definition was not aligned to the one provided in the constitution and the Bill excludes LGBTI. The proposal was accepted and the definition would include LGBTI.
Vodacom: submitted that the terms for designated private body and designated public body should be clearly defined. The proposal was accepted and the definition would read designated private body and designated public body refers to public and private bodies designated in terms of clause 2(2) and (3).
Vodacom: submitted that decision-making structure should be defined. The Department suggested to revise the definition to include in text “decision making position and structure” in order to cover both formal and informal since most of the complaints were that the Bill appeared to focus on the formal sector and the decision making structure would be about both formal and informal structures in the community.
Centre for Constitutional Rights: submitted the definition for gender equality should be revised as it contradicted clauses 3(e) and 4(1) (c). The proposal was rejected and there was no contradiction as the term progressive realisation was referred to in the Constitution. The Department was of the opinion that it would be unrealistic to expect designated bodies to meet 50% representation immediately.
Centre for Constitutional Rights: the definition of gender equality appeared to conflate women’s’ empowerment with gender equality and had a different meaning to that in PEPUDA. As indicated earlier the definition was aligned to the SADC protocol.
Retailer’s Association: submitted that the definition for gender mainstreaming definition should be adjusted to cover gender issues rather than other broader concerns that although legitimate were beyond the objectives of the Bill and what was generally regarded as forming part of the Bill. The proposal was rejected as the definition was aligned to SADC protocol.
Centre for Law and Society and WARD: supported clause 1 and stated that it remains an important and admirable goal. The support was noted.
The Chairperson called for an opportunity for members to ask questions or seek clarity before proceeding.
Ms E More (ANC), asked for clarity on the department’s reasons for accepting Justice Alliance of SA’s proposition to exclude churches that do not carry on trade from Private Bodies on slide 4 of the presentation. She asked why the DWCPD did not accept POWA’s submission that the current definition of gender did not include LGBTI.
The Chairperson responded to the latter that when talking about men or women LGBTI’s were not necessarily excluded because LGBTI were included within men and in women. A clarification was necessary because it meant that every time men were talked of LGBTI would have to be included and the same for women. The same also applied to people with disabilities - there were women with disabilities and men with disabilities. These people were not excluded from classification within men or women because of their disability. The Chairperson also asked for assistance with acronyms.
Ms M Tlake (ANC) asked what DWCPD meant by stating that the Preamble had no inputs.
Ms Maluleke responded that DWCPD was not objecting to the exclusion of churches and charitable organisations in the definition in terms of the Tax Act of 1962. However if the Church was trading, it would have to comply just as it would have to pay taxes if operating profit making businesses.
On the definition of gender submitted by POWA, DWCPD had discussed how to incorporate issues that had not yet been discussed at a national level or yet legalised. The department resolved to protect women that was why the definition of LGBTI was included in the definition for gender based violence. DWCPD was aware that the Justice Department was in the process of developing the Hate Crimes Bill which would criminalise hate crimes. DWCPD wished for LGBTI to benefit from the WEGE Bill which prohibited discrimination on the basis of gender just as the Constitution prohibits discrimination based on sexual orientation.
Ms More asked if she was correct in thinking that LGBTIs were included in the Bill.
Ms Maluleke responded that LGBTIs were included in the Bill.
Ms More stated that the way in which "No" appeared in the response column was as if LGBTIs were excluded in the Bill. She also asked for an explanation why DWCPD response to POWA’s recommendations that women‘s empowerment should include the advancement of women was "No" yet DWCPD’s reasons said yes the recommendations were accepted.
Ms Maluleke referred Members to the explanations to the submissions made by CGE, Triangle Project and others to expand the definitions list so that LGBTI was included. DWCPD responded that the definition of gender-based violence (GBV) would be amended to include acts of violence committed against LGBTI due to actual or perceived sexual orientation or gender identity. However, when it came to gender, as the Chairperson had already indicated, roles and responsibilities assigned to men and women whether LGBTI or not, they were still men or women but may behave differently because of sexual orientation.
Ms Maluleke responded that no submission had been made on the Preamble that was why there were no mention in the document.
Ms G Tseke (ANC) asked for clarity on the explanation about the Justice Alliance for SA submission which stated that private bodies should not include the churches. The explanation offered to Ms More was different from what she understood.
Ms Baduza responded that DWCPD was saying that Churches would be excluded but once they started operating businesses, that would be included. They would not prescribe to a church how many female pastors it should have. However, the business entity of the church would be required to abide by the Bill.
Ms Maluleke added that just like with Traditional Leaders the Bill included the Traditional Council which had to comply with the 50% female representation but in terms of Ubukhosi the Bill did not apply as one was born into it.
Clause 2 Application of the Bill
Ms Maluleke read out the inputs as follows:
Centre for Constitutional Rights; CALS; BUSA: submitted that criteria/guidelines to be used by the Minister to designate private and public body should be provided. There was no objection from DWCPD and it proposed that a criteria be provided as a new clause 2 (4) and would be aligned to the thresholds outlined in the Employment Equity Act. At the Moment it was only the EEA that had thresholds the Bill would be aligned to the EEA to avoid creating difficulties for companies when they complied or reported and the reporting processes would also be aligned.
CGE: submitted that the Bill duplicates some functions assigned to the CGE in terms of the CGE Act. DWCPD objected the submission as there was no duplication. The Ministry and the CGE had different roles and responsibilities. The mandate of the Ministry was women empowerment which was a means to gender equality. The Ministry also facilitated the implementation of gender mainstreaming in the public and private sector. The Ministry further developed guidelines and codes of good practices in, conducting research, monitoring and evaluating to develop policy, setting women empowerment and gender equality on the agenda of Cabinet. The minister was a Member of Parliament, voted and placed women empowerment on the agenda of parliament. The Constitutional mandate of the CGE was to promote respect for gender equality and protect and develop the attainment of gender equality. The CGE Act further affirmed the independence of the CGE and required it to monitor and evaluate practices of organs of state, at any level, statutory bodies or functionaries, public bodies and private business, enterprises and authorities in order to promote gender equality. The Constitution states that the CGE is accountable to the National Assembly. Section 15(2) of the CGE Act requires the CGE to report annually to the President. DWCPD and CGE were at different levels but were complementary to each other.
Parliament had a National Assembly report by the Ad hoc Committee on the Review of Chapter 9 and Associated Institutions, dated 31 July 2007. See also attached a document CGE Memorandum on the Legal Mandates of the CGE and the Ministry of Women, Children and People with Disabilities (Annexure 2) developed by CGE that clarified separation of roles between the CGE and the Ministry. However, there was a problem with submitting the annexures to the Members as there were difficulties in emailing the document.
Ms H Lamoela (DA) interjected that the Committee was dealing with an important piece of legislation with more than 41 submissions yet some were missing. DWCPD was well aware of what was expected of them and yet the department kept delivering important documentation late. This had been the case since last year. She questioned whether it was possible to do the Bill justice under such conditions. She pleaded with the department to try other means of communication if emails were not working.
The Chairperson agreed with Ms Lamoela and requested that the annexures be made available to Members as soon as possible as it was difficult to follow what was being discussed if there was no document.
Ms Maluleke apologised and accepted responsibility for the error.
Sonke: The EEA and PEPUDA covered what the Bill was addressing as such the Bill duplicated the powers of the Minister of Labour and of Justice. The submission was rejected because the Bill elevated women in these Acts as a priority for the relevant Departments. The Department was not an implementing body so the onus would be for those departments to implement empowerment and equality matters. Furthermore Chapter 5 of PEPUDA was not yet promulgated so there was no duplication
Sonke: Clause 2(2) should mandate proper costing and budgeting for women empowerment and gender mainstreaming of designated bodies because of a concern about the use of the term progressive realisation. The proposal was accepted but it meant that provision of right would be linked to availability of resources. The plans contemplated in clauses 4, 5, 6, 7, 8, 9 and 11 and 12 would incorporate budgets for women empowerments and gender mainstreaming. When submitting plans designated bodies would have to indicate how much money was set aside for gender mainstreaming. Constitutionally, progressive realisation had to be looked into in order not to create unreasonable financial burdens on the public and private bodies.
JASA: The Bill should provide proper and adequate guidelines on how public and private bodies would be designated since clauses 2(2) and 2(3) did not provide the guidelines as to the exercise of this discretion. The proposal was accepted and the department would consider providing the criteria for designation.
Cause for Justice: submitted that burdensome obligations were imposed on designated public and private bodies. Bodies should be allowed to opt out or dispute their designation based on their existing policies, measures and statistics regarding the promotion of women in their organisations. The submission was rejected because legislation could not be influenced by policies of public and private bodies.
Business Engage; FOR SA; Joshua Generation Church; The Anglican Catholic Church; Crystal Park Baptist Church; AGS: submitted that the juristic person included churches, and churches/religious organisations and charitable organisations should be excluded in the application of the Bill. The proposal was accepted and the department was proposing the amendment of the definition of private body to exclude churches, charitable organisations and religious organisations to be aligned to the Income Tax Act.
Cause for Justice/Vodacom/ BWA: submitted that there was need for clarity as to which organisations would have to comply with the provisions of the WEGE Bill. Criteria of designation will be provided.
Women in Agriculture & Rural Development (WARD): Support the clause in its current form. Noted
CGE: Submitted that the Minister was accorded unlimited discretion to designate any public or private entity subject to her jurisdiction. Such a provision was overbroad, therefore the Bill failed the test of legality and certain sections fell to be unconstitutional. The proposal was rejected as the CGE failed to quote the sections of the constitution that were violated. The Department proposed that a new subsection should be included as 2 (4) to cover the criteria which the Minister would use when designating the public and private bodies. The department also proposed the exclusion of certain private bodies thus there would be no unlimited discretion accorded to the Minister.
BUSA: proposed that the word ‘may’ in sub clauses (2) and (3) should be replaced with ‘must’. There was no objection from the department.
WARD: Supported the clause.
Clause 3 Objectives of the Bill
WARD: Supported the clause in its current form.
Cause for Justice: submitted that the public should be provided with relevant statistics that proved the need for the Bill. The proposal was accepted and referred to Statistics SA report Number 03-19-00: “Social Profile of Vulnerable Groups in South Africa, 2002 – 2010” released December 2011 which proved that women needed an intervention to ensure that they benefited from all laws and programmes on development and empowerment, the report was attached as annexure 3.
Vodacom: Supported the objectives of the Bill, but suggested that it would be more beneficial to address root-causes of under-empowerment such as poor education, unwanted teenage pregnancy and domestic violence. The WEGE Bill was not congruent with sections 42 and 63 of the EEA because they provide for a different representivity requirement. The department objected to the submissions because the Bill sought to address Protective Discrimination legislation that prevented women from participating in some sectors. For instance only 46% of economically active women were participating in economic activities. The Bill wished to align all legislation with targets to a 50% women representation.
Business Engage: submitted that the clause was misleading as designated private bodies may not have obligations in terms of the country’s commitments to international agreements. The proposal was accepted and private bodies would be excluded from international agreements wherein these had not been domesticated.
Centre for Constitutional Right: submitted that the notion of a minimum 50% representation and meaningful participation of women in decision making structures was problematic and anomalous for two reasons: Section 3(e), 4.1 (c); 9.1 and 10.1 implied that the Bill essentially wished to achieve more than 50% representation. The Constitution sought achievement of substantial equality, the opportunity and means to be equal within an environment not precise demographic representation. There was thus no Constitutional ground for demographic representation in any area other than in a balanced manner in the public administration and composition of the judiciary. DWCPD referred to the Constitution which did not define measures in Section 9 (2) but these measures should not be limited to public administration and composition of judiciary but extend beyond to ensure that those previously marginalised could be empowered.
BUSA: submitted that the Objectives of the WEGE Bill were unrealistic. The Bill imposed further regulatory provisions that would deter investors and compromise economic growth. The submission was rejected because the Bill sought to attain gender equality through empowering women.
POWA: submitted that the protocol to the African Charter on Human and Peoples Right on the Rights of Women in Africa should be included in the objectives and it shall be dully so.
Centre for Law and Society: supports clause 3 and states that it remains an important and admirable goal, however the Minister had no powers to enforce compliance. Women needed a justiciable mechanism through which the Ministry can intervene and compel compliance where women complain about their experiences of public or private bodies’ disregard for gender equality. The Department did not object the suggestion.
CALS: urged the Ministry to engage with the South African Law Reform Commission (SALRC) with a view to assessing the need for a legislative audit which would ultimately inform the objectives and contents of the WEGE Bill. In the introduction of CALS submission, it acknowledged and commended the efforts of government and in particular the Ministry of Women, Children and People with Disabilities’. It noted under the objectives, various items of legislation relevant to issues addressed in the Bill. The existing national and international research report showed poor implementation of legislation. The Bill’s objectives were informed by research report.
SWEAT SISONKE: The objectives should include sex workers. The DOJCD is in the process of developing legislation on prostitution and has already published a discussion paper (SALR Project 107, Adult Prostitution). The proposal was rejected as the inclusion of sex work would result in duplication and was out of the department’s mandate.
Clause 3(e) was specifically tailored to benefit women who were already employed within the formal sector both in public and private sector. The Department accepted the proposal to include additional text to cover other structures (including community structures) such as boards that take decisions.
Community Law Centre (UWC): Objective 3(g) was weak; it did not directly articulate the necessity to address the widely held notions of women’s inferiority or to correct patriarchal prejudices and perceptions. The Bill or other strategies of the Ministry articulated more strongly that patriarchal values and systems are a driver of women’s inequality, disempowerment and exclusion; articulate that patriarchal norms continued to vex the implementation of existing laws, policies and programmes that could make meaningful differences in the lives of women, girls and other gender non-conforming people. The Proposal was accepted and the Department recommended that text would include a new clause that prohibited practices that discriminated on the grounds of gender.
It was also suggested that the Ministry develop a budgeted strategy and provide guidance to other relevant government departments across spheres to develop their own strategies to challenge patriarchy within these spheres and across society. The department had no objections.
BWA: proposed that the Bill should focus on the core areas of concern where other laws do not currently provide for sufficient rights and measures to address women empowerment and gender equality in order to achieve its objectives. The Bill had already done this.
JD Group, Group Legal and Compliance: submitted that Clause 3(e) was open ended in that it provided for ... “progressive realisation of a minimum of 50% representation ...”without clarity as to what progressive meant, whether in times of time frames or otherwise. The proposal was not accepted due to differences in sectors, the time frames would be included in the notice for designation. For instance different sectors had different challenges and some sectors did not have female workers.
Tshwaranang: The Bill made reference to a broad scope of legislation which would need to be aligned. However, there was no information as to how the alignment would be done.
Retail Association: The objectives were generally supported, but concern was raised that the objectives referred to in paragraphs (b), (d), (e) and (f) applied to undefined designated bodies which undermined certainty and the objectives of the Act. The department did not object to developing the guidelines.
Business Engage: Designated private bodies did not have any obligations in terms of the international instruments. The department did not object to removing private companies from international responsibilities.
Business Engage: submitted that with regard to the submission of plans, it was not clear what “consideration, evaluation and guidance” meant. It was also not clear how long after the submission of plans would the Minister consider, evaluating and guiding. The department had no objections to mending the section.
WARD: supported the clause, however, submitted that the objectives should include the requirement that when the public body was building roads or erecting taps in rural areas, they should consult with communities, especially women on where the road should cross and where the tap should be erected. The department had no objection to the suggestion.
The Chairperson invited members to ask questions on Application on the Bill.
Ms More stated that the submission made by CGE about duplication was valid as she was still convinced that there was some duplication because Section 11(1) of the CGE Act provided a monitoring role. Section 11(1)(c) talks of evaluation and 11(1)(e) provided that the CGE should investigate. It was understood that the constitutional mandate of the CGE was to promote gender equality, protect and develop the attainment of gender equality; however the mission of the CGE talked of the same things that DWCPD was going to do. She called for the need to fully examine the objectives of the Bill to avoid duplication.
Ms Tseke appealed to the Committee to write a formal complaint to SWEAT about the conduct of SWEAT’s delegation that had demonstrated at the public hearings on 29 January 2014.
The Chairperson stated that the Committee secretary had already been instructed to write a letter to SWEAT.
Ms B Ngcobo (ANC) asked if the Ministry had looked at the Women’s Budget as once upon a time it was a document that was going to be used and was somehow still being used. DWCPD had mentioned various things about women including 50% representation and quotas where necessary and what were the quotas for people with disabilities? Also existing legislation such as PEPUDA was achieving its intended purpose whereby people had gone to the Equality Courts and had been redressed accordingly. However in terms of Gender Focal Points (GFP), these were toothless and were not able to deliver. How would they suddenly be able to deliver once the Bill was enacted. What enforcement measures would be in place to address all the concerns? She agreed with CALS that there was a need to consult with the South African Law Reform Commission on the Act.
The Chairperson asked for a clarification about the blank spaces from slide 13 to 14 in the column for decision by DWCPD and the reasons for the decision.
Ms L van der Merwe (IFP) stated that she had made a submission to DWCPD concerning duplication of legislation with the Bill and how it could be deemed unconstitutional. She had made the submission with the intention of aligning all members on the objectives of the Bill. In terms of constitutionality, the quota system in the Bill could be unconstitutional because Section 7 of the Bill provides for equal representation of female participation with a 50% minimum representation of women. This was not feasible for some organisations even if they were classified as designated bodies. As such, there was a need for exemplifying procedures especially for sectors that required highly skilled persons and there were few women around, such as rugby clubs and traditionally male dominated sectors such as mining. The fact that the Bill might be unconstitutional should be taken into consideration even if the presenter argued that the Bill was not unconstitutional because the argument was not set out by the organisation. In addition a Supreme Court ruled in a case as unconstitutional when a white female police officer was passed over a promotion because promoting her would not be in alignment with racial quotas. Therefore the Committee had to be careful to avoid the Bill being rendered unconstitutional.
Ms Maluleke responded that the question of duplication between the CGE and DWCPD was that all different government institutions such as Parliament, CGE, the Employment Equity Commission had a requirement and powers to monitor and evaluate but do so for different reasons. The Minister would report to Cabinet on Women, Children and People with Disabilities. What was important to stress was that the CGE and DWCPD could not work alone, even civil society had to take part in research monitoring in order to understand the challenges faced by women and children as well as the challenges of implementation.
In response to the question on women’s budget, Ms Maluleke stated that WARD had suggested that a Women’s Bank should be included in the Bill and Clause 9 of the Bill provided that 50% of all economic development budget talks should be earmarked for women and not specifically for a women’s budget. However in the preceding submissions such a recommendation had been made which the department did not object to. In terms of 50% representation in decision-making structures, this included women with disabilities.
Ms Maluleke said that when she referred to PEPUDA she was talking about chapter 5 which was yet to be promulgated and that was the chapter that talked of empowerment in general and the WEGE Bill was specifically addressing women empowerment. She added that the statement that Gender Focal Points did not have teeth was dealt with in the Bill as Section 14 talked of appointing GFP at Senior Management Service (SMS) level which ranged from Director to Director General. But the Bill also talked about the allocation of accountability of gender mainstreaming and women empowerment to the accounting officer. Previously the accounting officer did not have that responsibility and now if gender mainstreaming was not implemented, the accounting officer would be held accountable.
Ms Maluleke responded that slide 13 and 14 having blank spaces could have been due to a clerical error as the document was quite long. However, the response was that the Bill should focus on core areas of concern where other laws did not currently provide for success and addressed women empowerment and gender equality since not all legislation covered gender mainstreaming. The department was not an implementing body. It could not empower women and had to rely on legislation from other departments in order for women to be empowered. On quotas being unconstitutional and some sectors requiring highly skilled labour and dominated by men, this could not be separated from the fact that historically South African women had always been discriminated against due to discriminatory laws. The discrimination of women could not continue to be perpetuated. The Supreme Court of Appeal applies the law to the facts of the case, which would be women’s representation. The Constitution stated that the state must establish legislation and measures to ensure that previously disadvantaged groups are valued. Research has shown that South African women were still disadvantaged and lived in abject poverty. As such the Bill was necessary to ensure that women benefited.
Ms Lamoela stated that 37 out of 40 submissions all agreed that the Bill was duplicating existing legislation and wanted clarity on why only the Ministry could not see the duplication. It would be in women’s best interest if the department could admit that there was duplication. Furthermore DWCPD did not carry out an audit of existing legislation and in the presentation, DWCPD had admitted it was not an implementing department but an oversight department. It had to rely on other departments. This only showed that the Bill was a duplication of existing legislation. DWCPD was not capable of achieving what it set out to achieve on its own. Instead of spending more money on implementation, it would be better for the department to work with existing departments.
Ms van der Merwe followed up with a question which she said was not because she disagreed with the legislation but wanted to emphasise that if the legislation was to merely show that something was being done and could not be implemented then DWCPD was on the wrong track because there were already other pieces of existing legislation that spoke of women’s empowerment but were not being implemented. There was duplication in the Bill and if legislation was put forward it should be constitutionally sound and would not be open to constitutional challenges, this could be a real possibility by looking at things that had happened in the past constitutional challenges were a real possibility. For example, the Bill gave the Minister wide unconstitutional powers to designate certain public and private organisations and what if a company had specialised skills which at the moment there were not enough women to fill those positions, would the positions remain open? This should be taken into consideration as the Supreme Court of Appeal could rule otherwise. Also there was a need for more than just legislation everybody wanted to see women empowered, when the Bill came into effect there was a need to have fines attached in the Bill and powers of implementation.
Ms More asked what the criterion was for designation as per slide 9 of the presentation, because there seemed to be some silence. She further enquired about the annexures that were supposed to be distributed as they could provide answers to some of the questions. Also on the response to Cause for Justice’s submissions on application of the Bill DWCPD response that legislation could not be influenced by policies of public and private bodies in her opinion was not entirely true as to some extent policies did influence legislation.
Ms Baduza responded to Ms van der Merwe question, saying that the Bill was trying to acknowledge what she had said. Ms Baduza stated the Bill did not expect to find female astronauts right away if women had not trained as such. Hence the call for progressive realisation which required companies to submit plans for progressive realisation and to assist with training for women to ensure that there was a pool of skilled women especially in the field of sciences and engineering. Gender mainstreaming would promote women’s full participation in society regardless of the domineering patriarchal cultural system. Women empowerment was a global phenomenon and the issues raised by the Bill i.e. economic empowerment, representation of women in decision-making positions, were issues affecting women all over the world.
In response to the suggestion that they consult with the South African Law Reform Commission to avoid duplication of existing legislation, Ms Maluleke stated that the Bill would not have been approved by Cabinet if there was such duplication. On the issue of policy not affecting legislation, the department’s decision was still valid because a company could decide to employ men because there were no women available but that would not affect legislation.
Ms van der Merwe asked for clarity on progressive realisation. Would companies be given a timeframe once the WEGE Bill came into effect or would it be left open-ended? She raised a concern that if left open-ended people would not comply with the legislation. She added that political organisations were voluntary organisations and should not have to comply with the provision for progressive realisation.
The Chairperson said that when talking about duplication, one was mainly referring to implementing bodies and DWCPD was not an implementing body. For instance, the department was not implementing education it was the department of education that was implementing this. Implementation could be failing because the implementing departments never aggregated information as far as women were concerned and the WEGE was promoting the interests of women and the empowerment of women. If anything roles were overlapping and not necessarily duplicating legislation because even when monitoring or evaluating only issues within the WEGE’s mandate would be evaluated or monitored.
Ms Lamoela said that to have clarity on duplication of existing legislation on empowerment and equality, a proper audit of existing legislation had to be done. One needed to ascertain whether they were being implemented, and identify why women were still disadvantaged. Where it was necessary, amendments should be made as was done to the EEA in 2012 - instead of enacting new legislation. She added that a follow up as to whether the amendments were implemented was not done which did not help women, especially rural women who still had no access to information. Without information how were the women supposed to benefit from the legislation?
Ms van der Merwe added that the legislation was toothless legislation. The Bill had no enforcement measures as there were no penalties or sanctions.
The Chairperson agreed with Ms van der Merwe that DWCPD had not responded on the issue of enforcement – this had also been raised at the public hearings that the Bill was too slack.
Ms Maluleke responded that political parties that registered with the IEC seemed to be private entities but once elected into parliament they become public bodies. DWCPD was going to require the IEC to amend its registration rules and require equal representation so that Parliament could achieve the 50% representation target. People’s freedom of choice to vote was not violated because they would still vote for the party of their choice. The DWCP had indicated that entities had to submit plans stating the challenges in the industry as well as the way forward. It did not mean that 50% of men would have to be fired immediately in order to make room for women. If a company did not have any women it would still submit plans clearly stating how women would benefit whenever new opportunities arise. It was not easy to specify a time frame as there were different challenges and structures in different sectors but it did not mean that progressive realisation was being left open-ended. DWCPD did not see any duplication of existing legislation and no other department submitted that the WEGE was a duplication of an existing mandate. She noted that Clause 16 of the Bill dealt with enforcement and she would be like to address this when presenting that clause.
Ms Baduza added that 20 years ago there was a 2% female representation in Parliament but this has been upped to 23% - so progressive realisation was possible.
Ms Lamoela stated that she must have understood the PEPUDA Act differently because it dealt with unfair discrimination generally which was defined in Section 6 of the Act. Section 28 of the Act talked of discrimination in terms of race and Section 29 in regards to gender. As such, she emphasised the need to scrutinise existing legislation and amend that instead of enacting new legislation.
The Chairperson urged members not to repeat points.
Ms van der Merwe acknowledged that indeed women had made strides in the political arena. She raised concern about voluntary organisations such as political parties - but DWCPD had explained that the IEC Act would have to be amended.
Ms More asked if human and financial resources were available to monitor compliance because there was no point in putting in place a Bill if there were no resources to enable enforcement otherwise there would be many Bills about equity and women empowerment with no change in women’s lives. It was noted at the public hearings that many Acts such as EEA, PEPUDA and BBBEE were not effective due to poor implementation and weak enforcement. There was no point of having legislation just for the sake of it, if there was no implementation and women’s core problems still remained unresolved.
Ms van der Merwe asked if it was known how many public institutions the Act would be legislating for as there were implications for resources. Different companies would have different plans and to monitor all these plans would be a logistical challenge if there was no manpower. Already there were resource challenges and it would not be effective for the Bill if monitoring was to focus on some entities only. Some submissions said that the 50/50 representation could be viewed as discrimination for men as women already occupied 51% of the workforce.
The Chairperson said that in terms of women representation in the workforce, women made up only 42% of the workforce. She clarified that representation was not referring to the population of women which was 521% but to the population of women in the workforce (42%).
Ms Ngcobo said that in most of the legislation that affected women the department made efforts to hold public hearings throughout the country to ensure that all women were heard and not only those who had access to technology. She understood that there was a piece of legislation that was going to be promulgated on behalf of women. She asked if the department itself or through partners had been able to hold public hearings.
Ms Maluleke responded that in terms of resources, DWCPD presented a budget when it made its presentation in November 2013 and the Committee had asked the department to rework the budget which had been done. The Financial and Fiscal Commission had been engaged to fine tune the budget to the expected requirements. On the implementation of the Bill, as indicated, the department would be cooperating with other government departments. In fact the department had already met with the Commission for Employment Equity which received employment equity plans and reports from both the private and public sector. As such there would be alignment of the systems so that the department could access the reports from the Commission and the same applied to the BBBEE Council. This would not involve costs for the department as it was already catered for by the implementing departments although in some instances DWCPD would have to initiate the funding.
Even though the EEA prohibits gender discrimination, however its Chapter Five is not yet promulgated as such it did not talk of women empowerment. The WEGE Bill talked of women empowerment and so there was no duplication of legislation. Moreover the promulgation of that chapter would take a number of years. As to the number of institutions that the Bill would legislate on, the department would rely on numbers submitted by cooperating partners such as the EEC and the Ministry of Labour. Public hearings were carried out before the Act was published for consultation. Before the Act was submitted to Cabinet, the Department held public hearings. DWCPD had worked with different organisations in order to raise awareness about the Bill. Also all nine provinces had hearings and consultations when the Bill was submitted to Parliament.
Ms Baduza added that during the consultations it was clear that women were really feeling the burden of gender inequality. They had mandated the department to ensure that the Bill was implemented as it was one piece of legislation that empowered women.
Ms Tseke said that the Memorandum on the last page of the Bill indicated bodies that had been consulted and also the Bill had been tagged as a Section 76 Bill in Parliament. It would be sent to the National Council of Provinces for consultations with provincial stakeholders so there had been wide consultation on the Bill.
Clause 4 Education and Training
Community Law Centre (UWC): submitted that the section failed to achieve what it could and the clause should be amended to include a sub-clause requiring evidence-based communication and education strategies across government departments, including the public broadcaster. These strategies should challenge entrenched beliefs of women’s inferior status.
The department had no objection to the proposal however; the recommendation was that this should be incorporated under clause 6 on public education.
BUSA: submitted that the Bill failed to state how the plans and measures would be considered to having complied with the provisions of the applicable legislation and international instruments. The Minister should be obligated to establish standard plans and measures that the bodies should comply with. The Bill gave private bodies far reaching social mandate and failed to clarify which women were being referred to in this instance, which left the public and private bodies confused as to whether it referred to employed women or women in general including those unemployed. Furthermore Section 4(1)(c) would prove to be a challenge to implement and enforce because traditionally women had not been attracted by professions that were labour intensive.
DWCPD had no objections to obliging the Minister with the standards in order to assist private and public bodies and the Bill referred to women in all walks of life.
POWA: submitted that LGBTI people should be included and protected from dropping out as a result of pressure and stigma.
The submission was accepted and it was proposed that clause 4(1)(e) be amended to include a sentence to end with women including the LGBTI.
Voice Movement Therapy Eastern Cape: submitted that the section was designed for the elite group. Proposal not accepted. It is not designed for the elite and that home based care givers should be trained.
The proposal was rejected and the department was of the view that the clause was not for the elite and recommended the amendment of clause 4(1) to read as follows: “designated public bodies and designated private bodies must within their ambit of responsibility develop and implement plans and measures in compliance with applicable legislation to...” In addition training of home-based caregivers was within the ambit of the Department of Social Development and the Department of Health.
Retail Association: submitted that the obligations under this section were unclear and required definition.
The department disagreed that the obligations were unclear and referred the submission to the recommendation on clause 4(1).
Nozibusiso Khambule: submitted that rural women should be exposed to being able to participate in the education of their children and establish exchange programmes with urban areas.
The proposal was accepted and would be considered by the Department.
Cause for Justice: proposed that “...address the pervasive discriminatory patriarchal attitudes and lingering effects of apartheid faced by women in the education system...” should be deleted.
The department objected the proposal as women still experienced the effects of apartheid and patriarchy despite democratic dispensation.
Sonke: submitted that education and training of men and boys to shift their gender inequality conduct and attitudes, the curriculum should include the importance of women’s human rights and the history and context of unfair discrimination against women. It was also proposed that multi-faceted inter-departmental efforts to prevent violence against women and girls should be implemented.
DWCPD had no objections.
Vodacom: submitted that the obligation should be removed from the private bodies.
The department objected the proposal and recommended an amendment to clause 4(1) to read as follows: designated public bodies and designated private bodies must within their ambit of responsibility develop and implement plans and measures in compliance with applicable legislation to...
Business Engage: submitted that the Companies Act did not mention training and education.
The proposal was not accepted and suggested that the Companies Act may be required to be amended.
WARD: supported the clause because it provided that women should be trained and empowered to take up decision making positions in formal and informal sectors, it would also provide an opportunity for training for women with disabilities who did not get an opportunity to .
BWA: submitted that the Bill contradicted the Constitutional right in section 29(1) which provided for an absolute right to basic education whilst the WEGE Bill provided for progressive realisation of rights. The Bill created onerous obligations to the private designated bodies.
Section 29(1)(b) talks to progressive realisation of rights with regards to further education as such there was no contradiction. The Bill was not onerous if the recommendation was in the ambit of their responsibility –this was what the Bill contemplates as such the proposal was not accepted.
Clause 5 Access to health care, including reproductive health
Community Law Centre (UWC): submitted that the Bill took a cautious approach in various clauses such as “within available resources” clauses 5(1) and 10(3) and progressive realisation” clause 12(1). The approach failed to underscore the importance that should be placed on promoting changes in the lives of more than 50% of the population. It also perpetuated one of key issues that had hampered the implementation of existing law and policy. As such words such as “within available resources” and progressive realisation of” should be removed.
The proposal was not accepted because requiring public designated bodies and private bodies to attain this requirement immediately would be unrealistic.
BUSA: submitted that access to health care and reproductive health remained the responsibility of the public body and recommended that the private body should be excluded from this responsibility.
The department did not accept the proposal and proposed an amendment to clause 5(1) to read as follows: designated public bodies and designated private bodies must within their ambit of responsibility develop and implement plans and measures in compliance with applicable legislation to...Some private bodies operate private clinics and they should comply to ensure access to health.
Voice Movement Therapy Eastern Cape: submitted that mobile health facilities were strongly needed.
DWCPD did not object.
BWA: submitted that Section 27 (2) of the Bill of rights in the Constitution requires the state to take reasonable legislative measures within the state’s resources to achieve progressive realisation of health care, food, water and social security. The WEGE Bill undermined the Constitution in this regard as the current measures in addition to being vague, held the potential to create very unreasonable and onerous obligations to designated bodies.
The department objected the proposal and referred to Clause 5. There was no contradiction as the Bill required designated bodies to provide these according to their available resources and within the ambit of responsibility.
Retail Association: submitted that there were no guidelines for submission of plans and the Bill did not refer to resources for the evaluation of plans. Also there was a need to clarify the international instruments referred to.
The department responded that as indicated earlier on international instruments would be deleted for private designated bodies because in order for international instruments to be implemented they had to be domesticated and should be applicable to domestic legislation, however applicable legislation would continue. The guidelines for submission of plans would be provided for during the notice of designation. Sections 17, 18 and 19 talked about the framework, codes of good practice and regulations which would provide guidelines as what plans should contain. Details could not be included in Bill.
Nozibusiso Khambule: submitted that women in rural areas should be empowered and informed about health issues and the consequences of not using health facilities and their resources as most blamed witchcraft due to lack of health empowerment.
The department had no objections to the proposal.
Cause for Justice: submitted that DWCPD should provide researched facts indicating that women had less access to health care than other groupings in South Africa and it should also define ‘reproductive health’. Clause 5 should be redrafted to provide protection for bodies’ rights to freedom of conscience, religion, thought, belief and opinion and the right to freedom of association.
The department referred to a report prepared by DWCPD on Gender Statistics on Service Delivery as Annexure 4.
Sonke: submitted that Section 5 should be amended to mandate the Minister to publish a fully costed and budgeted women’s health policy in the Government Gazette within a year from the passing of the Bill into law which included directives for healthcare service providers on service delivery and provided guidance for the development of healthcare models and accompanying implementation plans. The Minister should also be mandated to conduct a thorough consultative process with healthcare professionals, public health specialists and NGOs which provided services and advocated for women’s rights to healthcare to inform the women’s health policy. Also public and private bodies should be mandated to develop models and implementations to increase men’s utilization of and access to healthcare services and include directives in this regard.
The department had no objection to the requirement for the Minister to publish a fully costed and budgeted women’s health policy. However, the department rejected the proposal to include consultation processes in the Bill as consultation did not need to be legislated. Furthermore, increased awareness and utilisation of health facilities by men could be achieved through public education as such there was no need to legislate it.
WARD: Supported the clause because it would address the challenges women in rural areas faced in terms of access to health and reproductive health, such as clinics that were very far from the communities, lack of transport as a result women ended up giving birth in the street whilst travelling to the clinics. The section should facilitate the return of among others, the midwifery system and family planning clinics.
The department noted the support but however could not lead the Department of Health to operate mobile clinics because it followed its own mandate.
The Chairperson invited questions of clarity and comments on clauses four and five.
Ms van der Merwe asked for clarity on Vodacom’s submission regarding Clause 4 to remove the obligation from private bodies. The department’s response was that it would apply to designated public and private bodies, however the Bill was not clear as to what criteria the Minister would use to designate certain bodies. The Bill could be discriminatory if one side of the Bill applied to one organisation and not the other.
Ms Maluleke responded that DWCPD had proposed to amend Clause 4(1) to apply to designated public and private bodies within their ambit of responsibility as they had employees and had the responsibility to empower them.
Ms More asked why “No” appeared under the department’s response column if the proposal was accepted.
Ms Maluleke responded that the department did not agree to Vodacom’s suggestion to remove the obligation from private bodies. Rather, it had agreed to amend it so that education and training were provided for within the ambit of responsibility for designated private bodies because they still had the responsibility of empowering through education and training.
Ms van der Merwe asked the department to explain enforcement and compliance. What would happen to companies that did not adhere to the stipulation? She also asked what was meant by the term designated public and private institutions and did it mean that the legislation would only apply to certain public bodies and certain private bodies.
Ms Maluleke responded that the department had indicated the criteria which would be linked to the EEA as it required compliance from companies that employed less than 150 but made over R5 million, or those that employed over 150. Also Clause 2(3) provided that the Minister may from time to time set requirements in order to be able to monitor. Once the Bill was enacted, it would apply only to the designated sectors and not everyone.
Ms van der Merwe stated that she was only asking the questions to ensure that the Bill sent to the National Assembly was scrutinised and all uncertainties clarified. South Africa had a powerful Constitution. What would happen once the Minister had designated certain public and private bodies. For example, focusing on the mining sector and excluding the health sector was in itself discrimination. In her view, this was problematic and open to criticism.
Ms Maluleke responded that it was not a cause for concern. Moreover at the last meeting in November 2013, Ms van der Merwe had raised a concern that the Bill was too wide and would not be implementable. Therefore Ms van der Merwe had called for designation so the Bill could be implementable which made it difficult for the department “to get it right”. The department would not have challenges with designation as it would allow the department to plan and work together with various departments. The Bill would be legal as long as it was implementable.
Ms van der Merwe thanked Ms Maluleke for the response and said that right from the beginning she had insisted on passing legislation that was good and had raised concerns about the Bill being too wide. This was out of concern for the financial and human resources constraints in the department. She added that she raised the questions to ensure that the Bill was not challenged and did not end up being shelved.
Ms Lamoela asked if different criteria would be required for small businesses and big businesses. The Bill might target big businesses but business was business - as such, the consequences of the Bill should be taken into consideration. For instance, if farms employed more female seasonal workers men might come forward to complain that they were not empowered or were being discriminated against. Alternatively more women could be employed yet were not be able to do the jobs that men were doing. She called for clarity in the Bill so that once enacted, people would adhere to it.
Ms Maluleke said that the department recommended the criteria used in the EEA. The thresholds in the EEA applied to those companies that could submit implementation plans as stipulated in Chapter 3 whilst Chapter 2 of the EEA did not have thresholds and applied to everybody.
The Chairperson welcomed Members to the second half of the deliberations.
Ms Joyce Maluleke, Special Advisor to the Minister of Women, Children and People with Disabilities continued with the following clauses, responding to the submissions pertinent to each clause and noted those recommendations DWCPD accepted and those it did not (see document):
•Clause 6: Public education on Prohibited practises, including gender based violence
•Clause 7 Equal Representation and Participation
•Clause 8: Gender Mainstreaming
•Clause 9: Measures to empower women and eliminate discrimination
• Clause 10: Economic Empowerment
•Clause 11: Social economic empowerment of women in rural areas
•Clause 12: Socio economic empowerment of women with disabilities
•Clause 13: Powers of Minister
•Clause 14: Guidance by Minister
•Clause 15: Gender Units and Accountability
•Clause 16: Enforcement
•Clause 17: Code of Conduct
•Clause 18: Framework on Women Empowerment
•Clause 18: Regulations
Ms H Lamoela (DA) argued that it seemed like a waste of time that deliberations on the Bill were taking place because from the submissions made and the Department’s response to these submissions, the inputs were deemed unnecessary.
The Chairpersons said Ms Lamoela had every right to be angry and to raise her concerns. But the Department also had the duty to evaluate and look at the concerns raise during public submissions. That did not mean that the Department was accepting all the submissions made.
Ms M Tlake (ANC) referred to Clause 16 and asked whether the Public Finance Management Act (PFMA) only applied to public bodies.
Ms Veliswa Baduza, Director General, DWCPD replied to the question on the PFMA and said the Act only applied to the Accounting Officer of public body. The Accounting Officer of designated private bodies was not specified in the Bill.
Ms D Ramodibe (ANC) asked that the Department to give the reasons why Gumtree South Africa’s proposal was not accepted.
Ms Maluleke replied and said the reason Gumtree South Africa’s proposal was not accepted was that it was proposing that the appeal board needed to be made up of 50% of the designated organisations.
The Chairperson said the question raised by Business Engage was a relevant one: what was the penalty for non-compliance? The Department had not yet given a satisfactory response to that question.
Ms Maluleke said the draft Bill had criminalised some of the actions of discriminating on the grounds of gender and for non-compliance. However through the process of negotiations with Nedlac and Cabinet, these fell away. However the Department did not object to amending Clause 16 to criminalize some of these offences if Parliament proposed so. The Department would also collaborate with Commission on Gender Equality (CGE) where the Department would refer some matters of non-compliance to the Commission for investigation. The CGE had powers to investigate and litigate.
Ms Baduza said some of the proposed sentences in the Bill were found to be shorter than those found in other legislation. As a result the Department did not want to run the risk of legal minds simply referring to the Bill irresponsibly. This was why sentencing and penalties were removed from the Bill.
Table 2: General Comments not linked to any Clause
Ms Maluleke continued with the presentation and looked at general comments on the Bill which were not specifically linked to any clause. She explained that the UWC Community Law Centre had commented that sex workers were exposed to greater levels of discrimination and violation on the basis of the manner in which they earned their income. The South African Law Reform Commission had included this issue as part of its law reform investigations (Project 107 Discussion Paper 0001/2009) therefore the Department could not deal with this matter as it was already being addressed in other legislation.
Centre for Applied Legal Studies (CALS) (University of Witwatersrand) made a submission that a key omission in the Bill was that of Gender Responsive Budgeting. The argument was that the link between a properly responsive budget and the advancement of gender equality was vital. Therefore there could not be talks on gender equality and the empowerment of women without clear guidelines on costs and adequate budget allocation by government generally and by the Minister in particular. The Department did not object to costing the actual implementation of the Bill.
The Chairperson thanked the Department for the presentation. She asked what it meant when the Department indicated having “noted” a submission; did this mean that the submission would be incorporated into the Bill?
Ms C Diemu (COPE) said it seemed as though the Department was rejecting every proposal by the CGE; why was this case?
Ms P Petersen-Maduna (ANC) asked when the Bill would be costed.
Ms Maluleke replied that the Department presented a draft costing of the Bill at the last Committee meeting they attended in Parliament. The Bill has also been submitted to the Financial and Fiscal Commission. The Bill has therefore been costed in line with the requirements of National Treasury.
She said when the Department “noted” a submission in some instances the proposal had already been implemented in the Bill’s amendments. In some cases the Department only “noted” the opinion given but this did not translate to the opinion being incorporated into legislation.
Ms M Tlake (ANC) asked what the draft costing on the Bill was.
The Chairperson said the costing of the Bill was presented to the Committee by the Department.
Ms Lamoela said the Committee did not receive a full presentation, the Committee was only told verbally that the costing of the Bill would be R150 million. She asked about the WEGE Bill consultative workshops; did these workshops take place in all the provinces and who conducted these workshops? Why was the Committee not informed about these workshops?
Ms Maluleke replied that the workshops took place in all the provinces as indicated and the Department facilitated these workshops with the Offices of the Premier. The purpose was to ensure that women participated in the consultation process and that they were well informed about parliamentary caucuses.
Ms Baduza explained that the workshops were aimed to reach and to inform ordinary women on the ground about the work of the Department. These briefing workshops were primarily like the one the Department had given to the Committee. The Department was merely relaying this information to local women and encouraging women to make submissions to the Bill.
Ms Diemu asked whether the Western Cape and Northern Cape were also included in these workshops.
Ms Maluleke said that they were.
The Chairperson thanked the Department for the presentation. She said it was important that the Committee understood the process which was followed. The State Law Advisor together with the Department would incorporate the proposed amendments into the Bill so that by the time the Committee dealt with the Bill clause by clause, the amendments were incorporated into the Bill. The Committee’s Legal Advisor would only comment on the amended aspects of the Bill.
Ms Maluleke said the Department would email the amendments to the Committee.
The parliamentary legal advisor said receiving the amendments the next day from the Department would mean the Committee would still need to engage the document presented and possibly make further amendments to the amendments. This would take time. He argued that it was a bit ambitious for the Committee to want to deal with the amended document the next day and also deal with the Bill clause by clause.
Ms L van der Merwe agreed with the Legal Advisor, saying there was still a long process to be followed. Members needed adequate time to apply their minds to the amendments and the effected changes.
Ms Diemu said the Committee need not rush to finalise the Bill.
Ms Lamoela said Members still needed to go and engage with their various political parties. There was no need to rush.
The Chairperson suggested that the amendments be presented to the Committee on 11 February 2014.
The parliamentary legal advisor said it was important that the Committee received all documents presented by the Department together with the working Bill so that the Committee could compare the changes made.
Ms Lamoela asked when the Committee would be receiving the working document from the Department.
The Chairperson said according to the Committee programme, the Committee was scheduled to meet the next day (6 February 2014) but that meeting would be cancelled so as to give the Department adequate time to prepare. The Department was asked to send the working document to the Committee by Monday 10 February 2014.
Ms Maluleke said the Department would be able to present the working document on Tuesday 11 February.
The Chairperson argued that the Department needed to prioritise the Bill.
Ms Lamoela said Members needed to be given enough time to scrutinize the amended documents and to discuss all amendments with their political parties.
The Chairperson said she did not understand what it is that Ms Lameola wanted to scrutinize because Members would not be seeing the Bill for the first time.
Ms Lamoela said Members needed to carefully examine the amendments in comparison to the original Bill.
The Chairperson proposed that the Department get back to the Committee on the 12 February 2014. The Committee would meet to begin with the clause by clause deliberations on the 18 February 2014 so that the Bill would be finalised on the 19 February 2014..
Ms Diemu supported the proposed date.
The meeting was adjourned.
- Convention on the Rights of Persons with Disabilities
- Memorandum - Legal mandates of CGE and Ministry of Women Children and People with Disabilities
- Women Empowerment and Gender Equality Bill Consultation Workshops 2014
- DWCPD Funding for Servicing WEGE Implementation Plan: Estimated Budget
- DWCPD Response to Women Empowerment and Gender Equality Bill
- Gender Focal Points: National Government Departments
- We don't have attendance info for this committee meeting
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