The Committee and State Law Advisers, with input also from the Minister of Women, Children and People with Disabilities, went through the latest version of the Women Empowerment and Gender Equality Bill, highlighting clauses changed following earlier debates. Specific questions were raised on whether the Preamble needed to specifically cover the inclusion of the lesbian, gay, bisexual, transgender and intersex persons, but the legal advisers said that it did not, as all fell within the overall definition of ‘women’. Members discussed the application of the Bill to public and private bodies, and discussion on various clauses looked into whether it was appropriate to include private bodies in matters that fell within the responsibilities of government, the possibility that religious bodies be excluded from application of the Bill, and the formulation by the Minister of criteria when applying the legislation to public bodies. The role of private bodies in public education on gender mainstreaming was also debated. Members asked about compliance to international legislation and it was explained that this legislation would effectively make any international law apply domestically. Members queried the constitutionality of clause 7(2), and received an opinion from the State Law Advisers relating to justifiable limitations to Constitutional rights and how the provision would be interpreted, should there, for instance, be a party with only one Member, or a party comprising only women. Members examined the provisions around land and it was stressed that clause 11 should refer to women specifically, rather than to ‘family’ as suggested by one Member. The question of disability also needed to be limited, in this Bill, to women, and the Minister explained that separate policy dealing with discrimination against the disabled in both genders was being drawn. It was suggested that the Minister ‘must’ conduct a review, but also suggested that a time frame was needed. The Department agreed, on request, to furnish reports and attendance registers in respect of the consultations in the provinces. One Member remained concerned that this legislation must be implemented and asked if there had been a review of other legislation that was not being properly implemented.
The Chairperson noted an apology for arriving late to the meeting, as she had had other matters to attend to.
Ms H Lamoela (DA) said she could not accept the apology. She had been told that the Chairperson had been in a strategy meeting, and considered this unacceptable, as other members also had commitments.
Women Empowerment and Gender Equality Bill: Presentation of latest amendments
Ms Joyce Maluleke, Special Advisor to the Minister, tabled a new version of the Women Empowerment and Gender Equality Bill (the Bill) and proceeded to take Members through the amendments.
Ms Lamoela asked whether the lesbian, gay, bisexual and transgender and intersex people (LGBTI) would be included in the preamble.
Ms Maluleke replied the Preamble covered all female persons within the LGBTI acronym, since the Bill applied to everyone who was ‘female’.
Ms Lamoela said she was not happy with this answer and felt the matter had not been sufficiently tackled. She said that people needed to respect each other and give proper answers.
Ms Bongiwe Lufundo, Principal State Law Adviser, Office of the Chief State Law Adviser, said that the clauses had been amended in order to address the concern that LGBTI persons had been excluded from the application of the Bill. The amendments aimed to make the Bill more inclusive. No one could discriminated against on the basis of gender, sex or sexual orientation. The term sexual orientation covered the ideas concerning LGBTI persons.
Ms Maluleke continued that another Schedule had also been added, so the original Schedule 1 was now schedule 2.
Ms Maluleke referred to the definitions.
’Gender Based Violence’ was stated as being all acts perpetrated against women, girls, men and boys on the basis of gender, sex and sexual orientation.
The definition of ‘private body’ had been expanded to also exclude ‘a public benefit organisation’ as there had been an outcry by religious bodies that they should be excluded from the application of the Bill.
Ms Maluleke said that in terms of women empowerment there had been a deletion of the provision as contemplated by 9 (2) of the Constitution.
Clause 3: Criteria for application to public bodies
Ms Lufundo said that the amendment of the objectives, in clause 3(b) had been done to give a criteria to the Minister as to which public bodies the Minister could be covered by this legislation. It allowed for the Minister to designate the public bodies and private bodies who would be subject to the Act.
Ms Lamoela asked if this did not give rise to discrimination amongst public bodies.
Ms Lufundo said the companies were to be sorted ‘according to their thresholds’. There had not been discrimination, but reference to thresholds
Ms E More (DA) asked how turnover could be measured, as some public entities did not have a turn over as such.
Ms Maluleke replied that the criteria spoke to either having 150 employees, or a certain turnover, so there were two elements involved.
Chapter Two: Education and training
Ms L van der Merwe (IFP) asked if the sentence in clause 4(1) did not lead to a position where a company could claim that it did not have the resources to ‘develop and implement plans and measures’ as the clause required.
Ms Lamoela asked why the governmental duties were being shifted to the private sector, as the clause spoke to ‘addressing the pervasive discriminatory patriarchal attitudes and the lingering effects of apartheid faced by women in the education system’. She asked if this was not the job of the government.
Ms Maluleke replied that everyone had a responsibility to educate and train people in both public and private entities. The idea was that now there was a need to have 50% of the trainees being women within a company. She stressed that private entities needed also to train their employees.
A discussion ensued as to whether the clause was too vague, and the words ‘as prescribed’.
Ms Maluleke replied that this issue had been tackled within the definitions. It would be too cumbersome to repeat it again in the main body of the Bill.
Domestication of international protocols
Ms Lamoela argued that the phrase ‘in compliance with applicable legislation and international agreements’ could not be taken out if there was a move to domesticate international legislation.
The Minister agreed and it was decided the clause should be put back in.
Ms Lamoela referred to the clause to facilitate compliance by designated public bodies. She said the provision ‘and designated private bodies,’ had been taken out, and questioned whether she was correct in her understanding that the Minister had at one stage suggested that this phrase be put back in.
Other Members indicated that they also had this understanding.
Ms Lulu Xingwana, Minister of Women, Children and People with Disabilities, noted that the Department had been following the submissions and the private sector had not wanted to take responsibility, which was the reason that it had been omitted from the ambit of this clause.
General effect of the Bill
Ms Lamoela expressed the view that the procedure being followed was very confusing, asked who the Bill was supposed to be benefiting and who it was affecting. She asked if there was clarity on what the effect of the Bill was to be. She said that maybe there needed to be more time taken to engage with this Bill and other legislation. She said she could not support the way that this was running, and stressed that the Committee was ‘doing this for women’.
Ms M Tlake (ANC) argued that nothing would be served by taking more time to look at the Bill. This was now the correct time to engage on the Bill, as the State Law Advisers were present, and she believed that this was a workable document.
The Chairperson urged Members to remember that this was still a draft, and it was precisely now that was the time to chop and change clauses, and the purpose of the meeting was to thrash through the problems.
Removal of phrase ‘private bodies’
Ms Lamoela raised again the matter of taking out the term ‘private bodies’, this time in relation to international obligations. She asked if it was not government who was subject to international provisions, or whether they applied to private bodies as well.
The Minister replied that when government legislated, it legislated for everyone. Everyone was bound by the laws that Parliament produced. There was no need to take out ‘private bodies’, because when this Bill was put into force, it would give effect to all the international protocols that spoke to the empowerment of women and gender equality. The private bodies would be subject to these protocols that then became law. The legislation was going to affect the community, the government, all municipalities, all spheres of government as well as the private sector.
Clause 6: Public education on prohibited practices, including gender based violence
Ms Lufundo said that the deletion of certain wording from clause 6(1) had been done because the private bodies could not be expected to perform functions of government. In this case the education of the public was the responsibility of government.
The Chairperson said it was not just the responsibility of government to educate people, as private bodies also had employees, and she did not agree with that deletion.
Ms G Tseke (ANC) also agreed that the private sector should be included, otherwise the clause discriminated against those within the private sector. She suggested that the deleted wording should be reinstated.
Ms Maluleke replied that the provision would be reinstated.
Concerns about duplication
An impromptu debate emerged at this point about whose role it was to monitor and whose it was to implement, in terms of the Department, the Committee and private bodies.
Ms Lamoela argued that this Bill was in many ways a duplication of existing legislation. There had been no consideration given to what legislation already existed, and this was her fundamental problem with the Bill.
Ms C Mosimane (COPE) said the mandate of this Committee was to monitor. She asked if the conclusion could not be reached that the role of the Minister was to monitor how things were done and that implementation was done by the Department?
Clause 7: Equal representation and participation
Mr Gary Rhoda, Parliamentary Legal Adviser, said there had been a concern on clause 7(2), dealing with political parties, that the clause might infringe on sections 18 and 19 of the Constitution. He said his office was willing to provide a legal opinion on this, but after a lengthy discussion he saw that it was not a justifiable limitation.
The Chairperson asked Mr Rhode to quote the sections of the Constitution, which he did.
Mr Rhoda spoke to the right of freedom of association and political association. He said that it was in some cases possible to infringe on the rights provided in the Constitution, but this had to be justifiable. One of the factors used to measure justification was whether there was a less restrictive means of achieving the object. The Parliamentary Legal Advisers thought that this was not a justifiable limitation, and suspected it might not pass constitutional muster.
Ms van der Merwe said that a political organisation was a voluntary organisation and once quotas and restrictions were imposed, this was in fact an interference with people’s constitutional right to vote as they wished. This was something that needed to be seriously considered, as the Bill needed to pass constitutional muster, and if there were any clauses that were open to attack on this ground, the Committee would not be achieving what it wanted to, with this legislation.
Ms Maluleke replied that this still needed to be discussed. The clause did not say that people did not have the right to join their preferred parties, but said that parties wanting to register with the Independent Electoral Commission must comply with certain conditions. She did not consider it was unconstitutional. The Constitution made equality a priority.
Ms Lamoela said interjected that the Constitution could not be changed, as it was ‘the Bible of the country’. She was concerned that this was over-riding the Constitution, as well as duplication of existing legislation. She asked why it was not possible, instead, to amend the previous legislation pertaining to empowerment. She was concerned that the Department of Women, Children and People with Disabilities (the Department) was now suggesting something unconstitutional, by trying to tell political parties what to do.
A visiting Member asked whether, in signing the international protocols that spoke to 50% gender equality, Parliament had signed protocols that were unconstitutional, and if so, what could be done about that.
Mr Rhoda replied that, in terms of section 231 of the Constitution, any protocol that the executive signed that was in conflict with the Constitution could not be approved.
The Chairperson asked if this meant the protocol asking for 50% representation had been ratified.
Mr Rhoda replied that he was not sure if it had been ratified, but that was not what he was suggesting. He was pointing to the clause in the Constitution that spoke to inconsistency. There could be instances when the clause could be seen as ‘absurd’, if, for instance, a party had only one Member, or if it was a party comprising only women.
The Minister said that she did not consider this clause was unconstitutional, and added that the Constitution contained references to equality, in the Bill of Rights, Chapter 2. She read out that section, and argued that this Bill was the legislation that would prevent discrimination as called for by the Constitution. She believed that this clause was fully backed by the Constitution.
Ms Lufundo repeated that the provisions of the Constitution were not absolute and the Court would look to that when looking at constitutionality. Should legislation be questioned, the Court would look at the objectives of the Act and balance this against the rights that were being protected, to reach its decision. The concept of some organisations not being able to fulfil the provisions, in terms of 50% representation, was covered as there were criteria on when the Minister could apply the Act. She said all this would be considered and an answer would be given to the Committee.
Ms van der Merwe asked why churches were included. They were voluntary organisations, and so were political parties. The problem was that this discussion moved from the premise that political parties did not include women because they were discriminating against them. It was, however, a constitutional right to choose the leader. These were the practical issues that needed to be taken into consideration.
The Chairperson asked if the matter could be set aside for the moment, for further discussion on the next day, so that Members now should continue with the clause-by-clause deliberations.
Ms Lamoela asked if clause 11 should not refer to more land in the hands of ‘family’, rather than ‘women’, in rural areas, as she wondered if the focus should not be so much on women as the family in general.
The Minister replied that to speak of ‘family’ was to envision a man at the head of the family. This was a transformative piece of legislation that sought to give access to land and access to resources specifically to women. There was a need to be explicit, and to recognise that women had been disempowered in a number of ways, culturally, racially and legislatively. She believed that a reference, in clause 11(b) to ensuring more land in the hands of family would actually permit the continued disempowerment of women in the rural areas in respect to land.
Clause 12 and others : Designated public body
It was stated that the deletion of the phrase ‘a designated public body’, where this had been deleted, should be reversed in all clauses.
Ms Lamoela asked if focusing on empowering women with disabilities was not discriminating against men with disabilities.
The Chairperson replied that at no other time had the discrimination of men been brought up, and it would be inconsistent if this point was brought up only in relation to disability. There was a need for consistency in terms of the empowerment of women across the board.
The Minister replied that although it was true that both men and women with disabilities were discriminated against, this Bill was not concerned with that in particular, but with the empowerment of women, whoever and wherever they were. The Department had been working on a policy on disability and it would be presented to the Committee once it was ready, specifically focusing on disability. Sometime, women with disabilities suffered more than men with disabilities. They were raped, murdered and also sometimes burdened with many children for whom nobody else was taking responsibility.
Ms More said that the Minister needed to conduct a review, and suggested that clause 15(1), stating ‘the Minister may conduct a review’ should be altered to read ‘the Minister must conduct a review', and that time frames also needed to be inserted.
Ms Tseke said there was a need to ‘name and shame’ those who did not adhere to the Bill, once it was passed. In particular, those businesses that did not adhere to the provisions of the Act needed to be highlighted.
Ms Lamoela said that private and public businesses could not be told how to run their business, as they created jobs and their taxes formed the basis of the social grants. She said that there was a need for government to work with business and not against them. Instead of naming and shaming organisations, she wondered if there was not some other way to bring in the organisations that were struggling to keep their doors open.
Ms C Mosimane (COPE) asked when women would be empowered, and for how long private businesses would continue to be protected.
The Chairperson said that the point had been raised that this Bill did not ‘have teeth’, and she asked what else was suggested, to increase its effectiveness, and allow for empowerment. She made the point that naming and shaming was one form of ‘adding teeth’ yet Members were now perhaps retracting on that point. She said that a lot of legislation was in fact not being implemented because it lacked the necessary impetus for implementation.
Ms Lamoela said she would fully support the empowerment of women, but was saying that it must be done in the right manner. She asked who was responsible for the implementation of the other pieces of legislation that had not been implemented.
Ms Maluleke replied that legislation that had not been complied with was not part of the work that was being done today, and this was tending to conflate different issues.
The Chairperson asked the State Law Advisers needed to look into the idea of private businesses, and reminded Members that these were in the position that they were, because of government in the past, that allowed them to be built on the backs of poor people, and it was time they gave back.
Ms van der Merwe said the clause was vague and if the Committee and Department were serious about giving the Minister powers there needed to be an amount set for the fine and also a time given to the length of imprisonment, as she argued that leaving this vague would render the legislation toothless. The Committee should not be accused of passing legislation for legislation’s sake alone, and she argued that naming and shaming would not be effective.
Ms Tlake agreed, but stated that naming and shaming would be a good place to start.
Reports on consultations within provinces
Ms Lamoela asked if there were there summaries or minutes kept of the consultations held with the various provinces.
Ms Maluleke replied that there had been consultative workshops within the provinces and some had been combined. Some had been conferences with over 1 500 women, and the Eastern Cape had been combined with the Northern Cape, as well as Northwest and Gauteng, amongst others. Full reports could be given, as well as registers of those who had tended.
Review of current legislation
Ms Lamoela asked if the Department had done a report reviewing the current legislation that dealt with female empowerment. She was very worried that a large amount of money could be spent on the Bill, yet nothing would come of it. She said that implementation had been a problem with other pieces of legislation.
Ms Maluleke replied that a lot of research had been done by various research councils and entities and there had been evidence that the current legislation had not been implemented. That had been one of the reasons behind the formation of this Department, and was also the reason for initiatives such as the Bill.
The Chairperson said she knew that all Members differed in their views but the intention of the Bill was appreciated. The purpose of this Bill had been to make sure that legislation was implemented.
She again apologised for coming late to the meeting.
The meeting was adjourned.
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