The Committee, in the presence of the Minister, continued to discuss the latest amendments (as at 18 February) to the Women Empowerment and Gender Equality Bill. The Chairperson noted that since the legal advisers and Members had been unable to agree whether clause 7(2) should be permitted to set out a specific requirement of having 50% women, and whether this was constitutionally sound, the Speaker had been asked to get a third legal opinion, and this clause would have to stand over until then for further debate. However, Members were taken through the other amendments effected. They were happy with the definitions. In clause 2(2), the Parliamentary Legal Adviser suggested that perhaps there should be a provision to allow private or public parties to give an opinion as to whether they should be made subject to the provisions of the legislation, since the declaration was essentially an administrative act on which they had a right to be heard. The legal advisers for the Department of Women, Children and People with Disabilities (DWCPD) did not agree, and wondered if this was necessary. In respect of clause 3, there was again debate on whether the reference to private bodies should have been deleted, since there were international obligations to be upheld, but it was eventually agreed that the same goal could be achieved by deleting the references to both private and public bodies. In clause 3(b), the Committee, at the suggestion of the Parliamentary Legal Adviser, decided that the word ‘structures’ should be expanded upon as it was rather vague. Clause 9(7)(d) changes were agreed to. It was suggested, after hearing the Minister’s explanation on clause 10, that the clause needed some reworking to make its intention clear. The phrase “all applicable legislation” was to be removed from clause 13. The legal advisers would try to come up with an alternative phrase for “naming and shaming”. Clause 20’s use of ‘may’ and ‘must’ was flagged for further consideration. It was clarified that the Schedule 1 figures sought to align with current, not future processes.
Women Empowerment and Gender Equality Bill: Presentation of Amendments as at 18 February 2014
The Chairperson reminded Members that when they had discussed the Women Empowerment and Gender Equality Bill on the previous day, there had been a disagreement on the issue of whether clause 7(2) should be permitted to set out the requirement of having 50% women. There had been debate whether this was or was not constitutionally sound. She asked that the matter not be revisited in this meeting because Parliament was to seek a third legal opinion on the matter. She asked the Members now consider only the remaining clauses, and asked the Department of Women, Children and People with Disabilities (DWCPD or the Department) to take the Committee through the latest amendments.
Ms Joyce Maluleke, Special Adviser to the Minister, said the yellow highlights and green highlights showed the changes made following the meeting held on the 18th of February. She proceeded to run through the amendments on the first page.
The Chairperson asked for the Parliamentary Legal Advisers to comment on the first page.
Mr Gary Rhoda, Parliamentary Legal Adviser, replied there were only grammatical errors, and nothing of major import to the Bill, being effected on page 1 of the latest draft.
Clause 1: Definitions
Ms Maluleke ran through the definitions. All were stated to be acceptable by the legal advisers.
Further amendment to Clause 2 (2)
Mr Rhoda suggested that it may be useful to include, in clause 2(2), a provision to allow private or public parties to give an opinion as to why they should or should not be subject to the provisions. This was an action that was administrative in nature, and in its legislative intent, and would be “automatic”.
Ms Maluleke queried if it was really necessary to include such a provision if it was ensured in other legislation. There was a slight disagreement and further discussion between the two legal advisers on this point.
Ms H Lamoela (DA) stated that this had been her problem with the previous meeting. There seemed to be unhappiness and uncertainty on various issues. She also stated that, from the beginning, the Committee had had very little say in the Bill, despite the fact that it was now for the Committee to decide on the ultimate wording, and not the Department.
The Chairperson said the Department was not present per se, as it was legal advice from Parliament Legal Services that was being sought at the moment. She said that no one was disagreeing with the Member.
Clause 3: International obligations and designated private bodies
Mr Rhoda asked why the clause read ‘facilitate compliance by designated public bodies, with the country’s commitments to international agreements’. He wondered why the clause did not include private bodies any longer, noting that at some stage this term had been deleted. He stated that there was a need to include the phrase ‘and designated private bodies’ as there were international obligations to be upheld.
Ms Lulu Xingwana, Minister of Women, Children and People with Disabilities, said this legislation was domesticating the international instruments. Hence when the Act came into operation, then all would be subject to the international obligations that were being upheld by the Act.
Mr Rhoda replied that, with respect, he disagreed with the Minister, as it could not be a wholesale domestication of the international agreements. There had to be individual acts that allowed for domestication of each ratified protocol.
Ms Bongiwe Lufundo, Principal State Law Advisor, Office of the Chief State Law Adviser, argued that within the Constitution there was a clause that spoke to a ‘self executing provision’.
The legal advisers again discussed this point but could not come to an agreement.
The Chairperson said that ultimately the Committee was to make the final decision on the matter.
Ms Bongiwe Lufundo, giving a brief overview of the legislation and other documents, stated that that the Committee would still achieve the same goal by deleting the phrase ‘designated public bodies and designated private bodies,’ in clause 3(b). This would remedy the problem that could be raised by deleting only the reference to ‘designated private bodies.’
Mr Rhoda agreed.
The Chairperson said it would be far easier if the two legal entities could come to a agreement, as it would make the work of the Committee easier.
Ms Joyce Maluleke continued with Chapter 2, Social development.
Chapter 2: Social Development issues
Gender mainstreaming amendments
Mr Rhoda commented that, in clause 8(2), the word ‘structures’ was too vague. He suggested either expanding on this or removing it altogether, as its removal would not affect the meaning or import of the clause.
Ms Maluleke said that the Department had been referring to community structures and not buildings, as it was not possible to have ‘gender mainstreaming’ in a building.
The Committee came to a recommendation that the word should be further defined or clarified
The Minister said that in a previous meeting it had been decided that the clause should read ‘consideration, review and guidance’ in order for there to be consistency, and this was the reason for the change.
Members agreed on that point.
Mr Rhoda asked for more clarification on clause 10(3)(b) and the phrase ‘productive resources’, in order to assess the legality. He suggested this be expanded on.
The Minister stated that the intention of the clause was to ensure that women had access to the natural resources of the country, which would ensure they were empowered. At the moment women did not have access to mines or land, and this needed to be remedied, with the help of the private sector. This was a notion that had been taken from the international protocol.
Mr Rhoda stated that the Chief State Law Advisers and he could now consider the further refinement now that he knew the intention of the Minister and Department.
Mr Rhoda commented, in relation to clause 13(2), that there had already been compliance measures and reporting structures set up within other pieces of legislation - for example the Equity legislation - and the clause would be able to function properly if the phrase ‘all applicable legislation’ was removed.
Ms Maluleke conceded that it would not make a substantial difference if this phrase was removed.
Principle of Naming and shaming
Mr Rhoda suggested legal team could come up with a better phrase than “naming and shaming” to be used in the Bill.
The Members agreed that the legal advisers should be given the time to conceptualise another phrase and if they were not satisfied then they could always revert back to the previous phrase. The reformulation would be accepted, as long as the context was not changed.
Ms M Tlake (ANC) said that clause 20(1) identified a critical point, that there was a need to provide a framework in order to implement gender mainstreaming. This had been a hindrance in terms of implementation in the past. The word ‘may’ needed to replaced by the word ‘must’.
Mr Rhoda said the word ‘may’ empowered the Minister, but the Member’s concern was addressed in clause 20(2), which spoke to ‘must’. He said this was, however, a policy issue and ultimately the decision lay with Parliament.
Mr Rhoda said that the mention of the Employment Equity Act, that took into account gender and also race and the totals did not reflect the numbers applicable to 2014 into the future. He was not sure if the Members wanted to change the totals in the future.
Ms Maluleke said she was grateful for the suggestion, however this Schedule sought to align to current processes and allowed for reporting to be on the same level.
Ms Maluleke began to read through Schedule 2 but was interrupted by the Chairperson, saying that the schedule could be read during the Committee Members’ own time.
The Chairperson again reminded the members that the Bill could not be concluded because of clause 7(2), and until the Speaker had sought, and received a third legal opinion, the Bill would not be discussed again.
Mr Rhoda said that the amendments made today would be included in the next version, regardless of the date on which the new opinion was received.
The meeting was adjourned.
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