The Minister was in attendance at the meeting, which was to discuss the Women Empowerment and Gender Equality Bill (the Bill) further. The Chairperson noted that although, in relation to clause 7 of the Bill, it had originally been suggested that a third legal opinion be obtained to give further clarity, in view of conflicting opinions from the Parliamentary and State Law Advisers, that route was not able to be followed since the two previous opinions had not been in writing. The Special Adviser highlighted the clauses in contention. The Parliamentary Legal Adviser believed that clause 7 could not be said to be a justifiable limitation on the right to freedom of association, but also mentioned the power of the Electoral Court to consider any complaints. The State Law Advisers noted that it was not in fact for the legal advisers to give any final opinion on this point as only the Constitutional Court would be able to decide, taking a number of factors into account, what would be a justifiable limitation. The DA suggested that if there was a reference to 50% representation in political parties, this would still be problematic and the ACDP suggested that this would hinder the ability of people, including women, to vote as they wished. Members were divided in their opinions whether it would be necessary to obtain a third opinion or whether to do so would merely delay a process. Finally, the two advisers, having debated the issue further, suggested that the matter could perhaps be settled by proposing that clause 7(2) be deleted but clause 7(9) retained, as that would “give more flesh” to the Electoral Act without being too prescriptive. One DA member said that she would be unable to consent to such a substantive amendment without referring the matter back to her caucus, and the Minister said that it was unfortunate that this issue had become contentious only at such a late stage. She said that her Department was prepared to compromise but expressed her dismay that the DA did not appear to wish to do so, which led to a counter-statement from the DA that if the Department had implemented the legislation properly over the last five years, this Bill would not be needed. After some acrimonious remarks, the Chairperson asked that Members focus on the task, and respect each other's views. The Committee went through the Bill, page by page, to confirm that no other changes were required. The Bill and Committee Report would be dealt with formally at the following meeting.
Women Empowerment and Gender Equality Bill: Further deliberations and clause by clause deliberations
The Chairperson said that the meeting had originally been intended to hear the legal opinions from the State Law Advisor and legal advisor, and a third opinion that it was mooted should be obtained, but in the meantime the law advisors had reached consensus on the points discussed earlier, so that she thought the Committee could now make a decision.
Ms H Lamoela (DA) wanted to confirm that there was no third legal opinion obtained. She began to say that she had received the two legal opinions.
The Chairperson cut her off, saying that Ms Lamoela was now jumping the gun, as it was not correct that two written opinions had been obtained; in fact only verbal opinions had been expressed. The legal advisors should give their verbal opinion, and from there the Committee would decide whether it was necessary to seek another opinion.
Ms Lamoela said that last week it had been decided that the Speaker should seek a third legal opinion.
The Chairperson stressed that another legal opinion could only be sought once the previous two legal opinions were reduced to writing and that had not happened.
Presentation on changes to the Bill
Ms Joyce Maluleke, Special Adviser to the Minister, began to present on the Bill in its entirety.
The Committee, with the support of the Chairperson, asked if she could merely go to the relevant clauses that were still being debated.
Ms Joyce Maluleke said ran through the changes as highlighted.
Legal opinion on clause 7
Mr Gary Rhoda, Parliamentary Legal Advisor, said that it was the opinion of his office that clause 7, as presently worded, did not provide justifiable infringement on section 19 of the Constitution, which referred to freedom of association, due to the fact that these were voluntary organisations. It was his legal opinion that there were less restrictive means of achieving the aims, particularly in view of the Code of Good Conduct in the Electoral Act, which required political parties to respect rights. He also wanted to highlight that the Electoral Court had the power to consider any complaint.
Ms Bongiwe Lufundo, Principal State Law Advisor, Office of the Chief State Law Advisor, said that she had previously set out in her response on this point that none of the rights in the Constitution could be regarded as absolute, and she quoted section 9 (1) of the Constitution. However, it must be noted that the legal advisors were not the ultimate arbitrators on this point, not being akin to the Constitutional Court. Whether there was a justifiable limitation, and the considerations of reasonableness when rights were infringed, would be decided upon by the Court. When making its decision, the Court would look, amongst others, at the objectives of the legislation and what it sought to do. The short view would be to look at the Bill, as it sought to bring about changes to section 9 of the constitution. It was her view that the Bill served a government purpose, and served the provisions of section 36. The court would look at all the relevant factors.
Mr Rhoda agreed and wanted to highlight that none of the legal advice given could be equated to the decisions that would finally be made by a court of law and it was up to the Committee to make the decision.
Ms Lufundo said that Mr Rhoda had suggested coming up with a less restrictive means to achieve the end, and had suggested that the Electoral Act already tackled the issue. She said that the Committee was trying to achieve the same purpose. She stated that she would like the Committee to clarify the term ‘political activities’.
Ms E More (DA) said she was of the opinion that there was still a need for a further legal opinion.
Ms Lamoela said that the legal opinions before the Committee were conflicting, and there was no clear view on how the Committee needed to proceed. She asked that the process should not be rushed and that a third legal opinion should be sought. She did not see how the Committee could proceed without a clear legal opinion on the constitutionality.
Ms C Diemu (COPE) agreed that there was a need for a third legal opinion. She also said that it would be interesting to hear whether there was any degree of commonality between the two opinions, as this was not clear to her, and any areas where the two advisers were in consensus with each other.
Mr Rhoda said that the points where they agreed related to the idea that the Committee had now to decide on the matter, as the legal advisers could only proffer their opinions and not state which would be the correct conclusion.
The Minister did not believe that there was any need to seek a third opinion merely for its own sake, and thought that this was a delaying tactic. She asked if the legal advisers might be able to suggest wording that would not compromise the Constitution but would serve the objects of the Bill. She agreed with Ms Lufundo that no right in the Constitution was absolute. The rights of women were in many ways being violated, and women were often not able to speak for themselves when this happened, or were engaged in other tasks. This clause would help to achieve the goal of 50% representation. She asked again if it was not possible for the legal advisers to draft something that spoke to the concerns raised.
Ms More wanted to ask how this new clause would be constructed. She felt that as long as there was a reference to 50% representation in political parties, this was a problem.
Ms Lamoela said she was not trying to use delaying tactics. She again asked why another legal opinion should not be obtained, to put the Committee on the right track. She had expressed her concerns on duplication numerous times. She had studied the document and to her mind this merely confirmed that there was duplication across the legislation. She asked why there appeared to be such a rush to get this Bill through.
Ms C Dudley (ACDP) felt that clause 7 undermined the freedom of people to vote for whomever they wished. She felt that this was disempowering also to women, as they too would not be able to vote necessarily in the manner they wanted. Her fear was that things were being imposed on political parties that stifled them.
The Chairperson said the two legal opinions were merely two ways of looking at the same issue. She said that one point to be discussed was whether political parties ceased to be voluntary when they received government funding, and whether political parties became public bodies once they came to government. Members of those parties received a salary from government and she wondered if this was not a double standard. She again stressed that when she had gone to seek a third legal opinion, she had been told that unless the previous two opinions were in writing, a third one could not be obtained, and this was where the Committee seemed to be at the moment.
Ms Lufundo said that after a brief discussion with Mr Rhoda there was now a suggestion to remove clause 7(2) but keep clause 7(9). The legal advisers believed that (9) covered the concern without mentioning political parties, and the same objective would be achieved.
Mr Rhoda said he agreed that the removal of (2) and keeping (9) “gave more flesh” to the Electoral Act without being overly prescriptive.
Ms Lamoela asked if this amendment was to be accepted by the Committee.
The Chairperson said that this was the proposal before the Committee.
Ms Lamoela said that the DA representatives could not accept an amendment now, without reverting to the party as this was a substantive change to the clauses. DA Members of the Committee could not unilaterally decide to accept amendments to clauses.
The Chairperson said that unfortunately the Committee could not wait for the DA to go back to its principals. The contentious issue had been the inclusion of political parties, and this was not being deleted.
The Minister said that it was unfortunate that there had not been this in-depth discussion on the clause when the Bill was first brought to the Committee. At the outset, there had not been opposition noted to the clause then, but only now when the process was coming to a close. .Now that the issues had been tackled, and there seemed to be an agreement, the process could not be halted. The Department of Women, Children and People with Disabilities (DWCPD) had originally had a different proposal but would be prepared to compromise, in the interests of taking the Committee forward. It was not her personal interest or ego or her political party that counted, but all those present today were here for the women of South Africa, who had been waiting for empowerment for the last 400 years. She thus supported the proposal of the legal advisers to remove sub-clause (2) but to keep sub-clause (9). Members had pronounced that this Committee was supporting women but in fact seemed to be supporting minority interests of big capital and the interests of their own ‘little party’. Those present here were supposed to promote the interests of 52% of the population – the women of South Africa. Some of the laws had been in place for years, and had not changed the rights of women. That is why this Bill had been brought forward, to promote the lives of women and girls in South Africa. She reiterated that her Department was prepared to compromise in the interests of making progress.
Ms Lamoela said that now the DA seemed to be under attack. She said that the Department had not implemented legislation for the past five years, and if this had been done, then the Committee would not be sitting with a Bill of this nature. The Committee would have been able to present audited reports in terms of the oversight that had been conducted. The DA was not looking at minority interests, or its own interests, but the democratic rights of each individual, and there was no component that wanted to override the state. She heard the Minister's remarks that this was nothing to do with “her party” but felt that in fact that was a prime consideration and expressed the view that this seemed to be a last ditch attempt by the Department to secure the next five years, by pushing this Bill through. However, in view of the huge failures over the last five years, which resulted in the DWCPD not meeting its own targets, she doubted that it could implement a Bill of this nature.
Ms G Tseke (ANC) raised a point of order, stating that she felt Ms Lamoela was out of order.
Ms Lamoela refused to acknowledge that point of order.
Ms Tseke said that if Ms Lamoela knew her job she would know she had a responsibility to conduct oversight and ensure that the laws and policies of government were implemented. She said she felt Ms Lamoela had failed.
The two Members proceeded to disagree strongly with each other.
The Chairperson managed to restore calm and urged Members to behave in an honourable and responsible fashion and respect each other.
She asked the legal advisers to repeat their advice.
Ms More said the DA would be prepared to supported the deletion of subclause (2).
The Chairperson summarised that on the following day the Committee Report on the Bill would be adopted.
The Chairperson asked if a clause-by-clause reading was required.
Mr Rhoda replied that a page by page reading would be more efficient and there was no need to go through the whole Bill, clause-by-clause, as there was in fact no legal requirement for this.
Ms Maluleke then ran through the amendments page by page.
Ms Lamoela wanted it to be recorded that the DA was not able to state that it would agree to the Bill as the DA members had to revert to their political principals. Her opinion was thus reserved.
The Chairperson said that the Bill and final report would be adopted formally at the following meeting.
The meeting was adjourned.
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