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Meeting report

JOINT AD HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
19 January 2000
DELIBERATIONS


Documents handed out

Redraft No E12
Redraft No E16 (evening session)

SUMMARY
Morning session

The Committee engaged on a refining process of the whole of Chapter One.
The new Preamble was found to have been correctly drafted. The definitions were looked at and a few changes made including the deletion of the definition of "racial discrimination". The Committee was satisfied with the drafting of the Guiding Principles and only one minor change was made on the Section dealing with Application of Act.

Afternoon session
The committee examined certain clauses from Chapter One all the way through to Chapter Four. Chapter 2 and Chapter Three have been collapsed into one chapter. During the second half of this session, the meeting was adjourned for party caucusing.

Evening session
Discussion of Chapter 4 continued, particularly regarding the burden of proof and the determination of fairness. Chapters 5 through to 8 were also looked at.

MINUTES
Morning session
Mr M Moosa (Chairperson, ANC) informed the members they would be going through the Bill as part of a refining process.

CHAPTER 1
Long Title

Professor Gutto of the Drafting Team said the Long Title is not contentious at all. He advised the Committee to work on the main body of the Bill and then if anything needs to be done on the Long Title, it will be attended to. The Committee accepted the suggestion.

Preamble
The Chairperson asked that the old Preamble as it appears in Redraft No E12
must be deleted and the new Preamble as drafted by Mr B Turok (ANC) be used.

Mr M Peko (PAC) challenged the grouping of 'patriarchy' with "serious issues like colonialism and apartheid". He warned that it should be left out or be put somewhere else. Professor Gutto informed the Committee that patriarchy could be used sociologically and legally. He said patriarchy has existed since before colonialism and he refused to accept that it undermines colonialism. Professor L Ndababandaba (IFP) said that as he is a traditionalist himself, he felt that patriarchy is covered by the concept of non-sexism. Mr C Aucamp (AEB) supported Mr Peko's contention that 'patriarchy' should be left out. After Mr K Moonsamy (ANC) had defended the grouping together of patriarchy with apartheid and colonialism in the Preamble, the Chairperson ruled that the concept must be included because the broad view is that it should.

The Committee found the rest of the Preamble to have been correctly drafted.

Definitions
The Chairperson advised that he would deal only with those definitions that he felt needed consideration. He invited the members to raise any concerns they might have with any of the definitions.

"Clerk of an Equality Court" – The definition was discussed, the main concern being why the words "a clerk" had been included in the definition. The Committee agreed that the definition is suitable as it is.

"Constitutional Institution" – The definition was discussed and found to be correct.

"Family Responsibility" – Prof Gutto said he believed "immediate" should be removed because it will lead to discussions on what is immediate and what is not. He further proposed that "requiring care or support" must also be deleted. Mr M Madasa (ACDP) argued that it is unnecessary to define family. Ms N Tsheole (ANC) concurred. Chairperson ruled that the definition be bracketed for later discussions.

"Harassment" – Ms N Tsheole suggested that "may" replace "is" in the first sentence. Professor S Gutto maintained that "is" is much more precise. The Committee considered the matter and were convinced that "is" is more suitable.

"Marital Status" – Ms S Camerer (NNP) argued that one is either married or not and she urged the Committee not to change the dictionary and legal meaning of marriage. Mr D Hanekom (ANC) said that the definition is for the purposes of this Bill and not for any other law. Thus, whether or not the definition differs with definitions in other laws, is immaterial. Mr S Grove (ANC) reminded the members that the definition that the Committee was concerned with is not the definition of marriage but of marital status. Ms S Camerer (NNP) nonetheless maintained the definition is mixed up. The Chairperson closed this discussion saying the definition would have to be voted on.

"Pregnancy" – Mr M Madasa (ACDP) asked for an explanation of how termination of pregnancy can be defined as pregnancy. Ms T Madonsela explained that the definition is based on instances where pregnancy discrimination takes place. She reasoned that when a woman terminates pregnancy she might not receive all the benefits which a woman who carries the baby to the full term has. The Committee agreed on the definition.

"Prohibited grounds" – The Chairperson said the words "includes" and "one or more of the following" must be deleted so that the definition reads: "Prohibited Grounds are – (a)…..(b)… ".

The Committee discussed Part (b) of the definition and though agreeing on the formulation, they differed on the arrangement of the subcluases. They decided the matter must be considered later.

"Racial Discrimination" – Mr R Davies (ANC) proposed that the definition be deleted because this term is not used in the Bill. Ms T Madonsela pointed out that the term is used in Section 12. The Committee agreed that wherever the term 'racial discrimination' appears in the Bill, the words of that sentence or paragraph must, if possible, be replaced with some other words so that the definition can be deleted. In the mean time the Committee deleted the definition.

"Sector" – The Committee was of the same view that the definition must be considered later.

"Socio-economic status" –Prof Gutto read out his own version of the definition. The Chairperson asked him to insert this version into the Bill and mark it as an option.

Objects of Act
Section 2(a) and (b). The Chairperson appointed Mr R Davies (ANC), Ms D Smuts (DP) and Ms T Madonsela of the Drafting Team to form a task team that will work on and produce acceptable formulations of this section.

Section 2(c). The Chairperson said he is worried by the constant use of the word "progressive" even when it is not necessary. Mr K Moonsamy (ANC) supported him and said "progressive" is not needed in this section. The Chairperson ordered that the word be deleted. Ms S Rajbally (MF) proposed that age be grouped together with race, gender and disability. The Chairperson complained about the obsession that some members have with age. He said that politically a decision had not yet been taken whether age need to be given a special emphasis. Professor Gutto supported him.

Section 2(d). Professor S Gutto proposed a re-draft of this Section.

Section 2(e). This Section was found to be suitable.

Section 2(f). The Chairperson said he felt the wording of the Section is repeated somewhere else. He ordered that hate speech and harassment be taken out.

Section 2(g). The section was found to be correct.

Interpretation of Act
Section 3(1)(a). Professor B Turok (ANC) proposed a re-draft of the Section so that it reads "The provisions in the Constitution include the promotion of equality through legislative and other measures designed to protect or advance persons disadvantaged by past and present unfair discrimination". Mr Basset from the Department defended the present formulation of the section, and the Committee supported him.

Section 3(1)(b). This was found to be correct.

Section 3(1)(c). The Committee agreed to delete this.

Section 3(2)(a). The Chairperson queried the fact that this had been drafted into the Bill. Mr B Turok (ANC) supported him and, as an example of the unpopularity of clauses like this, said that the Banking Council had stated that it would not be subject to clauses on codes of practice in any law. The Chairperson said the clause must either be deleted or the words "code of practice" be deleted. Ms T Madonsela of the Drafting Team defended the clause and said no code can override a statute. Professor Gutto said that despite the ambiguity in the clause, it is extremely important. Mr C Aucamp’s view was that relevant law must be considered in interpreting this law. The Committee agreed that the wording must be changed.

Section 3(2)(b). The Chairperson argued that "must" should be replaced by "may". He warned that clever attorneys might abuse the requirement and demand the presiding officers read bulky foreign law. He said they might do that in order to delay the proceedings and to frustrate complainants who would be very poor and thus unable to sustain the proceedings. He said the "must" is not a requirement as this law is not a Bill of Rights. Mr Surty (NCOP, ANC) disagreed. Mr D Hanekom (ANC) challenged that unless there is a strong argument by the Chairperson, there was no reason that problems should be found with the formulations in (b), (c) and (d). The matter was left for future discussion.

Section 3(3). This was left for future discussion.

Section 3(5). The Committee was of the same mind that this must be deleted.

Guiding Principles
The Committee was satisfied with the section as drafted.

Application of Act
The Committee found no problems here and accepted that the phrase "to unfair discrimination" in 5(2) be deleted.

Afternoon session
The committee revisited certain sections of Chapter 1 before continuing with Chapter 2. In Chapter 1, there was a proposal that clause 3(2)(d) be left out. The committee consequently decided to delete all of Clause 3(2) and (3) and replace it with the following:
‘’Any person interpreting this Act may be mindful of :
any relevant law, or code, or practice in the law;
international law (particularly international agreements referred to in S2);
foreign law

Mr Grove (ANC) indicated that he would like to draft the Guiding Principles differently. The Chairperson did not entertain discussion on the matter but said that this section would be flagged until a redraft had been prepared by Mr Grove.

CHAPTER 2
Clauses 6, 7 and 8

In clause 6, the Chairperson indicated that the words ‘’directly or indirectly’’ could be deleted as the word ‘’discrimination’’ automatically referred to both direct and indirect discrimination.

The committee agreed to the deletion of clause 7 and 8 in this chapter.

He instructed the drafting team to have regard to the manner in which this Chapter related to the Labour Relations Act and the Employment Equity Act, if they related to each other at all. Chairperson Moosa said that what he wanted in this chapter was a statement which would allow managers to see, on the face of the statement, what it was that was expected of them.

Clause 9
Their was a proposal that the ‘’Prohibition of hate speech’’ clause be placed before the ‘’Prohibition of dissemination and publication of unfair discriminatory information’’ clause. This was agreed and the Chairperson noted that this was merely a structural change and told the drafters that the new clauses would have to be renumbered.

The following formulation was proposed for the ‘’prohibition of hate speech’’ clause:
‘’Subject to the proviso in S9, no person may publish, propagate, advocate, or communicate words that could be construed or which demonstrates a clear intention to:
to be hurtful, or
to harm or incite to cause harm, or
to promote or propagate hatred
against any person on any one or more prohibited grounds.

Ms Smuts (DP) approved of this formulation remarking that it ‘’sounded promising’’ as it was important to bring this section in line with S16.

Ms Camerer (NNP) said that they should insert ‘’reasonably’’ into it to read: ‘’words that could be reasonably construed’’ and then she would ‘’think about it’’.

The Chairperson added that they would be deleting footnotes 7 and 8.

Clause 11 Prohibition of harassment
Clause 11(1) refers to the definition of harassment in clause 1. The Chairperson indicated that it was undesirable to make such a reference and said that the clause should read:
‘’No person may subject another person to harassment’’.

Professor Turok (ANC) said that the interpretation clause in the Bill would provide the sense with which the harassment clause was intended to be used with. This was accepted.

Chairperson Moosa said that clause 11(2) would come out completely.

CHAPTER 3
The Chairperson decided to delete the Chapter 3 heading so that its clauses would now fall under Chapter 2. The effect of this would be that all the Chapter 3 clauses (clauses 12, 13 and 14) would no longer be subject to section 8, but would be amended to be subject to section 6 of Chapter 2.

Clause 12
The Chairperson said that this clause would now read: ‘’Subject to section 6, no person may ....." Ms Camerer said that she had a problem with the reference to section 6 as she thought that it was repetitive. The Chairperson said that, even if they were being repetitive, the idea was to emphasise the ground of race.

The committee indicated that the subclauses to clause 12 need not be discussed.

Clause 13
The committee indicated that the words ‘’direct’’ and ‘’indirect’’ would come out of this clause. Ms Camerer said that subclauses (e) and (g) were tautologous in that they both referred to ‘’education’’. The Chairperson agreed to delete it under (e) but said that it would have to remain in (g).

Mr Aucamp (AEB) was unhappy with the inclusion of the words ‘’religious practice’’ under clause (d). He said that it was not for a magistrate or a judge to dictate to people how to practise their religion. The courts did not have the authority to interpret religious issues and to decide that a particular religious code was discriminatory or not. According to Mr Aucamp religions have a kind of ‘’sovereignty’’ and, as such, they should have the power to make their own religious decisions (example, how a particular religious rule or code should be interpreted). He was adamant that the State should not interfere in religious matters, and, accordingly, he did not think that it was necessary for the Act to highlight ‘’religious practice’’ as a ground upon which discrimination could be claimed.

The Chairperson explained to him how the clause would operate by using the following example:
If a Muslim woman believes in and supports conservative Islam, and her religion provides that she cannot go to mosque with men, then she cannot challenge that practice, and cannot claim discrimination (because she subscribes to the philosophies of that interpretation of the rules of her religion).
If, however, the woman is not a conservative Muslim, and she believes that the Qur’an is being interpreted incorrectly, and she is being discriminated against, then she can take the offending party to court to challenge their interpretation on the grounds of "religious practice’’.

The Chairperson continued that if a person feels discriminated against by a religious practice, this does not automatically mean that that religious practice is considered unfair. It simply means that the party who feels that he has been the victim of a discrimination may go to court to challenge that particular interpretation of the religious practice. The court may or may not find in favour of that party.

The committee indicated that they were happy with (g), (h), and (i).

CHAPTER 4
Clause 16

The Chairperson noted that the words ‘’prima facie’’ had been reinserted into clause 16. Mr Hanekom said that the clause should read ‘’a prima facie case of discrimination’’ not ‘’ ’a prima facie case of unfair discrimination’’. The Chairperson remarked that he was absolutely correct as they were now dealing with a fairness test.

The Chairperson also noted that the respondent would be able to rebut the presumption of unfairness in more ways than those recognised in the Bill. He used the following example to demonstrate his point:
A complainant says that a company would not sell apples to him because he is Black. The respondent, to prove the fairness of the Act, must prove either (a) or (b). But, according to the Chairperson, the respondent could, in his defence, also claim that there had been a misunderstanding, or a misinterpretation, or even that the complainant is simply lying. Thus, in such a case, the issue would not even be discrimination, but it would be a defence to the claim.

The Chairperson said that this possibility had not been included in the section and that the drafters should consider it with the intention of possibly adding it.

Evening session
Section 16

The committee continued discussing the section. If the complainant makes out a prima facie case, the respondent then bears the onus to rebut. The respondent can say either that discrimination is not on a listed ground, or that it is, but it is fair. Mr Aucamp noted that there is no provision for what the respondent could do if s/he wished to demonstrate that the complainant’s case is not factually true.

The Chair noted that provision must be made for this. Mr Grove suggested providing that the respondent could refute the complainant’s case. The Chair preferred a narrower formulation providing that the respondent may refute the complainant’s case by providing evidence. Prof Gutto noted that what should be provided for is the respondent’s option to rebut on the basis of the facts. There Chair noted that if the respondent succeeds in this respect, there can be no discrimination and s.16(1) cannot apply. He proposed three steps after the complainant had established a prima facie case: The respondent must prove either 1) that the discrimination did not take place, or if unsuccessful, 2) that the discrimination is not on a prohibited ground, or if again unsuccessful, 3) that the discrimination is fair.

Adv Madasa supported this formulation. Prof Gutto proposed a similar three alternatives, the first being based on the failure of the complainant to establish that discrimination on the facts. Secondly, that if discrimination is established, it is not based on one or more of the prohibited grounds. Thirdly, that if the discrimination is on a prohibited ground, it is fair.

The Chair explained that in practice, a prima facie case of discrimination would need to be established on the complainant’s papers before the court. In the respondent’s pleadings, s/he would respond to the allegations and would include the options as alternative defences. At the trial, the complainant would go through his or her plea after which, if the presiding officer has decided that there is a prima facie case of discrimination, the respondent must set out his or her defences.

Mr Hanekom queried whether failure to establish that the discrimination was not on a prohibited ground (alternative 2) constituted proof that the discrimination was on a prohibited ground. The Chair confirmed that it did and that the respondent had to then move to the third option, proving that the discrimination was fair.

The Chair continued that this would then lead onto section 17 - the determination of fairness. Prof Gutto noted that the above process did not imply that the complainant had to be silent while the respondent goes about proving his or her case. The respondent will be able to intervene and rebut.

The Chair suggested using one sub heading - ‘Burden of Proof’ - to cover sections 15 & 16 and another separate sub heading - ‘Determination of Fairness’ (section 17). These two components would then come under a general heading of a new Chapter 3 - ‘Burden of Proof and Determination of Fairness or Unfairness".

New Section 17 - Determination of Fairness or Unfairness
The committee discussed the new draft of section 17 (underlined version).
Section 17(1) - Ms Smuts argued that affirmative action (17(1)) be treated precisely the same as reasonable and justifiable differentiation (17(2)) ie. that a similar consideration of the factors should be involved.

The Chair responded that this should not be the case because affirmative action is specifically provided for in section 9 of the Constitution. He continued by confirming that the ‘reasonableness and justifiability’ inquiry must come within the overall balancing - they cannot stand alone.

Section 17(2) now states three primary issues to be balanced against each other - a) context, b) the factors in the section 17(3), and c) whether the discrimination reasonably and justifiably differentiates on the stated criteria. These three issues are different from the listed factors. He continued by saying that ‘reasonableness and justifiability’ is now more than a factor but that it remains to be treated distinctly from affirmative action. If it is established that a case is one of affirmative action, the matter is finalised. If it is not, the three issues ((a),(b) & (c)), must be balanced to determine fairness or unfairness. He emphasised throughout that ‘reasonableness and justifiability’ cannot stand alone as a separate evaluation.

The debate surrounding the different treatment of affirmative action and the other forms of discrimination continued. The Chair repeated that the inquiries are different. Ms Camerer noted her position that factor 17(3)(f) - rationality - should stand alone and not be simply one of the factors.

Prof Gutto reiterated the point that that there is a constitutional justification for making special provision for affirmative action. Mr Turok drew attention to the two objectives of the Act: Prevention and promotion. Affirmative Action is required to be treated separately as a measure of promotion. If this is not provided, it becomes a matter of prevention thus undermining the purpose of the Act.

Ms Camerer felt that present formulation treats ‘reasonableness and justifiability’ as no more important than the listed factors in 17(3).

Ms Smuts and Ms Camerer were then invited to put forward an alternative proposal and while this was being formulated, the committee would deal with the rest of section 17.

S.17(1) - The Chair noted that ‘historically’ had been deleted. There were no further problems with this formulation of affirmative action.
S.17(2)(c) - The Chair remarked that this is a wide formulation and cover not only economic criteria.
S.17(3)(a) - Ms Smuts stated that ‘possible’ was too wide. The Chair proposed that ‘likely’ be considered.
S.17(3)(b) - No concerns were raised.
S.17(3)(d) - Ms Camerer remarked that this could be void for vagueness. Mr Aucamp supported this.
S.17(3)(e)-(h) - These were generally accepted as was a proposal to swap (d) & (e).
Pruf Gutto noted that s.17, especially s.17(c) is derived from the limitations clause of the Constitution (s.36) and from Constitutional Court jurisprudence.
S.17(4) - the Chair remarked that s.17(4) should not be included here and proposed that a clause in s.18 be included providing that in cases of hate speech and harassment, s.17 does not apply.
Footnote 14 - The chair noted that since section 30 deals with special provisions regarding race, gender and disability, this should not be mentioned here and that the footnote should be removed.

The Chair continued by saying that by the end of the evening there would be a substantial Bill except for some issues raised by the opposition and whether and how to include special prohibitions. He set out the programme for the rest of the week: Thursday’s meeting would convene at 14h00 after caucus discussion and could continue into the evening. On Friday there would be an attempt to have voted on the Bill by 16h00. However, if the Committee’s work was not done, it may be required to sit over the weekend. He stated that the Committee must have adjourned by the beginning of the next week.

DINNER BREAK

The Chair resumed by noting a difficulty with the new section 16(c) - it repeats s.15. It was proposed that s.15 should become s.16(c). Further, the old s.16(a), which is now s.16(b), should use the word ‘conduct’ and not ‘discrimination’ since the definitions section takes care of determining what constitutes discrimination.

CHAPTER 5 - EQUALITY COURTS
Section 18 - Equality courts and presiding officers
S.18(1) - The Chair remarked that (a) was fine and noted the objections regarding the political nature of (b) - designation of officers by the Minister.
S.18(2) - The Chair remarked that this provision was ‘wordy and convoluted’. Ms Madonsela explained the provision - it provides the Labour Court and Commission for Conciliation, Mediation and Arbitration (CCMA) with the jurisdiction of Equality Courts. The powers of the CCMA are, however, limited as the CCMA is more like a tribunal than a court. Mr Aucamp noted that one of the competent orders of the CCMA is s23(2)(l) but that s.23(2) contains no such provision. This was noted. The Chair questioned why the CCMA could not make a s.23(2)(f) order (restraining conduct and ordering steps). Ms Madonsela responded that s.23(2)(f) is like an interdict which only a court is competent to issue.

Ms Smuts revisited the original concern of bringing employment matters within the scope of this Act. She emphasised that they should instead be dealt with under the labour laws and that, if necessary, the labour laws should be amended. She returned to her argument that it was a bad deal to bring small businesses (excluded from the Employment Equity Act) under this Act.

The Chair remarked that this hurdle had been cleared. The most desirable position would be to have the Labour Court and CCMA deal with independent contractors who are at present excluded from the Employment Equity Act (EEA) and Labour Relations Act (LRA). He noted the two central problems - firstly, giving the CCMA jurisdiction which was inappropriate for a tribunal-like body and secondly, if the CCMA is left out, access to justice is restricted.

Ms Smuts questioned whether employment matters should not simply go to the Labour Court. The Chair responded by reiterating that this would restrict access. If the CCMA is excluded thereby limiting access, he emphasised, this clause should simply be scrapped, leaving employment matters which fall outside the labour laws to the Equality Courts.

Mr Davies doubted whether the CCMA was all that accessible in any event. He remarked that it was better not to provide that employment matters go to the Labour Court and CCMA. He suggested that the matter be provided for in the regulations.

Mr Surty queried what the effect would be if this clause was excluded. The chair responded saying that those issues covered by the EEA would go to the Labour Court and CCMA and that those issues not covered by the EEA would go to the Equality Courts. He noted that this could even be desirable.

Ms Madonsela noted the present position that employment matters regarding the SANDF and the NIS (National Intelligence Service), if not resolved internally must go to the ordinary courts (Equality Courts under the Bill) as they are not covered by the EEA. The Ordinary Courts are therefore not unfamiliar with these employment issues.

The Chair summarised by noting that at first it was proposed that these matters should go to the Equality Courts. It was then decided that they should go to the Labour Court and CCMA together with all employment matters. He reiterated the access problem if the CCMA is now excluded from this clause because of the limits on its jurisdiction (because it is a tribunal), leaving the matters to be dealt with by nine Labour Courts.

Mr Surty proposed deleting section 18(2). The Chair agreed and stated that the position would revert to the original formulation - only employment matters dealt with by the LRA and EEA would go to the Labour Court and CCMA.

It was therefore resolved to delete section 18(2).

Mr Pieterse (ANC) pointed out one of the benefits of having these matters go to the CCMA - legal representation is not required. The Chair pointed out that the Minister can make determinations regarding representation in the Equality Courts in the regulations.

Section 18(3) - The Chair suggested changing the ‘by’ (preceding ‘this Act’) to ‘under’. This would mean that ‘or any other law’ could be deleted as ‘under this Act’ would include the regulations. Ms Madonsela pointed out that ‘or any other law’ was necessary because magistrates, for example, derive powers from the Magistrates’ Courts Act.

Section 19 - Clerks of the equality courts
There were no problems here. It was noted that ‘clerk of an equality court’ is defined in s.1(1)(ii).

Section 20 - Witnesses
No problems here

Section 21 - Rules and court proceedings
S.21(1) - Mr Gruve noted that these are transitional measures and that it is not desirable for the rules under the Supreme Court and Magistrates’ Court Acts to apply indefinitely. The Chair pointed out that flexibility is provided for adaptations through using the phrase ‘apply with the necessary changes’. He suggested adding the phase ‘and subject to the guiding principles’ after ‘except as is otherwise provided in this Act...’. Ms Camerer questioned why the guiding principles needed to be brought in here. The Chair responded that it would be for emphasis but that the change was not necessary. He noted that a comma needed to be inserted after the word ‘Act’ in the concluding line of s.21(1).
S.21(2) - This is fine as set out.
S.21(3)(a) - Ms Smuts questioned why this should be included. The chair responded that it was desirable to allow magistrates to make awards exceeding their monetary jurisdiction, but that this required confirmation by a High Court. He added that this was not unusual. Mr Surty pointed out that there were two ways of allowing magistrates to make these awards. The first is as provided in this section, and the second is to amend the Magistrates’ Courts Act to increase their monetary jurisdiction in respect of equality matters which is not desirable.
S.21(3)(b) - The underlined portion (the "Mr Lever Clause") only is to be included.
S.21(2) - This is fine as set out.

Section 22 - Institution of proceedings
S.22(1)(a)(i) - The Chair noted a problem with the phrase ‘in that person’s own interest’. He suggested using ‘their interest’. Mr Davies suggested ‘his or her interest’. The Chair rejected this suggestion as it leaves out companies and other juristic persons. He regarded his formulation as better and it echoes the words of the Constitution (s.38).
S.22(1)(a)(vi) - The Chair noted that it had been agreed that the Gender Commission be included.
S.22(1)(b) - The Chair noted that this paragraph was unnecessary as the matter is dealt with under section 5.
S22(2) - Ms Camerer questioned the utility of the phrase ‘as the case may be’. The Chair supported this and directed that it be deleted. Additionally, ‘his or her’ is to become ‘their’.
S22(3)(a) - Prof Gutto noted that s.34 of the Constitution speaks of a court, tribunal or ‘forum’. The Chair directed that ‘forum’ be included here after ‘tribunal’, as well as in s.22(4)(b) & (e), s.22(5)(a) & (b), s.22(7) & s.22(8). (The matter was returned to later, with Mr Basset suggesting that the phrase ‘alternative institutions’ be used to cover all these bodies. The Chair directed the drafters to work on this.)
S.22(7) - The Chair remarked that ‘as soon as possible’ is not good enough. Prof Gutto suggested using ‘expeditiously’. The Chair proposed using ‘within the prescribed period’, leaving it to be dealt with in the regulations. Prof. Gutto observed that this may not be practical. The Chair concluded that ‘expeditiously’ be used.
S.22(8) - A similar discussion arose concerning ‘a reasonable period in the circumstances’. The Chair suggested ‘expeditiously’. After Mr Surty indicated that the present formulation introduced an objective element, the Chair agreed that it should remain as it is.

Section 23 - Powers and functions of equality court
S.23(1) - This is fine as set out.
S.23(2) - The Chair proposed deleting ‘complainant’. Mr Surty was opposed to this and raised the scenario of judgments in default. The Chair proposed explicitly stating that this paragraph applies to class actions. He suggested a re-formulation worded something like ‘after hearing the parties or one of the parties if the other is absent’. After some debate regarding the making of awards to non-parties, it was agreed that the paragraph should not be restricted to class actions and that awards should be able to be made to public interest groups, constitutional institutions and the like. The Chair proposed a further redraft which read ‘after hearing the parties or, in the absence of one of the parties, the complainant...’.
S.23(1)(f)-(n) - These were all fine as set out except for the absence of a paragraph (l) which the Chair directed the drafters to sort out.
S.23(1)(o) - The Chair noted that a phrase to the effect of ‘in terms of the relevant law or legislation’ be added to the end.
S.23(1)(p) & (q) - These were fine as set out.
S.23(3) - Fine as set out.
S.23(4) - It was agreed to delete the proviso and to move ‘to the relevant constitutional institution’ to after ‘refer’ in the introductory paragraph.
S.23(5) - Fine as set out.

Section 24 - Assessors
S.24(1) - The Chair proposed deleting ‘who, subject to subsection (2)..... purposes of this Act’. A new subsection (2) would then be inserted which would read something like: ‘Persons in subsection (1) are deemed to be members of the court for the purposes of this Act’. The rest of section 24 was fine as stated except that ‘record the reasons for his or her opinion’ in subsection (5) would be moved to after ‘against him or her must’.

Section 25 - Appeals
S.25(1) - The Chair noted that footnote 18 is deleted.
S.25(2) - Mr Moonsamy suggested replacing ‘think’ with ‘deem’. The Chair thought this a brilliant suggestion.
S.25(3) - Fine as set out.
S.25(4) - The Chair questioned whether this subsection could not be phrased simpler.
S.25(5)(a) - The Chair proposed a new formulation: ‘A determination of a ground of discrimination referred in paragraph (b) of the definition of ‘prohibited ground’ [s.1(1)(xix)]... made by a presiding officer in a Magistrate’s Court in proceedings under this Act is subject to review’.

Mr Davies raised a concern regarding uncertainty over what exactly is referred to the High Court and at what stage the referral takes place. The Chair recognised this concern and drew the members’ attention to ‘Alternative subclause (5)’. This alternative requires ‘the proceedings’ to be referred. This should be replaced with ‘the decision’.

Mr Davies proposed a formulation which requires ‘the decision, after the finalisation of proceedings’, to be referred. The Chair voiced support for this proposal.
S.25(5)(b) - Fine as set out.

[The Chair returned to s.24(4)(a) and proposed an alternative: ‘In the event that different decisions are made by presiding officers in different matters in respect of paragraph (b) of the definition of prohibited grounds, the Minister may refer a stated case to the SCA or CC for a determination.’. Mr Aucamp proposed ‘conflicting’ to replace the first ‘different’. This was agreed.]

CHAPTER 6 - PROMOTION OF EQUALITY
Section 26 - general responsibility to promote equality

S.26(1) - The Chair raised concerns regarding the drafting of this paragraph: ‘have’ should read ‘has’. He questioned whether equality can be "progressively realised" and that the responsibility of the State should be to "promote equality". Ms Madonsela while recognising this, argued for the retention of ‘progressive realisation’. The Chair argued that it should read: ‘The State a duty and responsibility to achieve equality’ - the use of ‘progressive realisation’ detracts from what is to be achieved. The Chair noted that if the point of the impossibility of progressively realising equality was contemplated and accepted, this would have a number of consequences for the Bill.

Mr Moonsamy expressed support for the proposal to delete ‘progressive realisation’ - it is a theme which runs throughout the Bill. He continued by arguing that it was redundant and that the attempt to qualify equality was "wrong".

The Chair repeated his proposed formulation. He suggested using the Constitution’s (s.7(2)) words of ‘respect, promote and fulfil’. Ms Madonsela suggested the words ‘promote and achieve’.

Mr Surty suggested ‘duty to promote the achievement of equality’. This was supported by Mr Turok. The Chair insisted that it is a duty to promote and achieve equality.

Ms Camerer suggested adding ‘for the people of South Africa’ to the end of the paragraph. The Chair noted that this would be considered. Ms Madonsela returned to Mr Surty’s proposal and remarked that it detracts from the State’s duty. Prof Gutto supported Mr Surty’s proposal.

Mr Hanekom warned against requiring the State to do what no other state has done. What should be said is that the State must try its utmost to achieve equality. The duty must be more than the promotion of equality, but less than the achievement of equality.

Mr Turok reiterated his support for Mr Surty’s formulation and Mr Moonsamy noted that it uses the words of s.9(2) of the Constitution. Mr Davies remarked that the concern here was not the State’s duties under the Constitution, but its duties under this Act. The Chair repeated that the duty is to promote and achieve equality.

The Chair concluded that ‘under this Act’ should be removed from ss.26(1) & (2). Subsection (1) then reads: ‘duty and responsibility to promote and achieve equality’, while (2) reads: ‘All persons have a duty and responsibility to promote equality’. He remarked that this does not change the principles and philosophies of the Act.

Section 27 - duty of the state
S.27(1) - Mr Turok questioned whether ‘subject to’ was appropriate and suggested ‘following from’. Prof Gutto’s suggestion to delete ‘subject to section 26’ was accepted. The Chair requested that ‘where necessary’ be removed from s.27(1)(c) - it repeats the introductory line. Mr Turok suggested deleting ‘any’ (preceding ‘unfair discrimination’). The Chair proposed that it should: ‘The State must, where necessary with the assistance of the constitutional institutions, do ...[(a),(b) & (c)]’, and ‘where necessary and appropriate, do... [(c) - (h)]’. Mr Surty argued that it should read ‘necessary or appropriate’.
S.27(2) - The Chair requested that ‘Furthermore’ be deleted together with the comma preceding ‘in terms of’. Ms Madonsela noted three errors: ‘including’ should be inserted before ‘legislative or executive action’, there should be an ‘and’ after ‘executive action’, the ‘or’ should be deleted.

The Chair noted that legislative and executive action should be referred to but directed that Ms Madonsela and Mr Davies work on a formulation in a task team.

S.27(3)(a) - It was agreed to delete ‘in any way’.
S.27(3)(b) - The Chair expressed disapproval with the formulation. He suggested ‘as required by the court’ or ‘as directed by the court’.
S.27(3)(c) - The Chair noted that it is not provided from whom the reports must be requested. Ms Camerer suggested it should be from the clerks while Mr Suggested it be from the Equality Courts. The Chair proposed ‘request from the equality courts in the prescribed manner’ and that ‘dealt with by the equality courts within a specified period of time’ should be deleted. This was agreed.

S.27(4) - The Chair raised the same concerns regarding ‘progressive realisation’ and proposed that it be deleted. Ms Botha suggested using: ‘...implement measures within the available resources which are aimed at the achievement of equality..’ This was agreed upon.
S.27(4)(b) - Mr Davies suggested reinstating ‘in consultation with the Minister of Finance’. It was agreed that paragraph (a) remains as it is while (b) includes the portion in brackets to the end of ‘finance’. This suggestion would be drafted, flagged and discussed the following day.
S.27(5) is fine as set out.
S.27(6) is deleted.

Section 28 - Responsibility of functionaries
Ms Camerer questioned the use of the word ‘functionaries’. Mr Turok noted that the term is used in the Constitution. Ms Camerer suggested using ‘ it is the responsibility of any person contracting with the State or exercising public power to promote equality’. The Chair agreed with this. The question was raised whether this would cover subcontractors. It was therefore proposed that ‘directly or indirectly’ be inserted.

Section 29 - Social commitment by all persons
S.29 (1) - Ms Smuts question whether ‘endeavour and strive’ were necessary. Mr Turok remarked that many NGOs and other stated organisations cannot be treated separately from the State - many are supported financially by the State. Mr Surty drew attention to s.26(2) as the source of these concerns. The Chair remarked that this formulation and s.26(2) are contradictory. Mr Turok offered to reformulate the subsection. It was agreed to delete ‘strive and endeavour’. He read the reformulation out: "Persuant to section 26(2), all persons must promote equality...’. Ms Camerer suggested returning to this the following day when it was on paper.

S.29(2) - Ms Camerer returned to her suggestion that ‘available resources’ be introduced as a qualification. Mr Davies reiterated the point that this subsection relates to a determination of size.

Section 30 - Special measures to promote equality
S.30(1) is fine as set out although Ms Botha objected to its inclusion.
S.30(2) - It was proposed the ‘duty and’ be inserted before ‘responsibility’.
S.30(3) - After a discussion concerning deleting elements, it was agreed to delete the subsection.
S.30(4) - The Chair noted that ‘assessment’ has been chosen, ‘identified’ should be deleted, and ‘make’ should be inserted before ‘recommendations’.
S.30(5) - After a discussion of the extent to which this clause repeats earlier sections, the Chair expressed that it would be better to have a single concise subsection which could refer back to sections 12 - 14.

CHAPTER 7 - GENERAL PROVISIONS
Section 33 - Regulations [sections 31 & 32 are deleted]
The Chair suggested including ‘in the interests of the administration of justice’.

Section 34 - Implementation of the act
S.34(1)(a) - The term ‘head of an administrative region’ was questioned. Mr Basset pointed out that these words are used in the Magistrates’ Courts Act. The Chair indicated that they would remain. It was agreed that ‘suitability the field of human rights...’ be used.
S.34(2)(b) - Mr Turok suggested that ‘in the prescribed manner’ should go to the end of the line. Mr Moonsamy doubted whether making the Act available in all official languages was possible. Mr Surty suggested providing that the Act or an abridged version be made available. The Chair noted that the provision would remain, but if the Minster wanted to remove it, this could be discussed later.
S.34(3) - Mr Hanekom noted that it should read ‘to appoint’ and not ‘achieve appointment’.
S.34(4) - Mr Turok suggested replacing ‘ensure the development’ with ‘ensure and develop’. The Chair proposed deleting ‘as such in terms of this Act’. This was agreed.
S.35(5) - Mr Turok proposed deleting ‘or developed’ - a directive cannot be tabled while it is being developed.
S.35(6) - Mr Surty stated that this is an internal function of Parliament and should not be included. The Chair responded that it should as this Act spreads across Departments and there will be no-one to perform the functions. He noted, however, that it had been brought to his attention that Chapter 15, Rule 15(3) precludes the establishment of a committee unless it has been sanctioned by the Joint Rules Committee.

This subsection must therefore be deleted. In the report it must be recommended that the proposed committee be taken to the Joint Rules Committee and set up.

Prof Gutto returned to section 30 (special measures). He suggested combining and tightening subsections (3) & (5). The Chair proposed that subsection (1) remain as it is, that (4) becomes the new (2) and that (2),(3) & (5) be condensed into a new (3). He concluded that ‘particularly in respect of race, gender and disability’ be deleted from sections 27(1)(b) & 27(4) - if these need to be restated this can be done in the new condensed clause.

Chapter 8 - Sectors (Schedule 1)
It was noted that the schedule was not a list of prohibitions, but a set of practices. There have not been many changes from "E18 to E19". The Chair regarded this as a vast improvement.


 

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