A summary of this committee meeting is not yet available.
AD-HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
20 January 2000
Re-draft No "E20"
Re-draft No "E22" - Schedule 1
After caucusing in the morning, the committee met in the afternoon and discussed Section 29 dealing with sectors and heard various proposals from members to assist with a redraft of this section.
They examined the definitions of age and family responsibility as these definitions had been considered problematic in the past.
The committee then considered whether certain grounds of discrimination should be included, or rather omitted from the list of prohibited grounds. No conclusive decisions were made on any of the above matters.
In the evening, the run through of the Bill was completed, with minor adjustments being made. Particular attention was given to the burden of proof (section 13), the determination of fairness (section 14) and the sectors (schedule 1). The ANC revealed a proposal to remove the grounds of ‘HIV/AIDS status, socio-economic status, family responsibility, family status and nationality’ from the list in paragraph (a) of the definition of ‘prohibited grounds’. This would be in exchange for deleting a portion of section 2(d) of the objects of the Bill.
The committee discussed Section 29 of the draft bill. The Chairperson commenced by giving the committee a brief summary of the decisions which had been reached by the committee the night before.
There had been a debate on whether to include or exclude the portion on sectors. This debate resulted in the view that the original version of the sectors in the Bill were both incorrect and inappropriate as they were long and burdensome. The committee decided that there was a need to make some kind of reference to sectors for the purpose of emphasising those areas in society that needed redress.
From the committee’s debate, the following position emerged:
1) The Bill had to incorporate a reference to sectors which would be illustrative of some of the ways in which discrimination could take place.
The committee decided to include this in the Promotions Chapter of the Bill.
2) The portion on sectors had been drafted in such a way that it had been de-linked from the main bill. By this the Chairperson meant that a schedule, which was referred to as Schedule 1, had been created to stand as a schedule of sectors. This schedule was intended to stand as a list of possible practices which could be considered discriminatory.
Ms Smuts (DP) was not happy with section 29 in its entirety, saying that it was ‘’a big improvement, but only less worse’’ than before. She expressed specific dissatisfaction with subsection 29(2), notably the words ‘’if not already in existence’’. She said that this phrasing showed a ‘’lack of research’’ and a ‘’lack of seriousness’’ on the part of the committee. She emphasized her point by posing the following rhetorical question to the committee: ‘’Don’t you know what laws exist?’’ Ms Smuts remarked that she did not think that the schedule was necessary at all.
In response to Ms Smuts objection, Mr Aucamp proposed that the words ‘’if not already in existence’’ in subsection 29(2) simply be deleted.
Ms Camerer (NNP) was unhappy with the manner in which subsection 29(4) was drafted. She said that the use of the wording ‘’framework of what constitutes’’ was ambiguous and had the effect of ‘’confus[ing] the issue’’. She explained that ‘’framework’’ meant one thing (an outline of what it could be) and ‘’what constitutes’’ meant something else (what it must consist of). She suggested that the drafters rather say that the schedule is intended to ‘’illustrate’’ or to ‘’provide examples of’’ what would constitute unfair discrimination.
In an attempt to address Ms Camerer’s criticism, the Chairperson suggested that they rather use the wording: ‘’The Schedule is also intended to provide a framework of what may constitute unfair discrimination’’. He said that the addition of the word ‘’may’’ would have the effect that Schedule 1 would still be considered a framework but that it would also have to operate contextually.
Ms Camerer was pleased with this proposal, saying that it was ‘’appropriate’’.
Mr Aucamp criticised subsection 29(4) which he said was not in line with subsections 29(1), (2), and, (3). He explained his point of view by saying that subsections 1, 2, and, 3 were phrased in relative terms, while subsection 4 was phrased in absolute terms. He suggested that this problem could be solved by phrasing subsection 29(4)(i) to say ‘’may address these practices where appropriate ...’’.
Ms Smuts was also dissatisfied with this subsection. She said that she had a ‘’real difficulty’’ with the words ‘’framework of what constitutes’’ (she did not motivate this point). She also suggested that the words ‘’what may or may not be unfair discrimination’’ be added at the end of ss29(4)(ii).
Dr Luyt (FA) suggested that the word "framework" be changed to ‘’guidelines’’.
Dr Davies responded that the schedule was not intended to be merely a guideline. Professor Gutto said that some could be considered guidelines, while others could be considered examples.
Professor Gutto, trying to address the criticism which was levelled against section 29(4), proposed the following formulation:
‘’The Schedule is also intended to provide categories of what may constitute unfair discrimination’’. [Note that the word ‘’may’’ has been added, and the word ‘’framework’’ has been replaced by ‘’categories’’.]
A formulation for ss29(4)(ii) was also proposed, namely; ‘’ to assist persons in interpreting the experiences and practices as falling within the permitted forms of unfair discrimination or not’’.
The Chairperson remarked that they also needed to capture a catch-all clause in this section to indicate that the list was not exhaustive. He asked the drafting team to draft something appropriate having regard to the various proposals.
The committee then discussed the first part of the Bill and examined certain definitions.
Section1 - Definitions
Ms Camerer suggested that a definition of age should include either the words ‘’advancing age’’ or ‘’increasing infirmity’’. The rationale was that this would capture a wider category of people as it was uncertain exactly when a person started to get old.
Professor Gutto said that in practice there was widespread abuse and discrimination of persons of advanced age. Accordingly, it was appropriate to provide a definition of the concept in the bill. He said that the concept of ‘’vulnerability’’ was important in emphasizing the concept of advanced age and suggested that the word ‘’vulnerable’’ be used in the definition of age.
The Chairperson asked Professor Gutto to draft something along those lines.
Mr Surty (ANC) suggested that the definition to this concept be prefixed with the word ‘’includes’’ as he thought that this was always a useful prefix to any definition.
Ms Camerer criticised the current definition by saying that it was ‘’too broad’’. Dr Luyt agreed with Ms Camerer and remarked that if it was ‘’too wide’’ and if it was not made more explicit then it could ‘’cause problems’’.
The Chairperson replied that, because age had been listed as a prohibited ground, it could not be left undefined in the Bill as this would mean that it could be interpreted to mean anything.
Dr Luyt suggested that the definition be limited to immediate family only.
The Chairperson responded that this was not appropriate, as, in certain communities (such as in rural areas), family responsibility could extend beyond your immediate family and could include people like your grandparents. It was desirable that the definition the committee decided upon had to encapsulate this. The Chairperson suggested that the relevant issue be one of ‘’care and support’’.
Mr Qokweni (UDM, Eastern Cape) agreed with the Chairperson, commenting that Mr Luyt and Ms Camerer displayed a ‘’eurocentric understanding of family’’.
As a matter of information the Chairperson asked how far the duties of the traditional leader extended in respect of family responsibility.
Ms Tsheole (ANC) replied that the traditional leader did not have a family responsibility as his duties only encompassed what was referred to as ‘’leadership responsibility’’.
Ms Camerer suggested that the definition refer to a duty of support but that it also contain a clear objective test in regard to what a duty of support would be.
The Chairperson indicated that it would be undesirable to incorporate any kind of test within a definition.
A member of the ANC suggested that they borrow from the approach used by the Medical Aid Scheme Act. Such a definition would be something along the lines of ‘’a person in respect of whom the complainant is liable for in terms of duty and support’’. Both the Chairperson and Ms Camerer agreed that a definition along this line would be a good definition.
Ms Smuts indicated that her party was unhappy with the inclusion of the ground of family responsibility as they felt that the concept was adequately included under the ground of gender.
She also expressed dissatisfaction with the inclusion of the ground of HIV/AIDS status and commented that the committee had not considered the complexity of including this as a listed ground. Ms Smuts said that, this ground, when linked with the ground of family responsibility, had the potential to provide many problems. She explained that, in light of our existing social problem with the large numbers of AIDS babies, there would soon be many AIDS orphans who would have to be taken care of. In accordance with the ground of family responsibility, there would then be many grandfathers who would have to bring up these AIDS orphans. This was the type of complexity that she envisaged.
She also said that her party did not approve of the inclusion of the ground of ‘’socio-economic’’ status. She said that this could create a real problem with poor students who insisted on a university education even though they could not afford it. This was something, she added, for which there was simply no funding.
Ms Camerer said that some of the grounds which had been listed would lead to a lot of litigation. She said that her party had agreed to their inclusion before clause xix(b) had been included. However, this new clause left a ‘’valid open door’’ and was sufficient to cover clauses which may be too sensitive to be specifically listed in the Act.
Mr Surty (ANC) agreed with Ms Camerer by making the following comments:
The new clause xix(b) provides that the list of prohibited grounds is not a closed list. This means that other grounds, which are not specifically listed, may also be included in the Act. He said that there were many occasions where the courts had interpreted AIDS as falling under the heading of disability. Thus, there was a lot of weight attached to this ground. He suggested that, the weight attached to these factors by the courts, in addition to clause xix(b) (which makes provision for grounds not specifically listed in the Bill to be included), was such that, leaving the sensitive grounds out of the listed grounds would not be tantamount to omitting them from the Act. He concluded by saying that the Act was, after all, an ‘’evolving document’’.
The Chair drew the discussion concerning "prohibited grounds" to an end. He remarked that there were a number of options but that there was a lack of clarity. He proposed moving on and settling all the outstanding issues so that only the prohibited grounds remained to be discussed after supper.
Prof Gutto noted that the new definition is included as discussed. Each of the sectors cannot be mentioned separately. The Chair proposed deleting ‘and any further sectors... amendment’ - this will be implied. This was agreed.
S.1(1)(xxiii) - socio-economic status - The Chair expressed his preference for the alternative definition - it uses ‘includes’ which provides for an open list and it mentions ‘a social condition’. Mr Turok suggested combining the first half of the alternative and the second half of the formulation as it stands (the first definition). This would read: ‘socio-economic status includes social condition or perceived condition of a person who is disadvantaged by inequality, low employment status or lack of or low-level educational qualifications’. The Chair proposed inserting ‘or economic’ before ‘social condition’. This definition was agreed upon.
Section 2 - objects of the act - This is fine as set out, except for s.2(d) which is flagged.
Section 3 - interpretation, section 4 - guiding principles and section 5 - application - These are all fine as set out.
CHAPTER 2 - PREVENTION, PROHIBITION AND ELIMINATION
Section 6 - prevention and general prohibition - This is fine as set out.
Section 7 - prohibition of unfair discrimination on the grounds of race
The wording of ‘including by’ was confirmed as correct as was the inclusion of s.7(a). It was noted, following Mr Moonsamy’s concerns, that a recommendation would be included in the report that legislation be drafted and passed to give effect to article 4’s (of the UN Convention on the Elimination of all forms of Racial Discrimination) injunction that laws be enacted to criminalise hate speech.
Section 8 - prohibition of discrimination on the grounds of gender
The Chair drew attention to the fact that sections 7 - 9 were all subject to section 6. It was agreed to delete ‘unreasonably’ from subsection (e).
Section 9 - This section is fine as set out, except that the heading should refer to ‘disability’ and not ‘gender’.
Section 10 - prohibition of hate speech
Mr Aucamp questioned the distinction between ‘hurtful’ and ‘harmful’. Mr Hanekom explained by stating: ‘Die een maak seer, die ander doen skade’ (the one causes pain, the other does damage).
Ms Smuts proposed linking subsections (b) & (c) to conform with the wording of section 16 of the Constitution. Mr Surty argued that they should not be linked and explained that s.16 provides an internal limitation on freedom of speech regarding hate speech. This is the justification for the specific treatment of hate speech. The general limitations clause of the Constitution (s.36) may still, however, be used to justify the further limitation of the right which is proposed in the Bill. The Chair supported this and noted that this is not an attempt to rewrite the Constitution.
It was agreed to insert ‘having jurisdiction’ after ‘Director of Public Prosecutions’.
Section 11 - prohibition of harassment - This section is fine as set out.
Section 12 - It was debated whether subsections (11) & (12) should be swapped. It was resolved that the order should stay as it is.
CHAPTER 3 - BURDEN OF PROOF AND DETERMINATION OF FAIRNESS AND UNFAIRNESS
Section 13 - burden of proof
S.13(1) - Mr Qokweni (UDM) questioned whether the burden placed upon the respondent was not too heavy. Prof Gutto noted that the source of this concern was the term ‘prima facie’. The term will not be widely understood and neither will be the implications that the complainant also bears a burden to provide evidence in support of his/her allegations.
S.13(2) - Mr Davies suggested using ‘court, tribunal or forum’. The Chair opposed this as only equality courts could make these sorts of determinations. He expressed dissatisfaction regarding the way subsections (2) & (3) are phrased. He suggested an alternative: ‘(2) if the discrimination did take place as contemplated in subsection (a) of the definition of ‘unfair discrimination’, then it is presumed to be unfair unless....’, and ‘(3) if the discrimination did take place on one of the prohibited grounds contemplated in subsection (b) of the definition of prohibited grounds, it is unfair if (a) the conditions contemplated in the subsection are met, and (b) unless it is proved that the discrimination is fair’.
Ms Camerer suggested rephrasing s.13(3)(b) as ‘[and] if the respondent fails to prove that...’. The Chair noted that this would be considered. He added to his formulation by suggesting that ‘presumed to be’ be inserted before ‘unfair’ in s.13(3) and that (3)(b) should read ‘[and] the respondent does not prove...’.
The term prima facie was returned to and Prof Gutto questioned whether it would be understood. He suggested defining it in section 1. The Chair doubted whether the was a clear meaning of the term. He suggested using a word such as ‘basic’ and provide a definition for this. This was not accepted and ‘prima facie’ remains.
Section 14 - determination of fairness and unfairness
Ms Camerer summarised her position and repeated her concerns regarding the different treatment of affirmative action from differentiation on objective criteria and regarding the omission of ‘reasonableness and justifiability’ as a separate test. These proposals have been rejected by the ANC. Ms Camerer suggested then that ‘reasonableness and justifiability in an open and democratic society’ should also constitute an additional factor under s.14(3).
The Chair remarked that the test included here has been well thought out. It creates an inquiry into fairness and this involves a balancing of the context, reasonableness and justifiability and the listed factors. He stated that he believed section 14 is a good clause. It deals with the issues, opinions have been considered and experts have contributed. He concluded saying that the Bill follows the Constitutional Court rulings.
Mr Aucamp suggested inserting ‘in which case it is deemed that the discrimination is not unfair’ at the end of s.14(2)(c). The Chair remarked that this would tamper with sections 12 & 13. He stated that Mr Aucamp’s position had been noted.
Ms Camerer remarked that she had no problem with where s.14(2)(c) is located. However, she raised a concern that it had to be established that the differentiation is on an objectively determinable criteria before an inquiry into reasonableness can be engaged in. She used this to support her contention that reasonableness and justifiability also be added to the listed factors in s.14(3). This would mean that the inquiry into reasonableness would be undertaken without first having to establish objective criteria.
It was proposed that section 14 be flagged and returned to later.
Section 15 - hate speech and harassment - This section is fine as set out.
CHAPTER 4 - EQUALITY COURTS
Section 16 - equality courts and presiding officers
S.16(1)(b) - The Chair noted the previous concerns regarding the constitutionality of this subsection. He drew attention to s.31(1)(a) which talks of ‘after consultation with the Judge President and the magistrates’ administrative heads’. He suggested that this subsection be qualified in a similar manner. Ms Camerer remarked that this was an improvement but that ‘in consultation with’ would have been better.
Sections 17 - 19 (clerks, witnesses and rules) - These sections are all fine as set out.
Section 20 - institution of proceedings
S.20(1) - Mr Surty noted that the introductory line should simply read ‘under this Act’ instead of ‘in terms of or under...’. Similarly, ‘in terms of or’ should be deleted from s.20(2).
The rest of s.20 is fine as set out.
Section 21 - powers and functions of equality court
S.21(2)(e) - Prof Gutto noted that footnote 4 should be deleted - there was to be no fund created. The Chair questioned whether ‘in the matter’ could be dropped. Mr Aucamp suggested deleting everything after ‘organisation’. The Chair agreed.
S.22(4) - The chair directed that ‘to the relevant constitutional institution’ be moved to after ‘refer’.
Section 22 - assessors - This is fine as set out.
Section 23 - appeals
S.23(4) The Chair remarked that the formulation was very good.
S.23(5(a) - The Chair queried whether this had been referred to in the regulations. Mr Basset responded that this was not necessary but that it could be done. The Chair concluded that wherever ‘in the prescribed manner’ is stated, this must be referred to in the regulations.
CHAPTER 5 - PROMOTION OF EQUALITY
Section 24 - general responsibility to promote equality - the Chair noted that this section was fine.
Section 25 - duty of the state
S.25(1) - The Chair noted that (a) & (b) were fine but proposed that (c) read ‘where necessary or appropriate - (i),(ii) etc...’ to avoid repetition.
S.25(2) - The Chair note that it had been agreed to delete ‘furthermore’.
Ms Camerer returned to s.24(2) and questioned whether it would be more appropriate to say ‘all persons have a duty and responsibility to use their best efforts to promote equality’. She noted that their were no consequences for not obeying the duty and that ‘best efforts’ is accepted terminology. Mr Aucamp disagreed with Ms Camerer.
S.25(3)(c) - The Chair noted that ‘prescribed manner’ is used and there must be a reference in the regulations clause to deal with this.
S.25(4) - The Chair noted that ‘progressive realisation’ is out. The Chair requested Mr Basset to check where else ‘progressive realisation’ is used. Mr Basset noted that it is used in s.7(d) and s.28(3)(a)(ii). The chair stated that the phrase could remain in both, and that ‘reasonable’ should be deleted from s.7(d).
S.25(4) & (5) - The Chair noted that these were fine as set out.
Section 26 - responsibility of persons operating in the public domain
This section is fine as set out. The Chair drew attention to s.26(c) - this must be referred to in the regulations.
Section 27 - social commitment
Subsection (1) is fine. The Chair was concerned that subsection (2) does not say what it should - that in addition to their other responsibilities, companies must draw up plans etc. and that there should be big plans from big companies and small plans from small companies.
The Chair proposed a redraft which could read: ‘The Minister must develop regulations in relation to companies.... which requires them, where appropriate, in a manner proportional to their size, resources and influence... to prepare equality plans.... equality’.
Mr Surty pointed out that the deletion of ‘any other law’ means that other ministers are not catered for so that they can draw up their own laws to have similar effects. The Chair remarked that the Act is not concerned with other ministers. After some debate, the chair stated that this issue is to be flagged and that he would work on a draft.
Section 28 - special measures regarding race, gender and disability
Prof Gutto stated up front that this section was worked on in the early hours of the morning and that there could well be mistakes.
Sections 28(1) & (2) are fine as set out.
S.28(3) is new. Subsection (3)(a) is a general provision which then breaks down into the two specifically listed duties. Subsection (b) lists additional requirements to be fulfilled in the carrying out of the duties in (a).
Prof Gutto remarked that what is missing is to tie this up with the other duties and responsibilities. He stated that a prioritising aspect be introduced. The Chair proposed that a new subsection 3(c)(iv) be inserted requiring that priority be given to matters relating to race, gender and disability.
Ms Camerer doubted whether ‘all persons’ could be expected to do all that is required by paragraph (c). The Chair noted that this is being done for emphasis. Mr Davies suggested inserting ‘where appropriate’. The Chair added to this and suggested ‘where appropriate and relevant’.
Mr Aucamp argued that s.3(a) should apply to the State, public institutions and all persons, but that (b) should only apply to the State and public institutions. The Chair responded that ‘where appropriate and relevant’ deals with this concern.
Section 29 - guidelines. This has been dealt with and a new draft will be tabled.
Section 30 - regulations
S.30(1) - The Chair noted that there were a number of references to other parts of the Bill which use ‘in the prescribed manner’ which still required reference to in this section. The Chair stated that he felt the penalty was too low and proposed that it be increased to a maximum of twelve month’s imprisonment. Ms Camerer queried where the three month’s had originated. The Chair directed that this be investigated but that for the moment it should be changed to twelve months. Mr Pieterse (ANC) suggested using a minimum. The chair responded that this is not an option as it is constitutionally prohibited.
Subsections (4) and (5) are fine as set out.
Section 31 - implementation
S.31(1)(a) - The Chair doubted whether this was necessary here as these provisions are now included in s.16.
S.31(2)(b) - The Chair invited discussion on making the Act available in the official languages. Mr Surty commented that the objective was desirable but that there were financial restrictions. He was in favour of using ‘progressively available’. Mr Hanekom suggested using ‘in the manner prescribed’ and leaving it to the regulations to deal with. Ms Camerer emphasised that this matter must be dealt with here. The chair proposed a maximum period of one year. Mr Hanekom remarked that this was too strong a formulation.
The Chair proposed a formulation which reads: ‘The Minister must make the Act progressively available in all official languages within a period of two years and in the prescribed manner’. The Chair argued again to reduce the maximum period to one year. He inquired of the Department how expensive this process would be. Ms Madonsela responded that it would be very expensive but that she could not give any figures off hand. She remarked that the Department had been considering clustering languages into Nguni, Sotho etc..
The Chair concluded that ‘progressively’ would be inserted and that the maximum period would remain two years. This was agreed.
Subsections (3) - (5) are fine as set out.
Section 32 - establishment of equality review committee.
This section is fine as set out. However, Ms Botha questioned whether s.32(d) referred to one or two people. the chair indicated that two people were envisaged and that this subsection could be split.
The Chair resumed by drawing the members’ attention to "E22", the latest draft of Schedule 1 - the sectors.
Three sectors previously excluded have now been included - Insurance Services, Pensions and Partnerships.
The Co-Chair invited comments.
The Chair proposed that it would be best to go sector by sector.
Labour - The Chair proposed restructuring (a) so that it would read ‘....barriers to equal access to employment matters by using certain recruitment ....’. This was agreed. Ms Camerer questioned whether artificial meant ‘unfairly discriminatory’. The chair responded that the Schedule is not written in "legalese"; it is sociological. Artificial means not legitimate or in the ordinary course of business.
(b) - The Chair stated that all the changes seemed fine. All agreed.
(c) - This will stay as it is despite the Chair’s reservations.
(d) - Ms Camerer pointed out that ‘unfair’ should be inserted before ‘discrimination’.
Education - (a) - It was pointed out that learners with special needs includes those who are disabled.
(b) - The Chair raised the concern that ‘identified by the prohibited grounds’ should be added. It was agreed to include this phrase.
(c) - Mr Hanekom proposed a new draft: ‘Failing to reasonably and practicably accommodate diversity in education’.
Health - (b) - It was agreed to insert ‘unfairly’ before ‘denying’.
(c) & (d) are fine as set out.
Housing, Land and Accommodation - (a) Ms Camerer suggested inserting ‘unfair and’ before ‘arbitrary’. the Chair remarked that ‘arbitrary’ is very clear.
(b) - Mr Aucamp argued that ‘socio-economic status’ be deleted. the Chair rejected this suggestion.
(c) & (d) are fine as set out.
Insurance Services - (a) - The Chair directed that ‘unfairly’ be inserted before ‘refusing’.
(b) & (c) are fine as set out.
(d) - Ms Camerer voiced her objections but these were dismissed by the Chair.
Pensions - This part is fine as stated except that ‘or other beneficiaries’ is to be deleted from (b).
Partnerships - the notions of unfairness and discrimination need to be included in (a) & (b).
Professions and bodies - It was agreed that ‘unfairly’ be inserted in (a) & (b).
Provision of goods, services and facilities - (a) - ‘unfairly’ is to be inserted at the beginning of the paragraph.
(b) - The options were rejected and it was agreed to insert ‘unfairly’ before discrimination.
(c) - ‘Unduly’ is to be replaced with ‘unfairly’ and ‘benefits from’ is to be deleted.
Clubs and associations - (a) & (b) are to begin with ‘unfairly’. Pof Gutto suggested a new paragraph (c) to cover sports: ‘Failure to promote diversity in the selection of representative teams’.
Mr Turok proposed ‘Unfair Practices’ as a title to the Schedule. The Chair noted that this was satisfactory but might require rewording.
CHAPTER 1 - DEFINITIONS
age - The Chair noted that before turning to the prohibited grounds, the definition of ‘age’ needed to be cleared up. Prof Gutto proposed that it should read: ‘Age includes persons who are vulnerable and are generally disadvantaged on the basis of their age, especially persons of advanced years’. Mr Hanekom urged that the notion of ‘adverse assumptions’ should be captured. The Chair noted that it would be.
prohibited grounds - The Chair stated that earlier in the afternoon there had been an attempt to speak to the opposition parties in his capacity as Chair. The aim was to reach agreement on the prohibited grounds and sections 13 & 14. There was an attempt to accommodate the various views in a manner acceptable to all. He noted that there were a number of views which had to be balanced and resolved.
He continued by remarking that the legal mechanism in s.13 works well. The opposition parties, however, are suggesting that s.14 should contain a clause which, in his opinion, would "absolve business from this Act". He stated that he did not believe that the opposition parties had suggested an option which fits with the objects of the Bill and that the suggested options were "untenable".
There had been a request that the ANC look at the prohibited grounds of HIV/AIDS status, family responsibility, family status, socio-economic status and nationality. There had been a proposal that in exchange for the deletion of part of a section in the objects clause (section 2(d)), the ANC was requested to make a proposal regarding these grounds.
The ANC had decided to remove these grounds from its proposal because a body of jurisprudence in these areas required building up. The Chair recognised that these prohibited grounds are nevertheless crucial issues.
Mr Surty remarked that the approach in respect of the impact that these groups suffer has not changed. The proposal to remove these grounds was based on legal and constitutional considerations and to allow for considering the implications of including them.
Therefore, he continued, paragraph (a) of the definition of ‘prohibited grounds’ would list only those grounds included in the Constitution and (b) would be left to cover the unlisted grounds.
He added that the ANC has decided to include an injunction in the Bill that these grounds be considered by the Review Committee. In view of the importance of these considerations, the Review Committee should be established quicker than the current 2 years stipulated. Therefore, a new section 32 was proposed which would require that within one year after the Review Committee’s having been established, it must have investigated and made recommendations regarding whether the Act should be amended to include these grounds.
He remarked that this should not mean that the Courts must defer to the government and wait for the recommendations to be made. They must still be required make a determination on whether a given matter falls within paragraph (a) or (b) of the definition of ‘prohibited grounds’.
‘a) Given the importance and impact of the following grounds: HIV status, socio-economic status, family responsibility, family status and nationality.
The Review Committee must within a period of one year of the establishment of the Committee, investigate and make recommendations to the Minister whether the grounds referred to above should be included within (a) of the definition of prohibited grounds.
b) The Minister may upon receipt of the recommendations amend the definition [of prohibited] grounds to include one or more of these grounds.
c) Provided that nothing ion this section prevents:
I) a complainant from bringing a case in terms of one of these grounds;
II) a court from making a determination that these grounds are prohibited under (b) of the definition of prohibited grounds or included within one of the grounds in (a) of the definition of prohibited grounds.
The Minister must expeditiously, upon promulgation of the Act, by notice in the Gazette, establish an Equality review committee.’
The drafters and opposition parties were invited to comment. The Chair noted that something stronger than ‘given the importance of the following grounds’ should be used. Mr Surty remarked that the wording was flexible. In response to a question from the Chair, he responded that the systematic patterns suffered by these persons had been considered.
Mr Hanekom commended the draft. He noted, however, that while the Committee is required to make recommendations within a year of its establishment, its establishment only had to be achieved ‘expeditiously’. He proposed that the recommendations had to be made within one year of the commencement of the Act.
Mr Surty argued that much work had too be done in this committee and that it was not desirable to give it too little time which would result in "half-baked" recommendations.
The chair proposed a new introductory sentence: ‘Given the importance and impact of these social problems...’.
Mr Davies raised the requirement that consideration must be given to including one or more of these grounds in (a) of the definition of prohibited grounds. Mr Turok remarked that this would be prejudging the issue.
Mr Davies proposed a formulation for the opening sentence: ‘In view of their importance and impact on society, consideration should be given to including in (a) of the definition of prohibited grounds...’.
The Chair supported this but remarked that their needs to be some statement at the beginning which indicates the gravity of these issues. Mr Turok suggested something like: ‘There is substantial evidence that there are systematic forms of discrimination associated with HIV status....’ The Chair requested Mr Turok to work on this. This was supported by Mr Hanekom - the proposal needed to be scrutinised on paper.
The Chair stated that there needed to be two parts. The first must recognise that there is a problem which requires fixing and the second must provide that, given this evidence, consideration must be given to including these grounds in (a) of the definition.
Ms Camerer welcomed these suggestions and saw no problem with including a "preamble" paragraph. She noted that the provision allowing the Minster to amend the Act must be reworked - only Parliament can amend legislation.
Ms Botha congratulated the ANC on opting for a creative and responsible route. Mr Turok suggested a further formulation for the "preamble": ‘In view of their overwhelming importance and impact on society...’.
Prof Gutto noted that the task of the drafters was to put all of these suggestions in a constitutional and legally defensible way. He remarked that the drafters cannot draft the "preamble" - they can only put what the members suggest elegantly. He noted that it was in the second part that he could make a contribution. He continued that it must be clear that no-one is pre-empting the court from hearing matters on unlisted grounds.
He observed that the Minister must not only receive but also consider the recommendations with a view to amending the definition of prohibited grounds. he suggested a formulation for the second part: ‘The Minister may upon receipt and consideration of the recommendations, consider promoting legislation to amend the definition of prohibited grounds to include one or more of these grounds as listed grounds.’ The proviso should be a separate paragraph c) which could provide that nothing in this section limits the Courts from deciding in these areas.
The Chair noted a difficulty with ‘consider promoting legislation’. He preferred a simpler formulation of ‘consider amending’.
Mr Surty remarked that the ANC appreciated the opposition parties’ words of praise. The Chair requested a draft in the morning and doubted whether footnote 3 in the definition of prohibited grounds was required.
The Chair continued that in light of this proposal, some adjustment would need to be made. There were a number or questions:
Firstly, where is this section to go? Mr Surty suggested that it should be situated in the review section. The Chair noted that it would be left there for now but that moving it to Chapter 1 or 2 should be considered.
Secondly, while there is a definition of ‘family responsibility’, there is no definition for ‘HIV/AIDS’. The Chair invited the members to propose a definition. Prof Gutto offered to contact the AIDS Law Project. There is also no definition of ‘nationality’. The Chair suggested that there should be a reference to xenophobia and the definition should not refer to the normal consequences of nationality. The Chair remarked that it was not necessary to define ‘family status’, but if the Department wished to, it could include a definition.
Thirdly, the ANC as an exchange for its proposal, requested that everything after the word ‘unfair’ in section 2(d) be deleted. Ms Camerer objected - it highlights an important issue. She regarded section 14 as problematic and the deletion of the words from s.2(d) would compound the problem.
Fourthly, there were some minor technical adjustments which should be made. The Chair noted that the definition of prohibited ground should be changed so as capture the effect of the conduct element. He suggested a link between (b) and (a) of the definition by providing that the grounds in (b) are comparable to those in (a).
S.4(1)(c) - The chair suggested deleting ‘special’ and providing: ‘the use of the rules and procedure in s19 and criteria...’.
S.19(1) - The Chair suggested that the closing sentence be cut at ‘section 33 of this Act.’ - the limitation ‘for any other matter mentioned in this subsection’ may be unconstitutional.
S.27(2) - There was a proposal that this should read: ‘The Minister may develop regulations under this Act and other ministers may make regulations under other Acts...’.
S.28(3)(c) - The Chair requested the members to reconsider whether they wanted to include persons here. He suggested omitting persons, leaving the State and institutions performing public functions. Prof Gutto noted that this could exclude large corporations. The Chair concluded by suggesting that ‘juristic and non-juristic persons’ be referred to.
Mr Surty proposed that the parties should get together and attempt to reach consensus. The Chair adjourned the meeting.
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