Final discussion & voting on Bill

Meeting Summary

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Meeting report

JOINT AD HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BIIL
21 January 2000
DELIBERATIONS


Documents handed out

Re-draft No "E24"
New drafts of various sections (E25)

SUMMARY
In a day-long tidying-up process, the Committee went through the Bill page by page prior to voting in the evening.

The Motion of Desirability was proposed and adopted. Each section of the Act was voted upon with members being given the opportunity to vote against individual subsections. The whole Bill was voted upon - the DP, NNP and ACDP abstained from voting while the AEB voted against the Bill. The Report and Further Report were adopted by the Committee.

MINUTES
Mr M Moosa (Chairperson, ANC) made reference to what he called a "misleading" news article about certain organisations who believed their submissions on this Bill had not been heeded. He stressed that the Bill has accommodated the concerns of those who had made submissions. He was convinced the Bill is very widely accepted. Further, he denied that the ANC is divided on what the Bill should or should not contain. He said the process is endorsing nationality, HIV / AIDS status, socio-economic status family responsibility and family status as considerations. The Chairperson pointed out that when the Committee says these are not in the list of prohibited grounds, that does not mean it does not want to deal with these issues. Mr R Davies (ANC) echoed the same sentiments and in particular noted that the concerns of commercial bodies had been fairly and reasonably accommodated in the Bill.
He said any statement to the effect that all forms of differentiation will be abandoned are utterly incorrect.

Long title
Mr M Moosa (Chairperson, ANC) ordered that the reference in the Long Title must only be to Section 9 and not to Section 9(4). Professor S Gutto of the Drafting Team proposed the inclusion of hate speech. Ms D Smuts (DP) disagreed with the proposal. After a short discussion the Long Title was changed to read as follows:
To give effect to Section 9 read with item 23(1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996; so as to prevent and prohibit unfair discrimination, hate speech and harassment; to promote equality and eliminate unfair discrimination; and to provide for matters connected therewith.

Preamble
The Committee was satisfied that the Preamble is in order.

Section 1 Definitions
"age"
Prof Gutto proposed that the word "includes" be deleted and be replaced by "refers". The Committee deliberated on the matter and decided against the deletion of "includes". Part (b) of the definition was found to be unnecessary and was accordingly deleted.

"family status"
The Chairperson ruled that this definition must be flagged.

"HIV / AIDS status"
The Chairperson ruled that this definition must be flagged.

"nationality"
The Chairperson complained that the definition does not capture what he had proposed the previous day. Prof Gutto promised to construct another definition. The Chairperson ruled that Mr Surty (NCOP, ANC) and Mr R Davies (ANC) will work out a definition and report to the Committee.

"prohibited grounds"
The Chairperson queried the fact that the grounds of nationality, HIV / AIDS status, socio-economic status, family responsibility and family status which the Committee had decided against were still in the definitions. Professor S Gutto of the Drafting Team apologised and pleaded oversight on the part of his team. He promised the said grounds would be removed.

"sector"
The definition was found to be correct.

"socio-economic status"
The Chairperson noted that the definition captures what the Committee wants.

"this Act"
Mr P Holomisa (ANC) proposed that the words "…but does not include footnotes" be deleted because the Bill will no longer have any footnotes.

Section 2 (Objects of Act)
The Committee made no changes.

Section 3 (Interpretation of Act)
The Committee made no changes.

Section 4 (Guiding Principles)
The Committee made no changes.

Section 5 (Application of Act)
The Committee made no changes except for the insertion of correct punctuation.

Section 9 (Prohibition of unfair discrimination on the ground of disability).
Prof Gutto advised that the heading had been corrected. In Section 9(a) the Committee changed the flow of words. A new formulation was read out to the members.

Section 10
The Chairperson ruled that this clause must be flagged.

Section 12 (Prohibition of dissemination and publication of discriminatory information).
The Chairperson proposed the heading must read: Publication and Dissemination of Information that Discriminates. Mr P Holomisa (ANC) suggested another formulation. Seeing that these discussions on the heading might delay the process, the Chairperson ruled that the present heading remain but only the word "unfair" must be left out. He reasoned that the formulation as it stood posed no problems that warranted a different formulation.

Section 13 (Burden of proof)
Other than the need to delete the words "if the discrimination did take place" in part (b), the Chairperson found that parts (a), (b) and (c) flowed exactly the way the Committee wanted. The Committee was satisfied with the wording of the section but decided to effect paragraphing changes. The alternative Section 13 was deleted.

Section 14 (Determination of fairness or unfairness).
The Committee made no changes.

Section 15 (Hate speech and harassment not subject to determination of fairness).
The Committee made no changes.

Section 16 (Equality courts and presiding officers).
Chairperson pointed out to the Committee that in Section 16(1)(b) the designation has been added right up front.

Section 17 (Clerks of equality courts).
The Committee made no changes.

Section 18. (Witnesses).
The Committee made no changes.

Section 19 (Rules and court proceedings).
The Committee made no changes.

Section 20 (Institution of proceedings this Act).
The Committee decided to change the numbering format of the section. For Section 20(1) the Committee agreed that the Section should read "Proceedings under this Act must be instituted by…"

Section 21 (Powers and functions of equality courts).
The Chairperson commented that Section 21(4) now looked much better than in its previous formulation.

Section 22 (Assessors).
The Committee was satisfied with the formulation of the Section.

Section 23 (Appeals).
The clause was found to be correct. The Chairperson noted that in clause 23(5) the comma before the word review is not needed.

Section 25 (Duty of the State to promote equality).
In Section 25 (1)(c)(iii), the Committee disregarded the words "…on reasonable accommodation", but decided to use "…in respect of reasonable accommodation". In Section 25 (1)(c)(iv), the Committee decided that the words "…where appropriate" must be deleted.

No further changes were implemented.

Section 27 (Social commitment by all people to promote equality).
In Section 27(2), the Chairperson noted that the provision is in order.

Section 28 (Special measures to promote equality with regard to race, gender and disability).
The Chairperson pointed out that a new subclause, namely Section 28 (3)(i)(iv) has been drafted to the Bill.

Section 29 (Guidelines in respect of practices in certain sectors).
Concerning Section 29(2), Mr B Turok (ANC) questioned the acceptability of the use of the word "appropriate" twice in the same sentence. After a short discussion, it was decided that both be allowed to remain. In Section 29(4)(ii), the words "…approaching appropriate institutions for redress" as well as "constituting unfair discrimination practices" were deleted. In Section 29(5), Mr C Aucamp (AEB) suggested the word "revised" be used instead of "updated". The Committee agreed.

Chapter 6 (General provisions and implementation of the Act)
The Committee deleted the word "progressively" from Section 31(2)(b).

Chapter 7 (Review of Act, Short Title and Commencement)
Section 32 (Establishment of Equality review Committee)

The Chairperson asked that "immediately" and not "expeditiously" be used.

Section 33 (Functions and term of office of Equality Review Committee).
A proposal to combine Section 33(a) and (b) was not heeded.

Section 34 (Directive principle on HIV/AIDS, nationality, socio-economic status, family responsibility and status)
Clause 34(1): The committee accepted the following formulation which was suggested by the Chairperson:
‘’In view of the overwhelming evidence of the importance, impact on society and link to systemic disadvantage and discrimination, on the grounds of HIV/AIDS status, socio-economic status, nationality, family responsibility and family status -
i) special consideration must be given to the inclusion of these grounds into paragraph (a) of the definition of prohibited grounds by the Minister.
ii) the Equality Review Committee must, within one year of the commencement of this Act, investigate, and make the necessary recommendations to the Minister.’’

Ms Camerer (NNP) commented that the time period stipulated in S34(1)(ii) may be too short, as there could be a problem with the appointment of the committee. The Chairperson dismissed this point as being ‘’too technical’’.

Clause 34(2): The Chairperson remarked that this clause should be deleted. There were no objections to this.

Clause 34(3): The Chairperson noted that the only amendment he wanted
to make was to add a subsection (c) along the lines of:
‘’[nothing in this section] prevents a court from making a determination that any of these grounds are included within paragraph (b) of the definition of "prohibited grounds or within one or more of the grounds listed in paragraph (a) of the definition of prohibited grounds.’’

Chairperson Moosa said that this was an important provision because the word ‘’court’’ as used in the subsection included a reference to the Constitutional Court. The effect of this subsection was that the Constitutional court, in the light of the arguments heard in a particular case, could decide that the prohibited grounds should also include, for example, the ground of family status. Thus, the courts have the power to expand the definition of prohibited grounds (as defined in Chapter 1) to include any one or all of the five grounds listed in section 34.This was a power which the Constitutional Court had anyway, but, if it was not specifically stated in the Act, then it would look as though the Act was trying to limit the power of the courts. If the Constitutional Court's right was limited by the Act in any way, then that may be unconstitutional.

Ms Camerer said that if the Constitutional Court had the power to do this then it was unnecessary to state it in the Act. Mr Moosa replied that it was not unnecessary as everyone should know that this could be done.

Short title
Professor Turok (ANC) suggested that the committee shorten the short title.
The Chairperson said that this was not a good idea as it would be ‘’touching a nerve’’.

Flagged issues
The committee now proceeded to look at those clauses where agreement had not been reached:

"HIV/AIDS"
This was a definition which the committee still had to decide on. Prof Gutto indicated that after discussing the matter with the Aids Law Project, he had drafted a possible definition. The Chairperson was not happy with the proposal by Prof Gutto as it started with the words: ‘’includes vulnerability to unfair discriminatory practice ...’’. He indicated that, starting the definition with the word ‘’ vulnerability’’ was not a good idea.

Mr Hanekom (ANC) offered to attempt a draft. The Chairperson agreed to this.
The formulation which was later put forward by him and accepted by the committee included a reference to ‘’the actual or perceived presence of HIV or AIDS in a person’s body’’ as well as ‘’the adverse assumptions which were based on the presence of either HIV or AIDS in a person's body".

'nationality"
The drafting team put forward the following definition which was accepted by the committee: ‘’nationality means ethnic or national origin and includes practices associated with xenophobia and other adverse assumptions of a discriminatory nature but does not include the rights and obligations normally associated with citizenship.’’

Section 10 Prohibition of hate speech
The Chairperson said that a clause on this had already been approved by the committee. Accordingly, he would not entertain any substantive discussion on the issue, he simply noted that the words ‘’clear intention’’ was to remain in the definition.

Section 14 Determination of fairness or unfairness
Mr Aucamp (AEB) was unsure about how exactly this clause would be interpreted. He wanted to know whether clause 14(2)(c) could stand on its own, or, if it necessarily had to be put together with the factors listed in clause 14(3).

The Chairperson explained the operation of this clause:
The court must determine whether a discrimination is fair or unfair. To do this, the court goes to the fairness test in S14(2). The court must look at the factors (as they are listed in S14(3)) and decide if the discrimination is merely an objective differentiation or if it is more than that. Thus, section 14(2) and section 14(3) must be read together. The Chairperson noted specifically that clauses 14(3)(d), (f), (g), and possibly even (h), were the factors which touched on the issue of reasonableness. As such, these were the issues that the courts had to take into account.

Ms Camerer noted that she would have preferred to put section 14(2)(c) before section 14(2)(a) as it was simply more logical for the court to look at whether the differentiation was justifiable before the court looked at context.

Ms Smuts also criticised this section by saying that section 14(2)(c) should have referred to ‘’reasonably justifiable criteria’’ instead of referring to ‘’objectively determinable criteria’’. She added that there was no real reason not to have put a definition of ‘’differentiation’’ at the top of clause 2.

The Chairperson, addressing Ms Camerer’s criticism, explained that it did not matter in which order the factors were listed as the inquiry into fairness did not take place in distinct stages. The way in which this section would be dealt with in practice would be that the court would look at the arguments of the various parties, it would then determine which particular factors came into play, and then it would look at the context of the situation. The court would examine how all these elements operated in relation to each other. Thus, it was the court’s job to look at these things together and balance them, to determine whether the discrimination was fair or unfair. Accordingly, it was substantively insignificant in which order these elements were listed.

Mr Hanekom concurred with the Chairperson saying that the order was not important as all the factors had to be looked at together.

There were no more flagged issues to be dealt with.

Regulations
This was the last matter which had to be finalised before the committee could vote. The drafting team confirmed that they had compiled a complete list of regulations - there were approximately ten regulations coming out of the Bill.

Voting
The Chairperson checked whether the requisite quorum was present: From the ranks of the National Assembly, 15 members had to be present (there were 19 present at the meeting). From the ranks of the NCOP, 6 members had to be present (there were 8 members present at the meeting). The committee was now in a position to vote on the Bill.

The Chair proposed the Motion of Desirability: "that it is desirable to give effect to section 9 ..... and to provide for matters connected therewith". Mr Grove moved for the motion from the NA and Prof Ndabandaba seconded. Ms Jacobus moved from the NCOP and Ms Botha seconded.

Ms Camerer (NNP) noted that she would not vote on the Bill as a whole as she did not yet have a mandate to do so. The Chair proposed that this be dealt with at the end - Ms Camerer accepted. Aside from some suggestions regarding punctuation, there were no votes against the Long Title from either the NA or the NCOP.

Preamble - NA & NCOP - no votes against.

The Chair noted that the index would not be voted on.

Chapter 1
Section 1 -Definitions:

age - no votes against.
clerk of an equality court - no votes against.
Commission for Gender Equality - no votes against.
complainant - no votes against.
Constitution - no votes against.
constitutional institution - no votes against.
Department - no votes against.
discrimination - AEB & ACDP against.
equality - DP & AEB against, NNP abstaining.
equality court - no votes against.
family responsibility - ACDP against.
family status - no votes against.
harassment - ACDP against.
HIV/AIDS status ("E25" definition) - no votes against (Ms Camerer (NNP) remarked that this should read ‘actual or perceived condition resulting in the presence...’).
marital status - AEB,PAC & ACDP against.
Minister - no votes against.
nationality - NNP abstaining.
person - no votes against.
pregnancy - ACDP & PAC against.
prescribed - no votes against.
presiding officer - no votes against.
prohibited grounds - ACDP against.
regulation - no votes against.
respondent - no votes against.
sector - no votes against.
socio-economic status - no votes against.
SAHRC - no votes against.
the State - no votes against.
this Act - no votes against.

Section 2 - no votes against.
Section 3 - no votes against.
Section 4 - IFP & PAC against s.4(2)(a). (It was decided after some debate that particular subsections could be voted against).
Section 5 - DP & AEB against s.5(2).

Chapter 2 - Prevention, Prohibition and Elimination
Section 6
- DP initially voted against but withdrew the vote
Section 7 - DP against s.7(a) (The Chair directed that a technical correction be effected: ‘progressively realise’ is to be deleted from s.7(d)).
Section 8 - ACDP against, AEB against s.8(d), PAC against s.8(b).
Section 9 - no votes against.
Section 10 - DP against, ACDP against s.10(1)(c), AEB against s.10(1).
Section 11 - no votes against.
Section 12 - DP against.

Chapter 3 - Burden of Proof and Determination of Fairness and Unfairness
Section 13 - AEB against (The Chair drew attention to the fact that the new draft is merely a change in numbering).
Section 14 - AEB & NNP against. DP against s.2(c) but expressed support for the Bill as a whole. This support was acknowledged by the ANC.
Section 15 - no votes against.

Chapter 4 - Equality Courts
Section 16 - DP against, NNP & AEB against s.16(1)(b).
Section 17 - NNP against, DP against s.1(1)(a).
Section 18 - no votes against.
Section 19 - no votes against.
Section 20 - AEB against s.20 (1)(iv) [now (d)] but withdrew the vote after it was pointed out that this would be contrary to the Constitution and contrary to the affirmation to be faithful to the Constitution.
Section 21 - one vote against.
Section 22 - no votes against
Section 23 - no votes against

Chapter 5 - Promotion of Equality
Section 24 - DP against
Section 25 - ACDP against, DP against subsection (2).
Section 26 - no votes against.
Section 27 - DP against.
Section 28 - AEB & DP against subsection (1).
Section 29 - DP against (The Chair noted that there is now reference to a ‘list of practices’).

Chapter 6 - General Provisions and Implementation
Section 30 - no votes against
Section 31 - DP against, AEB against s.31(2)(a).

Chapter 7 - Review, Short Title and Commencement
Section 32 - PAC abstaining
Section 33 - no votes against
Section 34 - NNP abstaining, ACDP against subsection (1). (The Chair noted some technical corrections: ‘s’ is to be deleted from ‘considerations’ in (1)(a), ‘one or more’ is to be deleted from (2)(c) and the footnote is to be deleted.)
Section 35 - DP against

Schedule 1 - Unfair Practices - no votes against. (The Chair noted that ‘unfair’ will be inserted where necessary into "clubs".)

Vote on the whole Bill
The Chair called for a vote on the whole Bill:
DP, NNP and ACDP abstained, AEB against (however acknowledging the good manner in which the process was handled).

The Chair acknowledged the AEB’s sentiment and regarded it as encouraging that there was only one vote against the whole Bill. He noted that the Memorandum did not need to be voted on.

The Chair turned to the Resolution of the Committee:
The Chair noted that in terms of the rules, the first part of the resolution, the Report, is the report of the ad-hoc committee, but the same report goes to both houses and is tabled in the ATC.

The Chair noted some corrections: In the report it should be stated that the committee ‘begs to report’. In the Further Report, (1) needs to include ‘family status’ and there are some problems with (3).

The Chair invited discussion. Mr Davies proposed that the Report be adopted but to make allowance for later revision to accommodate the fact that the Bill may be amended.

Mr Davies moved for the adoption and Mr Moonsamy seconded.

Regarding the Further Report:
1) - The Committee agreed to allow the Chair to fix this where necessary.
2) - This part was accepted as it is.
3) - The DP noted that it will vote against this. It was agreed that those who support this Part would leave it to the Chair to fix up - the sentiments were supported.
4) - The Chair noted that a few adjustments needed to be made here.
5) - A few adjustments were also required here: Access needed to be addressed and it needed to be explained why certain choices were made. Ms Camerer suggested including a request that the Minister allocate resources.
6) - Mr Davies proposed importing the old clause regarding the ad-hoc committee. The Chair agreed.
7) - the DP remarked that this clause revealed the weakness of the "conflict clause" in the Bill.

The Chair stated that he would try to structure a report which made sense. This would involve discussions and consultation. He requested that the committee adopt the Report on the basis of the sentiments it includes. The DP expressed its opposition.

Mr Turok stood as mover and Prof Ndabandaba as seconder from the NA for the Further Report.
Mr Suka stood as mover and Dr Conroy as seconder from the NCOP for the Report.
Ms Jacobus stood as mover and Mr Witbooi as seconder from the NCOP for the Further Report.

The Chair concluded that based on the Bill, the Report and Further Report had been adopted by the Committee.

The Chair expressed his appreciation for the hard and dedicated work and commitment. He thanked the Committee for its patience, camaraderie and humour. He remarked that the Bill was "great".

Ms Rajbali (ANC) expressed appreciation for the Chair’s handling of the Committee.

Mr Turok (ANC) endorsed this sentiment and expressed particular appreciation for the Chair’s intellectual and legal knowledge.

Ms Smuts (DP) recognised the difficulty of the Chair’s task and expressed appreciation for his having driven the Committee.

Ms Camerer (NNP) supported Ms Smuts and acknowledged that the Chair had given the opposition parties great opportunities to express their positions.

Mr Aucamp (AEB) remarked that whenever minority parties had been discriminated against, it was always fair.

Prof Ndabandaba (IFP) commended Prof Gutto for his cool manner in times of crisis.

Mr Pheko (PAC) remarked that he was not in the habit of saying pleasant things, but expressed appreciation towards the Chair, the Committee and Prof Gutto.

Adv Madasa (ACDP) commented that, as a lawyer, he had learnt a lot from the Chair’s passion for his work.

The Chair thanked the members for their kind words.

Prof Gutto spoke on behalf of the Department and remarked that this team had applied itself beyond the call of duty and regarded what he had witnessed of Parliament as boding well for the future of the country.

The Co-Chair expressed gratitude to the Committee, the department and the support staff and noted a special word of thanks to the Chair.

The Committee adjourned with the Chair noting that the Bill would be debated in the National Assembly on Wednesday and in the NCOP on Thursday.



 

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