A summary of this committee meeting is not yet available.
JOINT AD-HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
14 January 2000
Documents handed out
Re-draft No 1 (17/12/1999)
The Committee went through what had been discussed the previous day and was now incorporated into Re-Draft E5 .
The rest of the Act was evaluated using Re-draft No. 1 of 17 December 1999. The entire Act required going through in this session as a Bill would need to be ready by the end of the day to present to relevant stakeholders.
It was resolved that meetings on Monday, Tuesday and Wednesday would begin at 9h00 and finish at 23h00.
Clause 1 Definitions
The definition of "harassment" was discussed. There was debate around "persistent and serious", but this was not altered.
The Chair raised the concern of "nationality" regarding "prohibited grounds". He stated that he had been in contact with the Department of Home Affairs. He cited the difficulty with different charges to nationals of different countries for visas. This is, however, desirable.
Prof Gutto, of the CALS drafting team, acknowledged these concerns and stated that there was no clarity from the Department of Home Affairs. He suggested, however, that clause 8 may resolve these difficulties.
The Chair stated that this issue was to be flagged and looked at over the weekend. If there remained serious concerns, this could be dealt with the following week.
Regarding "equality", there was a strong request from an ANC member to re-institute the notion of "substantive equality". Mr Moonsamy (ANC), however, stated that this amounts to a qualification of "equality" which cannot be qualified.
Prof Gutto remarked that any lawyer will know what "substantive equality" means and that it is probably more than "equality". The Chair urged that this be pondered over the weekend. Ms Smuts (DP) pointed out that most parties seem to agree that it should remain simply "equality".
The Chair suggested breaking for caucus discussions. The Chair returned with a proposal to delete all the bracketed words in (xviii). Mr Davies (ANC) noted that every time "equality" is referred to, it must relate to outcomes.
The Chair stated that Option 2 is not a possibility and should be deleted.
Clause 2 Objects of Act
The Chair drew attention to the inclusion of subclause (e). A concern was raised over the wording of subclause (g) - whether it should be "to facilitate further" rather than "to further facilitate."
Prof Gutto suggested the inclusion of the prevention of harassment as an object. The Chair agreed.
(Clause 3 was not discussed)
Clause 4 Guiding Principles
The chair directed that the capital "t" in clause 4(1)(a) be changed to a small letter.
Mr Aucamp (AEB) questioned whether the issue of including "patriarchy" had been settled. The Chair said it had. Mr Pheko (PAC) disputed this and stated that it is necessary to understand what is meant by the term. The Chair asked the committee whether it had been agreed to include "patriachy" to which there was a general affirmative response.
Ms Camerer suggested using "to assist" instead of "to enable’ in subclause (1)(e). The latter suggests that officers are presently unable. The Chair commented that "assist" was probably more derogatory. Mr Hanekom (ANC) agreed with Ms Camerer. The Chair resolved the issue saying that "enable" will remain and that "assist" would be included in a footnote as a suggestion.
Clause 5 Application
Prof Gutto stated that it was not necessary to repeat the Constitution. It was agreed to delete the words in brackets and that the deletion of "to unfair discrimination" (5(2)) would be footnoted.
Clause 6 is now in the suggested simplified form.
Clause 7 Unfair Discrimination
The Chair demonstrated approval regarding the new formulation. There was general satisfaction with the broad structure.
Clause 8 Positive Measures
The Chair stated that clause 8(b)’s inclusion here complicates the question of onus and that it should possibly be moved to the defences section (see footnote 8). Mr Aucamp argued for including it here saying that if it moves, the Bill indicates that to differentiate is to discriminate, which is not the case.
There was further debate on the issue and the Chair concluded by stating that this issue is to be flagged. It will stay where it is at the moment with an option to move it to the defences section.
Clause 9, 10 and 11
Prof Gutto stated that hate speech could be incorporated in two ways: It could be included in clause 9(b), or it could be stated in its own separate clause. If the former is adopted, the underlined portions of clause 9 go and clause 10 stands as a separate section.
Ms Smuts and Prof Ndabandaba (IFP) supported a separate section. The Chair drew attention to the new wording of 9(b).
Ms Madonsela, a drafter, noted that Re-Draft 3’s clause 9(b) was now incorporated into 9(a). The Chair suggested, therefore that clause (b) should be dropped if a separate clause 10 is to be used. This was generally agreed.
Prof Gutto noted that the only difference between the old clause 9(b) and the new 10 was the omission of an express reference to intention. However, the way in which clause 10 is phrased makes it clear that intentional conduct is required. The omission of "intention" was effected to avoid the requirement that proof of legal intention must be proved by the complainant.
Ms Camerer urged that the concept "could reasonably construed" be reincorporated. Prof Gutto concluded the discussion of clause 9 by noting that nowhere is clauses 9, 10 or 11 has it been stated that conduct shall be subject to this Act. All that has been stated is that certain conduct is prohibited.
Chapter 3, Clause 12: Prohibition of Racial discrimination.
The Chair drew attention to the fact that if the bracketed section ("Without detracting... this Act,") is removed as suggested, the generality of the Act may be diminished. Clause 8 may not sufficiently override this provision. Prof Gutto noted that while the bracketed portion may be intended to resolve this problem, whether it will in fact do so sufficiently is questionable.
The Chair remarked that the word "including" was initially inserted so as to prevent a detraction from the generality of the Act - it introduces an open list. By including the bracketed portion, he suggested there might be a "double take" of the concept. He asked that if there is repetition, could the Bill nevertheless be fine.
Mr Turok stated that the wording was clumsy and suggested omitting the bracketed portions and saying "no-one may discriminate unfairly.... as set out in section 7.
The Chair remarked that the most elegant option was to use "including". Mr Bassett, a Departmental drafter, did not see a problem with using "without detracting..." and suggested that clause 3(5) could deal with the issue. Mr Rudman, also a Departmental drafter, added that it was not unusual to use "without detracting...".
Prof Gutto remarked that the "double-take" was important for emphasis and expressed support for mentioning it in clause 3(5).
The Chair regarded this as an "overkill". He opted for the double-take and presented two options: 1) using "without detracting..." and "including", and 2) using Mr Turok’s suggestion and "including". He left it to the drafters to draw this up.
The Chair emphasised that it needed to be stated that all the lists in clauses 12, 13 and 14 are subject to the provisions of Clause 8. Prof Gutto acknowledged that this had been overlooked. It was agreed that "the operation" would be deleted from clause 12(b). Mr Aucamp raised a grammatical concern regarding the beginning words of subclause (b) once "the operation" had been deleted. Prof Qoweni (UDM) suggested using "the engagement in any activity....".
The question of "neutral" in subclause (c) was raised by Ms Camerer who also questioned the word "subterfuge" - it suggests that the perpetrator can get away with it, if s/he acts in the open.
The Chair requested that Mr Turok and Ms Camerer discuss this over tea and moved onto subclause (d). Ms Camerer argued for returning to the use of "reasonable" to qualify "steps". The Chair stated that it would be included.
Clause 13 Prohibition of Gender Discrimination
Ms Ripinga (ANC) expressed a preference for excluding "witchcraft" from clause 13(a) and leaving the rest as it stands - as "ritual related violence" will cover "witchcraft". Ms Madonsela observed that two different scenarios must be provided for: Firstly, where mutilation occurs as part of a ritual and secondly, where people are harmed because they are witches. The latter is not covered by ritual-related violence.
The Chair suggested omitting the bracketed portion of subclause (a) completely.
Ms Ripinga favoured retaining "female" in subclause (b) in order to comply with International Law. The Chair questioned whether International Law was not complied with if "female" is removed.
Prof Gutto pointed out that if "female" is abandoned, there will be challenges brought regarding male circumcision. He questioned whether this was wanted. The Chair responded that if a person consents to practices such as male circumcision, this does not constitute mutilation. He continued that the omission of "female’ would not contravene the Beijing Convention and that males who do not consent are afforded a remedy.
Ms Madonsela noted the possibility of objections from, for example, the Jewish community. Mr Moonsamy (ANC) stated that the omission of "female" would contravene the Beijing Convention as the Convention singles out female genital mutilation because it is barbaric. The Chair noted that male mutilation could also be barbaric. After some debate, the Chair capitulated - "female" remains.
Mr Aucamp questioned clause 12(d) and stated that some religious conduct may conflict with equality, for example exclusively male office-bearers, but that these types of conduct should not be required to change. After some debate involving suggestions that this Act must contribute to transforming religious institutions, Mr Aucamp realised that he had misread the "and" before "undermines" as "or". The latter would have included a larger range of conduct.
Regarding subclause (e): following Ms Camerer’s observation, the Chair directed that the drafters include "education" after "finance". (The issue was raised again later with calls for "education" to be omitted. The Chair directed Ms Camerer and Ms Njobe (ANC) form a task team to work this out).
Ms Tsheole (ANC) noted that the use of the word "unfairly" (13(d)) implies that there could be a fair violation of dignity. Mr Davies suggested also deleting "unfairly" from subclause (e).
The Chair was not certain about this. Ms Madonsela noted that if "unfairly" is used, there is repetition as it is also present in the introduction to clause 13. The Chair requested the members to think about this and that it is probably correct that "unfairly" should be removed from 13(d) only.
Prof Ndabandaba suggested conflating 13(b) & (e). Prof Gutto responded that there was a distinction here and the Chair stated that the clause would remain as it is unless the committee could be convinced otherwise.
Clause 14 Prohibition of Disability Discrimination
This clause is fine as it is. There was a suggestion that a general phrase be included to the effect that in any claim of unfair discrimination, the provisions of Chapter 2 should apply.
Chapter 4: Defences and burden of proof
Clause 15 is fine as it is.
Clause 16: it was agreed that subclause 2 should be abandoned and that clause 16(1)(b) should be flagged.
Clause 17: Ms Smuts proposed including "the respondent" after "the complainant" in clause 17(a). She was supported by Mr Aucamp. The Chair rejected this suggestion saying that the impact on the complainant was the focus and the onus should remain with the respondent.
Ms Smuts suggested that the listed factors unpacked the determination too much and that more should be left to the courts. Ms Camerer suggested not restricting the bench and using an introduction to the factors which indicated more clearly that the list of factors was open-ended. She suggested something like "factors including.."
Prof Gutto questioned what was to be done regarding the bracketed portion of clause 17(b). He noted that it seems to be agreed that "she" should be included but that the rest should be omitted as the rest is dealt with elsewhere.
Subclauses (c) to (f) are fine as they are stated. Regarding (g), Ms Camerer suggested using "as may be" instead of "as being". The Chair agreed and requested that a more elegant formulation be used.
Ms Camerer questioned the inclusion of "accomodating diversity". Prof Gutto draw attention to the Preamble of the Constitution which requires that diversity as a principle be promoted. Ms Camerer doubted the sense of this while Mr Aucamp supported its inclusion. The Chair directed that this discussion be flagged until Monday.
Clause 18(i): The Chair drew attention to the conflation of reasonableness and justifiability into the unfairness test. The view of the CALS drafting team was that it was important to have a three stage test: First, the complainant is to establish discrimination, second, the respondent is to establish that is it fair and third, if s/he is unsuccessful, the respondent can establish that the discrimination is reasonable and justifiable. The Chair disagreed with this as it gave the respondent "two bites at the cherry". He suggested a two stage test. The first step remains the establishment of discrimination. The second and third steps, however becomes the second step which is one enquiry. This involves weighing up the questions as to whether the discrimination is fair against whether it is reasonable and justifiable. He concluded that this should satisfy CALS (Centre for Applied Legal Studies) and those who argue that the respondent should not be given two bites.
Prof Gutto questioned whether clause 17 unduly empowers the discriminator. Ms Smuts, however, felt that clause 17 as it stands is good - it deals with horizontality and verticality. Ms Camerer likewise supported clause 17 as it stands - the onus stays on the respondent. The respondent must first prove that the discrimination is not on a prohibited ground. If it is, s/he must prove that the discrimination is not unfair. If s/he fails in this, s/he must prove that the discrimination is reasonable.
The Chair note that the courts must be told that there are two factors which the court must take into account: a) the factors in 17(a)-(h) and (b), the reasonableness and justifiability of the conduct and that the clause must state that in evaluating fairness the court must balance these two. This does not make "reasonableness and justifiability’ one of the factors.
Prof Gutto emphasised that the court must be guided in what to do and that the discriminator should not be over-favoured.
The Chair concluded that clause 17 must show: a) that a determination of fairness must be made, and b) that in so doing, the listed factors and reasonableness/justifiability are to be assessed separately and weighed against each other. An inquiry into reasonableness and justifiability must be made, but not as a separate step after a determination of fairness has been concluded on the basis of the listed factors. Mr Moonsamy regarded the Chair’s suggestion as "excellent".
Chapter 5 Equality Courts
(Old) Clause 16: Prof Gutto pointed out that there was no such thing as an "assistant magistrate". The Chair noted that he could understand the inclusion of every in 16(1)(a) but questioned its use in 16(1)(b). It was agreed to use "any".
Ms Smuts raised the constitutionality of the designation of a judge by the Minister and noted a similar problem as that found in the Administrative Justice Bill - the designation of magistrates would be preferable to the designation of magistrates’ courts as in 16(1)(a).
The Chair responded that this is not a problem at all as all courts are equality courts. He disagreed with the suggestion that there is a constitutional problem. Judges are appointed in an open process and once they are appointed they are capable of doing any judicial job. The fact that the Minister decides that a particular judge is to pursue a particular issue is similar to the President’s appointment of Judge Heath. He stated that this is not an untoward process and that it would be difficult to persuade the ANC otherwise.
Ms Camerer persisted saying that the Heath example was beside the point and that the Bill appoints every court as an Equality Court. All the judges are equipped to do the job and it should be the Judge-President or the Chief Magistrate who decides which officer hears which matter. The designation by the Minister demonstrates a clear political intervention into the bench. Mr Aucamp agreed that this may be unconstitutional
The Chair noted that this issue will be flagged and that if there was still disagreement next week, it would be voted on.
Clause 17: The Chair noted the title had reverted to "Clerks of the Equality Courts". Ms Smuts expressed the view that Equality Courts should not have clerks and Ms Camerer questioned whether funding had been allocated specifically to appoint clerks.
Ms Madonsela remarked that this money is not really needed - ordinary clerks of the court when acting in connection with equality matters are "equality clerks".
Clause 18: Mr Aucamp observed that most of these clauses are merely a repetition of the rules of civil procedure. The Chair supported this and questioned whether it had not been agreed that some of these should be included in the regulations. Mr Gutto recognised that the Act is too long and that much should go into the regulations. He would investigate including some of these into the regulations.
Clause 19: Ms Camerer asked that this be simplified and that much of clauses 18 to 20 could simply refer to other rules and regulations.
The DP suggested that the same should be provided here as in criminal procedure where there is an automatic review (confirmation) if the accused appeals against a decision. The appeal replaces the confirmation. Prof Gutto suggested that using clause 19(1) might address this.
Ms Camerer suggested stating who is responsible for effecting the "necessary changes" (19(1)).
Clause 20: It was questioned whether clause 20(vi) was necessary: the South African Human Rights Commission (SAHRC) has standing under its own Act. It was also questioned what sort of a person the Minister may designate. Prof Gutto noted that the drafters have added the Commission for Gender Equality. These bodies are specifically mentioned in order to encourage them to take action. The Gender Commission was not initially mentioned and hence it was this type of body which the Minister would designate. Mr Basset remarked that there was no problem with including the bodies.
The Chair raised the question of how to deal with the issue raised by clause 20(1)(b) regarding the Employment Equity Act (EEA). Some matters which come up under this Act are going to be employment-related, for example independent contractors and small businesses. It has been suggested that perhaps the Labour Courts are best suited to dealing with these issues. Further, there are concerns that this Act may place heavier burdens on small businesses than those imposed on large businesses by the EEA. He continued by stating that the emerging view is that when employment matters emerge in terms of this Act, they should be dealt with by the Labour Court and the Commission for Conciliation, Mediation and Arbitration (CCMA). It was emphasised that it is not intended that matters are dragged back and forth. The Chair concluded that there needs to be an overriding clause which says that if there is doubt, the matter should be taken to the Equality Court. This way, the risk rests with the person who elects to go to the Labour Court where there is any doubt.
Mr Davies questioned whether clause 16 resolved this problem - when a labour court is dealing with an equality matter, it is sitting as an Equality Court.
The Chair stated that the issue may not be as simple as this. He also questioned how accessible the Labour Court is. He acknowledged that this is a difficult issue and requested the drafters to work on this and, if possible, try to formulate it such that all employment matters are dealt with in one place.
Clause 20(2) is fine as stated. The DP raised concerns over the 10-day period provided in clause 20(3)(a) - many magistrate’s courts are overloaded and these periods are unreasonable. The Constitution requires that all are to have speedy access to justice, regardless of the subject matter of the dispute. The DP regarded it as a problem that matters brought under the Act were being given preference. Mr Basset suggested dealing with time periods in the regulations. Ms Tsheole suggested making it 10 working days.
Mr Aucamp suggested dropping "particularly the complainant" from clause 20(4)(a). The Chair disagreed and moved onto clauses 20(5) to (8). There were no problems and the drafters were to look at treating the 30-day period in 20(8) in the same manner as the 10-day period. Prof Ndabandba suggested that perhaps clause 20(9) was too broad. Ms Madonsela suggested adding "as far as possible". The Chair agreed that "assist" should be qualified.
Clause 21: Clause 21(1) is fine as stated. Mr Aucamp raised a problem with clause 21(2) - that the list applies when the Court finds that unfair discrimination has occurred but that there is no provision for when the Court decides that it has not occurred. The Chair noted that this may be a way of avoiding frivolous litigation. Mr Grove (ANC) noted that subclause (p) provides that any party may have a costs order made against it. Mr Aucamp however observed that subclause (p) can only apply when the Court is satisfied that unfair discrimination has occurred. The Chair conceded that there was inconsistency here. Mr Davies suggested that the words in the introductory paragraph are frivolous and suggested removing "if it is satisfied.... circumstances". The Chair noted this as a possibility and raised a possible problem with subclause (f). Mr Basset suggested adding "harassment" as an alternative to "unfair discrimination" in 21(1).
The Chair raised the question of whether when a case of crimen injuria arises, it should be referred to the criminal courts or whether an Equality Court should be given a sanctioning power. Mr Aucamp expressed the view that the criminal sphere should be excluded from this Act. If there is to be mention of a criminal element it should state that criminal matters be referred to the criminal justice system. The Chair noted that the drafters were to look at this.
Clause 22: Prof Gutto remarked that proposals regarding assessors would be presented on Monday and that this would be a short section.
Clause 23 is fine as it is stated.
Chapter 6 Promotion of Equality
"Substantive" was to be dropped from "equality" in clauses 24 & 25. Regarding clause 26, Ms Smuts raised a concern regarding "private bodies". The Chair suggested using "juristic and non-juristic bodies" and that this clause be made more sensible - it seemed unnecessary to impose all these obligations on small, informal businesses, for example a lady who sells her knitting at the market. The Chair questioned how to exclude these people and rejected Ms Camerer’s suggestion as a "cop-out" that the drafters deal with this.
Mr Hanekom proposed that these informal traders do not employ anyone and therefore that the Act should simply exclude those who employ no-one. Ms Smuts suggested asking the South African Human Rights Commission to think about this. The Chair proposed leaving this unless there were concrete suggestions for the drafters. Ms Smuts queried whether there is not a definition of "informal trader" which could assist. Mr Basset suggested dealing with the matter in the regulations.
Prof Gutto suggested that since "person" is defined to include juristic and non juristic persons, use should simply be made of the word "person".
The Chair questioned whether clause 28 was required. Prof Gutto questioned whether the committee wanted to emphasise race, gender and disability here in the same way it is emphasised in the sections dealing with prevention. Ms Madonsela conceded that there was repetition and suggested that race, gender and disability could be integrated into one clause with the forms of discrimination cross-referenced to clause 7. They did not need re-listing here. The Chair suggested using footnote 18 of document "E5" here.
Chapter 7: Sectors
Mr Hanekom suggested scrapping the clauses dealing with particular sectors altogether. The Chair agreed but noted that some sectors should be specifically noted in a Schedule. Mr Davies noted a distinction between sectors, such as Health, and Bodies, Associations and the like. The Chair requested that this be thought about and discussed on Monday.
Chapter 8: General provisions and implementation of Act
Regarding clause 53(1), Prof Gutto would like to see a qualification as in, "The Minister may, where required by this Act..." The Chair proposed splitting up those activities where the Minister has a discretion and those which are compulsory. Prof Gutto would do this. The Chair stated that clauses 53(2) - (5) would remain as stated. Prof Gutto drew attention to 53(4) and stated that where criminal sanctions are created by regulations, these must pass through Parliament. The Chair requested that this issue be flagged.
Prof Gutto suggested using "consultation with the Judge President or Cluster Head" in clause 54(1)(a). The Chair approved of this. Prof Gutto continued noting that in 54(2) "assistant magistrate" was to be scrapped and that "court assistants" were to become "court clerks".
Ms Smuts made a semantic point by suggesting that "progressive realisation" in clause 54(3) was inappropriate and that the term should be used sparingly. The Chair thought that it did make sense, however, Prof Gutto conceded that it perhaps should not be included here.
Regarding clause 54(4), the Chair noted that it has always been the intention of the committee that training be beefed up. Ms Smuts pointed out that it is not entirely clear what "policy directives’ means. The Chair requested Prof Gutto to provide an explanation on Monday.
Chapter 9: Review of Act, Short title and commencement
The Chair requested that Parliament should have a role on the Review Committee, for example that one member from each House be on the committee.
The question of different dates being used for the commencement of different parts of the legislation was raised - clause 57(3). Prof Gutto noted that this was not unusual, but at this point it was not certain which parts should come into effect on which dates. The Chair commented that the suggestion of different commencement dates was not wise at all and should be dropped.
The Chair noted that Part B could be removed - what is happening with the various sectors has already been discussed.
DEFINITIONS, OBJECTS, INTERPRETATION, GUIDING PRINCIPLES AND APPLICATION OF ACT
1. (1) In this Act, unless the context indicates otherwise—
(i) "clerk of an equality court" means a clerk of an equality court appointed in terms of section 17, read with section 54, and includes "a clerk";
(ii) "Commission for Gender Equality" means the Commission for Gender Equality referred to in section 187 of the Constitution;
(iii) "complainant" means any person who alleges any contravention of this Act and who institutes proceedings in terms of the Act;
(iv) "Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
(v) "constitutional institution" means any of the relevant institutions supporting constitutional democracy referred to in Chapter 9 of the Constitution and includes the Pan South African Language Board;
(vi) "Department" means the Department of Justice and Constitutional Development;
(vii) "discrimination" means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly -
- imposes burdens, obligations or disadvantage on; or
- withholds benefits, opportunities or advantages from,
- race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, nationality, HIV-AIDS status, socio-economic status, family responsibility and family status; or
- any other ground where discrimination based on that ground causes or perpetuates disadvantage and undermines human dignity and equal enjoyment of all rights and freedoms in a serious manner;
any person on one or more of the prohibited grounds;
(viii) "equality court" means a court contemplated in section 16, read with section 54, and includes "court";
(ix) "harassment" means unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to -
(a) sex, gender or sexual orientation;; or
(b) [any other prohibited ground or] a person's membership or perceived membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group;
(x) "Minister" means the Minister for Justice and Constitutional Development;
(xi) "person" includes a juristic person and any non-juristic entity or a group or category of persons;
(xii) "prescribed" means prescribed by regulation in terms of section 53;
(xiii) "presiding officer" means a presiding officer of an equality court contemplated in section 16, read with section 54;
(xiv) "prohibited grounds" includes one or more of the following:
(xv) "regulation" means a regulation in terms of section 53;
(xvi) "respondent" means any person against whom proceedings are instituted in terms of this Act;
(xvii) "South African Human Rights Commission" means the South African Human Rights Commission referred to in section 184 of the Constitution;
(xviii) "[substantive] equality" includes the full and equal enjoyment of all rights and freedoms as contemplated in the Constitution and includes de jure and de facto equality and also equality in terms of [process and] outcomes;
"equality" includes the full and equal de jure and de facto enjoyment of all rights and freedoms as contemplated in the Constitution;
(xix) "the State" includes—
(a) any department of State or administration in the national, provincial or local sphere of government;
(b) any other functionary or institution—
(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation or under customary law or tradition;
(xx) "this Act" includes any regulation made in terms of section 53 but does not include footnotes;
(xxi) "unfair discrimination" means discrimination as contemplated in section 7.
[PARKED DEFINITIONS FROM SECTORS
"beneficiary" means a person who has received or is to receive benefits from a retirement fund in terms of the rules of the fund as a result of the person’s relationship with a member of that retirement fund;
"club" includes an association of persons or an association of clubs established for any social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purpose, whether incorporated or otherwise and includes specifically any company incorporated for purposes of managing the professional affairs of club;
"designated groups" means—
[a] persons previously classified as Africans, Coloureds or Indians;
[b] women; or
[c] persons with disabilities;
"educational institution" means—
[a] an education institution as defined in section 1 of the National education Policy Act, 1996 (Act No.27 of 1996);
[b] a higher education institution as defined in section 1 of the Higher Education Act, 1997 (Act NO. 101 of 1997); or
[c] a further education and training institution as defined in section 1 of the Further Education and Training Act, 1998 (Act No. 98 of 1998).
"family responsibility and family status" ..... (The old parked definition)
"health care benefits" includes but are not limited to subsidies, health insurance and pensions.
"health care services"—
[a] includes those services necessary to ensure a state of complete physical, mental and social well-being and not only services aimed at ensuring the absence of disease and infirmity; and
[b] are not limited to those services aimed at preventing, diagnosing, alleviating, curing, healing and treating conditions that threaten or compromise a person’s state of complete physical, mental and social well-being;
"insurance policy" includes an annuity policy, a life assurance policy, an accident insurance policy or an illness or injury policy, but does not include a retirement annuity fund, underwritten by an insurer;
"insurer" means a person who issues insurance policies or makes such policies available to others.
[a] a learner as defined in section 1 of the South African Schools Act, 1996 (Act No. 84 of 1996);
[b] a student as defined in section 1 of the National Education Policy Act, 1996 (Act No. 27 of 1996), section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997) or section 1 of the Further Education and Training Act, 1998 (Act No. 98 of 1998); or
[c] any other person who is receiving education or training at any educational institution referred to in subparagraph (i).
"national sport structure" means the national union of any sport code;
"profession" means an occupation that requires tertiary education and specialised training and skills, and that is regulated by a professional body;
"professional body" means a recognised body which is established to exercise control over and regulate the profession in question and its members.
"provincial sport structure" means the provincial union of any sport code.
"racial discrimination" means any distinction, exclusion, restriction or preference, based on race, colour, descent, national or ethnic origin, which is aimed at or has the effect of nullifying, impeding or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other sphere of life;
"racism" includes any act, practice or policy which denies or is calculated to deny or undermine the inherent dignity of a person or a group of persons on the basis of race, language, religion or ethnicity, as manifested in violence against such person or group of persons, the denial of free and equal access to, and participation in, all spheres of life.
"retirement fund" means a pension fund, a provident fund or a retirement annuity fund;
"services" includes services-
[a] relating to banking and the provision of grants, loans, credit or finance;
[b] relating to entertainment, recreation or refreshment;
[c] relating to transport or travel;
[d] Provided by the State.]
"socio-economic status" means ....(The old parked definition)
Objects of Act
2. The objects of this Act are—
(a) to enact legislation required by section 9(4) of the Constitution;
(b) to give effect to the letter and spirit of the Constitution, in particular -
(i) the equal enjoyment of all rights and freedoms by every person;
(ii) the promotion of [substantive] equality;
(iii) the values of non-racialism and non-sexism contained in section 1 of the Constitution;
(iv) the prevention of discrimination and protection of human dignity contained in sections 9 and 10 of the Constitution;
(v) the prohibition of advocacy of hatred, based on race, ethnicity, gender or religion, that constitutes incitement to cause harm as contemplated in section 16(2)(c) of the Constitution;
(c) to provide for measures to facilitate the progressive eradication of unfair discrimination, particularly with regard to race, gender and disability;
(d) to provide for measures to educate the public and raise public awareness on the importance of advancing equality and overcoming unfair discrimination;
(e) to provide remedies for victims of unfair discrimination and persons whose right to equality has been infringed;
(f) to set out measures to advance persons disadvantaged by unfair discrimination; and
(g) to further facilitate compliance with international law obligations including treaty obligations in terms of the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women amongst others.
Interpretation of Act
3. (1) Any person applying this Act must interpret its provisions to give effect to—
(a) the Constitution, the provisions of which include the promotion of equality through legislative and other measures designed to protect or advance all persons;
(b) the Preamble, the objects and guiding principles of this Act, thereby fulfilling the spirit, purport and objects of this Act;
(c) any relevant code of practice issued in terms of this Act or any other law.
(2) Any person interpreting this Act—
(a) must, where appropriate, consider international law, particularly the international agreements referred to in section 2;
(b) may, where appropriate, consider foreign law;
(c) must prefer any reasonable interpretation that is consistent with international law over any alternative interpretation that is inconsistent with international law.
(3) Any person interpreting this Act must, where a dispute arising from this Act revolves around an issue covered by-:
(a) a provision of an international agreement that binds the Republic as contemplated in section 231 of the Constitution; or
(b) a principle of recognised customary international law as contemplated in section 232 of the Constitution,
attempt to resolve the dispute in conformity with the principle of recognised customary international law or the provision of the international treaty in question, as the case may be.
(4) Any person applying or interpreting this Act must take into account the context of the dispute and the purpose of this Act.
(5) Despite any other law to the contrary, the inclusion of any ground of unfair discrimination, any sector referred to in Chapter 7 or any forms of unfair discrimination provided in the said grounds or sectors, must not be interpreted as an indication of the exclusion of other grounds, sectors or forms of unfair discrimination.
4. (1) In the adjudication of any proceedings which are instituted in terms of or under this Act, the following principles should apply:
(a) The expeditious and informal processing of cases, which facilitate participation by the parties to the proceedings
(b) access to justice to all persons in relevant judicial and other dispute resolution forums;
(c) the use of special rules of procedure and criteria to facilitate participation;
(d) the use of corrective or restorative measures in conjunction with other measures of a deterrent nature;
(e) the development of special skills and capacity to enable presiding officers and other officers to achieve the objects of this Act
(2) In the application of this Act the following should be recognised and taken into account:
(a) The existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of present and past unfair discrimination, brought about by colonialism, the apartheid system and patriarchy; and
(b) the need to take measures at all levels to eliminate such discrimination and inequalities.
Application of Act
5. (1) This Act binds the State and all persons, [if and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right].
(2) If any conflict relating to a matter dealt with in this Act arises between this Act and the provisions of any other law, other than the Constitution or an Act of Parliament expressly amending this Act, the provisions of this Act must prevail: Provided that this Act only applies [to unfair discrimination] in respect of issues relating to employment to the extent that it deals with employees and employers who are excluded from the application of the Employment Equity Act, 1998 (Act No. 55 of 1998).
PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION
Prevention and general prohibition of unfair discrimination
6. Neither the State nor any person may unfairly discriminate directly or indirectly against any person.
7. Subject to section 8, discrimination is unfair if it—
(a) impairs or is likely to impair human dignity;
- undermines equal enjoyment of all human rights and freedoms or access to opportunities in all areas of life by any person in a way that —
(i) creates or sustains systemic forms of inequality or disadvantage;
(ii) perpetuates or exacerbates or is likely to perpetuate or exacerbate past or existing forms of inequality and disadvantage, including the social consequences of discrimination, particularly on the grounds of race, gender and disability; or
(iii) constitutes failure to reasonably accommodate the needs of or enable any person to enjoy full and equal access to or participate or advance equally in all areas of life,
on one or more of the prohibited grounds.
Positive measures and differentiation
8. It is not unfair discrimination to –
(a) take measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination; or
(b) differentiate between persons according to reasonable, justifiable and objectively determinable criteria that are intrinsic and inherent to economic or other legitimate activity.
Prohibition of publication and dissemination of unfair discriminatory information
9. No person may—
(a) disseminate or broadcast any information, publish or display any advertisement or notice that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate;
(b) use language, disseminate, publish or display, exhibit information,
that advocates hatred against or could reasonably be construed in the particular circumstances, as incitement to harm or abuse a person identified by one or more of the prohibited grounds:
Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution is not precluded by this section.
Prohibition of hate speech (Separate Clause)
10. Subject to the proviso in section 9, no person may publish, propagate, advocate or communicate words that are harmful or promote hatred or are calculated to be harmful or hurtful or to propagate hatred against any person on any one or more of the prohibited grounds.
Prohibition of harassment
11. Harassment, as defined in section 1, is hereby prohibited.
PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION RELATING TO RACE, GENDER AND DISABILITY
Prohibition of racial discrimination and racism
12. [Without detracting from the generality of the provisions of this Act], no person may unfairly discriminate directly or indirectly against any person on the ground of race, including in the following manner:
(a) The dissemination of any propaganda or idea, which propounds the racial superiority or inferiority of any person, including incitement to, or participation in, any form of racial violence;
(b) the operation of any activity which is intended to promote, or has the effect of promoting, exclusivity, based on racism or racial discrimination;
(c) the exclusion of persons of a particular race group under any principle that appears to be neutral or the use of rules and practices by way of subterfuge within an institution aimed at maintaining exclusive control by a particular race group;
(d) the provision or continued provision of inferior services to any racial group, compared to those of another racial group, without taking steps to progessively realise equal services to both groups within the resources available.
Prohibition of gender discrimination
13. [Without detracting from the generality of the provisions of this Act] no person may unfairly discriminate, directly or indirectly, against any person on the ground of gender, including -
(a) gender-based violence[, including violence related to witchcraft or ritual-related violence];
(b) the system of preventing women from inheriting family property;
(c) [female] genital mutilation;
(d) any practice, including traditional, customary or religious practice, which unfairly violates the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child;
(e) any policy or conduct that unfairly or unreasonably limits access of women to land rights, finance and other resources;
(f) discrimination on the ground of pregnancy.
Prohibition of disability discrimination
14. [Without detracting from the generality of the provisions of this Act] no person may unfairly discriminate directly or indirectly against any person on the ground of disability, including the following:
(a) Denying or removing from any person who has a [visual or hearing impairment or any other] disability from [their] his or her supporting or enabling facility necessary for [their] his or her functioning in society[, such as a hearing aid, a guide dog, braille, sign language or appropriate information technology];
(b) contravening the code of practice or regulations of the South African Bureau of Standards that govern environmental accessibility;
(c) failing to identify or eliminate obstacles that unjustly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons.
[DEFENCES] BURDEN OF PROOF AND DETERMINATION OF FAIRNESS
Discrimination on prohibited grounds
15. Discrimination on one or more of the prohibited grounds in section 1 is unfair unless it is established that the discrimination is fair.
Burden of proof
16. (1) If the complainant makes out a [prima facie] case of unfair discrimination in terms of this Act, which on the face of it, requires a response from the respondent—
(a) the respondent must prove that the discrimination is not based on one or more of the prohibited grounds; or
(b) if it is proved that the discrimination is based on one or more of the prohibited grounds, the respondent must prove that the discrimination is fair or the act or omission complained of falls within the scope of section 8.
[(2) For purposes of this section the requirements to make out a "a [prima facie] case of unfair discrimination" as contemplated in subsection (1), include, amongst others, any act or omission which—
(a) causes prejudice to a person of a disadvantaged group;
(b) causes a violation of the equal enjoyment of rights and freedoms [right to dignity or any other right];
(c) impairs or is likely to impair the [fundamental] human dignity of any individual, group, class or category of persons; or
(d) perpetuates or exacerbates existing patterns of disadvantage or is likely to do so,
based on or related to one or more of the prohibited grounds.]
Determination of fairness
17. Whether the discrimination is fair or unfair, depends on its context and all relevant circumstances, in particular the following:
(a) The impact or possible impact of the discrimination on the complainant;
(b) the position of the complainant in society and whether he or [she suffers from patterns of disadvantage or] belongs to a group that suffers from patterns of disadvantage;
(c) whether the discrimination is systemic in nature;
(d) the nature and extent of the discrimination, including the nature and extent of the resultant disadvantage;
(e) the purpose of the discrimination and the extent to which that purpose is achieved;
(f) whether there are less restrictive and disadvantageous means to achieve the purpose;
(g) where appropriate, whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to [overcome] address [accommodate] the disadvantage or to accommodate diversity arising from or related to one or more of the prohibited grounds;
(h) whether it is consistent with any applicable legislation [guidelines/codes of practice/plans of action/regulations] or any other policy or policy related document;
- whether, in the circumstances, it is reasonable and justifiable.
[Parked provisions relating to promotion]
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