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JOINT AD-HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
12 January 2000
Documents handed out
Re-Draft No1 (17/12/99)
Re-Draft No2 (11/01/00) -Chapters 1 & 2
The Committee went in detail through Chapters 1 and 2 of Re-Draft No 2 which incorporated the previous day’s deliberations. They then discussed Chapter 3 based on Re-draft No1 (dated 17/12/99)
It was agreed that this required further consideration and would be addressed at a later stage.
Section 1: Definitions
"Equality" ¾ Prof S Gutto suggested the definition in Re-Draft 2 be amended to include "and in terms of outcomes".
"Harassment" ¾ Mr B Turok (ANC) suggested that the adverse impact should be intentional. There followed a discussion around the desirability of including intention in the definition of harassment. Mr C Aucamp (AEB) said that he felt it was important to include it. Mr R Davies (ANC) queried whether this was wise and was supported by Prof Gutto who explained that as harrassment is a civil offence, intention is not appropriate. Mr M Pheko (PAC) expressed concern that if intention had to be established, this would make harrassment difficult to prove in many cases. He was supported by Mr Davies. The consensus was that intention should not be included.
Mr Aucamp suggested the definition be restructured so that the factors in subclause (b) apply to (a) in the same way and this was agreed.
"Persons" ¾ Mr Davies queried the meaning of "non juristic entities" in the definition. Did this cover ordinary individuals? The Chair explained that this was intended to include non-governmental organisations and other such organisations. Ms D Smuts (DP) stressed the importance of clarity around the definition of "persons" particularly given the effect this will have on the promotional provisions later in the Bill. She referred to s.8(2) of the Constitution which limits the application of the legislation to individuals "to the extent applicable". It was agreed that this would be discussed at a later stage.
"Substantive Equality" ¾ It was agreed that in view of the different positions set out the previous day, the Committee would defer for the time being the question of whether it is necessary to define "substantive equality" as opposed to "equality".
Mr S Grove (ANC) reminded the Committee that family status, responsibility and pregnancy still needed to be defined.
Section 2: Objects of Act
It was agreed that the clause providing for remedies for victims of discrimination had been inadvertently omitted and should be reinserted.
Ms Smuts pointed out that it had been agreed the previous day that (iv) should read "the prevention of discrimination and protection of human dignity...". This was agreed.
Mr M Moosa (ANC, co-chair) proposed that the word "further" be inserted before "compliance" in clause 2(f) as there must already be other legislation which complies with international law obligations. This was agreed.
Section 3: Interpretation of Act
Mr Moosa (ANC, co-chair) queried the effect of clause 3(c), "any prescribed code of good practice" in the interpretation section. Ms S Camerer (NNP) felt it was dangerous to include codes of practice as a guide to interpretation as they would not necessarily be drafted democratically. Mr Davies suggested that only codes which are recognised by the State should be taken into consideration. Concern was also raised at the use of the word "good" which was felt to be too subjective. It was agreed that this clause would be reworded.
Ms Smuts suggested that the whole interpretation clause be deleted and replaced by a reference to s.39 of the Constitution. She was particularly concerned with clause 3(b) which provides that the Guiding Principles must be taken into consideration in interpretation as these in turn refer to the training of the judiciary. She felt it was unnecessary and inappropriate to be so specific and queried the need to go further than the Constitution in laying down principles of interpretation.
Mr Turok felt that the words "contextual and purposive" were unclear to the layman and it was agreed that consideration would be given to a simpler form of wording. Prof S Gutto explained that the wording came from a Constitutional Court decision on how statutes should be interpreted.
Mr Grove queried the use of clause 3(5) as the list of prohibited grounds is open. Mr Moosa (co-chair) pointed out that the clause was necessary in relation to the sectors and fulfilled a useful purpose generally.
Section 4: Guiding Principles
Prof Gutto explained the increasing tendency towards "social legislation" which includes values within the legislation. He gave the National Forest Act as an example as it tries to define certain values and principles. The Guiding Principles were intended to have a similar effect.
Ms Camerer felt the whole section was problematic. Although she had no problem in principle with including provisions relating to the training of judiciary these were mixed up with punitive measures and the way in which they were drafted was meaningless and may well be unconstitutional. She suggested the principles contained in the section be dealt with in other sections of the Bill.
There followed a discussion on the need for a section on Guiding Principles. Prof Gutto explained that since 1994 Parliament’s approach has been to include separate clauses dealing with Objects and Guiding Principles. This marked a difference between pre and post 1994 legislation and gives a special character to law making in South Africa. Ms T Madonsela added that the section could be split but the clauses would have a quite different effect. It was agreed to leave the Guiding Principles section but that the whole section would be restructured so that the different elements were more clearly delineated.
Mr Aucamp stated that it was inappropriate to include punitive measues in the Bill. Punitive measures are used in criminal cases. Ms Madonsela said that there was a place for punitive measures in the Bill. Mr Moosa (co-chair) explained that punitive measures meant sanctions such as the loss of a licence rather than criminal sanctions. Ms Camerer agreed with Mr Aucamp and queried whether it was appropriate to include withdrawal of a licence as a sanction. It was agreed that this point would be considered later but that clause 4(3) would be amended to put the emphasis on compensatory and correctional measures.
Mr Pheko (PAC) suggested "colonialism" be inserted in clause 4(5)(a) alongside "discrimination brought about by the apartheid system". Ms Smuts pointed out that the dictionary meaning of colonialism is not pejorative and there followed a discussion around whether colonialism should be "of a special kind". It was agreed to defer the discussion at this stage.
Section 5: Application
Ms Smuts stated that in her view this clause needed further consideration and it was not sufficient simply to provide that this Act prevails over any others. She raised the question of the Employment Equity Act and said that careful consideration was needed before imposing burdens on employers through this Bill where they are specifically excluded from the EEA. She warned that imposing this Bill on small businesses would have a harmful effect on employment and job creation and queried whether this Bill would conflict with amendments to the EEA, particularly relating to small businesses, proposed by the Minister for Labour. She proposed that this Bill should not apply to the employment sector for the time being. Ms Camerer added that care needs to be taken to ensure that this Bill does not run counter to the Minster for Labour’s proposed changes to the EEA.
There followed a discussion around whether small employers should be excluded from the provisions of the Bill. Mr Davies felt that this was a false argument as the exemptions in the EEA relate to the obligation to provide affirmative action reports. There is no exemption from the discrimination provisions and nor should there be. Mr D Hanekom (ANC) foresaw problems with providing that the Act will prevail over other legislation if the sectors remain in the main body of the Bill. The wording of this provision should depend on how the sectors are covered.
Mr Aucamp strongly urged the Committee to leave the clause out completely and cited the following reasons: firstly, the Constitution does not ask for the prevalence of this legislation. Secondly, customary law sets out general principles if there is a conflict between two laws, such as the prevalence of the later Act and of the specific over the general etc. Thirdly, the Bill makes an exception for the EEA for good reason and surely the same principle should apply to other sectors such as insurance. Fourthly, the constitutional time limit excludes further more detailed consideration. Can the Committee say with a clear conscience that the Bill prevails when insufficient consideration has been given to the consequences? Finally, it may well be unconstitutional to give prevalence to this Bill over all others.
Mr Davies agreed with Mr Hanekom and suggested that the provision should be left as it is for the time being but that it should be considered carefully once the Committee reaches the sectors. Mr Turok suggested the clause should specifically state that it covers anyone not covered by the EEA and that those who are covered by the EEA are also covered by this Bill. The following options were identified : Option 1 : Clause 5(2). Option 2 : Mr Turok’s proposal. Option 3 : Delete the whole clause. It was agreed to return to this provision at a later stage.
Ms Smuts also stated that if the Bill deals with hate speech then there will need to be specific reference to the Obscene Publications Act and the IBA Act 1993, amongst others.
Chapter 2 (Prevention, Prohibition, and Elimination of Unfair Discrimination)
Ms T Madonsela of the Drafting Team said that in clause 6(1) the words "…on one or more of the prohibited grounds" must be included. She proposed the clause reads "Neither the State nor any person may unfairly discriminate directly or indirectly on one or more of the prohibited grounds, against any person". She supported her view by maintaining that such words are used in Section 9 of the Constitution.
Mr M Moosa pointed out that a definition of discrimination is in existence. He challenged the Committee to try and establish when is it unfair to discriminate.
Mr M Moosa (ANC) proposed that the clause read as follows:
7. Discrimination is unfair if it –
impairs or is likely to impair fundamental human dignity;
undermines equal enjoyment of all human rights and freedoms or access to opportunities in all areas of life by any person;
creates or sustains systemic forms of inequality or disadvantage;
perpetuates or exacerbates or is likely to perpetuate or exacerbates existing forms of inequality and disadvantage, including the social consequences of past discrimination, particularly on the grounds of race, gender and disability; or
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.
Mr S Grove (ANC) made a proposal that clause 6 and 7 of the Community Law Centre/Women's Legal Centre submission must be included in clause 8 of this revised Bill. He said he particularly felt uneasy about clause 8(a). He reminded the Committee to be mindful of the goal it wants to achieve. The Committee did not agree on the formulation.
Professor Gutto said there has been no change made except that the clause has been moved from Clause 6 in the previous draft to Clause 9 in the current one. Professor S Gutto pointed out that so far in the Bill there has been avoidance of the need to prove or establish intention by the discriminator except in clause 9.
Chapter 3 (Prevention, Prohibition and Elimination of Unfair Discrimination Relating to Race, Gender and Disability)
Clause 8 (Redraft No 1)
Ms Madonsela said the Drafting Team had not been instructed to do much on this chapter. She pointed out that clause 8(h) has not been resolved.
Clause 9 (Redraft No 1)
Ms T Madonsela pointed out that in clause 9(c) the Committee had directed that the word "female" be removed and substituted by "genital mutilation". In clause 9(f) Ms Madonsela proposed that the Committee consider having the clause read: "any policy or conduct that unfairly or unreasonably limits access of women to land rights, finance and other resources". In clause 9(h) she proposed the substitution of "pregnancy discrimination" by "discrimination on the grounds of pregnancy".
Co-chairperson Ms M Botha (ANC) advised that the use of the word "de facto" appearing in this chapter must be retained as it had been retained in the definition of equality. The Committee discussed the matter and concluded the word "actual" would be a better replacement of "de facto".
Mr B Turok (ANC), commenting on clause 8(c) of Re-draft No1, said he felt it would be difficult to legislate on racial tokenism. Mr D Hanekom (ANC) conceded that there seems to be a lot of contradictions as far as racial tokenism is concerned. He said he felt it would not be appropriate to legislate on the matter. Mr C Aucamp (AEB) said the inclusion of racial tokenism has the potential to be counter- productive. He disagreed with its inclusion.
Professor Gutto replied that ‘racial tokenism’ was not something which was difficult to prove and noted that it was an issue which had to be addressed in the Bill. He said that if tokenism was allowed then it would not be possible to stop discrimination when it existed. He criticised the committee by saying that they should not simply say that ‘’this is good’’ and ‘’this is not good’’. He urged them to come up with a formulation to help the drafters, as the translation of the Bill had to take place the following week and the drafting team would welcome any suggestions.
The Chairperson Ms M Botha, in the committee’s defence, noted that positive suggestions had in fact been made, particularly in respect of clause 8. The meeting was then adjourned.
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