Equality Bill: discussion

JOINT AD HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL [B57-99]
10 December 1999
DELIBERATIONS

Documents handed out:
Relevant drafts available only on 14/12/99

SUMMARY
The Committee deliberated on the entire Bill making amendments to various chapters when the need arose. Option 4 of the Preamble was agreed upon (see attached document). On chapter 1 there was a general consensus that there must be a single definition of harassment and sexual harassment in the Bill. HIV/AIDS, nationality and family status were agreed upon as further grounds of discrimination. After a lengthy debate the present heading of Chapter 3 was agreed upon. The drafting team was then tasked to come up with a "bill" by Wednesday 15 December 1999 which will be handed to the Committee clerk who in turn will send copies to the members’ constituency addresses. The Committee adjourned until Tuesday 11 January 2000.

[PMG will make this new draft available soon after 15/12/99 at: http://www.pmg.org.za/equality/equality.htm].

MINUTES
Preamble
As a point of departure the Co-Chairperson, Ms N Botha, proposed that the preamble should be very short and asked for views.

Mr K Moonsamy (ANC) pointed out that Option one (present draft in the Bill), paragraph one, makes mention of "its people have been inspired by the values of equality". He proposed that this should be deleted and replaced by "oppressed people have been inspired by the values of equality", since not all people have been inspired by the values of equality.

Mr D Hanekom (ANC) said that further problems would be encountered with the proposal on the table, as the struggles were different between the oppressed and oppressors. He proposed that rather than including Option one; Option four would be a better option.

Prof L Ndabandaba (IFP) agreed with the proposal made by Mr K Moonsamy.

Ms N Botha (ANC) supported the proposal by Mr D Hanekom for Option 4.
There was a general consensus that Option 4 is the best option. Ms N Botha read through Option 4.

Ms D Smuts (DP) advocated that "colonial settlers" in the option be dispensed with because she felt it was not only during colonialism that wars of dispossession occurred.

Mr K Moonsamy (ANC) objected to such an exclusion stating that the history of the country is of vital importance and so should appear on the Bill where necessary.

Ms D Smuts (DP) objected and said it is not important to stress certain issues of our history whilst leaving everything else out.

Mr Pheko (PAC) said the history of South Africa and its present position is largely due to what happened under colonialism, therefore the issue of colonialism cannot be avoided. He proposed that the wording of Option 4 be "polished", without compromising the truth of colonialism.

Mr D Hanekom (ANC) said that he does not have a problem with the clause and it is necessary for special emphasis to be placed on the effects of colonialism.

Ms N Botha (ANC) summarised the discussion and said that this piece of legislation is trying to remedy the imbalances of the past and therefore the past must be taken into consideration. A recommendation was made to the drafters to look into this issue.

It was then agreed that all the other options be dropped and amendments be made to Option 4.

Chapter 1 - Definitions
Harassment
Mr M Moosa (ANC, co-chairperson) said a decision should be made whether sexual harassment should be included in this bill, but expressed his personal view that it need not be dealt with in this bill.

Prof S Gutto expressed the view that because of the special nature of sexual harassment, it should be included in this bill, but subject to other sexual harassment clauses in existing legislation.

Mr D Hanekom (ANC) and Ms L Jacobus (ANC) agreed with Prof Gutto’s proposal.

Prof L Ndabandaba said it is not necessary to include sexual harassment in this bill.

Mr Pheko (PAC) expressed the view that sexual harassment is very common and should receive special attention in this bill.

There was general consensus that sexual harassment be included in the bill.

Mr M Moosa (ANC) asked whether racial harassment should also be defined since sexual harassment is defined.

Prof S Gutto proposed that the definition of harassment be broad so that it would not be necessary to have further definitions of racial and disability harassment. The nature of sexual harassment definitely requires for it to be defined.

Mr M Moosa (ANC) drew the committee’s attention to the definition of sexual harassment as defined by the Community Law Center (CLC) and proposed that it be an option to be included in the bill.

Mr D Hanekom agreed that the CLC’s definition of sexual harassment be included.

There was general consensus that there be a single definition for harassment and sexual harassment in the bill. The CLC definition of sexual harassment was accepted with, the addition of the words "may be calculated or has the effect of".

Prohibited grounds
It was generally agreed that Option 1 be deleted.
Consensus was also reached for the inclusion of HIV / AIDS and Nationality as further grounds of discrimination.

Substantive equality
Option 2 was agreed to be the better option.

Unfair discrimination
It was agreed to delete Options 1 and 2 and include Option 3 in the bill.

Chapter 2
No comments or additions were made.

Chapter 3
Ms D Smuts (DP) complained about the suggested use of the heading " Special treatment to race and gender" whilst the very law that is being formed is an equality law. The Committee discussed the matter and finally resolved to use the heading that the chapter currently holds.

Mr M Moosa (Chairperson, ANC) argued that racial discrimination includes tokenism and therefore the Bill must evidently show the matter and address it as a discrimination ground as well. Ms D Smuts (DP) objected to the suggestion describing it as far-fetched. Advocate Z Madasa (ACDP) concurred and said with tokenism a person deliberately accepts an offer for a job for reasons of "hunger and otherwise" and such a willful acceptance of a situation can never be classed as racism.

Concerning Section 8(e) Mr M Moosa proposed that it be removed from its present position and a special clause dealing with it be drafted in Chapter 2 because hate speech also must be covered.

Professor L Ndabandaba (IFP) proposed that in clause 9(c) the words " female genital mutilation" be replaced by "genital mutilation". He argued that not only females are subject to genital mutilation. The Committee agreed.

On consideration of clause 10, Ms D Smuts urged that clause 10(a) be phrased differently because members of the public do not go around doing the listed things in the clause. The Committee agreed to the proposal.

Chapter 4
Clause 1 of this chapter is exactly as it is in the Constitution. The Chairperson suggested that in clause 3 the wording should be "where the determination should be fair or unfair". The drafters agreed.

The Committee agreed to delete all the 'parked' clauses relating to promotion of equality.

The drafters concurred with the Chairperson when he proposed that in clause 9 (d) the words "girl under 18" be replaced with the words "girl child".

The meeting was adjourned until Tuesday 11 January 2000.