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JOINT AD HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL [B57-99]
9 December 1999
Redraft Of Chapter 5: Defences and Burden of Proof (appended to minutes)
The committee discussed the viability of having a two stage or a three-stage test of the enquiry into discrimination. Generally members preferred the two-stage approach, which is a prima facie case shown and then justification by the discriminator. The view was also expressed that a two-stage approach is advisable, as it does not give the discriminator too many escape routes.
The committee discussed a new draft of the chapter relating to the burden of proof in cases of unfair discrimination and also defences to a claim of unfair discrimination. As a result of the deliberations, the drafting team were asked to make certain amendments and submit a redraft of subsection 2(2).
Regarding the issue of equality courts the committee considered the viability of having a forum of first instance to deal with equality issues before referring the matter to court. This notion was well supported by the committee. Concerns were raised for the provision for speedy and effective remedies.
Defence to claim of unfair discrimination
The Chairperson, Mr M Moosa (ANC), said that during the hearings submissions were made for the exclusion of unjustifiable hardship as a factor in the enquiry whether certain conduct gave rise to unfair discrimination. He said the Committee would have to decide whether unjustifiable hardship should be included in the test. He asked the drafters to explain the different stages of the enquiry.
Ms T Madonsela said the first step of the enquiry is that on the facts the complainant should prima facie indicate that discrimination has taken place. Should prima facie discrimination have been shown the presumption of unfairness automatically slips in. The second step is that the respondent must show that the discrimination was reasonable and justifiable in the circumstances. The respondent as a third step also has to show that unjustifiable hardship would have resulted to accommodate the complainant.
Prof S Gutto said that S 9(5) of the Constitution also automatically assumes that discrimination once shown, is unfair. Once discrimination is shown it is up to the respondent to justify the discrimination and that is when Clause 43 comes into play. Prof Gutto said that Clause 43(2) is taken from the Constitution and therefore the committee needs to look at whether it is reasonable to have this clause in both the Constitution and this Bill.
Mr J Gomomo (ANC) said the purpose of this Bill is to guarantee that disadvantaged people who have been discriminated against in past would not have to experience discrimination again. He said therefore it would be better to have a two-stage test to ensure that an extra burden of a third stage is not placed on the disadvantaged.
Mr Moonsamy (ANC) agreed with Mr Gomomo and added that too many stages are going to complicate things.
Adv Z Madasa (ACDP) asked the drafters whether there is any national legislation that limits or curtails the powers of the courts and whether this Bill can formulate a test, which the courts cannot apply.
Prof Gutto responded that there is no legislation that can exclude a court from hearing a certain matter, as this is not possible. He added that it is important that legislation provides for factors that can guide the courts, especially those that are applying the legislation at the bottom level, i.e. magistrates' courts.
Prof. Gutto said that the committee should rather look at whether the intention set out in the Constitution has been captured in this Bill, rather than looking at the number of stages.
Ms T Madonsela added that the committee must be careful not to put legislation into place that provides too many escape routes for discriminators.
Mr M Moosa (Chairperson, ANC) said in his own view the notion of unjustifiable hardship can be dispensed with. He said it does not appear like any members have problems with the first part of the enquiry. He asked the Committee to concentrate on the discussion of how things should be once the burden is on the respondent. He reminded the members that whether the burden is on the applicant or whether it is on the respondent, a court always decides a case on a balance of probabilities. The balance of probabilities must not be confused with the need for a prima facie case.
Mr Moosa reiterated that the first stage of the enquiry is whether there was discrimination. The second stage is whether the discrimination was unfair. He proposed that any further discussion must revolve around the second stage and that the Women's Legal Centre's submission on the subject be used as a basis for rebuttal.
The Chairperson warned Mr Gutto not to move away from the discussion of that morning which has been to the effect that the second stage is the rebuttal stage. He said the drafters' primary test is unreasonableness whereas in Section 43(3) unjustifiable hardship emerges. Professor Gutto said unjustifiable hardship as in S 43(3) is totally out. Ms Madonsela said the test is unfairness and everything else is "merely tools". The Chairperson advised that the starting point is Section 9(5) of the Constitution.
Redraft Of Chapter 5: Defences and Burden of Proof (see Annexure 1)
During this session the committee considered a new draft that dealt with the burden of proof and the defences to a claim of unfair discrimination.
Section 2 (Burden of proof)
The Chairperson explained how the burden of proof section would operate:
The complainant would have to make out a prima facie case of unfair discrimination. Doing this (in terms of subsection 2(2) of the draft) would include proof that there was a differentiation on a prohibited ground or that there was a failure to differentiate where there should have been a differentiation. The result of this act or omission must be that it caused prejudice to a person of a disadvantaged group or it caused a violation of that person's right to dignity.
Proving this would be sufficient to constitute a prima facie case of discrimination.
If the complainant has made out this prima facie case then the burden from that point onward falls on the respondent. (Thus, proving a prima facie case creates a presumption that there was unfair discrimination. This presumption must now be rebutted by the respondent.) Rebutting the presumption of unfairness is a two-stage enquiry.
Firstly, the respondent will have to prove that the discrimination is not based on one or more of the prohibited grounds of discrimination. If the respondent succeeds in proving this then there has been no unfair discrimination and the enquiry ends there. This means that the complainant's case has failed because the respondent has rebutted the presumption of unfairness.
If however, the respondent cannot prove this, it will mean that the discrimination was based on a prohibited ground of discrimination and the complainant's case has not failed. (Note that while the complainant's case has not failed, it also has not yet succeeded.)
The respondent must now move on to the second leg of the enquiry to rebut the presumption of unfair discrimination. Thus, the respondent can still prove that his conduct did not amount to unfair discrimination.
If the respondent can prove that, even though there was discrimination on a prohibited ground of discrimination, that discrimination was in fact fair, then the respondent would have succeeded in rebutting the presumption of unfair discrimination. This means that the complainant's claim will fail.
If, on the other hand, the respondent fails to rebut the presumption of unfair discrimination by not being able to prove that the discrimination on a prohibited ground was fair, then the complainant's claim will succeed and the respondent will be guilty of unfair discrimination as envisaged in section 2.
After the Chairperson's explanation certain alterations were noted.
1. In section 2(1)(b) the words 'reasonable and justifiable in terms of section 43(2)' must be deleted and substituted with the word 'fair'.
2. Mr Aucamp (AEB) noted that there was a grammatical error in S2(1)(b) in that the word 'prove' had to be inserted after the word 'grounds,'. The Chairperson said that, personally, he did not see the problem with the current drafting but, if there was an error he would leave it to be fixed by the drafters.
Discussion of subsection 2(2)
Mr Aucamp was unhappy with subsection 2 (2). He explained his difficulty by using himself as an example. He explained that according to this subsection, as a white male, he would never be able to claim that he had been discriminated against. This was so because the wording of the section was such that, in order to make a prima facie case of unfair discrimination, the complainant would have to be a member of a disadvantaged group.
The Chairperson responded that the prima facie case of unfair discrimination was set out in the first part of ss2 (2). To him this meant that the prima facie case being referred to in this subsection was based on the prohibitions immediately preceding ss2 (2) (thus, the requirement for making a prima facie case in ss2 (2) is based on the prohibitions set out in ss2 (1)(a) and (b). According to the Chairperson, this meant that the requirement in ss2 (2) (which refers to disadvantaged groups) was not the sole requirement necessary for making out a prima facie case. This section, he said, refers to requirements 'over and above' the requirements, which had been set out in ss2 (1)(a) and (b).
Mr Aucamp pointed out that subsection 2(2) did not use the wording 'over and above' but used the wording 'for purposes of this section'. Thus, the meaning was that, in order for section 2 to operate in the complainant's favour, subsection 2(2) had to be complied with.
It became quite apparent that the drafters had drafted subsection 2(2) very unclearly. Members jumped in with various criticisms and proposals regarding this subsection.
Mr S Grove (ANC) noted that one of the committee's intentions with this Bill was to make a clear distinction between differentiation and discrimination, yet, in ss2(2) they had brought up both concepts together. This, he said, only had the effect of 'muddying the water'. He asked the committee (rhetorically) what the purpose of ss2(2) was and why they even needed it. The Chairperson agreed with the member regarding the lack of clarity (and accordingly the potential misinterpretation) of subsection 2(2) and suggested that they keep it as 'Option 1'. He then told the drafters that they should work on a second option. To give them an idea of the structure he was looking for, he said it should be something along the lines of:
'Discrimination is unfair if:
He also specifically instructed them to redraft the words 'failure to differentiate on a prohibited ground.
Dr Davies (ANC) criticised this subsection on a different line. He did not complain about the distinction between discrimination and differentiation, but rather, complained about the use of the word 'prima facie'. He said that not everybody knew what this term meant and suggested that subsection 2(2) include a portion where this term was explained. He was of the opinion that the subsection should either describe what a prima facie case is or it should set out what the requirements for making a prima facie case would include. He noted that the current wording was quite unclear.
The Chairperson noted that he thought subsection 2(2) was a useful clause as it made it easier for a person from a disadvantaged group to prove a prima facie case. He noted however that Dr Davies was probably right (in terms of his criticism of the way the term prima facie was used) and suggested to the drafters that they contextualise the role of subsection 2(2) by saying what its purpose was and also instructed them to draft a clause which clearly outlined what the requirements to make a prima facie case included.
Mr Aucamp suggested that the section indicate that the proof required in terms of section 2 (for the complainant and for the respondent) had to be shown on a balance of probabilities. He noted this, as different scales exist in terms of the balance of proof, and he was concerned that the section might be interpreted in the sense that the various tests in section 2 had to be proved beyond a reasonable doubt.
The Chairperson replied that they were dealing with litigation in the civil court, which meant that everything had to be proved on a balance of probabilities.
At this time the Chairperson indicated that he was going to draw the discussion on this particular issue to a close. He explained to the committee, who seemed baffled by subsection 2(2) that all this subsection really did was to make it easier for the complainant from a disadvantaged group to make a prima facie case.
Section 3 The defence to a claim of unfair discrimination
The Chairperson noted that this clause was not supposed to be in the draft, as the committee had not asked for it. It was agreed that, as this clause had 'no role to play' it should be deleted.
Section 4 Factors to be taken into account in assessing a defence to prima facie case of unfair discrimination
This section provides that an assessment whether a discrimination is fair or unfair would have to include a consideration of the context of the discrimination and also all the circumstances which are relevant to that case. Factors which are of particular importance are listed in Section 4 (a) - (i). The committee proceeded with an analysis of the factors.
The Chairperson recommended that the Community Law Centre proposal be adopted as Clause 4.
Clause 4(1)(a) shall be retained.
Clause 4(1)(b) shall be retained with the following amendment: '...in the past...' shall be deleted.
Clause 4(1)(c) shall be substituted with Section 43 (2)(b) of the Bill and should read as follows, ' the nature and extent of the discrimination, including the nature and extent of the resultant disadvantage.'
Clause 4(1)(d), (e), (f) and (g) shall be deleted.
Clause 4(1)(h) and (i) shall be retained without amendments.
An additional subclause (j) shall be inserted, and will read as follows: 'reasonableness and justifiableness of the unfair discrimination.'
Clause 5 shall be retained without amendments.
It was proposed that in Clause 4(1)(b) the words '...suffered in the past...' be replaced with 'suffers'. However, a member of the drafting team noted that this might have the effect of individualising the concept of suffering when the approach that they wanted to adopt was to look at systemic suffering. The Chairperson said that this was an important point and instructed the drafting team to leave the subsection as is but to add the concept of systemic suffering.
The chairperson noted that S43 (2)(d) of the Bill, as well as Clause 4(g) and (h) speaks of 'purpose'. S43 (2)(d) establishes whether the discrimination is unfair, and it is necessary to retain this section. He noted specifically that you cannot look at other factors and ignore 'purpose'. The committee agreed to retain Clause 4(g), (h) and (i) as it was agreed that 'purpose' was an important concept which had to be retained.
Mr Hanekom (ANC) proposed that Clause 4 (d), (e) and (f) be replaced with the phrase 'the extent to which it achieves its purpose' and responded to a question that Ms Smuts' had asked by noting that a juristic person also has to explain its purpose for discriminating, and this purpose has to be legitimate.
Mr Moosa informed the committee of the two options proposed by South African Human Rights Commission and the Commission on Gender Equality with regard to Equality Courts. He said that the SAHRC proposed that the present enforcement mechanisms be utilised for approximately the next five years, until tribunals are set up. The CGE proposed that an interim tribunal operate for 3-4 years, until the courts are equipped to deal with these matters. He asked the committee whether there is any support to have the tribunals as the courts of first instance.
Mr Aucamp (AEB) said that he would make a plea in that direction. He suggested that they have a forum of first instance, which aims at solving problems, rather than disputing problems, for example, "approaching a local dominee [church leader] for help" before taking the matter to court.
Dr Davies suggested that the SAHRC be used as a forum of first instance, before taking the matter to court.
Mr Moosa drew the committee's attention to Section 46(1) of the Bill, which enables the court to refer matters to another dispute resolution forum, which in turn provides for a speedier out-of-court adjudication. Mr Moosa asked the Department to clarify the intention of Section 46(1), and asked to what type of tribunals they were referring. He added that the SAHRC has the power to investigate and report on matters, so a matter could first go to court, then be referred to the SAHRC by the court.
The Department said that the use of informal courts would definitely speed up the process of adjudication.
Ms Smuts (DP) asked that this clause be deleted. The chairperson objected, and said that if remedies are not forthcoming, then there should be alternatives. He suggested that the SAHRC refer matters to court, and not vice versa.
Dr Davies concurred with the chairperson, and suggested that they provide for a variety of forums of first instance. The co-chair suggested that this procedure be followed in the same manner as the pre-trial stage.
The Committee agreed on the following points during the deliberations:
1. The Committee agreed that in relation to section 46(1)(a) of the Bill, a provision should be inserted which provides that when an equality matter is initiated in a Magistrate's Court, the matter must be referred to the Chief Magistrate within 14 days in order for the Magistrate to determine whether the Magistrate's Court is the appropriate forum to decide the case. If the case is not most appropriately heard in the Magistrate's Court, the Chief Magistrate may give directions for the matter to be referred to the Labour Court or to other forums.
2. It was agreed that the issue of appointment of Magistrates and Judges as equality Magistrates or Judges needed to be considered. A mechanism needed to be developed for the administrative appointment of these Magistrates and Judges.
3. The Committee agreed that there was no problem with providing training for Magistrates and Judges.
4. It was agreed that in order to deal with the fact that the Magistrate's Courts quantum is generally limited to R100 000, that the Magistrate's Court in deciding to make an award greater than R100 000 would send the matter to the High Court for confirmation in cases where orders were made of above R100000.
5. The issue of Circuit Courts to hear equality matters was also discussed but no finality was reached in that issue. The Committee debated the issue of punitive damages as set out in section 48(1) of the Bill.
1. It was agreed that a provision would be inserted in the Bill which provided for an application procedure to appeal to the Constitutional Court. It was also agreed that the Department of Justice would draft a clause concerning the role of the Constitutional Court in equality matters.
Promotion of Equality:
1. It was agreed that a three fold approach would be used in the Bill:
a. A horizontal application of equality would be squarely incorporated;
b. All persons must endeavour to develop an understanding of equality;
c. The state and the public sector shall progressively endeavour to achieve equality in relation to the various grounds identified as prohibited grounds of discrimination.
d. Thus there would be three levels for the promotion of equality section, to deal with the State, the public sphere and individuals.
e. It was agreed that the sectors should be dealt with under the promotional section. It was agreed that all definitions in this sector should be deleted.
f. It was agreed that there should be progressive realisation by the Ministers responsible in each sector.
DEFENCES AND BURDEN OF PROOF
Discrimination on prohibited grounds
1. Discrimination on one or more of the prohibited grounds in section 1 is unfair unless it is established that the discrimination is fair. (An alternative formulation based on section 11 of the Employment Equity Act, 1998, for consideration, reads as follows: ''Whenever unfair discrimination is alleged in terms of this Act, the person against whom the allegation is made must establish that it is fair.'')
Burden of proof
2. (1) If the complainant makes out a prima facie case of unfair discrimination
in terms of this Act, the respondent must-
(a) 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, that the discrimination is reasonable and justifiable in terms of section 43.(2)
(2) For purposes of this section the requirements to make out a prima facie case
of unfair discrimination include a differentiation or failure to differentiate on a prohibited ground which causes prejudice to a person of a disadvantaged group or which causes violation of the right to dignity.
Defence to claim of unfair discrimination
3.(1) It is a defence to a claim of unfair discrimination that the act or omission
is reasonable and justifiable in the circumstances.
(2) The factors to be taken into account in deciding whether the act or omission is reasonable and justifiable in the circumstances include-
(a) the purpose of the discrimination;
(b) the nature and extent of the discrimination, including the nature and extent of the
(c) the relationship between the discrimination and its purpose; and
(d) whether there are less restrictive and disadvantageous means to achieve the purpose.
Factors to be taken into account in assessing a defence to prima facie case of unfair discrimination
4.(1) The factors to be taken into account in assessing a defence to a prima facie
case of unfair discrimination, include the context and all relevant circumstances, in particular the following:
(a) the impact or possible impact on the complainant;
(b) the position of the complainant in society and whether he or she has suffered in the past from patterns of disadvantage;
(c) the nature and extent of the discrimination;
(d) whether it has a legitimate purpose;
(e) the nature and importance of its purpose;
(f) whether and to what extent it achieves its purpose;
(g) whether and to what extent its purpose may be achieved by less intrusive means;
(h) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to overcome disadvantage or to accommodate diversity arising from or related to one or more of the prohibited grounds; and
(i) whether it is consistent with the applicable codes of practice, if any.
Measures to redress disadvantage
5. Acts or omissions designed to protect or advance groups or categories of persons disadvantaged by unfair discrimination, or the members of such groups or categories of persons, do not constitute unfair discrimination. (It is suggested that clause 5 dealing with remedial measures should be placed either as clause 1 or 2 above.)
Parked provisions relating to promotion:
(1) The State and organs of state must implement measures to protect and advance Black people, women and people with disabilities.
(2) Natural and juristic persons engaged in any controlled activity must implement measures to protect and advance Black people, women and people with disabilities.
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