Equality Bill: hearings

Meeting report

JOINT COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
26 November 1999
PUBLIC HEARINGS

Chairpersons: Mr M Moosa (ANC, NCOP) and Ms N Botha (NA, ANC)

Submissions handed out:
COSATU (available here shortly)
Centre For Applied Legal Studies: Labour Project
South African Chamber of Business
Afrikaanse Handelsinstituut
Malamulela Social Movement For The Unemployed

SUMMARY
COSATU welcomed the Bill and supported the linking of prohibition and prevention of discrimination with the promotion of equality. It however recommended that the Bill be redrafted in plain language, that "recognised grounds" of discrimination should be replaced with "arbitrary ground". Fairness should be a defence to a claim of discrimination. Factors indicting what is fair should be listed in order to determine whether "fair discrimination" is "reasonable and justifiable discrimination". The respondent should have the onus of proving that the discrimination is fair. COSATU supports the omission of sectors. They should be dealt with in the form of schedules to be formulated in a specific timeframe and in consultation with stakeholders. The Bill’s relationship with the Employment Equity Act had to be fleshed out in order to remove any ambiguity and confusion which may ensue.

The Labour Project: Centre for Applied Legal Studies at the University of the Witwatersrand welcomed the Bill’s objects and principles but its sectoral approach was seen as problematic. The overlapping of the Bill with the Employment Equity Act in terms of implementation and jurisdiction was problematic because of the envisaged forum shopping which could ensue. Recommendations were made in respect of synchronising the jurisprudence around the Bill and the Employment Equity Act which included having the same test for unfair discrimination, doing away with the distinction between listed and unlisted grounds of discrimination and not shifting the onus as a result of this distinction. There were two suggestions in essence to deal with forum shopping. Firstly that the employment sector be completely removed from the Bill and the Employment Equity Act be amended to include the Bill’s Clause 13 and 14 issues as well as sectors such as the Defence Force and Secret Service which had been excluded. Alternatively the proviso in Clause 5 had to be amended to ensure that there was no forum shopping and that employees who were covered by the Employment Equity Act would then very clearly fall outside the scope of the Equality Bill.

The Afrikaanse Handelsinstituut supported the constitutional principle that unfair discrimination be prevented or prohibited. It objected to a lack of interaction with the business community during the drafting process. It felt that parliament's obligation to pass legislation to prohibit or prevent unfair discrimination by 4 February should be confined to dealing with unfair discrimination and should not deal with the promotion of equality. It felt that the Bill was poorly drafted. Various clauses of the Bill were seen as unconstitutional and some even as discriminatory in themselves. Legal opinion informed the AHI that the process of drafting the Bill should have gone through NEDLAC before being introduced to parliament and they felt that this should have been done. AHI felt that the legislation had to be radically redrafted, and said that it was willing to help in this process.

SACOB pointed out that no consultation with organised business had occurred before the Bill was tabled in parliament which was unfortunate. It felt that the Bill exceeded its scope in that it went beyond the prohibition of unfair discrimination. Section 35 of the Bill dealing with unfair discrimination in partnerships was seen as totally unacceptable. The overlap with the Employment Equity Act was also criticised, since this would lead to confusion and uncertainty. SACOB supports the call by Business South Africa (BSA) that the Constitution be amended by extending the 4 February deadline to allow time for the legislation to be properly considered by all relevant stakeholders.

The Malamulela Social Movement for the Unemployed, noting that between 20% and 30% of the population was unemployed, felt that the Bill was a futile exercise, which would have no bearing on the fact that they were unemployed. Their primary concern was to get jobs. They felt marginalised in respect of labour legislation since they were excluded from macro-economic policy debates. Parliament needs to be more sensitive to the unemployed. The unemployed wanted to make a contribution in terms of how people should create an environment conducive to job creation.

MINUTES
COSATU
The submission was presented by Mr Oupa Bodibe. COSATU welcomed the Bill and supported the linking of prohibition and prevention of discrimination with the promotion of equality. It however recommended that the Bill be redrafted in plain language, that "recognised grounds" of discrimination should be replaced with "arbitrary ground". Fairness should be a defence to a claim of discrimination. Factors indicting what is fair should be listed in order to determine whether "fair discrimination" is "reasonable and justifiable discrimination". The respondent should have the onus of proving that the discrimination is fair. COSATU supports the omission of sectors. They should be dealt with in the form of schedules to be formulated in a specific timeframe and in consultation with stakeholders. The Bill’s relationship with the Employment Equity Act had to be fleshed out in order to remove any ambiguity and confusion which may ensue.

Centre For Applied Legal Studies: Labour Project
Ms Carole Cooper, Deputy Director of CALS at the University of the Witwatersrand and head of the Labour Project, presented.

Their submission focussed on the employment aspects of the Bill. Broadly speaking the Bill was endorsed and its objects and principles were welcomed. However the fact that the Employment Equity Act dealt with the employment sector to some extent would lead to ambiguity, uncertainty and overlapping despite the proviso in the Bill which sets out to separate the jurisdiction of the Employment Equity Act from that of the Bill. The Proviso in Clause 5(2) of the Bill states: "…this Act only applies to unfair discrimination in respect of issues relating to employment to the extent that it deals with issues which are not regulated by the Employment Equity Act…" It was submitted that this clause did not achieve its purpose since it could be interpreted to mean that because of the extended notion of unfair discrimination in Clause 13 and the grounds in Clause14 of the Bill, employees who fall within the ambit of the Employment Equity Act could also fall within the ambit of the Bill. Thus the Clause 5 proviso in the Bill was not clear enough. If a worker looked at the Bill, it could seem that he / she was covered both by the Bill and the Employment Equity Act

Consequently it was envisaged that "forum shopping" could be the order of the day, resulting in a confusing jurisdiction and jurisprudence. There were certain institutions like the NIA, Secret Service and the Defence Force whose members were excluded from the operation of the Employment Equity Act. It was suggested that these institutions would be better covered under the Employment Equity Act which should be amended to include them rather they be covered under a separate employment section in this Bill.

The independent contractor was another issue, which had to be addressed. They were excluded from the operation of the Labour Relations Act as well as the Employment Equity Act since they were not employees. They were thus not protected from unfair discrimination in the Employment Equity Act. The Bill attempted to give protection to them by formulating a new definition of employee to this end. The protection was welcomed but it was suggested that the new "employee" definition, that includes independent contractors, would result in confusion and problematic jurisprudence seeing that independent contractors were excluded from other legislative definitions of employee. It was recommended that independent contractors had to be dealt with in a different sector in the Bill.

Another problem was the different tests for unfair discrimination. The Employment Equity Act followed a two-stage inquiry whilst a three-stage inquiry had been envisaged by some in respect of the Bill. If this was the case once again different jurisprudence would develop as a result. In addition there would be a problem in respect of onus. With the Employment Equity Act, once discrimination was shown, the onus was on the employer to prove that it was not unfair. With this Bill, to prove unfair discrimination on an unlisted ground, the onus would be on the employee.

The definition of unfair discrimination in the Bill was narrower than in the Employment Equity Act. The Bill made a distinction between listed grounds and unlisted grounds, and, as stated, placed the burden of proof on the complainant to prove unfair discrimination in the latter instance. She agreed with COSATU that this distinction should not exist. The approach of the Labour Relations Act should be followed and "any arbitrary ground" should be the criteria.

The basic concern of CALS was that two pieces of legislation were dealing with basically the same issues. There were two suggestions in essence to deal with forum shopping. Firstly that the employment sector be completely removed from the Bill and the Employment Equity Act be amended to include the Bill’s Clause 13 and 14 issues as well as sectors such as the Defence Force, NIA and Secret Service. Alternatively the proviso in Clause 5 had to be amended to ensure that there was no forum shopping and that employees who were covered by the Employment Equity Act would then very clearly fall outside the scope of the Equality Bill.

Questions and Comments: COSATU and CALS
Prof B Turok (ANC) said that the Labour Department had to be called upon to explain how they saw the Employment Equity Act in relation to the Bill. He said that there were issues of substance raised by both Acts and felt that the Employment sector had to remain in the Bill precisely because it was wider than the Employment Equity Act in certain areas.

The Chairperson, M Moosa (ANC, NCOP), endorsed this and agreed that the Department of Labour had to be called to give input on this issue.

Prof Turok said that there were clear problems with bringing the SANDF and the intelligence community into the legislation. He said that the members had to be clear on whether they had to be included and had to take a responsible decision.
Oupa Bodibe said that whilst he understood the arguments for including the exclusions, the Constitution applied to everyone equally, including the Defence Force and others. Thus the Equality Bill had to be a law of general application which would apply to everyone including the Defence Force and Secret Service.
R Davies (ANC) said that the principle ought to be that the Bill would contain a general all-encompassing set of rights and the Employment Equity Act would have a more specific set of detailed rights and provisions.

Neil Coleman (COSATU) said that it was correct to see the Bill as an omnibus type of legislation which took forward the constitutional provisions that all citizens must feel that they are protected by the legislation.

Mr R Davies (NC) also wanted clarity on whether COSATU supported a two-stage enquiry where it was first established whether discrimination was present and secondly it was established whether it was fair or not. He wanted to know whether reasonableness and justifiability was encompassed in the fairness test.

Oupa Bodibe (COSATU) said that Davies did have the correct interpretation since COSATU wanted the fairness test to include the reasonableness and justifiability test.

Mr C Aucamp (AEB) pointed out that it was necessary to have the concept of the Prima Facie case in the Bill. Secondly he stated his disappointment with the COSATU submission in that the social agenda and not the non-discriminatory agenda had come forth.

Mr Bodibe said that the requirements to prove a Prima Facie case should not impose a burden on poor people and disadvantaged people who may not have the resources to put together a deposition so onerous that at the end of the day this defeats the purpose of having to prove discrimination.

Mr R Pieterse (ANC) felt that COSATU’s suggestion that Sectors should be dealt with as annexures and more time should be allowed for them to be reworked was unacceptable. The Bill should be looked at in its present form and the perceived shortcomings should be left out.

He asked whether the Bill would, even with the proposed amendments, do damage to future investment in South Africa – as envisaged by certain persons at the Free Market Foundation who wanted the Bill scrapped all together.

Mr Coleman said that one of the fundamental problems of the South African economy was that the majority of people in the country have been excluded from participation in the economy, and thus have been discriminated against, so discrimination was also economic. So what the RDP, the Equality Bill and the Constitution all seek to do is to unleash the productive potential of the whole population. Any long-sighted investor would see the Bill as part of an overall programme to bring the majority of people into economic activity and therefore it can only serve the interests of the economy as a whole.

Mr L Suka (ANC, NCOP) said that countries like Canada and Australia both had equality as well as labour legislation similar to ours but had no confusion. Why then is there so much confusion with our legislation and the Employment Equity Act. He said that with regard to the constitutional court judgements referred to in a footnote in CALS submission, not all the judges agreed with this approach.

Mr Z Langa (ANC) referred to COSATU’s point about the need to cushion people from the structural problems of the capitalist system by introducing a basic income grant and commented that the problem was not dealt with in terms of the broader notion of equality. With regard to sectors he felt that an elaborate process of consultation could cause delays in terms of implementation. He suggested that the sectors should rather be strengthened while the Bill is implemented because of time constraints.

Mr K Moonsamy (ANC) said that on the previous day the four presenters from the Insurance Industry had been "horrified" with the Bill. He wanted COSATU’s reaction.

Mr Bodibe could not understand why the insurance companies would not support the notion of unjustifiable hardship which he argued would benefit them.

Ms Cooper in her response reiterated what was emphasised in her presentation.

Afrikaanse Handelsinstituut
Mr Theo van Wyk, former president of the AHI, gave the presentation.

The Afrikaanse Handelsinstituut supported the constitutional principle that unfair discrimination be prevented or prohibited. It objected to a lack of interaction with the business community during the drafting process. It felt that parliament's obligation to pass legislation to prohibit or prevent unfair discrimination by 4 February should be confined to dealing with unfair discrimination and should not deal with the promotion of equality. It felt that the Bill was poorly drafted. Various clauses of the Bill were seen as unconstitutional and some even as discriminatory in themselves. Legal opinion informed the AHI that the process of drafting the Bill should have gone through NEDLAC before being introduced to parliament and they felt that this should have been done. AHI felt that the legislation had to be radically redrafted, and said that it was willing to help in this process.

SACOB
Mr Henry Makupula, Director of Policy at SACOB, presented. SACOB pointed out that no consultation with organised business had occurred before the Bill was tabled in parliament which was unfortunate. It felt that the Bill exceeded its scope in that it went beyond the prohibition of unfair discrimination. Section 35 of the Bill dealing with unfair discrimination in partnerships was seen as totally unacceptable. The overlap with the Employment Equity Act was also criticised, since this would lead to confusion and uncertainty. SACOB supports the call by Business South Africa (BSA) that the Constitution be amended by extending the 4 February deadline to allow time for the legislation to be properly considered by all relevant stakeholders.

Questions and Comments: SACOB and AHI
Ms Loretta Jacobus (ANC, NCOP) referred to AHI’s proposal that the promotion of equality had to be removed from the Bill and only discrimination had to be dealt with. She wanted to know why they wanted the promotion of equality provisions in the Bill removed when 9(2) of the Constitution invited such legislation.

Mr van Wyk said that the provisions in the Bill dealing with the promotion of equality were not addressed with due consideration - to exactly what was aimed in terms of the upliftment of people in society. Section 9(2) was not subject to the same time constraint as 9(4). Therefore it could be dealt with in a separate Act.
They clarified for Mr Moonsamy (ANC) that the AHI was not opposed to the promotion of equality but believed it should be dealt with in another bill.

Mr Moonsamy (ANC) commented that he took strong exception to the reference in the AHI submission to "draconian provision" when talking of Clause 43.

S Camerer (NNP) said that she did not support the call for the amendment of the Constitution but agreed that the Bill did go beyond its scope when dealing with the promotion of equality. She also felt that NEDLAC should have taken part in the process and referred to NEDLAC as a "ghost at this feast". She felt that NEDLAC should give its input to the committee. She asked whether the panel agreed with the suggestions of adding listed grounds of discrimination to the Bill: of family responsibility, national origin, HIV / AIDS and socio-economic status.

Mr van Wyk said that broadly speaking AHI was against unfair discrimination. He did not have a mandate to speak on the suggested added grounds but said that the Courts would recognise discrimination in different situations.

Mr R Davies (ANC) said that the AHI drew a distinction between growth and development. He wanted to know whether, in the South African context, it was possible to have growth without development. If the answer was "no", which Davies suspected would be the case, then is not addressing the matter of inequality and the promotion of equality an essential part of development?

Mr van Wyk said that a stable society was needed and if there was political instability there would not be a flourishing economy. It was therefore a question of balancing. They would push for robust economic growth so that there could be more rapid advancement. People had to get their children to be active participants in the new information technology age.

Mr Davies wanted to know from SACOB, who had commented on the way the Bill would impact on SMMEs, whether black SMMEs, in particular, were not victims of discrimination in their relations with suppliers, competitors, financial institutions amongst others. He asked if it would not assist these SMMEs if they had a remedy to address these forms of discrimination.

Mr Makupula replied that since we all operate under the same economy there should not be the distinction in respect of "black " SMMEs. SACOB was speaking on behalf of all business. In business there were key imperatives which were not informed by racial issues but were purely questions of business and principles that we have to comply with. Even if the Bill were left as is, Black business would still have lots of problems to grapple with. If the Bill affected business it would affect black business equally if not more since black business was still in an embryonic stage.

Mr Davies followed up by asking whether it was accepted that currently in South Africa there were disadvantages and forms of discrimination that are suffered by black owned businesses which can be addressed by equality legislation.

Mr Makupula said that because business entailed risks, there had to be certain safeguards so that calculated risks were taken. Even with the Bill there still had to be discrimination between a high risk business and a low risk business. Thus sometimes because of the nature of the business, discriminatory criteria had to be used. The past situation of apartheid discrimination should not be focused on. Instead the realities of today needed attention.

Ms N Tsheole (ANC) noted the SACOB comment that business issues are not informed by racial issues. She asked whether this implied that South Africans merely had to concentrate on international business issues at the expense of issues within South Africa. Secondly she asked if business viewed employees as assets since AHI's focus was on economic growth. She thought that the implication of what they were saying was that unfair discrimination should be ignored as long as there was economic development.

Mr van Wyk said that if there was economic growth in a sustainable way, jobs would be created. If you have big business flourishing they would have dividends flowing into pension funds and savings institutions. There would be capital available for new investments and employment opportunities. Without economic growth first, if jobs are created, they will not be sustainable.

Mr P Gomomo (ANC) asked which part of the legislation had indicated to members of the panel that investor confidence as well as the economy would be adversely affected. People who have money can combat AIDS and live for years. He knew of many black people who did not have access to health care services who had died shortly after contracting HIV. He thus had a problem with Mr Van Wyk who was against Clause 20 – which dealt with unfair discrimination in relation to health care services.

Mr van Wyk said that the reference to unjustifiable hardship in Clause 43 was such an example. International investors to whom he had spoken about the legislation were shocked by it. He said that foreign investors only flock to South Africa if they can "make a buck".

An ANC member said that she could not understand why the panel was opposed to the inclusion of the promotion of equality provisions in the Bill when business has done very little to bring about changes in respect of business opportunities for previously disadvantaged people. She believed the Bill is dealing with this precise problem by trying to remove barriers which have denied people access to fair business opportunities and economic viability.

A member asked why the notion of unjustifiable hardship was objected to by SACOB and pointed out that a court in Canada had decided that this test of undue or unjustifiable hardship was acceptable. Why should it not be acceptable in the South African context.

Mr van Wyk said that he could not comment on this as he had not dealt with the Canadian position.

Malamulela Social Movement For The Unemployed
The submission was presented by Mr Mohlolo Kgopane, general secretary of this organisation which claims to represent over 250 000 unemployed people. The Malamulela Social Movement for the Unemployed, noting that between 20% and 30% of the population was unemployed, felt that the Bill was a futile exercise, which would have no bearing on the fact that they were unemployed. Their primary concern was to get jobs. They felt marginalised in respect of labour legislation since they were excluded from macro-economic policy debates. Parliament needs to be more sensitive to the unemployed. The unemployed wanted to make a contribution in terms of how people should create an environment conducive to job creation.

Questions and Comments
Mr R Davies (ANC) said that between 20% and 30% of the population was unemployed. This represented a large number of people and thus he asked for Malamulela's credentials.

Mr Kgopane said that Malamulela was the only national organisation for the unemployed which could claim membership in various provinces. They were a legitimate voice of those who wanted access to jobs. Members were welcome to come to the townships and see the meetings held with the unemployed – those people who could not even buy a loaf of bread.

Mr Z Langa (ANC) wanted to know whether the organisation was alone or whether it had alliances or was part of the broader progressive forces. He continued that the Bill was in fact addressing the problems of the unemployed to some extent. He noted that, according to the submission, the unemployed did not care about equality. Did this mean that they did not care about the Constitution as well? He wanted to know if the Bill was rejected in its entirety.

Mr Kgopane said that the prohibition of discrimination and an opportunity for all people to be equal - the promotion of equality - sounded very logical and Malamulela and all the unemployed did want this. The problem with the Bill was that it did not clearly elucidate how best this process is going to yield jobs for the unemployed. If the Bill could address this, then they would throw their weight behind it.

Mr Gomomo (ANC) asked what parts of labour legislation and this Bill discouraged an environment which would increase the demand for labour, since Malamulela was lobbying for the removal of such laws.

Mr Kgopane was referring to the legal inability of employers to employ unemployed people at lower than minimum conditions as provided for in the Labour Relations Act even if the unemployed would accept lower than minimum wages. Whilst they supported the securing and protection of jobs it was noted that in 6 years under the Labour Relations Act there were no real tangible jobs created, but instead job losses were incurred.

M Njobe (ANC) asked whether they were aware that COSATU also spoke for the unemployed since people who were members of COSATU before they were unemployed and who subsequently lost their jobs were not ignored by COSATU. It was thus disputed that Malamulela was the only organisation representing the unemployed as they claimed.

Mr Kgopane said that COSATU had the right to organise workers and workers had the right to join unions. Malamulela was not concerned with this but with the unemployed. COSATU cannot create jobs it can only protect workers’ rights. COSATU in any case cannot represent the interests of non-workers adequately.

Conclusion
The Chairperson, Mr Moosa , said that some of the fears of business and insurance companies were clearly unfounded. He said that for example none of the committee members were saying that life insurance premiums should be the same in respect of both a 75 year old man with cancer and a healthy 35 year old man. There obviously had to be an objective differentiation based on the manner in which risk is taken and the manner in which the particular structure or framework of that business is being done. Also, with regard to Section 20 of the Bill, health services could not be expected to be delivered to an ill person in a rural area where those services are not available or where the state does not have the resources to deliver those services. The fears of business which had been expressed in strong language - such as the Bill was bad for the economy and for the investor environment - tend to suggest that Parliament is not giving thought to the conditions under which economic growth can be achieved. This was not true.

What had to be understood was that the Constitution requires that there is unfair discrimination legislation. Secondly, whether or not the Constitution required it, as a society, as a government and as a parliament they have committed themselves to setting up a new set of values in this country which addresses the question of the unfair discrimination of the past and some of the imbalances and disadvantages that discriminated groups suffer in this country, and that is what is trying to be addressed. It was unfortunate that SACOB said that it did not care about Apartheid and the past. To create economic stability and growth we have to care about the impact apartheid has had and its legacy that still pervades our society. He hoped that SACOB accepted this point.

The meeting was adjourned.