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JOINT COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
24 November 1999
Documents handed out:
South African Institute of Race Relations
South African Institute of Race Relations
(Presented by Mr John Kane-Berman)
The SAIIR suggested in its submission that at present two of the most important areas of focus are means of overcoming poverty and ways of tackling ongoing racist conduct. Both need to be tackled within the context of GEAR policies. They expressed concern that the Bill contains sections which will undermine GEAR, thereby indirectly having a negative effect on the poorest of people. They also expressed concern that the override clause would have the effect of negating other legislation which had been a long time in the making. The example was given of the legislation governing medical aid schemes which allows for ‘late comers’ to be penalised; this, it was suggested amounts to discrimination on the basis of age and would therefore be overridden by the Equality Bill. The SAIIR suggested that the only viable solution to meeting the constitutional requirement for legislation was to pass a bill focussed solely on race discrimination. There should be no reverse onus, which it was suggested undermines the rule of law and presumption of innocence, proof should occur on a balance of probabilities and provision made for damages.
Mr Moosa (Chairperson – ANC) expressed surprise at the SAIIR submission given that, amongst others, BSA had expressed its support for the Bill. He asked how the SAIIR had reached the conclusion that business did not support the Bill. Mr Kane Berman responded that the impression given by the Johannesburg newspapers and his discussions with various business people suggested wide-spread dissatisfaction with the Bill. As to BSA’s support, Mr Kane Berman suggested that often business acts in a way which is expedient, rather than principled (citing the example of the role of business in supporting apartheid). The SAIIR, he said, takes a broader and more principled approach.
Dr Davies (ANC) put it to the SAIIR that the biggest threat to investment is not the content of the Bill, but the fact that respected organisations are saying that it will affect investment. He asked which clauses, apart from the affirmative action provisions, would force preferential treatment of blacks, women, people with disabilities and so on. The SAIIR responded by saying that the argument used by Dr Davies was akin to that used by the apartheid regime who continually said that it was not apartheid itself but merely the criticism of it coming from within South Africa which was generating international opposition. They then referred to the judgement of Judge Albie Sachs in the case of Pretoria City Council v Walker, where he warns against the difficulties of ascertaining indirect discrimination, saying that the requirement of disproportionate impact as key to the enquiry could give rise to any number of challenges.
Mr Gomomo (ANC) suggested that the SAIIR were taking provisions out of context. In particular he said that they had focussed on s9(4) of the Constitution and ignored s9(5) which provides that discrimination on a listed ground will be deemed to be unfair unless it is shown to be fair. Thus the equality clause of the Constitution includes a reverse onus. He pointed out that in respect of civil trials the burden of proof is not the same as that in criminal trials and that the presumption of innocence does not apply in the same way during civil proceedings. The SAIIR said that it was not picking and choosing sections to suit its agenda – its focus, they said, is on the welfare of the country as a whole. They suggested that in civil proceedings the complainant must always prove all the elements of the harm caused, including intention or negligence, before the other party is called on to respond.
Mr Langa Zita (ANC) asked whether the SAIIR’s focus on race alone meant that it did not see other forms of discrimination as important. In response the SAIIR said that racism was a special case because it had done more damage to the country than any other form of discrimination. Furthermore, it was impossible to predict all the effects of taking an ‘omnibus approach’. The Constitution, they said, already prohibits discrimination on the other grounds.
Ms Camerer (NP) pointed out that the Cape Bar Council had said that the Bill was a complete drafting disaster. She asked whether the SAIIR could draft a Bill along the lines which they had suggested, for the committee to peruse. The SAIIR said that it would be happy to draft a new bill, but was not prepared to involve itself with the existing Bill. Mr Moosa (chairperson – ANC) then said that he was not prepared to ask an organisation which was fundamentally opposed to the Bill to involve themselves in its drafting.
Mr Marais (ANC) told the story of the scorpion who needed to cross a river. He asked a frog to ferry him across on his back, but frog refused because it was afraid that scorpion would sting him as they were crossing the river. Scorpion pointed out that if he did so he would kill not only frog but also himself, as scorpion could not swim. Convinced by this argument frog agreed to take scorpion across the river on his back. Half way across scorpion stung frog – as frog was dying he said ‘why did you do that – now we will both drown?’ ‘It is in my nature,’ said scorpion. The moral of the story, per Mr Marais, was that the formerly privileged in this country had not shown themselves ready to be forthcoming on a voluntary basis; thus the need for this Act. He then asked the SAIIR to define race, which the SAIIR chose not to do, on the basis that there was not sufficient time to do so.
Mr Aucamp (AEB) questioned the robust nature of the discussion, suggesting that guests were invited to make submissions, but were only made to feel welcome if they ‘sing our song’. This was not, he said, a tribunal. Mr Moosa (chairperson - ANC) pointed out that the representatives of the SAIIR were no strangers to rigorous debate and that there was no intention to offend them.
Ms Tsheole (ANC) referred to the written submission where the SAIIR says that a solution needs to be found to the legacy of poverty, anger, bitterness and personal humiliation left by apartheid. She asked whether the SAIIR really thought that its proposal would address this legacy. The SAIIR response was that there are certain things which can be dealt with by making laws and others, such as certain modes of behaviour, which cannot. They suggested that this legacy could only be addressed by creating a business-friendly environment which would translate into economic growth and jobs.
Ms Smuts (DP) said that the proposal that only race be addressed was startling, given that the constitution specifies 17 grounds as well as allowing for analogous grounds. She said that perhaps all that was required was to establish a statutory basis for the constitutional prohibitions and to create an enforcement mechanism.
Mr Grove (ANC) asked which clauses would have a negative effect on the economy and pointed out that indirect discrimination was already prohibited by the Constitution. He said that his understanding was that the purpose of the Bill was to facilitate access to the economy for those who had previously been excluded. Again the SAIIR pointed to the indirect discrimination clauses. They said that the only way to bring women, blacks and people with disabilities into the economy was to grow the economy.
Mr Pieterse (ANC) asked what constituency the SAIIR represented. This question was not answered.
Adv Madasa (ACDP) asked whether implementing the SAIIR proposals would require reintroducing race classification. The SAIIR said that this would not be necessary.
(Presented by Mr Evard Knoesen)
The Equality Alliance expressed support for the Bill, as the most significant legislation promoting equality since the Constitution was passed. They submitted that a single definition of discrimination applying to all sectors be drafted and that this should focus on equality of outcomes. The sectors should be removed and put into guidelines, the definition of unjust hardship be made strong and flexible, acting in favour of the victim and limiting judicial discretion and that HIV/AIDS, socio economic status, nationality and family status and responsibility be included. A preference was expressed for equality tribunals, which would be inquisitorial and informal; the possibility of a prior conciliatory process was also mooted. Further, they submitted that a defence of fairness and reasonableness should not be available in cases of sexual harassment, arguing that it can never be fair, reasonable or justifiable to sexually harass someone.
Mr Grove (ANC) asked whether drafting the definition in terms of equality of outcomes would obviate concerns about, for example, areas of discrimination intersecting. The Equality Alliance response was that the definition could not be framed solely in terms of outcomes, but that this was something that would need to be incorporated. They do not want a totally subjective test – a test for fairness based on context could also incorporate outcomes.
Ms Njobe (ANC) suggested that people tend to exaggerate the assistance given to ordinary refugees from South Africa during the liberation struggle. She said that in Zambia, for example, refugees carried different work and identity permits. What was needed was a means of ensuring that while foreign nationals were treated fairly, South African citizens were protected. The response was that given South Africa’s scarce resources, it would undoubtedly be justifiable to favour citizens in certain cases.
Mr Moosa (chairperson – ANC) asked what mechanisms could be put in the Bill to ensure that that the inclusion of socio economic rights did not overburden the state. The Equality Alliance pointed out that the Bill already has a safety valve in the form of the unjustifiable hardship clause and the constitutional limitation. They sited the Constitutional Court’s judgement in Soobramoney where the court deferred to the state’s claim that there were not sufficient resources to treat Mr Soobramoney.
Mr Suko (ANC – NCOP) asked how sexual harassment interfaces with culture and asked whether having specific prohibitions was not better, as each form of discrimination is unique. The Equality Alliance pointed out that its recommendation did not relate to the definition of sexual harassment, but rather the approach to be taken one the court has accepted that there was harassment. In respect of sectors the Alliance submitted that putting them into guidelines or codes would strengthen rather than dilute the Bill. If put into an annexure, it still forms part of the Act and can be used for interpretation.
Adv Madasa asked for assurances that the demand for recognition of homosexual rights is distinct from the demand for gender equality and that the demand for nationality to be recognised had no connection with the recognition of foreign homosexual marriages. The response was that gender and sexual orientation cannot be divided. Human rights are indivisible rights, especially in respect of identity rights. The Alliance pointed out that it had said nothing about foreign homosexual marriages in its submission, but suggested that the NCGLE would be happy to engage in discussion about the matter.
Dr Conroy (NP) asked whether the Equality Alliance means by xenophobia fear of foreign nationals; whether this is a worldwide phenomenon and whether therefore they were advocating the elimination of all forms of immigration control, passports, visas and so on. The Alliance response was that immigration control would clearly be a fair and justifiable restriction on the right.
Mr Mokoena (ANC) was concerned that removing fairness as a defence for sexual harassment would result in a situation where a man who is fond of a woman and ‘showers her with accolades’ to show this to her, as is common in Xhosa culture, could have a complaint brought against him which could not be defended. Again, the Alliance suggested that this was a matter for the definition of sexual harassment, rather than one which goes to the defences.
Ms Tsheole (ANC) asked whether there would need to be an individual section dealing with sexual harassment in the Bill. This was answered in the affirmative.
Ms S Botha (DP) asked whether there would be cost implications to the State as a result of including nationality. The Alliance was of the opinion that the only cost would be in educating officials in order to address the xenophobic attitudes prevalent among state employees.
Dr R Davies (ANC) asked whether protection from discrimination on the basis of nationality would also apply to illegal immigrants. The response was that it is justifiable to differentiate in respect of services and facilities, but not in respect of dignity.
Mr Pieterse (ANC) asked for the Alliance’s view on whether the Bill would damage the economy. The response was that only rarely does justice damage an economy and the Alliance is sure that this is not such a case. On the contrary, generally as justice increases people can act more freely and as a result the economy grows.
The submission prepared by Kobus Kellerman was read by Stephen Lombard of DEAFSA.
Mr Moosa (chairperson – ANC) pointed out that the reference in the written submission at point 3 should read s6(1) and 6(5) and not 7(1) and 7(5).
Dr Davies (ANC) suggested that the committee should look at including an annexure relating to a steadily rising platform of possibilities in respect of providing inter alia facilities to the disabled.
Ms Tsheole (ANC) pointed to the debate about whether the provision of separate facilities, including clubs, for the disabled was not in itself discriminatory. She suggested disabled people should be fighting for inclusion into mainstream society. The DEAFSA response was that while disabled people would like to be part of an integrated community, they also had specific needs and this needs to be respected. Mr Moosa (chairperson – ANC) expressed support for this view, saying that it was a fundamental tenet of freedom of association that people can be where and with whom they feel comfortable.
Ms Njobe (ANC) was also concerned about the question of separate facilities. She used the example of her own sons who suffer from Albinism and as a result have special needs. She said that they had never been separated from society, but acknowledged that they were fortunate in that they had sympathetic educators. Her concern however was that separate clubs and facilities may tend to overemphasise the disability. The DEAFSA response was that in reality people who are deaf do feel excluded as a result of past educational and language barriers. There is a group which identifies itself as death and feels comfortable associating within itself. This is an environment which provides support and education and increases awareness. While successful integration into broader society is the goal, it should be borne in mind that this requires allocation of resources: a deaf child at a mainstream school requires special equipment in order to learn.
The committee adjourned for lunch.
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