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JOINT COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
23 November 1999
PUBLIC HEARINGS: MORNING SESSION
The Banking Council
South African Human Rights Commission
South African Council Of Churches
South African Jewish Board of Deputies
Chairpersons: Mr M Moosa (NCOP, ANC) and Ms N Botha (NA, ANC)
The Banking Council
The Banking Council’s submission focused on two areas: the challenge of providing services to low income communities and the introduction of a defence based on objective commercial criteria. They argued that this should be included in s43(2) of the Bill and should be situated within the context of consumer protection legislation. Furthermore, they pointed to the Code of Practice signed by members of the Banking Council and the newly established office of the Banking Adjudicator, both of which become effective on 3 April 2000 as indicative of the industry’s commitment to change.
Mr Moosa (Chairperson – ANC) pointed out that the bottom line is that poor people do not have the same access to loans that rich people have. The Banking Council responded that this was an issue which the industry was addressing by considering for example Fair Lending Practices Acts and other similar legislation in other jurisdictions. They are also looking at options such as intermediaries and securitisation.
Prof Turok (ANC) commented that this was the first of many submissions which would raise the desire for a defence based on objective commercial criteria and that as such it was necessary for the committee to consider evidence from both sides. He further pointed out that the discussions which the Banking Council had had with government had been with the Executive and not Parliament. He expressed dissatisfaction with the fact that, like the Ombudsman, the new Banking Adjudicator appears to be funded by the industry, suggesting that there is a need for objective institutions to fulfill the watchdog role.
Dr Davies (ANC) pointed to the fact that the evolution of niche banks and the entry of international banks into the South African market meant that banks were moving further away from lower income people. He said that objective commercial criteria can and has previously been used to justify ‘red-lining’ where certain communities/ areas were denied loans because they were perceived as a bad risk.
The Banking Council responded to the concerns raised by Prof Turok and Dr Davies by saying that the industry was involved in a process aimed at striking a balance in this respect. Consumer credit and disclosure legislation, which would require banks to publish were they were giving loans, was necessary and it was for government to introduce this within the context of a market conduct regulation framework. This is currently very confused. In respect of the Banking Adjudicator the Council pointed out that this was the culmination of internal attempts to create effective regulation. If government feels a statutory ombudsman would be more effective, the banks were happy to enter into debate.
Mr Pieterse (ANC) remarked that the areas excluded were always black areas and asked what was being done to redress this position. The Banking Council responded by again suggesting that disclosure legislation is required, which will provide statistics which will in turn inform useful debate.
Chief Holomisa (ANC) asked what the banks were doing about latent discrimination such as the closure of banks in rural areas.
The response was that because of increased competition banks are trying to cut costs and as a result a number of rural branches have been closed. This is a matter which needs to be addressed.
Mr Aucamp (AEB) pointed out that industries such as banking and insurance sell risk and that risk is always related to groups. For example he, as a pipe smoking man, pays higher insurance premiums than a non smoker or a woman. He then suggested that the proposed defence be included in s1(xxvi)(iv) as subsection (cc), to which the Council had no objections.
Ms Rajbally (MF) asked what the banks were doing to protect people who fell into arrears and questioned the different interest rates which apply for example in respect of personal and mortgage loans. The response was that banks commit themselves to responsible lending and ensuring that borrowers do not overextend themselves, by evaluating risk up front. The onus is not however always on the banks and borrowers also need to take responsibility.
Mr Madasa suggested that previous discrimination in the banking sector had been a blessing in disguise as poor people are the only people who truly own what they have.
Mr Moosa thanked the Banking Council for its support of the Bill, saying that it was especially appreciated in view of the negative stance taken by the Free Market Foundation.
South African Human Rights Commission
Dr B Pityana presented (see the submission for details).
Mr Moosa (Chairperson – ANC) pointed to the concerns raised in other submissions relating to the definitions clause and sectors and asked Dr Pityana for the SAHRC’s position on these questions, as well as the budgetary impact of allowing socio-economic status as a prohibited ground. Dr Pityana said that a great deal of thought had gone into the definitions and sectors: while it was necessary at one level to give visible effect to South Africa’s international obligations, it was also important to address the country’s specific background of discrimination and to provide general protection. Thus a broad definition of discrimination was needed. The sectors serve an important didactic purpose in that they represented areas where discrimination was known to occur. With this in mind they clarify how discrimination in these sectors should be dealt with, in a way which is accessible to lay people. In respect of socio-economic status, he pointed out that often discrimination occurred because people were prejudged as being unable to afford, for example, services, rather than because of a real inability to pay. Increasingly however business was becoming aware of the potential of low-income earners.
Dr Davies (ANC) said that he was pleased to see that the SAHRC was taking the issue of nationality seriously. He asked, in respect of enforcement, whether the SAHRC supported a three tiered approach (as suggested by IDASA) and whether the SAHRC was ready to serve its role. Dr Pityana responded that most complaints will go to the SAHRC, NGOs and parastatals, where a major sifting process will occur based on fairness and the Constitution. Approximately 10% of cases will go to the court or tribunal.
Ms Zita (ANC) pointed to the TRC’s approach to reparations, as well as that taken in Germany, where West Germans were being asked to pay more taxes to facilitate transformation and asked whether something similar could not be done in South Africa.
Prof Turok (ANC) asked whether the current bureaucracy could cope with the effects of including nationality as a listed ground. He also wished to know whether Dr Pityana felt the Bill to be over-legalistic in the sense that it might lead to increased litigation. Further, he pointed out that the courts are already overloaded and asked whether they were the appropriate forum for dealing with disputes.
Dr Pityana responded by saying that the bureaucracy must rise to the occasion. Further, if the Bill was made too simplistic and minimalist, it would be subject to constant challenges as people sough to test it. There are however problems: the definition of discrimination needs to be cleaned up and made consistent throughout the Bill and this needs to be tied in to the Constitution. It had been strongly debated at the drafting stage whether the courts were an appropriate forum. Government felt that it would be less expensive to follow this route, whereas the SAHRC is not convinced that once specialist personnel have been trained and so on, the costs will not be on a par with establishing a tribunal, which is the route preferred by the SAHRC.
Ms Smuts (DP) questioned how the hate speech provisions in the Bill tied in with the Constitution, which does not prohibit hate speech. She also questioned the perception that this Bill was some sort of educational document. Dr Pityana responded that one of the aims of the Bill was to increase awareness; another is to define and clarify what exactly is prohibited and also to give effect to international obligations. In relation to the balance between freedom of speech and the prohibition on hate speech, he did not believe the Bill to be at all unconstitutional.
Chief Holomisa (ANC) asked whether the Bill adequately addresses the question of land ownership, which he felt to be the most glaring example of inequality. He also suggested that traditional courts should have been declared equality courts. Dr Pityana answered that the aim was to make equality courts open and accessible to people, as such there was nothing precluding the Minister from declaring traditional courts to be equality courts. Land ownership is to an extent taken care of in terms of the land restitution process, although there is also nothing precluding its introduction in the Bill.
South African Council of Churches
The SACC gave its broad support to the Bill as in keeping with the tenets of the Christian faith. They would however prefer to see a single definition of discrimination, as multiple definitions obscure the complexity of the problem and create difficulties in respect of interpretation.
Mr Nduo (ANC) commented that many of the current debates revolve around those who support self regulation versus proponents of government regulation. He suggested that often the former are attempting to cushion themselves against change.
Mr Madasa raised the issue of gay rights, while Mr Skhosana asked what the position would be in respect of Satanism.
The SACC responded by saying that the Christian faith is divided on a number of issues, of which gay rights is one. The Church is constantly engaging with the realities of our times. It is exactly because there is discrimination in the Church that this Bill is needed – the SACC wants to be seen to be accountable for lobbying and implementing the Act within its constituency. In respect of Satanism, the SACC suggested that it was not a debate for Parliament, but nonetheless offered the view that this was a matter of personal conscience, governed by s50(1) of the Constitution.
Mr Aucamp (AEB) felt it incumbent on himself to point out to the delegation from the SACC that, contrary to their suggestions, God is not on the side of the poor. He also raised the issue of Satanism.
South African Jewish Board of Deputies
This submission focused on two areas: hate speech and the right of faith communities to discriminate in favour of their own communities. They said that hate speech desensitizes and should be prohibited and criminalized on the grounds of its potential to cause harm (and not violence as suggested in s8(a)). In terms of the rights of faith communities to discriminate in favour of their own communities, they suggested that the aim of such practices was to create pride in the community’s religious identity and to promote adherence to its norms.
Dr Davies concurred with the SAJBD’s views on hate speech. However he asked whether they thought it acceptable to charge higher school fees to non-adherents who attended a school linked to a specific religious community. The SAJBD’s responded by pointing out that such institutions are often heavily subsidized by the community and that non-adherents, who were not part of that community, could therefore not expect to get the same subsidies. This was acceptable as long as there was no discrimination on the grounds of race.
Ms Tsheole asked whether the imminent Act for the Promotion of Cultural, Religious and Linguistic Communities would not adequately provide the protection requested by the SAJBD and further, whether s16(2)(c) of the Constitution does not provide adequate protection in respect of hate speech. The SAJBD suggested that the Act for the Promotion of Cultural, Religious and Linguistic Communities had nothing to do with the Equality Bill.
Ms Majobe questioned ongoing discrimination against women in both the Christian and Jewish faiths. The SAJBD suggested that this was a debate that should take place within the Jewish religion and that Jewish women do not consider themselves in any way ‘underprivileged’ as a result of the fact that there is differentiation between men and women in the Jewish religion. Sexual orientation, they said, is a private affair.
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