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JOINT AD HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF DISCRIMINATION BILL
17 January 2000
EQUALITY COURTS, PREAMBLE, DEFINITIONS: DELIBERATIONS
Re-Draft No E6
Preamble by Mr B Turok (reproduced in these minutes)
Further submission by COSATU
Chapter 5 dealing with Equality Courts was discussed and the Drafting Team was once again instructed to produce a re-draft based on changes made to the various clauses. The question of whether or not the existing magistrate courts are suitable equality court forums was debated, the main concern being their overloaded status. Weighed against this however was their accessibility, as well as the fact that financial constraints necessitated the use of existing structures.
An alternative Preamble as penned by committee member, Mr B Turok, was considered and adopted with minor changes. The definition of 'prohibited grounds' has had the word "includes" removed. The parked definitions were considered and several have been dropped.
Using Redraft No E6, Clauses 1 - 5 were discussed: Clause 3(5) was dropped. The Act’s relationship to, and prevalence over, other law was discussed (Clause 5). The Preamble was returned to and Mr Turok (ANC) presented a new draft for Part 3 of the Preamble. Chapter 6 was discussed up to the end of Clause 27, with particular attention given to subclauses 2, 3 and 5, dealing with the capacity, powers and duties of constitutional institutions (predominantly the SAHRC) to receive and request information and reports.
Chapter 5 (Equality courts)
Mr B Turok (ANC) asked Mr M Moosa (Chairperson, ANC) to address the Committee on the issue of the overloading of the courts. Mr M Moosa said the choice of the courts had little to do with whether or not they are overloaded. He said the only other choice available is the tribunal system. The problem with tribunals is that they would have to be set up in every corner of the country. Mr Turok warned that it is important that the day the Bill becomes law, its implementation must be readily possible. He reiterated the fact that the existing courts are overloaded. Mr S Grove (ANC) concurred. He pointed out that should the existing courts be used, the equality cases would be subject to the rules of the courts. He referred the Committee to the provisions in Section 4(1) and said any use of such courts would conflict with the stated provisions. He proposed that new informal rules of courts, which will make the courts cheap and accessible, must be used.
Mr L Basset from the Department explained that the choice of the courts came by because of their accessibility and financial constraints necessitated the use of existing structures. Again Mr Turok voiced his concerns about implementation. He conceded that he did not have a solution but was merely alerting the Committee to the impending problem.
Responding to the above concern, Ms T Madonsela of the Drafting Team said it is envisaged that within the next month fourteen magistrates and fourteen clerks will be employed to kick-start the whole process. She mentioned that the Department is already in the process of implementation as an implementation project task team has been formed. Ms S Camerer (NNP) wanted to know if there is money allocated for the work to be done. Ms T Madonsela said they have a budget and not an allocation. She said within the Department there will be shifting of resources
Clauses 18 and 19
Mr Basset advised that no changes had been made to these clauses.
Mr Basset pointed out that the clause had six sub clauses but now has only one. He said that the drafting that is in brackets has been moved to the regulations.
Mr Basset proposed that part (c) in clause 21(1) "the conduct of proceedings" be taken out.
Mr Basset pointed out that paragraph 6 gives both the South African Human Rights Commission and the Commission for Gender Equality the power to institute proceedings. He said there seems to be concern about the Minister giving some other person the power to institute the proceedings. He called upon the Committee to discuss the matter. Ms T Madonsela said the clause has been drafted the way it has because the drafters felt institutions other than the South African Human Rights Commission need not be excluded. The Chairperson complained that the clause as it is, is too wide.
In relation to clause 22(1)(b) the drafters indicated that they had made this change in order to deal with the overlapping which had existed between the Act in question and the Employment Equity Act.
The Chairperson remarked that the drafters had misunderstood their instructions, as the committee had not asked them to deal with an overlapping problem. What the committee in fact wanted the drafters to do was to:
1) de-link the enforcement of employment matters;
2) take care of the designation issue in the sense that they must specify that certain courts, for example labour courts, would be considered equality courts for the purpose of the Act and
3) to look at the question of access to courts (for example, the labour courts and the Commission for Conciliation, Mediation and Arbitration are not as accessible as the committee would like).
Regarding sub clause 3(a) Professor Turok felt that the words ‘’within the prescribed period’’ had been used too often. He said that they should draft a formulation that would sound less complicated.
Ms Camerer (NNP) felt that the clause should refer not only to courts but to tribunals as well. The Chair asked the drafting team to look into it.
With sub clause 4 the drafters said that this version was the product of a "filtering mechanism’’ which they had been instructed to do during the December recess. They added that it had not changed much.
With sub clause 5 the drafting team indicated that they had made a technical change; having made two paragraphs out of one.
The drafters said that there had not been many changes. The clause had been extended to deal with the issue of harassment and the drafters felt that it should also refer to hate speech.
Clause 23(2) sets out the orders, which the court can make. Sub clauses (d), (h) and (i) all refer to unfair discrimination. The drafters said that it would be preferable if a reference to harassment and hate speech were also made.
In sub clause (e) a qualification was added to the effect that the court must determine how the amount awarded must be used. Ms T Madonsela felt that this qualification was too onerous.
The Chairperson explained the point, using the following example: If a class action is brought on the grounds of alleged discrimination against Jews then it is not only one person who can receive damages as all Jews were insulted. In such a case the court will make an order where the award is to be paid to a particular organisation to enhance the cause of the Jewish faith.
Ms Botha (DP) disagreed, saying that if specific Jews brought the action then they receive the money, not all Jews. She further explained her point of view by referring to the different groupings within the Afrikaner culture. She said that there were many different groupings and one group did not represent all Afrikaners. One group could not speak for them all (for example the Afrikaanse Eenheids Beweging did not represent all Afrikaners.
Ms S Camerer (NNP) suggested that the court should not be allowed to make the award to any organisation of its choice. She suggested that the complainant in the case should be allowed to have a say in which organisation gets awarded the money.
The Chairperson regarded this as a good suggestion saying that provision could be made for the court to hear argument from the complainant and the respondent as to where the money should be awarded.
Ms Botha (DP) reiterated her earlier point that one should not confuse a class of people with an organisation of people.
Ms Camerer (NNP) read sub section (f) with subsections (g), (I), and (n) and suggested that these four be combined as they were tautologous. The Chairperson agreed that (f) and (g) could be combined but felt that (I) and (n) had to stand-alone.
Regarding subsection (l), Mr B Turok (ANC) asked who specifically would be able to make orders. The Chairperson replied that it would be the court and added that they could write that in (for clarity).
The Chairperson said that subsection (m) was fine in its drafting but that it was in the wrong place and requested that it be put in at the end.
Ms S Camerer (NNP) indicated that she wanted a general deterrent clause.
Ms D Smuts (DP) said that the subsection dealing with the revocation of licences (n) should also deal with conflicting laws.
In subsection (p) the word ‘’appropriate’’ was added so that it now reads ‘’appropriate order of costs...’’
In clause 23(4) a reference will have to be added to include harassment and hate speech. Regarding sub clause 4(a) Ms D Smuts (DP) wanted clarity as to whom would do the ‘’further investigation’’.
The drafters indicated that they had tried to shorten this section as far as possible and had tried to remove internal matters relating to appointment and other procedural matters.
Regarding clause 24(1) the Chairperson did not like the use of the word ’suitable’ and suggested that the term ’fit and proper’ be used to replace it as this term was ‘’more defined’’.
The Chairperson asked Mr B Turok (ANC) to read through the Preamble he had prepared. The following preamble was read:
THE EQUALITY BILL
1. The consolidation of democracy in our country requires the progressive eradication of the systemic social and economic inequalities which were generated in our history by colonialism apartheid, and patriarchy and which brought pain and suffering to the great majority of our people
2. Although significant progress has been made in re-constructing our society and its institutions, systemic inequalities, often associated with unfair discrimination by institutions and individuals, remain deeply embedded in social structures, undermining the aspirations of our constitutional democracy.
3. The basis for redressing these conditions lies in the Constitution which upholds the values of human dignity, equality, and solidarity, amongst others. Above all, we seek to establish a united non-racial and non-sexist society where all may flourish in freedom.
4. South Africa also has international obligations tinder binding treaties and customary international law in the field of human rights which promote equality and prohibits unfair discrimination. Among these obligations are those specified under the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Elimination of All Forms of Racial Discrimination.
5. Section 9 of the Constitution requires national legislation to prevent or prohibit unfair discrimination and promote the achievement of equality.
6. This implies the advancement, by special legal and other provisions, of historically disadvantaged individuals, communities and social groups which were dispossessed of their land and resources and which continue to endure the consequences
7. This Act endeavors to facilitate the transition to a democratic society rich in diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice and human dignity.
The Parliament of the Republic of South Africa therefore enacts the following legislation........."
Mr Turok believed that this Preamble was simple and easy to read. The Committee discussed the Preamble:
Mr K Moonsamy (ANC) proposed that the word ‘progressive’ is misleading and it must be dropped. The Chairperson said he is not sure whether all social and economic inequalities should be classified as systemic. He expressed a view that the word ‘systemic’ be dropped in the Preamble. He maintained it is used sufficiently in the whole Bill. The majority of the Committee members were against the proposal that ‘systemic’ must be deleted.
Mr Turok argued that ‘progressive’ must not be removed. The Committee agreed to retain both ‘progressive’ and ‘systemic’.
Ms S Camerer (NNP) reminded the Committee that it has all along taken a strong stance against the use of difficult and confusing words. She proposed that the word 'restructuring' must be used instead of the word ‘reconstructing’. Prof Gutto of the Drafting Team advised that the words ‘and values’ must be added immediately after ‘democracy’.
The Committee agreed that the words ‘and practices’ must be inserted immediately after ‘structures’. It was further agreed that the words ‘…often associated with unfair discrimination by institutions and individuals…’ be wholly deleted.
Ms S Camerer argued against the use of the word ‘solidarity’. She said there is no constitutional upholding of solidarity. She said another word must be inserted in the place of ‘solidarity’. Mr D Hanekom (ANC) concurred and said ‘solidarity’ has some ambiguity in it.
The Chairperson appointed a task team comprising of Ms S Camerer (NNP), Mr B Turok (ANC) and Mr Z Langa (ANC) to deal with this part of the Preamble and report to the Committee.
Mr Hanekom proposed that ‘prohibits’ be changed to ‘prohibit’. No objections were noted to the suggestion.
Ms Camerer advised that it would be most correct to have the part read: ‘Section 9 suggests and requires national legislation to prevent and prohibit unfair discrimination and promote the achievement of equality’. Prof Gutto maintained that he saw nothing wrong with Part 5 as it is.
Ms Madonsela warned that the Preamble had been squashed together to an unacceptable level. She said normally a Preamble has a 'recognising' part and a 'noting' part which are not clear in Mr Turok’s Preamble. She said she had never seen a Preamble like this one. The Chairperson called upon Ms Madonsela to state how she would like to see the preamble structured. She said that from Part 5 one would think of turning the words around so that what the Bill tries to achieve is clear. She read the Preamble of the Employment Equity Act to illustrate her point. Mr Hanekom (ANC) disagreed and said the fact that the Preamble can be done in a different way should not be of consequence to the Committee.
Ms Camerer pointed out that not only material things must be referred to in highlighting the damage done by apartheid. She advised that ‘human dignity’ must also be included. Ms Smuts concurred. Further, she said that the affirmative action provisions in the Constitution do not refer to history so, she said the words ‘historically disadvantaged’ must be done away with. Mr Hanekom suggested the word ‘which’ must be changed to ‘who’. The Chairperson said ‘disadvantaged persons’ must be immediately before ‘including historically disadvantaged.’
The word ‘measures’ was included in the place of ‘provisions’.
Ms Camerer noted that the guiding value of ‘freedom’ has been left out. Ms Smuts supported her point. Mr Hanekom said he has no difficulty with the inclusion of ‘freedom’. Mr K Moonsamy (ANC) said ‘progress’ in part 7 must be dropped.
The Committee agreed to change ‘rich in diversity’ to ‘united in its diversity’. It was further agreed to include ‘and freedom’ at the end.
Prof Gutto of the Drafting Team said that the numbering and the full stops be removed as preambles do not have these. He then recommended that the Preamble be adopted.
The Chairperson proposed that the word ‘includes’ in prohibited grounds must be taken out. Professor S Gutto directed that footnote 2 must be deleted because it is covered in footnote 3. He said if footnote 2 remains then, footnote 3 must come after ‘family status’.
The definitions of beneficiary, club, designated groups and educational institutions are to be dropped. The definition of 'family responsibility' was bracketed together with the definition of 'sectors'.
Of the remaining parked definitions, ‘racism’ and ‘racial discrimination’, were debated. Mr Grove (ANC) noted that if ‘racial discrimination’ is defined, then ‘discrimination’ is effectively given two definitions. The Chair resolved that these definitions would be included, but bracketed.
Clause 2 - Objects
The Department indicated that hate speech will be included in clause 2(c). There are a number of places where it has been agreed that ‘hate speech’ will be included but have not yet been effected in the document. ‘Hate speech’ will generally be coupled with ‘harassment’.
Mr Aucamp remarked that ‘harassment’ should not be restricted to the clause 2(c) grounds of race, gender and disability. The Chair responded that there was no restriction.
Clause 3 - Interpretation
Ms Smuts (DP) suggested using ‘all persons applying....’ throughout the clause. The Chair responded that "all persons...’ was fine.
Mr Aucamp (AEB) questioned the reference to the codes of practice in clause 3(1)(c). Ms Smuts supported this concern and doubted whether a code can be referred to when it is not known what will be included in it.
Ms Camerer (NNP) suggested introducing a provision which would guard against fast-tracking minor matters of differentiation or discrimination (but which fall squarely under this Act) at the expense of more serious cases but which may not clearly fall within the ambit of the Act. Further, practitioners may clothe a matter in an equality guise in order to obtain the benefit of fast-tracking equality matters.
After some confusion, it was established that this matter falls under clause 4.
Returning to clause 3, the chair questioned whether sub clause 5 was necessary. After Prof Gutto, a drafter, confirmed that is was not necessary as it was covered elsewhere, it was agreed that it would be dropped.
Clause 4 - Guiding Principles
Prof Gutto remarked that clause 4(1)(a) will not do what it is designed to, as ‘expeditious’ is a flexible term. Ms Camerer suggested moving this to clause 5.
The questioned whether the use of ‘other’ in clause 4(1)(d) was necessary. It was agreed to omit it.
There is a choice of two formulations of clause 4(1)(e) largely because the words ‘enable’, ‘assist’, and ‘empower’ (which are presented as "sub options" within the first formulation and avoided in the second, underlined formulation) may be derogatory towards the presiding officer. There was general preference for the second option.
The Chair expressed approval of the use of the phrase ‘present and past unfair discrimination’ in clause 4(2)(a) and noted that this is the sort of notion which is required in the Preamble. Clauses 4(2) is fine as set out.
Clause 5 - Application
Ms Smuts raised concerns regarding the effect of this clause on employment matters, particularly regarding the issue of whether small businesses which are expressly excluded from the Employment Equity Act (EEA) will be subject to this Act. The Chair stated that they would be, but that this issue would be discussed later.
Ms Smuts raised the relationship between this Act and the Films and Publications Act, particularly in light of the inclusion of the hate-speech provisions (clause 10). The Chair asked if the drafters had checked whether clause 10 was consistent with the Films Act. Mr Gutto questioned whether this issue should not be addressed in clause 10. The Chair pointed out that Ms Smuts wants other relevant legislation mentioned here. Ms Smuts stated that she wanted specifically the Films Act and the Independent Broadcasting Act mentioned here.
Prof Gutto responded saying firstly that this Act is consistent with the Films and Publications Act and secondly, that it is not necessary to list legislation other than the EEA under clause 45(2). The EEA is singled out and has been included only after lengthy consultation with government, business and labour. This does not mean that the courts will not look at other legislation - they will do this anyway.
Mr Aucamp suggested the deletion of the provision providing for the prevalence of this Act. The Chair emphasised the paramount role this legislation will play in the area of unfair discrimination. Mr Aucamp then suggested that if the provision is to remain, there should at least been an injunction to consider other laws.
The Chair directed the drafters to clear this up. He drew attention to clause 3(1)(c)’s reference to ‘other law’ and remarked that this may be a threat to the prevalence of this Act. He noted that it should be stated that other laws are to be considered, but that they should not trump the provisions of this Act. He suggested stating that 3(1)(c) is to be subject to clause 5(2).
Mr Rudman, a Departmental drafter, expressed the view that there is a contradiction: Clause 3 requires the consideration of other laws while clause 5 directs that other laws be ignored. He suggested stating that other laws must be considered, and if there is a conflict there should be an attempt to reconcile the two laws. Ms Madonsela suggested that the necessity of referring to other law must be provided for, but with a qualification of ‘where appropriate’.
The Chair emphasised that this Act must trump other law in the area.
(The Chair excused himself and the Co-Chair, Ms N Botha (ANC), took the chair).
Mr Turok (ANC) read out his new version of Part 3: "The basis for progressively redressing these conditions lies in the Constitution which, amongst others, upholds the values of human dignity, equality, freedom, social justice and solidarity and which seeks to establish a united non-racial, non-sexist South Africa where all may flourish".
‘Flourish’ was discussed and was retained. It was agreed to use ‘society’ not ‘South Africa’. Mr Grove argued that ‘progressive’ be used before ‘advancement’ in Part 6 rather than before ‘redressing’ in Part 3. Mr Turok, Mr Davies and Mr Aucamp supported its inclusion in Part 3.
Chapter 6 Promotion of Equality (using Redraft No E6)
Ms Smuts noted that the enhanced role for the Commission on Gender Equality (footnote 19) is a matter best dealt with under clause 27.
Clause 26: Ms Smuts expressed a reservation regarding the imposition of undefined burdens, however, there was general agreement that clause 26 is fine.
Clause 27: This clause is subject to clause 26, not 24. Regarding sub clause 1, it was questioned whether the constitutional institution envisaged in s.185 of the Constitution would be covered and whether it should be, given that there is not yet any legislation setting out its powers and functions. Attention was drawn to the definition of ‘constitutional institutions’ which would cover the s.185 institution.
Sub clause 1(a) is fine as set out and ‘of action’ is to be deleted from sub clause (b). Sub clauses 1(c) - (f) are fine as set out. Mr Hanekom suggested adding harassment’ to sub clause 1(g). This was agreed. Hate speech will not be mentioned specifically - Ms Madonsela pointed out that it will usually be a form of verbal harassment. Sub clause 1(h) will change to read: "campaigns to popularise this Act". Mr Aucamp noted that provision must be made for the financial implications of these campaigns.
In sub clause 2, an ‘s’ was added to ‘person’. Following Mr Turok’s suggestion, the Co-Chair directed the drafters to draft broken-down formulation. Mr Davies noted that the State as defined includes the constitutional institutions and that therefore the constitutional institutions should be expressly excluded from the concept of ‘the State’ here. Ms Smuts pointed out that only a section of ‘the State’ is relevant here - government departments. She added that the State, in its other many forms, could be included under clause 28.
Ms Camerer questioned the use of the discretionary ‘may’ and pointed out that it is the constitutional duty of, for example, the SAHRC to request information from the relevant organ of state. Mr Turok suggested a separate heading for sub clause 2 to indicate clearly that the constitutional institutions are being referred to. Mr Davies (ANC) suggested using a fomulation such as ‘constitutional institutions, in addition to any of their other obligations, may request the State, government department or any other person....".
Ms Madonsela suggested deleting everything up to ‘constitutional institutions’ from sub clause 2. In response to the suggestion that the use of ‘may’ could neglect the institutions’ constitutional obligation to request information, she noted that some institutions do not have this constitutional obligation. Ms Camerer pointed out that some to, and this must be recognised. Mr Davies returned to his formulation which caters for this.
The Co-Chair stated that Mr Davies’ formulation should be adopted.
Mr Qokweni (UDM) noted that the way this is phrased detracts from the State’s obligation to supply certain constitutional institutions with information on request. Mr Davies warned against entering the domain of the Open Democracy Bill.
The Co-Chair repeated that the drafters are to look at this clause and come up with a new formulation and to investigate the possibility of dealing with sub clause 2 under sub clause 3.
Sub clauses 3(a) & (b) are fine as set out.
Regarding sub clause 3(c), Ms Camerer questioned whether this Act could give these bodies greater powers than those provided in their enabling pieces of legislation. She doubted whether this sub clause achieves anything and questioned who would compile these reports as this is not stated. Ms Moonsamy (ANC) noted that the word ‘regular’ is loose and that a specified time period should be provided. Ms Madonsela recognised this as a valid concern but noted that it would be covered in the regulations.
It was agreed to change ‘receive’ to ‘request’ in sub clause 3(c) and the Co-Chair directed that there should be an instruction included to the effect that the regulations are to be referred to regarding time periods.
Mr Davies suggested that the HRC should be required to compile a report regarding equality matters to be submitted to Parliament. Ms Madonsela agreed that this was a good idea, but that it would require a new introductory line.
Ms Smuts raised a similar concern to that of Ms Camerer’s - the power is given to investigate, however, nothing is provided for what is to occur subsequently. The Co-Chair pointed out that all this clause is doing is providing the institutions with competency to do all these things and that the consequences of, for example an investigation, are dealt with adequately in the enforcement section.
Mr Grove warned against giving these bodies equal unfettered discretion as they are given specific powers under their own enabling acts. Ms Madonsela noted that the powers provided in this Act are not unlimited.
The Co-Chair requested that there be cross-referencing to the enforcement section regarding the question of what occurs after these bodies have conducted investigations. She addressed the question of these institutions being given additional powers to those provided by their enabling acts: She noted that the Constitution allows for the giving of assistance [subclause 3(a)], that the courts will set the parameter concerning subclause 2(b), and that to report to Parliament, as the Constitution requires, these institutions must conduct investigations [3(c)].
Sub clause 27(4): Ms Camerer suggested including ‘within available resources’ after ‘progressive realisation’. The concern is that throughout this clause, persons are being dealt with and that some of the obligations imposed on them are too onerous, She suggested, therefore, that the available resources component be included to relieve some of these burdens.
Ms Vilakazi (IFP) suggested replacing ‘responsibility’ with ‘jurisdiction’. Prof Ndabandaba (IFP) indicated that MECs should be included here. Mr Davies explained the question marks after ‘sectors’ saying that the term used here has a very different meaning from its meaning in the rest of the Act. He suggested inserting ‘formulated’ before ‘ in consultation’. Mr Turok supported this and warned against "promoting the Minister of Finance to the Minister of Equality".
Mr Hanekom (ANC) observed an ambiguity in the words ‘equality in law’. It could mean that there is an inequality in the law/statute or that the statute perpetuates inequality. There was a suggestion to use ‘perpetuation of unfair discrimination’ which Mr Hanekom accepted. He however submitted his own suggestion. He stated that he was prepared to discuss the matter with Ms Madonsela.
Ms Madonsela addressed the questions of the use of ‘jurisdiction’ and the inclusion of MECs. She noted that in legal terms, ‘jurisdiction’ generally refers to the courts and that she was not in favour of mentioning MECs. Mr Surty (ANC, NCOP) supported not mentioning MECs - this is a Section 75 Bill and will apply uniformly across the provinces. It was agreed to insert ‘formulated’ before ‘in consultation’
Clause 27(5): Mr Turok suggested that it was impossible to suggest that all these plans are to go to the SAHRC. He questioned what it would do with them. Ms Madonsela and others emphasised the importance of maintaining this provision. It was suggested that the Commission for Gender Equality be mentioned. Ms Thseole (ANC) questioned whether the two years provided for will be sufficient remembering that regulations still needed to be drafted.
The Chair requested that an option be included setting out what the SAHRC is supposed to do with the information it collects.
Ms Madonsela addressed the issue of mentioning the Gender Commission. The issue arises, if it is mentioned, to whom which plans are to be submitted. She suggested providing that the SAHRC is to pass on the information to the Gender Commission.
Mr Turok repeated his call for sub clause 5 to be dropped - the SAHRC is not going to grow enough to handle what is required by this clause. Mr Surty suggested that it remain as it is. Ms Madonsela noted that the SAHRC is establishing a new legal services branch which will act to monitor this Act and to receive reports.
It was agreed that it would remain and a new clause would be drafted indicating what is to occur after the reports have been received.
The Chair returned and adjourned the meeting.
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