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JOINT AD HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
11 January 2000
Documents handed out
Re-draft no 1 (Work in progress) of the Promotion of Equality and Prevention of Unfair Discrimination Bill (17 December 1999).
A synopsis of the so-called ‘’equality jurisprudence’’ and the ‘’three or two –stages inquiry’’.
Life Offices Association of South Africa: Suggested amendments to the revised bill.
The changes to Chapter 1 of the revised Bill were discussed. Members criticised the definition of harassment as being too elaborate and it will be simplified.
With regard to the definition of prohibited grounds, the Chairperson made a proposal that nationality be included as a ground. The Committee agreed that the Department of Home Affairs be informed of such an inclusion so that it may state whether any unintended consequences would arise due to the inclusion of nationality.
The Committee agreed to retain both family status and family responsibility as prohibited grounds. A decision on a member’s proposal that rural status be included as a ground was not taken.
The definition of substantive equality was provisionally accepted although certain members felt that the committee should define equality rather than substantive equality.
Regarding the definition of unfair discrimination, the committee decided to incorporate the definition of discrimination (as proposed by the Community Law Centre) with the existing definition of unfair discrimination.
The Chairperson, Mr M Moosa, acknowledged the possibility that some members had received the re-drafted Bill very late during the recess. In order to accommodate these members, Mr M Moosa directed that the Committee move slowly. He said the Committee had agreed that there should be a single definition section rather than having definitions spread throughout the Bill. Mr M Moosa went through the structure of the redrafted Bill. He said that a much simpler one-page Preamble would be drafted.
Chapter 1 : Definition Section, Objects of Act, Interpretation of Act, Guiding Principles, Application of Act
Professor S Gutto of the Drafting Team acknowledged that the re-drafted Bill has a lot of errors as it was hurriedly put together and he promised that these mistakes would be rectified.
Professor Gutto noted the fact that the Clause 1 (Definitions) is at this stage still unnumbered. For the definition of harassment Professor Gutto proposed that in part (a) (i) "persons" be substituted for "person". He further proposed the deletion of part (c) altogether, stating that they could re-draft part (b) to cater for that.
For the definition of prohibited grounds the Professor advised that a single definition of substantive equality would do.
He said that nothing had been done to the Parked Definitions yet. He explained that these definitions were parked in one place because previously they had been scattered through the Bill in the sections dealing with sectors.
Professor Gutto noted that Clause 2 (Objects of Act) needs to be tightened. Clause 3 (Interpretation of Act) was unchanged as the Committee had agreed on this section. No changes had been made to Clause 4 (Guiding Principles) but Professor Gutto suggested that 4(2) be removed altogether because non-governmental service providers are covered. Under Clause 5 (Application of Act), he said the Committee may consider making 5(1) explicit that the Act binds everybody. In 5(2) he suggested the second last line read "…deals with employees to whom the Employment Equity Act does not apply" .
Discussion on Chapter 1
Definition of harrassment
Mr B Turok (ANC) criticised the definition of harassment as being too elaborate and complex. He cited the word "intimated" in (a) (¡¡) as a word not in use generally, which will only serve to confuse people. He said that the language of the Bill should be simple so that the person in the street can easily understand. He proposed a re-draft. As a solution, Ms T Madonsela of the Drafting Team reiterated the view expressed earlier by Professor Gutto that part (c) in the harassment definition be deleted. She nonetheless conceded that the suggestion did not completely address Mr Turok's concern. Mr B Turok (ANC) also found the use of the word "omission" in this definition inappropriate. He suggested it be replaced by "…failure to act" or "…failure to introduce a measure".
Mr C Aucamp (AEB) highlighted that harassment means something that goes on for a period of time. He warned that the Committee not lose track of that fact. Ms T Madonsela of the Drafting Team reminded the members that any form of harassment that does not violate equality is not covered by the Bill.
The Committee agreed with the proposal by the Chairperson that that the word "denigrates" be changed to the word "demeans".
Definition of person
On discussing the definition of "person" the Committee agreed to alter the definition to read "includes a juristic person and any non-juristic entity or a group or category of persons".
Definition of prohibited grounds
On discussing "prohibited grounds", the Chairperson proposed that nationality be included as one of the grounds. The Committee agreed that the Department of Home Affairs be informed of such an inclusion so that it may state whether any unintended consequences would arise due to the inclusion of nationality.
Ms D Smuts (DP) warned that the inclusion of socio-economic status might raise unforeseen problems. The Chairperson and Mr B Turok (ANC) disagreed and maintained that no legitimate concerns can be raised on this ground except ideological ones.
Mr D Hanekom (ANC) said there is a tendency to discriminate women, in particular, on the grounds of family responsibility. He proposed the ground be included. Ms Jacobus (ANC, NCOP) concurred. The Committee agreed to retain both family status and family responsibility.
Responding to the request by Mr R Pieterse (ANC) to include rural status as a prohibited ground, Ms J Vilakazi (IFP, NCOP) said she felt socio-economic status covered the rural aspect. Mr J Gomomo (ANC) and Mr P Qokweni (UDM, NCOP) supported the inclusion of rural status. Mr Qokweni said if the Committee agreed that rural people are discriminated against, then rural status must be included as a ground to show that the Government is serious about the reversal of the plight of the rural people. A decision on the inclusion of rural status was not taken.
Definition of substantive equality
There are two options for the definition of substantive equality. The Chair noted that the first option was obviously ‘too vague and too general’. He suggested that a variation should be made around the second option. Professor Gutto said that a merger of these two options could be a solution.
The Latin terms de jure and de facto, legal language that unnecessarily complicates the Bill, will be removed from the wording of Option 1. Professor Gutto pointed out that these Latin terms could be removed as Option 2 contained their direct translation: ‘in terms of the law and reality’.
Also in Option 1 the Chairperson did not think it was necessary to retain the words "as contemplated in the Constitution". He commented that everything was subject to the Constitution and that the inclusion of these words simply had the effect of making the definition ‘wordy for no reason’.
It was agreed that the word ‘reality’ be replaced with the word ‘fact’ in the wording of Option 2.
Thus a merger of Options 1 and 2) will read: ‘’substantive equality’’ means the full and equal enjoyment of all rights and freedoms and includes equality…(continue with Option 2).
Ms D Smuts (DP) argued that the committee should not be providing a definition of substantive equality but that they should rather provide a definition of ‘equality’.
Professor Gutto said that he was unclear whether she was saying that the Bill should not be concerned with substantive equality at all or that they should not define substantive equality.
Ms Smuts replied that they did not have the time to define substantive equality. She was of the opinion that they should deal only with the concept of non-discrimination and that they should set up the burden of proof and the tests as well. (She added that she did not understand what Professor Gutto’s reference to ‘in law and in fact’ meant.)
The Chairperson said that the definition should refer to both equality and substantive equality.
Mr C Aucamp (AEB) agreed with Ms Smuts. In this definition, substantive equality stands as an absolute. Mr Aucamp stated that it was impossible for substantive equality to be absolute, it had to be in relation to other factors.
He also commented on the use of the words ‘equality…. in fact’ saying that equality in fact was an illusion which could never be achieved.
Dr Davies (ANC) commented that it was impossible to get away from having to furnish some kind of definition of substantive equality.
Professor Gutto explained what the drafting team was trying to accomplish with their definition. He explained that they were dealing with two elements.
1. the terms ‘in law and in fact’ was simply a translation of the term de jure and de facto.
2. the term ‘process and outcomes’ implies that one must not only look at what is being done but also at the impact of what is being done. The reason for this was that the process may not be discriminatory but the outcome thereof may be. The committee needed to make the decision as to whether they wanted to retain these elements or not.
Mr L Ndabandaba (IFP) commented that the word ‘reality/fact’ included the concept of process and outcomes and accordingly suggested the removal of the word ‘reality/fact’.
Mr M Pheko (PAC) indicated that he had no problem with the inclusion of the term de jure and de facto. To him the term meant that the law must not only exist in theory but that it must also be facilitated. Thus, the law will have to create a situation for the bringing about of equality. Equality in law and in fact is an ideal to which they should aspire.
Ms Smuts responded that to strive for de jure equality is one thing but to strive for de jure equality in outcome would be a different matter entirely.
Ms Botha (DP) asked what they were really looking for if they were talking about equality in process and in outcome.
Mr D Hanekom (ANC) commented that they were not trying to achieve absolute equality but that they had to deal with the inherited inequality in the country which was at unacceptable levels. He added that it was an accepted principle that economic growth was related to the level of equality in the country. He then commented to Mr Aucamp that even if you cannot achieve equality that does not mean that you should not strive to achieve it.
Mr Aucamp said that if they were going to leave the formulation the way that it was then someone would have to explain to him what the difference between substantive equality and absolute equality was.
The Chairperson replied that what they were talking about was operational equality not absolute equality.
Mr Aucamp insisted that because of the words ‘in fact’, the definition of equality was an absolute one as ‘in fact’ really meant ‘in real life’. He noted that equality in relation to other factors did not come out in this definition.
The Chairperson asked if it would help if the Latin phrases were retained as the English translation was causing too much confusion amongst the members.
Mr Aucamp said that that would help and it would also help if the words ‘as contemplated in the Constitution’ were retained.
Ms D Smuts (DP) commented that the definition confused her.
The Committee decided to accept provisionally the definition (with the Latin phrases and the words ‘as contemplated in the constitution’ included.)
Definition of the State
Professor B Turok (ANC) commented that the grammatical structure was awful and that no-one would be able to make sense of it. Accordingly, it was decided that the phrase ‘ including functionaries or institutions functioning under’ would be deleted.
The Chairperson noted at the start that the definition which existed now could not remain as it was. He suggested that discrimination be defined simply in the definition section, perhaps using the Community Law Centre’s proposed definition. He continued that he was not suggesting that (a), (b), and (c) in the current definition be dropped. The current definition could then be placed as a clause elsewhere in the Bill, perhaps in Chapter 2 or 3, stating when discrimination was unfair.
Ms Smuts welcomed this approach while Professor Turok asked whether a definition of differentiation should not also be incorporated. The Chairperson said that the issue of differentiation should not be brought in here as a detailed clause would be placed elsewhere in the bill. He also noted that although the substance of (a), (b), and (c) was agreeable, the clauses were badly drafted. However this would be dealt with at a later stage.
The committee agreed that the Community Law Centre’s proposed definition of discrimination be incorporated with the definition of unfair discrimination in the current bill.
It was agreed that these would remain parked until the committee moved on to an analysis of the sectors to see which definitions were necessary and which were not. It was also decided that the definitions of family responsibility, pregnancy, marital status, and socio-economic status should go into the parked definitions.
Objects of the Bill
Professor Turok (ANC) commented that the description in the Bill was cumbersome and he did not think that people would understand it. He formulated a rough draft, which was given to the drafting team to use as a guideline in their redraft. The Chairperson said that they would examine this the next day.
Interpretation of the Bill
The Chairperson noted that no major changes were being proposed to this section and that the committee would look at it the next day. The meeting was adjourned.
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