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JOINT AD HOC COMMIITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL

JOINT AD HOC COMMIITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
13 January 1999
DELIBERATIONS

Documents handed out
Re-Draft No 3 (13/1/2000): Chapters 1, 2 and part of 3
Re-Draft No1 (17/12/99): Chapters 4 and part of 3

SUMMARY
The Committee went in detail through Chapters 1 and 3 of Redraft No 3 which incorporated the previous day's deliberations. For the final clause of Chapter 3 and for Chapter 4, the committee used the Redraft No 1.

MINUTES
The Co-chair, Ms M Botha (ANC) introduced the session and asked the Department to run through the changes included in Redraft No3 arising from the previous day’s deliberations.

Chapter 1, Clause 1: Definitions
(ix) Harassment
Prof Gutto stated the revised definition attempts to use a single sentence followed by two subsections. There is a rewording rather than a change in meaning. clause (ix)(a) is intended to cover grounds such as disability. Regarding footnote 5, a potential conflict with the Domestic Violence Act, Prof Gutto note that this had been investigated and that there was no conflict.

(xvii) Substantive Equality
Prof Gutto noted that the words "de jure" and "de facto" had been returned and that, by so doing, the word "outcomes" becomes redundant. The option was thus to use either "de facto" or "outcomes".

(xix) The State
Prof Gutto noted the grammatical correction - "performing".

(xxi) Unfair Discrimination
The word "as" has been added before "contemplated".

A brief discussion regarding the Parked Definitions ensued without resolving what to do with them. The Co-chair asked that the Clause 1 definitions be discussed before moving on to Clause 2 - the Objects.

Harassment: Ms Botha (DP) suggested introducing a requirement of "serious impact" to the definition of "harassment".

Prof Gutto noted that the word "serious" is elastic and could cause problems. Ms. Madonsela remarked that the test for harassment is already strict and the inclusion of a "serious impact requirement would make it stricter. Mr K Moonsamy (ANC) commented that "serious impact" is redundant.

The Co-chair stated the issue to be whether to include the word "substantially" before "demeans".

Mr Aucamp (AEB) expressed the view that not all insulting or humiliating conduct constitutes harassment. He proposed replacing the first "or" in clause (ix) with "and". Ms Madonsela responded by drawing a distinction between a) conduct that demeans or humiliates, and b) conduct that creates a hostile or intimidating environment. She nevertheless recognised that frivolous litigation should be guarded against and stated that this legislation should address infringements of dignity.

After further discussion, Prof Gutto suggested using "and/or" to replace the "or" preceding "creates". Ms Madonsela supported this suggestion.

Mr Aucamp reiterated his point and remarked that if too broad a range of conduct is covered by this Act, it will be a mockery. The Chair, Mr M Moosa (ANC), moved the discussion on.

It was suggested that it should be required that conduct be repeated to constitute harassment. Mr Moonsamy dismissed this suggestion noting potential questions regarding how many times various forms of conduct would need to be repeated. The Co-chair remarked that these suggestions restrict the definition and place an additional burden on the person harassed.

Prof Ndabandaba (IFP) voiced his support for the use of the term "and/or".

The Co-chair expressed her dissatisfaction with this option and directed the drafters to work on a definition which would include the various options and their consequences in footnotes.

Substantive Equality: Ms Botha questioned the distinction between "de facto" and "outcomes". If there is no difference, she suggested this could be repetitious. Mr Moonsamy said the use of the two terms is motivated by emphasis and the fact that "de facto" is a Latin term.

After some discussion, the chair noted that there were two options available and that the definitions of "(substantive) equality" and "harassment" remained outstanding.

Clause 2: Objects of Act
Prof Gutto drew attention to the proposed changes (indicated by underlining), including the correct numbering of clause 2(b)(i)-(v).

The Chair stated that only controversial aspect was the inclusion of the word "substantive" before "equality" in clause 2(b)(ii). This remained to be reviewed.

Clause 3: Interpretation of Act
Prof Gutto explained the reference to "relevant code of good practice" in clause 3(1)(c): It provides for the incorporation of codes of conduct of, for example, medical practitioners. There is an alternative to using the words "contextual" and "purposive" in order to be more understandable.

Mr Turok (ANC) welcomed the usefulness of this but stated that it should be clear that "purposive" relates to the purpose of this Act while context is broader. Prof Gutto remarked that the purpose of this Act is broader than what is stated in the Objects clause.

Mr Turok suggested using a formulation such as "contextual - that is taking into account the context" and "purposive - that is into account the purpose of this Act". Ms Smuts (DP) responded questioning whether it was appropriate to tell the judges how to interpret. Prof Gutto remarked that it was - that there was no problem in providing mandatory instructions to officers regarding how the legislature wants the Act to apply.

Adv Madasa voiced his support for the proposal included in the re-draft - it gives a stronger indication of the path the courts must follow. The Co-chair added that this legislation also had to be understandable to ordinary persons who would be affected by it.

Attention was drawn to the inclusion of 3(5). Its inclusion is intended to emphasise to the person interpreting that where there are lists of grounds, instances of unfair discrimination and sectors, these should not be read as closed lists. Mr Turok pointed out that the meaning here is fine but that it is difficult to read. Prof Gutto agreed and said that he would work with Mr Turok to improve it.

Clause 4: Guiding Principles
Prof Gutto noted that the instruction from the Chair had now been included. He remarked that the issue of including "substantive" before "justice" in clause 4(1)(b) remained to be resolved as did the choice between "punitive" and "deterrent" in clause 4(1)d). He drew particular attention to the new formulation of clause 4(1)(e), which makes it more of a principle than a directive. He noted that clause 4(2) had been broken down into two parts and that the use of the words "present and past" was important to emphasise. He drew attention to the debate over "colonialism and the apartheid system" and clarified that clause 4(2)(b) relates to affirmative action.

Ms Camerer (NNP) regarded the changes as great improvements and congratulated Mr Turok on his hard work. She questioned using "substantive" to qualify "justice" and stated that "substantive justice" may be less than normal justice. She doubted whether the words "special criteria" do any work. She voiced a preference for "deterrent" over "punitive" (clause 4(1)(d)) and suggested reintroducing the word "restorative". She continued by suggesting that the word "special" be dropped from clause 4(1)(e).

Ms Camerer aroused some animated debate when she questioned the inclusion of "colonialism" in clause 4(2)(a). While she recognised the negative aspects of colonialism, she noted that the dictionary definition is neutral. The legislature may intend the term to have a negative connotation, but this need not be how it will be interpreted. She suggested qualifying the term to give it a negative meaning.

Ms Smuts supported the argument that "substantive" not be included before "justice". This suggests that justice as it is now exercised by the courts is defective. She suggested removing clause 4(1)(d) as the training of officers is not a guiding principle.

Mr Turok suggested that a unique form of explanatory memorandum be used which would illustrate the real purposes of the Act and explain terms such as colonialism. He stated that this memorandum could be more than a mere summary of the Act but would provide an historical perspective which would help in understanding the Act.

The question was raised whether the drafters have looked at one of the Department’s documents called "Vision 2000" regarding the training of officers.

Prof Gutto remarked that the Department will not put up too much of a fight if "substantive" is removed from the phrase "substantive justice" and that in the memorandum and training manuals it will be explained what justice means.

Regarding clause 4(1)(e), he stated that training of officers is an acceptable principle and that he was amenable to the removal of "special". Regarding clause 4(1)(d), he suggested that if the members agree that "restorative" is to be reintroduced, this would be acceptable if phrased something like "measures of a restorative nature". He stated that the drafters were technicians and did not want to get into the complexities of the term "colonialism". He continued by saying that the department has no problem with deleting the word "and criteria" from clause 4(1)(c).

Ms Botha (DP) expressed strong reservations about the exclusion of "patriarchy" and "traditional practices" while "colonialism" and "apartheid" were included.

Mr Hanekom (ANC) added his support to the view that training (clause 4(1)(e)) is not a guiding principle.

Mr Turok was astonished that "people wanted to remove colonialism from our history". He stated that the ANC would fight until the end of the discussion for the inclusion of the term.

The Chair, Mr M Moosa (ANC), remarked that the DP was not arguing against including the term. He requested that the Department deal with the issue of the explanatory memorandum. He noted that there had been a suggestion to use the term "arraignment" in clause 4(1)(a).

The Chair then summed up the discussion: Regarding clause 4(1)(b), "substantive" would be removed. He referred the question of whether to move or scrap clause 4(1)(e) to the department. "Criteria" was to be removed from clause 4(1)(c). Whether "deterrent" (4(1)(d)) was to be altered remained unresolved. Returning to clause 4(1)(e), he suggested using something like "that officers are to have a sufficient knowledge of the subject matter".

Mr Davies (ANC) stated that he was not convinced that clause 4(1)(e) should be moved. He supported the Chair’s formulation.

Ms Madonsela confirmed that "substantive" would be removed and remarked that "restorative" could be used in clause 4(1)(d) but should be linked to the notion of "corrective measures". Regarding the use of the word "patriarchy" in clause 4(2)(a), she stated that while its inclusion is a political issue, she supported including it - it has contributed to the subjugation of women. She noted, however, that if "customary practices/law" is used, this could be picking out black persons. If this term is used, so should a host of other sources of inequality such as religion.

The Chair agreed with this line of reasoning.

Mr Davies remarked that the Bill as it now stands is saying that the most important sources of discrimination were colonialism and apartheid. These notions recognise the repression of women - the most disadvantaged persons under apartheid were black women.

TEA BREAK

The Chair began by noting that much time had been spend on the Guiding Principles and that they must be settled. He suggested using the term "processes" instead of "conducting/finalising cases (clause 4(1)(a)). There were no objections. He confirmed that "substantive" would be removed from clause 4(1)(b) and that "by" should be replaced by "to".

Ms Botha noted that disputes dealt with in terms of this Act go to the equality courts. She suggested including the word "relevant" before "judicial and other dispute resolution forums".

There was general agreement to a suggestion to remove "all" (before "judicial") from clause 4(1)(b).

The Chair confirmed the deletion of the words "and criteria" from clause 4(1)(c) and questioned why they had been included initially.

Prof Gutto responded that it was included to qualify "special rules and procedures". The Chair noted that the words "to facilitate participation" already acted as a qualification. Prof Gutto added that when the term was inserted, it was intended to cover all matters associated with procedures. The Chair commented that the term did add a certain dynamism to participation.

Ms Camerer remarked that she had merely questioned the inclusion of the term and had not asked for it to be removed.

Mr Hanekom noted that the other subclauses make use of phrases such as "the importance of..." He suggested using a similar phrase in clause 4(1)(c). As it stands it is not clear what it is about special rules that is significant and he suggested using the phrase "the formulation of...."

The Chair suggested using the phrase "the use of special rules...". There was agreement on this formulation. He stated that the final version of clause 4(1)(d) would be "the use of corrective or restorative measures in conjunction with other measures of a deterrent nature".

Mr Davies suggested using the phrase "special skills" in clause 4(1)(e) The Chair requested that something more like a principle be used like "the importance of officers with special skills".

Ms Smuts remarked that this formulation is not going to sound like a principle. The Chair disagreed and stated that the use of skilled officials could be a principle.

Ms Camerer remarked that there are many qualified judges who normally deal with commercial matters who require these skills.

The Chair explained that the committee had made a choice to utilise the courts rather than special tribunals which were suggested in submissions. In order to satisfy those who made submissions, he continued, some recognition must be given to the fact that officials are to have special skills.

Mr Davies suggested that the use of the term "training" may not sound like a principle and that it would be better to use a phrase such as "the development of skills". Mr Turok suggested using "the essentiality of developing skills".

It was pointed out that there may be a problem with the wording of "presiding and other officers" and that it should read "presiding officers and others". Prof Gutto stated that he would investigate this.

The Chair requested Mr Davies to work on a new formulation of clause 4(1)(e) and stated that it should go into a special section.

Regarding clause 4(2)(a), the Chair stated that he was happy with the phrase "systematic discrimination". He raised again the question of including "patriarchy".

Mr Davies stated that "customary law" should not be included. The Chair agreed.

Mr Turok stated that he was not opposed to the inclusion of "patriarchy", but that its inclusion could make the subclause "floury".

Adv Madasa (ANC) suggested including the notion of class as a source of inequalities. Mr Smuts remarked that the underlying point is that no grounds should be specifically stated and that if they are there is no reason to exclude class.

Mr Turok remarked that the discussion was becoming ridiculous. The Chair stated that the inclusion of "patriarchy" would be limiting, while "colonialism" and "apartheid" are wide and include all the relevant sources of inequality.

Mr Hanekom agreed that "colonialism" is very wide, but stated that from the ANC’s perspective, there was really no-one who believed that the inclusion of "patriarchy" would detract from the object of this subclause.

Prof Ndabandaba rejected the inclusion of "patriarchy". Mr Aucamp stated that what was being created was a sin list. He argued for an open list.

The Chair remarked that there was an overwhelming view that "patriarchy" should be included. Mr Pheko stated that the inclusion of "patriarchy" confuses the issue and that it should be referred to under clause 13 which deals with the prohibition of gender discrimination.

Ms Botha (DP) remarked that forms of systematic discrimination are being discussed and that since patriarchy is such a form it should be included.

Prof Gutto noted that the Constitution speaks of non-racism and non-sexism and that while "colonialism" and "apartheid" addressed non-racism, non-sexism was not addressed.

The Chair concluded by stating that "patriarchy" would be included. Mr Ndou (ANC) requested that patriarchy be explained to which the Chair responded that this could be discussed over lunch.

The Chair returned to clause 4(1)(e). Mr Davies and Mr Turok had produced drafts. Mr Davies’ read: "the development of skills and capacities to enable presiding officers and other officers to achieve the objects of this Act". Mr Turok’s read: "the essentiality of presiding officers to have the skills necessary to carry out the objects of this Act".

Ms Smuts quipped that the term "essentiality" sounded like a homeopathic remedy.

The Chair stated that Mr Davies’ version was preferred by the house.

Mr Aucamp repeated that clause 4(2)(a) should be phrased as an open list which could read something like "..inequalities brought about by amongst others....". The Chair responded that an open list had already been provided through use of the phrase "particularly in respect of...".

Clause 5: Application of the Act
Ms Smuts approved of the improvements to the clause but suggested including the words "to the extent applicable" (from the Constitution, s8(2)). She questioned it could be stated that it prevails over all other laws excluding the Constitution and amendments to this Act. Mr Moosa stated that the Constitution requires this. Ms Smuts and Mr Aucamp disagreed, citing the examples of the Open Democracy - and Administrative Justice Bills. Mr Aucamp added that it was submitted the previous day that that provision should be scrapped and emphasised that laws rest upon the Constitution alone.

Mr Moosa referred to s9(4) - the only section in the Constitution dealing with unfair discrimination and stated that when national legislation (this Act) gives effect to this right, no other legislation should prevail over it in respect of unfair discrimination. He concluded that this issue would be "parked".

Chapter 2, Clause 6: Prevention and General Prohibition of Unfair Discrimination
The Chair invited comments. Mr Grove (ANC) question the mentioning of "prohibited grounds" here. He commented that the notion of prohibited grounds is a procedural mechanism relating to onus, whereas here , a general prohibition is being dealt with.

The Chair remarked that this comes back to the question of whether any form of unfair discrimination could be justified.

Prof Gutto stated that if the clause is to be cut, the words "directly or indirectly" should remain. The Chair drew attention to s.9 of the Constitution which reads "discriminate... on one or more grounds, including....". Prof Gutto agreed that the Constitution is open-ended and suggested stating merely that "no-one may unfairly discriminate directly or indirectly".

Mr Turok pointed out a grammatical problem and stated that one "discriminates unfairly" rather than "unfairly discriminates". A discussion followed and it was resolved the clause would remain "unfairly discriminates" - as it is phrased in s.9 of the Constitution.

Clause 7: Unfair Discrimination
Ms Smuts suggested that if the essence of discrimination is the imposition of burdens and the withholding of benefits, these were adequately addressed by clauses 7(b) and (e) without the necessity of the other clauses.

Mr Moosa pointed out that this clause addresses unfair discrimination, not merely discrimination.

Mr Turok suggested a new title for the clause; "Discrimination which is unfair". This would assist in distinguishing this clause from the definition of "discrimination" (clause 1(vii)).

Ms Smuts questioned why this clause is located here and not under clause 14 (Burden of Proof section) where it initially was.

The Chair remarked that the original complex and badly worded drafts of the definitions section had been abandoned. Now all that is defined is "discrimination". This may be fair or unfair. The main body of the Bill attempts to define what constitutes "unfair" discrimination - Clause 6 states that no-one is to unfairly discriminate and clause 7 provides a meaning. Clause 8 is then referred to determine what does not constitute "unfair discrimination".

Ms Smuts repeated her point that only subclauses 7(b) & (e) are necessary.

The Chair demonstrated that discriminatory conduct may withhold advantages, and this may be fair. Clause 7 is then referred to and the conduct may be regarded as unfair discrimination if it, for example, creates or sustains disadvantage.

Ms Smuts expressed that clause 7(a) is inappropriate.

Ms Camerer drew attention to footnote 12 which suggests combining subclauses (a)&(b).

Ms Madonsela remarked that for clause 7 to make sense, it must de read with the definition (clause 1(vii)) and questioned whether the average person would be aware of this. She supported Ms Camerer’s obervation that subclause (a) be excluded as it is already incorporated into the definition of "discrimination".

Ms Tsheole suggested the introductory phrase to the subclauses of clause 7 could read: "Discrimination is unfair if it causes disadvantage that....(b) etc..."

The Chair voiced his approval with this solution. Prof Gutto, however, observed that there had been an attempt to simplify things and the choice was made to define only "discrimination". This requires further inquiry into what constitutes unfair discrimination. If the causing disadvantage element is included in the introductory paragraph to clause 7 so must the second element - withholding benefits.

The Chair questioned whether "causes disadvantage" (clause 7 (a)) is necessary.

Ms Botha emphasised that discrimination needed to be differentiated from unfair discrimination.

Prof Ndabandaba motivated his support for removing clause 7(a) by observing that all the subclauses listed are disadvantages.

The Chair directed that subclause (a) was to be deleted.

Ms Camerer called into question the inclusion of "fundamental" to qualify "dignity". The noted that the Constitution speaks only of "dignity". The Chair concluded that it was to be omitted after having asked whether anyone thought that it should be included.

Mr Aucamp proposed deleting subclause (c) on a similar basis that subclause (a) should be deleted - it repeats the definition of "discrimination". In this case, however, the second element - "withholds benefits" is repeated. The Chair expressed his disagreement. Mr Aucamp repeated his explanation and cited the example of affirmative action programs. The Chair responded stating that AA is dealt with by clause 8. Mr Aucamp continued and queried whether every act which undermines the equal access to opportunities constitutes unfair discrimination. The Chair responded in the negative. Mr Aucamp concluded by stating consequently if some acts which acts which undermine equal access to opportunities do not unfairly discriminate, subclause (c) cannot remain here.

Ms Smuts remarked that Clause will not cover every eventuality. There are cases where other rights are balanced against the right to equality. Subclause (c) is not adequate where a defence of such a nature is raised. The Chair suggested that the test proposed in Chapter 3 covers this scenario. Ms Smuts doubted that it did.

The Chair stated that Clause 8 was applicable to all the examples raised and that this discussion was delaying getting on to the defences.

Mr Hanekom suggested creating a link between clauses 7 & 8, possibly by beginning clause 8 with "provided that" to avoid saying under 7, that conduct is unfair discrimination and under clause 8 saying that it is not.

Ms Tshoele suggested that subclauses (d)(e) & (f) be listed as alternative subsubclauses under subclause (c). Subclause (c) would then read "undermines equal enjoyment.....in any way that..(d)... or (e)... or (f)......".

The Chair found this to be a good option and instructed this to be drafted and discussed later.

Clause 8: Positive Measures and Differentiation
Mr Hanekom repeated his suggestion for a link between clauses 8 & 9. Mr Turok proposed that it should remain as it stands.

Ms Smuts urged for a "sunset" provision to subclause (a). Mr Turok repeated that clause 8 should not change.

Prof Gutto pointed out that subclause (b) is repeated in the defences. The Chair responded that the subclause does not effect a shift in the burden of proof onto the complainant - it merely states what is not unfair discrimination.

The Chair noted that there were grammatical errors to correct: The first "to’ needed to be removed, as did "a" before "economic" and "activity" should then be "activities".

Clause 9: Prohibition of Publication of Unfair Discriminatory Information
The Chair raised the question of whether the proviso in subclause (b) should be dropped and noted that a hate speech clause is required.

Mr Turok expressed that the proviso is extremely important and should remain as it is. The Chair stated that he approved of the proviso, but that it omits the instance where a journalist intentionally propagates hate speech, which should be included. Mr Turok remarked that this was covered by clause 10.

Mr Davies noted that if this Act trumps other statutes, for example the Films and Publications Act, care must be taken not to soften the penalties provided in these other statutes.

The Chair concluded the morning session by noting that a prohibition of harassment needed to be included and this may be a good place to include it. He requested that this be considered over lunch.

Afternoon session
Clause 7 and 8 (revisited)
The chairperson proposed that in Clause 7 the words "...subject to clause 8" be inserted at the beginning of clause 7. This alteration in clause 7 must not alter anything in Clause 8.

Clause 9 Prohibition of publication of unfair discriminatory information
Mr Moosa said that the previous discussion on the subject of intention to discriminate has been taken care of. Mr Basset from the Department made a proposal that instead of putting a definition of harassment in clause 9, a statement reading something like ’harassment as defined in clause 1 is hereby precluded’, should appear in the clause. The suggestion was adopted.

Mr B Turok (ANC) suggested that clause 9(b) should include ‘the use of language which is hurtful…’. This was agreed to.

Hate Speech
The Chairperson asked that such a clause be put in Chapter 2. Professor Gutto promised but said the Drafting Team is still working on the hate speech clause.

Chapter 3 (Prevention, Prohibition and Elimination of Unfair Discrimination Relating to Race, Gender and Disability)

Clause 10 Prohibition of racial discrimination and racism
In the very first sentence in clause 10 the Chairperson advocated for the removal of the word "in" because it is misplaced. Mr D Hanekom (ANC) strongly objected and challenged the members to read the whole sentence wherein they will notice that the removal of "in" would not make any sense. The Chairperson withdrew his proposal.

In clause 10 (a) Mr B Turok warned that the use of "propaganda" would create problems as it is difficult to say what is and what is not propaganda. He proposed instead the use of the word 'materia'l. Mr Moosa was of the opinion that clause 10(a) is fine except that the phrase "group of persons" needs to be deleted. Mr C Aucamp (AEB) voiced his unhappiness about the appearance of ‘suggesting’ in the clause. He said it would be very difficult for any court to pinpoint a suggestion of racial superiority or inferiority of any person(s). Mr M Pheko (PAC) asserted that no propaganda can be spread without an idea. He said it is hard to separate the two. The Chairperson ruled that clause 10(a) be looked at later.

In discussing Clause 10(b), the Chairperson proposed it be broken up into two parts and that the second part must include the present clause 10(c).

With regard to clause 10(c) Mr B Turok (ANC) informed the Committee that the ANC had met and decided against the inclusion of racial tokenism in the Bill. The Chairperson asked the ANC to inform the Committee about the reasons leading to their conclusion. Mr D Hanekom (ANC) said the inclusion of tokenism can indeed be counter-productive. He said modest measures of introducing Black executives and the like, in firms and businesses, can be thwarted because of fears of accusations of tokenism to those concerned.

The Committee agreed to adopt a re-draft of 10(d) as proposed by Mr Turok.

The Committee agreed that Clause 10(e) be left out completely and instead be put in the hate speech clause that is to be drafted by Professor Gutto.

Clause 11 Prohibition of Gender Discrimination
Mr Turok said the statement on witchcraft in 11(a) is incorrect and misplaced. He said violence against the so-called witches must appear to be stressed rather than witchcraft. Ms T Madonsela of the Drafting Team disagreed. She opted for clause 11(a) as drafted because witchcraft is a gender-based violence. Ms S Ntlabati (NCOP, ANC Free State) concurred. Professor L Ndabandaba (IFP) warned that the Committee must be very careful as witchcraft is very broad. To illustrate his point he gave an example of a young man secretly administering a love potion to a woman’s food so as to win her favours, as a form of witchcraft. The Chairperson ruled that Ms S Ntlabati (NCOP, ANC Free State) and Professor L Ndabandaba (IFP) are to discuss the matter between themselves and inform the Committee on the desirability or not of including witchcraft.

Clause 11(b) was found to be correct.

Mr B Turok (ANC) read out a clause combining clauses (c), (d) and (e). The Chairperson expressed satisfaction with the clause but opened the floor for discussion on the question of whether the phrase 'genital mutilation' should be prefaced by the word 'female'. Mr D Hanekom said when males are forced to undergo circumcision against their will, that is mutilation. He said the word must be ‘genital mutilation’. Mr Madasa (ACDP) said circumcision is a tribalism issue and, he advocated against the inclusion of males. Professor Gutto and the Chairperson did not agree with Mr Madasa. Mr Z Langa (ANC) pleaded with the Committee to leave circumcision out of the whole matter. He maintained that 90% of males undergoing circumcision do it out of their own free will. The matter was left for further consideration.

Clauses (f), (g) and (h) were found to be in order.

The Committee used the Revised draft No 1 (17/12/99) to continue discussion on the final clause in Chapter 3.

Clause 10 Prohibition of Disability Discrimination [Revised draft No 1 - 17/12/99]
In discussing clause 10, Mr C Aucamp (AEB) pointed out that disability is highlighted but not old age. He urged the Committee to consider highlighting old age too. Ms J Vilakazi (NCOP, IFP KZN) concurred and said that as people get old they become disabled. Ms M Njobe (ANC) disagreed with this view. She said the aged themselves say old age is not a disability. She asked the Committee not to speak on their behalf. The Chairperson said that the fact of the matter is that old people are discriminated against because of age. Mr Turok read out a draft for clause 10(a) which the committee agreed to.

Clause 10(b) was discussed and found to be correct.

The Committee discussed clause 10(c) and agreed that ‘reasonable accommodate’ be used as opposed to reasonable steps as was suggested by Mr C Aucamp (AEB).

The Chairperson asked the drafters to explore the possibility of combining subclause (c) and (d).

Chapter 4 (Defences and burden of proof)
Clause 11 Discrimination on prohibited grounds [Revised draft No 1 - 17/12/99]
The Committee argued whether presumption of unfairness can apply only to those prohibited grounds listed in the Constitution and not apply to the additional grounds that have been included in this Bill - which are currently: family status, family responsibility, socio-economic status, HIV/AIDS and nationality. The DP and NNP believe that judicial opinion is that the additional grounds must be treated differently.

Ms T Madonsela of the Drafting Team pointed out that if one reads Section 9(3) of the Constitution, the listed grounds of discrimination are an open list. She compared this bill to Section 11 of the Employment Equity Act, which has similar provisions, and an extended list of grounds of discrimination. The expanded list of grounds in the EEA have not been contested. She supported this style of drafting which stated: "discrimination on one or more of the prohibited grounds in section 1...".

The Committee agreed to disagree on this issue and moved on.

Clause 12 Burden of proof [Revised draft No 1]
The Committee worked on universally applicable plain language translations of 'prima facie' which appears twice in this clause. Eventually suggestions for each by Mr Bassett of the Department and Mr R Davies respectively were accepted.

The Chair debated whether subclauses 12 (2) (a-d) were needed. Professor Gutto said that though the list was not exhaustive, it did provide guidance. The committee agreed to bold and bracket these subclauses for possible deletion.

Clause 13 Determination of fairness [Revised draft No 1]
The chair directed the committee to decide whether there was repetition in this clause.

Ms Camererer (NNP) was unhappy about the introduction in 13(g) of "to accommodate diversity". She believed this was an entirely new concept and did not believe it belonged here. This point was not taken up as the committee agreed to hold off discussions on 13 (a-h) and move straight on to 13 (i).

The DP and NNP both believe that there is no question that 13 (i) has to be there.

The point is that its presence conflates "reasonable and justifiable" with the first stage of the two-stage test when evaluating alleged discrimination. The committee decided to hold off discussion on this issue.

Clause 14 Measures to redress disadvantage [Revised draft No 1]
This clause will be deleted.

Clause 15 [Parked provisions relating to promotion]
This must be moved to the Chapter dealing with the Promotion of Equality.

Appendix 1:
Re-Draft No 3 (13/1/2000): Chapters 1, 2 and part of 3

CHAPTER 1

DEFINITIONS, OBJECTS, INTERPRETATION, GUIDING PRINCIPLES AND APPLICATION OF ACT

Definitions
1.
(1) In this Act, unless the context indicates otherwise—
(i) "clerk of an equality court" means a clerk of an equality court appointed in terms of section 17, read with section 54, and includes "a clerk";
(ii) "Commission for Gender Equality" means the Commission for Gender Equality referred to in section 187 of the Constitution;
(iii) "complainant" means any person who alleges any contravention of this Act and who institutes proceedings in terms of the Act;
(iv) "Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
(v) "constitutional institution" means any of the relevant institutions supporting constitutional democracy referred to in Chapter 9 of the Constitution and includes the Pan South African Language Board;
(vi) "Department" means the Department of Justice and Constitutional Development;
(vii) "discrimination" means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly -
imposes burdens, obligations or disadvantage on; or
withholds benefits, opportunities or advantages from,
any person on one or more of the prohibited grounds;
(viii) "equality court" means a court contemplated in section 16, read with section 54, and includes "court";
(ix) "harassment" means unwanted conduct of any kind which demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to -
(a) a person's membership or perceived membership of a group identified by a prohibited ground or to a characteristic associated with a prohibited ground; or
(b) sex, gender or sexual orientation;
(x) "Minister" means the Minister for Justice and Constitutional Development;
(xi) "person" includes a juristic person and any non-juristic entity or a group or category of persons;
(xii) "prescribed" means prescribed by regulation in terms of section 53;
(xiii) "presiding officer" means a presiding officer of an equality court contemplated in section 16, read with section 54;
(xiv) "prohibited grounds" includes one or more of the following:
race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, nationality, HIV-AIDS status, socio-economic status, family responsibility and family status; or
any other ground where discrimination based on that ground causes or perpetuates disadvantage and undermines human dignity and equal enjoyment of all rights and freedoms in a serious manner;
(xv) "regulation" means a regulation in terms of section 53;
(xvi) "respondent" means any person against whom proceedings are instituted in terms of this Act;
(xvii) "South African Human Rights Commission" means the South African Human Rights Commission referred to in section 184 of the Constitution;
(xviii) "substantive equality" includes the full and equal enjoyment of all rights and freedoms as contemplated in the Constitution and includes de jure and de facto equality and also equality in terms of process and outcomes;
Option 2
"equality" includes the full and equal de jure and de facto enjoyment of all rights and freedoms as contemplated in the Constitution;
(xix)
"the State" includes—
(a) any department of State or administration in the national, provincial or local sphere of government;
(b) any other functionary or institution—
(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any legislation or under customary law or tradition;
(xx) "this Act" includes any regulation made in terms of section 53 but does not include footnotes;
(xxi) "unfair discrimination" means discrimination as contemplated in section 7.

[PARKED DEFINITIONS FROM SECTORS

"beneficiary" means a person who has received or is to receive benefits from a retirement fund in terms of the rules of the fund as a result of the person’s relationship with a member of that retirement fund;
"club" includes an association of persons or an association of clubs established for any social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purpose, whether incorporated or otherwise and includes specifically any company incorporated for purposes of managing the professional affairs of club;
"designated groups" means—
[a] persons previously classified as Africans, Coloureds or Indians;
[b] women; or
[c] persons with disabilities;
"educational institution" means—
[a] an education institution as defined in section 1 of the National education Policy Act, 1996 (Act No.27 of 1996);
[b] a higher education institution as defined in section 1 of the Higher Education Act, 1997 (Act NO. 101 of 1997); or
[c] a further education and training institution as defined in section 1 of the Further Education and Training Act, 1998 (Act No. 98 of 1998).
"family responsibility and family status" ..... (The old parked definition)
"health care benefits" includes but are not limited to subsidies, health insurance and pensions.
"health care services"—
[a] includes those services necessary to ensure a state of complete physical, mental and social well-being and not only services aimed at ensuring the absence of disease and infirmity; and
[b] are not limited to those services aimed at preventing, diagnosing, alleviating, curing, healing and treating conditions that threaten or compromise a person’s state of complete physical, mental and social well-being;
"insurance policy" includes an annuity policy, a life assurance policy, an accident insurance policy or an illness or injury policy, but does not include a retirement annuity fund, underwritten by an insurer;
"insurer" means a person who issues insurance policies or makes such policies available to others.
"learner" means—
[a] a learner as defined in section 1 of the South African Schools Act, 1996 (Act No. 84 of 1996);
[b] a student as defined in section 1 of the National Education Policy Act, 1996 (Act No. 27 of 1996), section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997) or section 1 of the Further Education and Training Act, 1998 (Act No. 98 of 1998); or
[c] any other person who is receiving education or training at any educational institution referred to in subparagraph (i).
"national sport structure" means the national union of any sport code;
"profession" means an occupation that requires tertiary education and specialised training and skills, and that is regulated by a professional body;
"professional body" means a recognised body which is established to exercise control over and regulate the profession in question and its members.
"provincial sport structure" means the provincial union of any sport code.
"racial discrimination" means any distinction, exclusion, restriction or preference, based on race, colour, descent, national or ethnic origin, which is aimed at or has the effect of nullifying, impeding or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other sphere of life;
"racism" includes any act, practice or policy which denies or is calculated to deny or undermine the inherent dignity of a person or a group of persons on the basis of race, language, religion or ethnicity, as manifested in violence against such person or group of persons, the denial of free and equal access to, and participation in, all spheres of life.
"retirement fund" means a pension fund, a provident fund or a retirement annuity fund;
"services" includes services-
[a] relating to banking and the provision of grants, loans, credit or finance;
[b] relating to entertainment, recreation or refreshment;
[c] relating to transport or travel;
[d] Provided by the State.]
"socio-economic status" means ....(The old parked definition)

Objects of Act
2.
The objects of this Act are—
(a) to enact legislation required by section 9(4) of the Constitution;
(b)
to give effect to the letter and spirit of the Constitution, in particular -
(i) the equal enjoyment of all rights and freedoms by every person;
(ii) the promotion of substantive equality;
(iii) the values of non-racialism and non-sexism contained in section 1 of the Constitution;
(iv) [non-discrimination and the sanctity] the prevention of discrimination and protection of human dignity contained in sections 9 and 10 of the Constitution;
(v) the prohibition of advocacy of hatred, based on race, ethnicity, gender or religion, that constitutes incitement to cause harm as contemplated in section 16(2)(c) of the Constitution;
(c) to provide for measures to facilitate the progressive eradication of unfair discrimination, particularly with regard to race, gender and disability;
(d) to provide for measures to educate the public and raise public awareness on the importance of advancing equality and overcoming unfair discrimination;
(e) to provide remedies for victims of unfair discrimination and persons whose right to equality has been infringed;
(f) to set out measures to advance persons disadvantaged by unfair discrimination; and
(g) to further facilitate compliance with international law obligations including treaty obligations in terms of the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women amongst others.

Interpretation of Act
3.
(1) Any person applying this Act must interpret its provisions to give effect to—
(a) the Constitution, the provisions of which include the promotion of equality through legislative and other measures designed to protect or advance all persons;
(b) the Preamble, the objects and guiding principles of this Act, thereby fulfilling the spirit, purport and objects of this Act;
(c) any relevant code of practice issued in terms of this Act or any other law.
(2) Any person interpreting this Act—
(a) must, where appropriate, consider international law, particularly the international agreements referred to in section 2;
(b) may, where appropriate, consider foreign law;
(c) must prefer any reasonable interpretation that is consistent with international law over any alternative interpretation that is inconsistent with international law.
(3) Any person interpreting this Act must, where a dispute arising from this Act revolves around an issue covered by-:
(a) a provision of an international agreement that binds the Republic as contemplated in section 231 of the Constitution; or
(b) a principle of recognised customary international law as contemplated in section 232 of the Constitution,
attempt to resolve the dispute in conformity with the principle of recognised customary international law or the provision of the international treaty in question, as the case may be.
(4) The interpretation and application of this Act may, where appropriate, be contextual and purposive (Any person applying or interpreting this Act must take into account the context of the dispute and the purpose of this Act.)
(5) Despite any other law to the contrary, the inclusion of any ground of unfair discrimination, any sector referred to in Chapter 7 or any forms of unfair discrimination provided in the said grounds or sectors, must not be interpreted as an indication of the exclusion of other grounds, sectors or forms of unfair discrimination.

Guiding principles
4.
(1) In the adjudication of any proceedings which are instituted in terms of or under this Act, the following principles should apply:
(a) The expeditious and informal conducting/finalisation of cases, which facilitate participation by the parties to the proceedings
(b) access to substantive justice to all persons in relevant judicial and other dispute resolution forums;
(c) special rules of procedure and criteria to facilitate participation;
(d) the use of corrective measures in conjunction with other measures of a deterrent nature;
(e) the importance of special training for presiding and other officers to achieve the objects of this Act

(2) In the application of this Act the following should be recognised and taken into account:
(a) The existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of present and past unfair discrimination, brought about by colonialism and the apartheid system; and
(b) the need to take measures at all levels to eliminate such discrimination and inequalities.


Application of Act
5.
(1) This Act binds the State and all persons.
(2) If any conflict relating to a matter dealt with in this Act arises between this Act and the provisions of any other law, other than the Constitution or an Act of Parliament expressly amending this Act, the provisions of this Act must prevail: Provided that this Act only applies to unfair discrimination in respect of issues relating to employment to the extent that it deals with employees and employers who are excluded from the application of the Employment Equity Act, 1998 (Act No. 55 of 1998).
CHAPTER 2

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION


Prevention and general prohibition of unfair discrimination
6. Neither the State nor any person may unfairly discriminate directly or indirectly on one or more of the prohibited grounds, against any person.

Unfair discrimination
7. Discrimination is unfair if it—
causes disadvantage;
impairs or is likely to impair fundamental human dignity;
undermines equal enjoyment of all human rights and freedoms or access to opportunities in all areas of life by any person;
(d) creates or sustains systemic forms of inequality or disadvantage;
perpetuates or exacerbates or is likely to perpetuate or exacerbate past or existing forms of inequality and disadvantage, including the social consequences of past discrimination, particularly on the grounds of race, gender and disability; or
constitutes failure to reasonably accommodate the needs of or enable any person to enjoy full and equal access to or participate or advance equally in all areas of life,
on one or more of the prohibited grounds.

Positive measures and differentiation
8. It is not unfair discrimination to –
(a) take measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination; or
(b) differentiate between persons according to reasonable, justifiable and objectively determinable criteria that are intrinsic and inherent to economic or other legitimate activity.16

Prohibition of publication of unfair discriminatory information
9. No person may—
disseminate or broadcast any information,
publish or display any advertisement or notice,
that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate: Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution is not precluded by this section.

CHAPTER 3
PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION RELATING TO RACE, GENDER AND DISABILITY

Prohibition of racial discrimination and racism
10.
No person may unfairly discriminate directly or indirectly against any person on the ground of race, including in the following manner:
(a) The dissemination of any propaganda or idea, suggesting the racial superiority or inferiority of any person or group of persons, including incitement to, or participation in, any form of racial violence;
(b) the operation of any activity which is intended to promote, or has the effect of promoting,17 exclusivity, based on racism or racial discrimination and which results in the [de facto] actual18 exclusion of persons of a particular race group under any principle that appears to be neutral, such as in sport, the recognised professions [and] or health services, notwithstanding the legal position which prohibits such exclusion;
(c) the practice of racial tokenism19 as a strategy for maintaining racial power imbalances in institutions;
(d) the provision of different and inferior services or the exclusion from different and superior services or any other advantage to a particular race group or persons belonging to such race group, when compared to the services provided to another race group or persons belonging to such race group;
(e) subject to the proviso in section 9(b), the use of language which is recognised as being, and is intended in the circumstances to be, hurtful and abusive, including, amongst others, the use of words such as "kaffir", "kaffer", "kaffermeid", "coolie", "hotnot" and their variations.

Prohibition of gender discrimination
13.
No person may unfairly discriminate, directly or indirectly, against any person on the ground of gender, including in the manner:
(a) gender-based violence, including witchcraft or ritual-related violence;
(b) the system of preventing women from inheriting family property;
(c) [female] genital mutilation;
any practice, including traditional, customary or religious practice, which unfairly violates the dignity of women and undermines equality between women and men;
practices that undermine the dignity, equality and liberty of the girl child;
(f) any policy or conduct that unfairly or unreasonably limits access of women to land rights, finance and other resources;
sexual harrassment
[pregnancy] discrimination on the ground of pregnancy.

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