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JOINT COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
24 November 1999
Chairpersons: Mr M Moosa (NCOP, ANC) and Ms N Botha (NA, ANC)
Submissions handed out:
Commission On Gender Equality
Women’s Legal Centre and Community Law Centre
Business South Africa
National Association of Democratic Lawyers Submission
National Institute for Public Interest Law and Research Submission
Commission On Gender Equality
The Commission on Gender Equality (CGE) submission focussed on 5 principle areas: the Bill’s enforcement mechanism, positive measures to promote equality, the definition of unfair equality, additional prohibited grounds and the Bill’s treatment of discrimination in specific sectors. In respect of enforcement the CGE felt that it should be given a greater role. It suggested that a temporary tribunal be established, which would last for 30 months and would serve as stop-gap while Magistrates Courts were geared up to act as equality courts. This tribunal should be inquisitorial, dispensing with many procedural and evidential requirements.
The CGE pointed to a need for increasing the priority given to gender equality in the Bill. At present, for example the CGE has no locus standi (as does the SAHRC) and the chairperson of the CGE is not represented on the review committee. This undermines the constitutional commitment to gender equality. The CGE recommends a single definition of discrimination and delinking discrimination and unfair. It supports the focus on race, gender and disability as discrimination in these spheres is particularly pernicious. It was further recommended that family responsibility and status, socio-economic status and HIV/AIDS be included as a prohibited ground. Finally, the CGE submitted that instead of including specific sectors in the Bill, the Minister be empowered to make regulations in respect of problematic sectors, in much the same way as was done with the Labour Relations Act.
Ms Njobe (ANC) asked the CGE for its opinion on the use of tribunals rather than Magistrates Courts to enforce the Act. She also pointed out that the CGE had been involved in drafting the Bill and asked how it had come about that the CGE had nonetheless been left out. Dr Davies (ANC) also asked for comments on the SAHRC submission that a permanent tribunal be established. The CGE said that their preference was for a permanent tribunal which was inquisitorial in nature. Their submission that there be a temporary tribunal was an attempt at accommodating government’s wish that the Magistrates Courts be used as equality courts.
Ms Jacobs (ANC) said that part of the CGE’s role is to train paralegals. She asked whether the CGE would want to train Magistrates and Judges in relation to the Equality Act and whether such training should be made compulsory or optional. The CGE responded by saying that many of the implementing agencies (the SAPS, Magistrates and so on) are steeped in an old style mindset and that training was imperative. This should be compulsory.
Mr Aucamp (AEB) asked whether the Act would apply to cultural differences, such as women going to stag parties and men to stork tea parties. He also asked whether the Bill conflicted in any way with the Children’s Charter, how it would affect distinctions based on religion and questioned s11(e) which makes it an offence to infringe the dignity, equality and liberty of a girl under 18 years. He pointed out that dignity and equality should apply to all women and that girls (and boys) under 18 years actually need their liberty curtailed. The CGE acknowledged that there may be a conflict in respect of other constitutional rights, but that the Constitution does provide for tiers of rights. Where cultural or religious practices go contrary to the mores of the New South Africa, they must be rejected. It was acknowledged that s11(e) needs reworking.
Mr Moosa (Chairperson – ANC) asked whether a tribunal would reach the same number of people that Magistrates Courts do. Chief Holomisa (ANC) picked up on this and asked why the traditional courts had not been included. The CGE said that while they liked the modus operandi of a tribunal, it was true that the Magistrates Courts have a greater spread and are therefore more accessible. They suggested that the omission of traditional courts was an oversight which needed to be addressed. The CGE volunteered to get together with the SAHRC in an effort to come up with a workable solution to the problem of enforcement.
Mr Tlhagale (ANC) asked whether there was an overlap between the Equality Bill and the enabling legislation of the CGE, and what its effect would be. Commissioner Esack for the CGE said that although there were overlaps, there are no serious conflicts.
Mr Hanekom (ANC) asked why the CGE had not requested that nationality be included and whether the CGE had looked at the NCGLE submission. He suggested that derogatory remarks made by certain members at the NCGLE submissions were fundamentally linked to gender stereotypes. Adv Madasa (ACDP) responded to Mr Hanekom by saying that he thought homosexuals were adequately included in the definition proposed for gender by the CGE, which refers to socially determined characteristics. He asked whether any research had been done amongst rural women to determine whether they considered gender issues to be related to gay rights. The CGE responded that it has done considerable research into gender issues, including lobola, virginity testing and homosexuality. They suggested that it was absurd to ask the CGE, which is a product of the Constitution, where it stands on sexual orientation. Commissioner Esack used the example that many women feel unloved if their husbands do not beat them regularly – the fact that people internalise their oppression does not make it right. If the opinion of the people was canvassed on every issue, South Africa would have the death penalty. Parliament, he said, was elected to uphold the ethos of the Constitution (which is the only thing holding South Africans together).
Ms Vilikazi (IFP) disputed whether rural women would feel any affinity with issues surrounding homosexuality, saying that this was in fact an urban phenomenon and had no place in gender issues. Mr Aucamp (AEB) agreed. Mr Moosa (Chairperson – ANC) pointed out that this is a general equality bill aimed at all forms of discrimination.
In response to Mr Langa (ANC) who had pointed to the disparities in the market economy, the CGE said that gender was inextricably bound to race and class. Legislation is therefore needed to regulate the market if true gender equity is to be established.
A member for the DP asked why the CGE had tied it to a specific economy (i.e. the market economy), to which the CGE responded that the position in South Africa specifically is one where women are victims of the market economy – a woman who has no earning capacity cannot, for example, leave an abusive husband.
In answer to a question from the ANC regarding language and this Bill, the CGE pointed to two problems: abusive/ inherently insensitive language and language as a barrier (because it is so complicated) for access to Equality Courts. Both need to be addressed.
Women’s Legal Centre and Community Law Centre
The WLC had made a submission on Monday and at the request of the committee returned for a more specific presentation as to how individual sections should be drafted. They defined unfair discrimination with reference to ‘controlled activities’ which include the provision of goods and services, commercial premises and residential accommodation, public education, health care and so on. In this way they believe the Act will be made relevant to the person accessing for example the service and not the provider. While they felt that the sectoral approach was ideal, the WLC and CLC suggested that given time limitations it was preferable to draft broad provisions and leave the details to be put in codes or guidelines.
Mr Moosa (Chairperson – ANC) asked how an enquiry into harassment would be conducted. The WLC suggested that following guidelines established in other jurisdictions the complainant would need to show that there was conduct related to a specified ground which had created a hostile environment for the complainant or their group; alternatively that if the complainant did not succumb to the harassment they would be prejudiced (a quid pro quo situation). The Bill provides for a wide range of remedies.
Mr Grove (ANC) noted that only natural and juristic persons had been included and asked about associations and so on. The WLC said that this would not be a problem, as where an association claimed not to be a juristic person, each member could be sued on an individual basis.
Dr Davies (ANC) asked where they envisaged hate speech fitting in. Mr Moosa (chairperson – ANC) said that this was clearly a main prohibition.
A committee member questioned the reverse onus established through the presumption that discrimination based on a prohibited ground was unfair. He suggested that generally ‘he who avers must prove’. The WLC’s response was that there are a number of reasons for having such a presumption; the complainant must still however establish a prima facie case of discrimination.
Mr Mokoena (ANC) asked whether, taking the approach of putting the sectors into regulations or guidelines did not make it dependant on recalcitrant officials who often need to be ‘pushed like wheelbarrows’. The response was that for this reason specific officials were mandated to pass the regulations and this had to occur within a specific time period.
Ms Ntlabati (ANC – NCOP) questioned the submission that there be a single definition, saying that it might be easier where a woman, for example, was discriminated against, for that woman to go to the Act, look for the section on gender discrimination and in that way frame her complaint. The response was that in reality discrimination cannot be pigeonholed. While the examples are useful, it is important to understand exactly how they will inform the Act – it is not clear, for example, that the examples used apply only to disadvantaged people and not to those who really have no need of protection.
Adv S Holomisa (ANC) asked what exactly was meant by family status and responsibility – does this mean that men will have to cook and women mind the livestock; and that there will be parity between older and younger siblings and children and their parents? Family responsibility, per the WLC, relates to anyone in a care giving position; while family status relates to the effects of, for example, belonging to an extended family, or one whether the mother was a lesbian and one of the parents white and the other black.
Business South Africa
BSA expressed support for the objectives of the Bill, but concerns with how these were addressed. These concerns, they suggested, would require minor modifications to the legislation. They expressed their dissatisfaction with the fact that Nedlac had not been consulted. In particular they recommended that the Bill be generalised and that specifics be decreased. They also pointed out that the Bill treats discrimination and failure to take redressive measures as synonomous. This, it was suggested, is incorrect: while discrimination is something which must be tackled immediately, redressive measures such as affirmative action is a process which can only be implemented over a period of time. It was pointed out that ‘unfair’ is not used consistently throughout the Bill, that there is an overlapping with labour legislation which is not entirely consistent (such as the definition of employee) and that time periods for bringing complaints need to be clarified. Further, BSA submitted that it is necessary to include a defence based on objective commercial/ actuarial/ statistical criteria in order to protect especially those industries which trade in risk (such as insurance companies). In respect of the defence of unjustifiable hardship (s43(3) and (4)), BSA pointed out that it would be very difficult for a wealthy insurance company to prove such hardship, despite the fact that it is unfair to expect men under 25 (who constitute 55% of motor vehicle claims) to pay the same as married women of 50 who as a group institute far fewer claims and are thus a better risk. They suggested that it be left to the courts to give content to the concept of unfair discrimination. This takes into account the difficulties in creating an encompassing definintion and the fact that there is already high court jurisprudence on matter, which means that the courts are already, to some extent bound.
Mr Moosa (chairperson – ANC) pointed out that the Bill had been tabled at a late stage and that this had hindered effective consultation. However, he had communicated with the Executive Director of Nedlac, Mr Phillip Dexter, and had indicated that although a number of Nedlac’s constituents had made individual submissions, the doors were always open to Nedlac to participate.
Dr Davies (ANC) said that there had been much speculation about the effect of this legislation on the economy and that its purpose was not to prevent differentiation, but rather discrimination. He asked whether so-called objective grounds can ever be divorced from their social context and, further, whether s48(1) and (3) did not trump the Employment Equity Act.
BSA agreed that the phrase ‘to the extent that it is not regulated by the Employment Equity Act’ seems to cover the problem; however because the definitions in the two Acts were not the same, it would be open to a complainant to argue that one or the other (whichever suited them) did not apply. They suggested that the wording needs to be strengthened to clearly exclude all labour issues.
Ms Camerer (NP) asked whether it was a legal requirement that the Bill be sent to Nedlac and what the effects of not sending it would be. BSA said that in their opinion this was a legal requirement. It was not however an issue, as Nedlac was now involved in consultations over the Bill.
Mr Grove (ANC) acknowledged the fact that people go into business to make profits. He suggested however that this did not occur in a vacuum and that business has a concomitant responsibility. BSA agreed that there was never any justification for discrimination. However, social responsibility lies in progressive empowerment through, for example, education. Such issues were being addressed through the Jobs Trust which was focussing on tourism and education and other projects. Organisations generally aimed at putting about 2% of declared dividends into social projects.
Mr Moonsamy (ANC) asked how the Bill would affect the economy and affect investment, as was claimed it would. Prof Ndabandaba (IFP) also asked for examples. BSA pointed especially to banks and insurance companies which required a degree of differentiation.
National Association of Democratic Lawyers (NADEL)
Ms Rikki Minyuku, on behalf of NADEL, argued for the inclusion of HIV/AIDS status, nationality, socio-economic status and family status and responsibility in the list of prohibited grounds of discrimination as defined in ‘unfair discrimination’.
Unlike other members of the Equality Alliance who submitted that tribunals would be an effective enforcement mechanism, NADEL believes that the Magistrates’ Court would be a better enforcement mechanism. Ms Minyuku acknowledged the large backlogs and the lack of capacity of the Magistrate courts, but submitted that for the sake of accessibility, affordability and expediency the magistrates’ courts are a better option. An additional factor is the benefit of the use of existing infrastructure. This will, however, require further training of staff and the increase of human resources. Ms Minyuku expressed the opinion that the development of expertise and experience in handling discrimination cases might pave the way for improvements in the magistrates’ courts.
Mr M Moosa (ANC) pointed out that NADEL seemed to subscribe to the idea that the list of grounds of discrimination should be closed. He went on to say that a closed list does not cater for future grounds of discrimination that might arise.
Ms Minyuku said that NADEL is not saying that the grounds of discrimination should be a closed list. NADEL has a problem with the inclusion of "or any other recognised ground" in the definition of `unfair discrimination’. The definition gives no indication of how an unlisted ground becomes recognised as a prohibited ground. The direct result of this will be the difficulty and uncertainty in establishing new grounds of unfair discrimination.
Mr M Pheko (PAC) asked whether NADEL is suggesting that "rural neglect" should be a ground of discrimination.
Ms R Minyuku responded that the suggestion was made that in considering socio-economic status as a ground of discrimination, factors such as unemployment, lack of resources and level of education must be considered. These factors apply most often to those in the rural areas which have been neglected.
National Institute for Public Interest Law and Research (NIPILAR)
Mr Ngubeni ka Nkophe focussed on the Preamble of the Bill which he criticised as unbalanced, ideological and potentially harmful to the cause of equality and preventing unfair discrimination. Amongst other things, he disagreed with the use of phrases like "throughout the history of South Africa" stating that such a phrase does not specify which period is referred to. He further attacked the use of phrases like "previously disadvantaged" as giving the impression that there is a previous instead of a continuing discrimination.
Mr M Moosa (ANC) pointed out that NIPILAR is the only organisation to have made submissions on the Preamble and commended Mr Nkophe thereon.
Mr M Pheko also commended NIPILAR saying that the PAC on many occasions had complained about the language used in the Bill. He promised that the committee would take note of the contributions made.
Ms Z Capa (ANC) asked Mr Nkophe to give an indication of exactly what definition of person is appropriate as he disagrees with the use of ‘persons’ in the Preamble.
Mr Nkophe believes the correct word to be used is ‘people’ and not ‘persons’. He warned that what is said must always be clear.
Adv Madasa (ACDP), as a point of clarity, asked whether NIPILAR suggests that non-governmental organisations (NGOs) are more capable of dealing with the Bill.
Mr Nkophe said that he had attended several NGO meetings and felt that they are more competent to deal with the bill.
The Chairperson requested that NIPILAR submit their version of what the Preamble should look like.
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