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JOINT COMMITTEE ON THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
22 November 1999
PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL: HEARINGS
Documents handed out:
Gender Project, Community Law Centre
Women’s Legal Centre
National Coalition for Gay and Lesbian Equality
Free Market Foundation
Chairpersons: Mr M Moosa (NCOP, ANC) and Ms N Botha (NA, ANC)
Gender Project, Community Law Centre
This submission focused on reproductive health and employment issues as two areas where women are particularly vulnerable. They suggested that although the purposive and contextual approach in s3(4) was useful and in keeping with the approach taken to constitutional interpretation, it was inappropriate to exclude a literal approach, as was used by the court in dismissing the Christian Lawyers Association challenge to the Termination of Pregnancy Act. Further, they felt that divergent and multiple definitions of concepts such as discrimination (for example, gender discrimination, disability discrimination, unfair discrimination, pregnancy discrimination) contained in the Bill made it unworkable. This is not least because in certain instances the discrimination experienced may not fit neatly into one of the categories or might include a number of categories. It would then be difficult for the Judicial Officer to decide which definition should apply.
It was further submitted that harassment should apply not only to gender, but also other grounds such as sexual orientation; that the prohibited grounds be amended to include HIV/ AIDS status, family status and responsibility and socio-economic status, that the State be specifically included through out and that reasonable accommodation be further defined. In respect of employment it was suggested that it is necessary to address the tensions between the Employment Equity Act and the Bill in relation to, for example, the definition of an employee and the appropriate tribunal to effect enforcement. It was suggested that in general the approach taken in the Employment Equity Act was preferable.
Professor Turok (ANC) asked whether there was such a thing as fair discrimination. In reply the example was given of provision of HIV/AIDS treatment to medical personnel in emergencies and not to other sufferers because resources were insufficient to allow for provision to everyone. Affirmative action is also not unfair, as is discrimination based on the inherent requirements of a position.
Ms Jana (ANC) questioned whether it was plausible to include the State, which is already bound by s9(3) of the Constitution. The response was that the State is already included, the submission being merely that this should be made more explicit.
Ms Marshoff (ANC) asked whether the Gender Project had taken into account the fact that the National Health Bill was still in draft stage and that changes would still be made. Further clarification on the need to include HIV/ AIDS status as a prohibited ground was also requested.
The response was that the Gender Project has looked at areas in other Acts and Bills which provide greater protection to women than the Equality Bill, focusing on the need for conformity. The Employment Equity Act only applies to employees and not independent contractors in respect of HIV/AIDS.
Prof Ndabandaba (IFP) asked whether one could draw a distinction between a light sexist joke and a nasty sexist joke. The response form the Gender Project was that this depended on whether it affected the dignity of the person.
Ms Jana (ANC) asked what the approach of the Constitutional Court had been to the question of unfair discrimination. It was explained that the Constitutional Court first considered whether there had been discrimination or mere differentiation, then whether it was fair or unfair and then whether it was justifiable in terms of s36(1) of the Constitution.
Mr Moosa (ANC) asked how one takes cultural distinctions into account. The reply was that the Act will be used by individuals when they feel themselves to be in need of its protection – not all women would use it; for example, not all women would feel that a virginity test was discriminatory, but those who do should be given such protection.
The Black Sash said that the ‘guiding principles’ in the Bill appear to impose positive duties on inter alia NGOs which they might find impossible to meet. This should be clarified. The Bill only prohibits discrimination in the insurance industry in respect of HIV status – this should be listed generally as a prohibited ground, as should family status and responsibility. In respect of nationality it was suggested that if be left out, as the courts would still see it as a category of unfair discrimination in terms of the Constitution, which means that it would be dealt with under the limitations analysis of the Constitution. It is therefore preferable to list it as a prohibited ground, making it subject to s43 of the Bill in respect of defences. Likewise refugees should be specifically included. The Black Sash also support the view of a single definition of discrimination. They also suggested that equality is best dealt with in terms of a two stage approach where discrimination is subject to a fairness analysis, which is informed by reasonableness and justifiability. It was further suggested that the definition of racial harassment contained in s8(a) be expanded as it currently only seems to be covering hate speech.
Mr Davies (ANC) asked for a response to the submission by the Jewish Board of Deputies that hate speech be criminalized. The Black Sash said that, in principle, it could see no problem with this.
Mr De Lange pointed out that the problem with taking a two stage, rather than three stage approach rights analysis is that it negates the structure of the Constitution and ignores the internal limitations contained in a number of rights. In respect of nationality he said that giving for example illegal immigrants rights in this respect meant that they could conceivably claim services and socio-economic rights. The response to the latter observation was that because the prohibited grounds were not a closed list, the courts may in any event read such rights into the Act.
Prof Turok (ANC) asked what the difference was between promoting equality and removing systemic discrimination. In answer the Black Sash said that prevention of discrimination was generally aimed at individual protection, where you could find that a group had been systemically discriminated against. The latter requires redressive measures such as those contained in the Employment Equity Act.
Mr Grove (ANC) asked why the distinction was made between HIV and AIDS. To this it was suggested that AIDS was in fact a disability while being HIV positive is not. One needs to legislate within a social context and ours is one in which AIDS is a real issue.
Finally, Ms Smuts (DP) asked why the State should be bound. The response was that the State is already bound in terms of s9(3) of the Constitution. To include the State in the Bill does not place any greater burden on the State than that which already exists.
Women’s Legal Centre
The Women’s Legal Centre also suggested that a uniform approach be taken to the definition of discrimination, as the multiple grounds could be confusing and result in difficulties where there were overlaps. It was suggested that the defences to harassment should apply only in respect of vicarious liability, while the defence of affirmative action should apply throughout. Socio-economic status should be included as a prohibited ground. The WLC has no position on whether a 2 or 3 stage approach should be taken to the rights analysis, although it was pointed out that where a 3 stage approach was taken the alleged discriminator had two chances to defend themselves, that fairness has been used to good effect in the labour context and that the Constitutional Court has dealt with relatively few cased relating to the concept of ‘reasonable and justifiable’. Further, s36(1) with its requirement for a law of general application does appear to be aimed at the State.
Further, it was submitted that the sectors, as drafted, are vague and unworkable and inconsistent with the relevant legislation in those sectors. It would be preferable for such specific examples of discrimination to be dealt with in guidelines or a code of conduct.
Mr Moosa (Chair – ANC) pointed at this stage to the fact that, because of the late start, the submissions were generally running late. He therefore requested the WLC to return at a later stage to continue with their submission, to which they agreed. There were therefore also no questions.
The Caras Trust works with organizations to develop good practice in respect of eliminating racism and sexism. Their short submission was generally very supportive of the legislation. It was suggested that the onus should be on the alleged discriminator, as experience in other countries had shown that in practice it is very difficult for the person alleging discrimination to prove intention. They said that it is vital at this stage that insulting kinds of speech be prohibited, because in the South African context they are inherently dangerous. Thus any resultant infringement on freedom of speech would be justified. The purpose of the Bill in this respect would be to create a benchmark to which the society could aspire.
The Committee was also asked to consider the question of language, such as for example whether a company which advertised for a position only in English and Afrikaans would be guilty of discrimination. Also, how much of the current process was filtering through to ordinary people.
Mr Nduo (ANC) pointed out that the submission referred only to countries which were the former colonizers and asked what the position was in countries such as China. The response was that reference to the approaches taken in ex-colonial countries was particularly relevant because that is where racism started. In China, as in the former USSR, there was no legislation, although there were strict administrative controls.
Mr Moosa (Chair – ANC) raised the question of satires such as Pieter Dirk-Uys’s Dekaffirnated which makes use of offensive terms to ridicule the people who use them. The Caras Trust suggested that this came down to a question of intention. Where there was the intention to demean, it was suggested that this amounted to incitement. One might also ask whether the use of such terms was reasonable and justifiable and consider the fact that individuals could choose not to attend such performances. Mr Hanekom (ANC) pointed out that the use of ‘intended in the circumstances’ in s8(e) would probably cover such a case.
To Mr Davies’ (ANC) question about whether hate speech should be criminalized the response was that this would depend on the severity of the infringement, thus where it incites to violence it should, as in England and Wales, be criminalized.
National Coalition for Gay and Lesbian Equality
Mr S Ebrahim presented on behalf of the National Coalition for Gay and Lesbian Equality (the Coalition). He noted that the Coalition was a voluntary association which consisted of a combined group of 74 homosexual, bisexual and transsexual associations. He indicated that the primary purpose of their submission was to ensure that Parliament took cognisance of the gay community in relation to the Bill on the Promotion of Equality and Prevention of Unfair Discrimination and that, in terms of the implications of the Bill the rights of the gay community were protected.
Summary of the submission
The submission referred to the discrimination against gays which arose from the narrow definitions of certain words in legislation. These words, used generally in laws, rules, and regulations were inherited from the previous legal order but still govern the provision of benefits (in respect of employment) in South Africa. An example of such a discrimanatory word was ‘spouse’, which was generally defined as ‘the legally married husband or wife of a member’. The effect of this, and similar definitions, was that gay and lesbian partners were excluded from receiving certain employment benefits as they were not included in the legal concepts such as ‘married’, ‘dependant’, or ‘family’.
Mr Ebrahim contended that these exclusions amounted to flagrant violations of the spirit, letter, and purport of the Constitution, the Labour Relations Act, and the Employment Equity Act. These narrow definitions were all hinged on the fact that gays and lesbians were not legally allowed to marry each other. This exclusion of lesbian and gays from marriage and the absence of legally recognised alternatives to conventional marriage has left many couples unable to define their relationships as they choose and has led to unfair treatment.
Recently, there has been an acknowledgement by various statutory provisions, documents issued by government departments and judicial decisions to demonstrate that within the legislative, executive, and judicial arms of government there is an acknowledgement that concepts such as ‘partner’ need to be defined more inclusively. An example of such a definition was the way the Department of Welfare’s White Paper defined ‘family’.
Thus, the Coalition contended that a clear trend was being established by public policy and law to eliminate bias and to establish greater recognition of diverse social and sexual orientation determinations of family life.
The Coalition stated that it is very important to ensure that family responsibility and family status be included as prohibited grounds of discrimination in the Bill in question. Such discrimination arose when gays who have families are discriminated against in their pursuit to care for their families as society does not recognise such families and does not accord them family status. A possible definition of family responsibility was proposed. According to the Coalition, without including a definition of family status and responsibility, gays would continue to face unfair discrimination based on their sexual orientation and their marital status.
Notwithstanding their objections, the Coalition noted that the Bill was considered a culmination of the struggles of the labour movement and poor people for democracy, justice, and equality for all in South Africa.
The Chairperson noted that Mr Ebrahim had referred to discrimination which was perpetrated against 'gays with opposite sex partners', specifically in relation to pressure on such persons to start a family. The Chairperson did not understand the reference nor did he understand how it fitted into a form of discrimination which ought to be protected by the Bill.
Mr Ebrahim replied that he was aware of the fact that the concept sounded quite bizarre, but that this was in fact a discrimination to which some gays were being subjected. There was a common misconception that gays did not engage in heterosexual relationships, when in fact, they did. He noted that many gays were not only involved with opposite sex partners but were actually married to them. He attributed this situation to societal pressures to conform.
He continued that gays involved in such relationships were sometimes subjected to additional pressure (by their families) to start a family of their own. In this context, gays, who through societal pressure had been ‘forced’ into relationships with opposite sex partners had to deal with the added burden of having to conform fully with what a normal relationship is perceived to be (by being pressured to start families).
Thus, what was being sought in this regard, was, in essence, protection for gays involved in heterosexual relationships. Mr Ebrahim conceded that while it was a bizarre concept, it was a dynamic which did exist.
Mr Hanekom (ANC) asked Mr Ebrahim if he had any statistics available regarding the number of gays and lesbians in South Africa.
Mr Ebrahim replied that they constituted approximately 10% of the South African population. Accordingly, any legislation enacted in their favour would affect a substantial number of people. He added that the fact that they were not allowed to marry was, in terms of the Constitution (especially in light of the constitutional protection of equality which relates specifically to sexual orientation), a blatant discrimination.
Professor Turok (ANC) commented that there had been a gradual shift toward greater recognition of gay partners and their lifestyle. In this area however, the courts were still stumbling in the legislative terrain. He asked Mr Ebrahim if he was asking the committee to jump ahead of the jurisprudence and to go all the way by recognising this institution in one fell swoop?
To this Mr Ebrahim very frankly answered ‘yes’. He supported his opinion by stating that equality in regard to sexual orientation was guaranteed in the Constitution. The Constitution, however, only provides guidelines. In order for effect to be given to this constitutional principle there would have to be legal reform. This reform can be effected either through the legislature or through the court system. If change was to be effected through the court system then there would have to be a major court case, where legislation declaring it illegal for gays to marry, would have to be declared unconstitutional. This court process would be a very expensive one. Mr Ebrahim completed his reply by posing a question to Mr Turok. He asked if it was fair that the burden for effecting reform in the gay community be placed solely on one organisation (the Coalition)?
A member of the ANC asked how discrimination fitted in regarding gays with families and gays without families.
Mr Ebrahim explained that gays involved in heterosexual relationships (as a result of pressure) may be discriminated against in that they may be pressured to have families. Discrimination against gays with families occurred for example when two lesbians\gays were involved in a relationship and they had children which were born of a previous marriage or relationship. Their rights in respect of those children may be diminished in the eyes of the law as a result of their gay lifestyle.
The Chairperson interjected to note that (with regard to the former point) heterosexual couples who choose not to marry or who marry and choose not to have children (perhaps because they choose to put their careers first) may also be subjected to social pressure and pressure from families. Thus, in this regard, heterosexual people may be subjected to the same kind of discrimination (pressure) as gay people. The Chairperson asked why gay people should be distinguished from people in heterosexual relationships if they were experiencing the same problem.
Mr Ebrahim responded that the essential difference was one of principle. In the case of gays, the discrimination was aimed at the identity of the person and in the case of heterosexuals it was not.
Mr Z Langa said that the problem of social pressure which Mr Ebrahim referred to was a very practical point and, as such, he was not sure that it was something which the legislature could address.
Dr Davies noted that the social pressure being described by Mr Ebrahim was simply another example of horizontal discrimination. To illustrate his point he drew an analogy with the situation where a family did not want their child to marry a particular person because that person came from a different religion. He said that this was the same type of thing (accordingly, it was a form of horizontal discrimination which fell beyond the ambit of the legislature).
Mr Ebrahim replied that the purpose of including this particular form of discrimination was not so much for the purpose of providing a remedy against it (although this was a desirable possibility) but primarily for the purpose of education through acknowledging that the problem exists.
Mr Ndabandaba (IFP) asked if people could start off as ‘occasional gays’ and then later become a ‘full gay’ and Ms Vilakazi (IFP) commented that society did not understand what a gay was and asked for a definition of the concept.
The response to these two questions overlapped. Mr Ebrahim said that homosexuality was not something which people could decide to be, or not to be, on a whim; it related directly to who that person was – their core identity. Mr Ebrahim defined the concept of ‘gay’ as being a reference to one’s sexual identity and to whom you are attracted.
Ms Vilakazi was unhappy with the generality of his definition. She followed up her question by asking for a graphic account of what gays did, noting in the process that society did not understand it because it was quite unnatural.
The Chairperson interrupted before Mr Ebrahim could answer and indicated that he was going to stop this line of questioning as he had a duty to protect the speaker. He indicated to Ms Vilakazi that homosexuality was not an unknown concept and, if she wanted details of the homosexual lifestyle, she would have to obtain this in private. He suggested that Ms Vilakazi may want to visit Mr Ebrahim’s organisation (the Coalition) for this purpose.
Mr T Masuku made a compelling submission that the court should not be the place of first instance, considering the costs involved and the lack of participation from the public. Instead a tribunal, which would take the form of a jury, was proposed. This tribunal would ensure public participation and furthermore reduce the costs involved. A further proposal was made for the South African Human Rights Commission to play an investigation and mediation role. (See IDASA Submission)
A committee member said that in principle he is in favour of public participation, but this will be a problem when considering the historical background of South Africans. People would make decisions based on historical injustices and that would prejudice certain parties involved.
Mr R Calland of Idasa said that in general tribunals are more flexible and in a sense a jury. He went on to say that experience of other jurisdictions has shown that the broader the selection of people to sit on the tribunal the less prejudice would result. More prejudice would result if people were drawn from the same background. A tribunal would, for instance, consist of a legal Chairperson and other people drawn from society. The function of the legal chairperson would be to give legal direction to proceedings.
Dr R Davies (ANC) asked whether IDASA has given any thought on the financial implications of introducing tribunals.
Mr R Calland responded that "tribunals are by comparison with courts much cheaper and it takes away the burden of legal representation". He went on to say that the SAHRC would have a special investigation and mediation role, for which they would need more resources.
Ms M Njobe (ANC) expressed the opinion that there is reason for doubt that most South Africans, especially in the rural areas, are not ready to take on the responsibility of sitting on tribunals.
On the argument made that `unfair discrimination’ should be defined in the Bill, Prof Turok asked whether it is not important and essential for both `unfair’ and `fair’ discrimination to be defined.
Mr T Masuku responded that the point made is accepted, but there should be greater emphasis on what `unfair’ discrimination is.
Mr L Lever (DP, North West) pointed out that a large burden is placed on the SAHRC, as everyone regards them "as the solver of all problems". On the other side the SAHRC keeps saying that they do not have the resources. He went on to say that the proposals are good, but the problem is that South Africa does not have the infrastructure to deal with all this. He then asked what the costs to the state would be.
Mr R Calland acknowledged the burden placed on the SAHRC and said that additional resources to the SAHRC will assist in this regard. As for costs Mr Calland responded that whatever the costs of a tribunal, they must be cheaper than the cost of taking a case to the High Court. He pointed out that according to foreign experiences the costs to the state of tribunals could be between 50% and 80% cheaper than High Court.
Mr T Masuku added that for the individual there are also lower cost implications, since in instances of appeals, the tribunal drafts the legal issues to be dealt with in the appeal, which addresses the expenses involved in having to get a legal representative to draft the legal documents.
The Chairperson thanked the IDASA for their valuable contribution.
Free Market Foundation
The Free Market Foundation represented by Mr L Louw, Executive Director, and Mr T Nolutshungu, Director: Western Cape, presented their submission to the committee. Mr T Nolutshungu said the Free Market Foundation is not so much against the principles upon which the bill is based, but rather the "modus operandi". Much emphasis was placed on the role played by "the rule of law" (see Free Market Foundation Submission).
Mr L Louw said the trouble with the bill is that it "barks up the wrong tree". He went on to say that the real source of discrimination is legislation created under the "apartheid regime", of which quite a number of laws are still in operation. Mr L Louw suggested that all South African law should be reviewed and discriminatory legislation should be removed. A further suggestion was that "all apartheid assets held by the state should be distributed to the poor as compensation, especially land not used by the state".
Mr L Zita asked how the Free Market Foundation perceives the role of government to be.
Mr T Nolotshungu said that government’s role is to bring about an environment in the economy that is going to be universally applicable. This role is based on the principle that government is to bring about a regulatory environment. These regulations should ensure that all role players have an equal chance to compete.
Mr D Hanekom (ANC) asked whether the National Assembly and the NCOP should be given more funds to be more effective with regard to the review of legislation.
Mr L Louw responded that adequate money should go to parliament, especially to get lawyers to review legislation. He went on to say "special emphasis should be placed on removing laws that were passed with malicious attempt to put up barriers against blacks".
Mr D Hanekom asked whether it would be fair to protect people who were discriminated against.
Mr L Louw responded that "more discriminatory legislation in favour of blacks should be put in place, this must be done not by discriminating against whites, but, for instance, giving assets of the apartheid regime to the previously disadvantaged".
Mr M Moosa asked what the position of the Free Market Foundation is on insurance companies who discriminate on the basis of age and the HIV-AIDS disease.
Mr L Louw said that insurance companies should not be singled out, but should rather be treated like any other business or company. He said that government should allow insurance companies to sell policies the way they want.
The Chairperson thanked the Free Market Foundation for their submission.
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