Briefing

JOINT COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
5 November 1999
BRIEFING

Chairpersons: Mr M Moosa (NCOP, ANC) and Ms N Botha (NA, ANC)

Documents handed out:
Equality Legislation for South Africa: Discussion Document 2 (26 May 1998)

SUMMARY
The Promotion of Equality and Prevention of Unfair Discrimination Bill aims to give expression to Section 9 in the Constitution which outlaws discrimination and aims to promote equality. It outlaws unfair discrimination on one or more grounds including race, gender, sex, pregnancy, marital status, sexual orientation, age, disability, religion, belief, culture, language and birth. Ms Madonsela, Mr Vasset, Judge J van der Westhuizen and Professor S Gutto who were all involved in the process of producing the Bill, presented the briefings on the contents, background, constitutional requirements and aims of the Bill.

MINUTES
Overview of the Bill
Miss Madonsela, of the drafting team, said that according to Section 9(4) of the Constitution, the government was required to enact national legislation "to prevent or prohibit unfair discrimination". This had to be completed by 4 February 2000. When the Department of Justice and Constitutional Development undertook this task, the first question they had to answer before drafting the Bill related to what Section 9(4) actually required : to prevent or prohibit Unfair Discrimination (unfair discrimination). Firstly, therefore, unfair discrimination had to be defined. She said that unfair discrimination was basically the opposite of equality and equality included the full and equal enjoyment of all rights and freedoms according to the Constitution. She said that it was accepted that the Constitution, through the right of equality, enabled everyone to enjoy all rights and freedoms being those entrenched in Chapter 2 of the Constitution. She said that other countries’ anti-discrimination statutes were looked at for guidance. Section 9(2) was also instructive with regard to the drafting of legislation.

She said that the drafters had realised that there were inequalities in South Africa directly linked to its past – where legislation had systematised inequality – with social consequences that could not be removed by the stroke of a pen. It was recognised that black people and women were at the bottom of the scale in society and black women were the worst off. However not all discrimination was linked to the past. The purpose of the law was to achieve equality by eliminating Unfair Discrimination structurally entrenched through society.

International conventions such as the International Declaration of Human Rights and the African Charter, were looked at. They had looked at what had happened in various countries which had tried to eliminate discrimination. She said that it was clear that merely to say that one could not discriminate was not enough. There had to be promotion of equality.

She explained that the Bill attempted to focus on the key areas in society where discrimination took place, that is, the sectors as well as the various types of Unfair Discrimination. It was impossible to focus on every ground and therefore those grounds and sectors in the Bill are not exhaustive.

Content, structure and provisions of the Bill
Mr Vasset, one of the drafters, noted that simple user friendly language was used in the Bill. The drafters had tried to make it as practicable as possible. He said that the most important forms of discrimination were highlighted. He also pointed out that the various sectors focused on were not exhaustive.

The Preamble recognises the problems in South Africa's past with regard to discrimination and sets the scene for this piece of legislation. He granted that it might seem too comprehensive. Chapter 1 deals with Definitions, Objects, Interpretation, Guiding Principles and the Application of the Act, (Clauses 1-5). Some of the definitions were taken from international instruments related to human rights. He said that the Bill binds the state and all persons – natural and juristic. There was a proviso with regard to unfair discrimination in that it was not unfair discrimination to take affirmative action measures. The Interpretation clause stated that some of the guiding principles would be customary international law. He pointed out that the Act applied to employment discrimination issues which are not regulated by the Employment Equity Act. In the event of any conflict arising between the Equality Act and another law, the Act would prevail unless the conflict was in respect of the Constitution or with an amendment to this Act.

Part A of Chapter 2 was a general prohibition of unfair discrimination. Part B focused on race and gender discrimination. Part C to Part K of Chapter 2 focuses on specific sectors. He said that since it was recognised that there were no real financial resources to create new institutions, Chapter 4 stated that Magistrates’ courts and High courts would be constituted as Equality courts – Clause(47). Clause 46 (2)a-f deals with who can in fact institute proceedings in terms of the Act. Clause 48 has a long list of powers of the court and orders it may make.

Chapter 5 dealt with the promotion of equality in general in Clause 51(1). The ministers for the various sectors had to prepare and implement equity plans, the contents of which would have a time frame for implementation. A review committee would have to be formed.

Background information on the drafting process
Judge J van der Westhuizen, who coordinated the process of drawing up the bill until his appointment as a judge, said that he did not want to cause an overflow of documentation and therefore he would concentrate on the present draft. He nevertheless distributed an Equality Legislation Drafting Project discussion document, dated 26 May 1998, to give the members an idea of how the process had gone. It contained some of the initial problems and difficult issues which he said would remain difficult even after the Bill was introduced.

The judge pointed out that it was a constitutional directive that legislation referred to in 9(4) be passed by February 2000. He said that in all societies where there was discrimination, legislation of this kind was needed. He said that legislation of this kind was never easy, since defining discrimination was complex and controversial. He said that according to statistics from the UN, more than 50 countries have legislation of this kind. The easiest of these to understand would be Canada or Australia. He said that in Germany they have even criminalised unfair discrimination. In our present bill only one section has any reference to the criminal aspect – clause 6(3) which stated that if unfair discrimination played a part in the commission of an offence, it had to be regarded as an aggravating circumstance for purposes of sentencing.

Before the 1996 Constitution he said that there was research of unfair discrimination and inequality. After the drafting of the Constitution, the project came into being. At the core of the project was the Equality Legislation Drafting Unit (ELDU) which was a joint project of the Ministry of Justice and the South African Human Rights Commission. The ELDU saw its initial activities as:
1. Research into Discrimination
2. Consultation with a wide variety of Groups
3. Awareness

With regard to research, researchers focused on the different sectors such as Education and Health. There were a variety of meetings to enhance awareness. They encompassed different interest groups including people with HIV / AIDS.

The judge said that a series of discussion documents were issued to various groups followed by the draft legislation. He said that a reference group, consisting of a number of representatives of NGOs, Law Faculties and a representative from then Deputy President's Office, were also involved with looking at the framework of the legislation. There was also an International Conference held around the issues of unfair discrimination.

When the Judge was appointed to the bench in 1998, a full time coordinator was not appointed in his place and he was available to help in the process on a consultative basis.

One of the issues which the ELDU had to deal with was the horizontal application of the Bill of Rights. He said that it was clear that if it only applied in respect of the state, then discrimination could in a sense be privatised and because of this there had to be horizontal application to some extent. He also said however that there had to be limits to its application since for example choosing people to come to a birthday party may very well include discrimination against certain persons. This would however be one instance where it would be unreasonable not to allow discrimination. Thus in various intimate situations one had to know where to draw the line in terms of when discrimination was fair and when it was no longer fair since absurd situations could arise if this line became blurred.

He said that the bill would thus give effect to 9(4) of the Constitution. It would define discrimination and provide examples of any of the types which occurred in society. It would give content to the right to equality. It would provide legal certainty as to what is prohibited and what is not.

The judge said that two things were happening in section 9 of the Constitution. It was saying in 9(4), let us prevent or prohibit discrimination. In 9(2) it wanted the promotion of equality. Strictly speaking therefore the main issue that had to be addressed was the 9(4) directive. The judge asked whether one should in fact stick to a narrow anti-discrimination approach or whether you should in fact, as the bill has done, marry this anti-discrimination approach with a wide promotion of equality approach. He agreed that this issue was complicated and there was criticism of this approach. Nevertheless he was of the opinion that without marrying the two approaches there would simply be a minefield of litigation while there would be no focus on, in fact, getting rid of unfair discrimination.

The Judge said that according to the Constitution and various constitutional court decisions, discrimination was not in itself a problem. He said that the problem was unfair discrimination. He added that even if there was unfair discrimination this could in certain instances be justified. The Bill had defences which could be invoked (Chapter 3). They had had some difficulty with the question of how to deal conceptually with these defences. He was not sure whether the acts one was not in trouble for as a result of the defences would be called discrimination but not unfair discrimination or whether it was unfair discrimination but the limitations clause applied. He said that this determination would be important as far as proof was concerned since 9(5) of the Constitution states that discrimination on one of the listed grounds was unfair unless it was established that the discrimination was fair. Thus if discrimination was established, the discriminator had the onus to show that it was fair. With unfair discrimination he explained that it was automatically unfair and only the limitations clause could help.

He said that in the Constitution all the grounds of discrimination were in one clause. He said that another problem was whether to deal with all in the same way or do you say South Africa’s problem is primarily in respect of race and gender. He said that it was not feasible to give each ground its own chapter but specific attention was given to race and gender. He pointed out that in other countries with constitutions, all areas of discrimination were outlawed but specific areas were legislated on. He argued that there must always be a general anti-discrimination provision to cover all instances of discrimination.

With regard to enforcement there were extreme choices. He said that one could make unfair discrimination a crime or a delict and have courts deal with it in the normal way. Secondly tribunals could be setup but the resources were lacking. Thus it was decided to opt to use the existing structures.

Further input
Professor S Gutto of the Centre for Applied Legal Studies at the University of Witwatersrand has been involved in the process firstly as a researcher, then as a member of the team responsible for drafting the framework document and for introducing it to the public and finally as part of the drafting team.

He expressed regret at the fact that the SAHRC has been misrepresented by the media, which labeled the Commission as the drafters of the Bill thereby compromising its independence. He stressed that it was not so.

Professor Gutto said the Bill aspires to fulfill what Section 9(4) of the Bill of Rights in the Constitution requires. He said for one to understand the essence of the Bill Section 9 of the Constitution has to be read in its entirety in conjunction with the historical content.

Professor Gutto explained that the Drafting Unit had to decide whether the Bill / Act should be applied in the sectoral places, but it was decided to expand the area of objects of the Bill to "really show what we wanted to achieve." He mentioned that since 1994 there have been other pieces of legislation dealing with equality issues which are based in sectors. He quoted the Employment Equity Act as an example. "It is important to see this as an overall legislation but which does not undermine others." Further, it has been a problem to decide whether court actions should follow a civil or a criminal route in instances of violation of the rights. He said the civil route is the more favourable option.

Professor Gutto said it had to be decided whether special tribunals or the existing court structures should be used as institutions of enforcement. Due to the problem of resources a decision was made to use what is practical. In terms of Section 180 of the Constitution judges and magistrates will get special training so that they have the mindset needed to preside over unfair discrimination cases. "The training will be about equipping them with the necessary understanding of the legislation and how it fits in the promotion of transformation and of building really new relations in society," Professor Gutto said.

The cases would be heard in the existing magistrates’ and high courts, called equality courts when presided over by the trained judicial officers. The training would initially be voluntary and later made compulsory.

Questions and comments by committee members
Mr R Ndou (ANC) commented that people had gone "all over the world" to look at how the equality issue should be addressed. He said in his opinion discrimination concerns the experiences of the people of this country. He said he wonders if the drafters have taken into account the fact that the victims of colonialism and apartheid have a deep-seated anger that must not be bottled up by the Bill.

Ms D Smuts (DP) said all the current Bill needs to do is give effect to Section 9 of the Bill of Rights in the Constitution and should not deal with the entire politics of the country. She said what has to be produced in February is a law that says people should not be discriminated against and if they are, what happens.

Ms S Camerer (NNP) also commented that they were pushing to fulfill all aspects of the legislation for February whereas it is only Section 9(4) of the Constiution which requires national legislation by February. Such a course of action makes the Bill far too complicated. She reasoned whether this is a wise course. Judge van der Westhuizen responded that a piecemeal approach is dangerous. It will be very difficult to separate the legislation and then say we will consider the rest later.

Ms S Camerer (NNP) complained that the Bill seldom mentions "freedom" but mentions only equality. She asked why is the principle of freedom ignored. She asked what would be the cost of this.

Prof. Gutto replied that on the question of cost, whether affordable or not, it would be this Committee that will decide.

Mr R Davies (ANC) wanted to know, with regard to the inclusion of specific sectors in the bill whether the drafters were satisfied that this was comprehensive.

The Judge responded that if a specific sector was not covered the general provisions in the Constitution would cover them adequately.

Mr R Davies added that he was confused about the Judge’s discussion on the defences. He was unclear as to how this applied. He said that he heard the judge say that unfair discrimination could be reasonable and justifiable. He found this problematic.

The Judge said that the problem arose because there were too many tests in the Constiution – firstly whether there was discrimination at all, secondly whether there was unfair discrimination and thirdly whether the unfair discrimination could be reasonable and justifiable. Ms Madonsela felt that Mr Davies was in fact right. She said that once the determination was made that unfair discrimination was reasonable and justifiable, it ceases to be unfair discrimination.

A committee member commented that in rural areas there were certain old customs relating to women which could now be criminalised as a result of the prohibition of sexual harassment. There was also a question about how the drafters had measured the effectiveness of the public awareness especially in rural areas.

It was conceded that the consultation did not go very far in rural areas, but in Gauteng, Kwazulu-Natal and Cape Town there was some consultation.

Ms N Botha (ANC) asked why in Clause 26 HIV was included as a reason for not discriminating in granting insurance services.

Ms Madonsela said that HIV was an issue historically relevant but was a mere example of a form of discrimination that insurances used. She pointed out that there were hundreds of other examples such as cancer but they could not all be mentioned.

Ms Botha asked on what basis insurance companies could discriminate if it was not related to the degree of risk. She wanted to know whether the section was included on the basis that AIDS was an illness or on the basis that there was a higher degree of risk.

Ms Madonsela insisted that the provision was not being included from the point of view of risk but rather it was included as one of the endemic examples of discrimination – one was more likely to be excluded on the grounds of HIV than any other matter. The judge added that discrimination often occurred in society as a result of negative stereotypes and labeling and this was part of what the Bill wanted to eliminate. Mr Davies pointed out that the issue was not the size of the insurance premiums but the actual refusal to cover an HIV person at all which was discrimination.

An ANC committee member was very concerned about the concept of unfair discrimination in relation to university students since she felt that with regard to skills taught and the standard of high school education levels many students from disadvantaged backgrounds were inevitably going to be disadvantaged when entering university. She felt that the whole definition of unfair discrimination should be reviewed, and wanted to know how these problems were being addressed.

Professor Gutto said that universities had to some extent addressed this problem by introducing bridging courses where an extra year was done in order to make up for poor schooling. This was one of the measures taken to level the playing fields and to promote equality.

Ms Vilakazi (IFP Kwazulu Natal) referred to Clause 26 dealing with insurance companies saying that she knew they were known to discriminate on the basis of age. She said that they doubted your state of health and are sceptical about illnesses. She wanted to know what steps would be taken against insurance companies which discriminated unfairly.

Mr Vaset said that Section 48(2) laid out all the orders which a court could make from (a) –(p). He gave a few examples such as an order for damages in respect of financial loss including future loss, impairment of dignity, pain and suffering, emotional and psychological suffering as a result of the discrimination. Another was an order directing that specific steps be taken to stop the unfair discrimination. Yet another was an order that an unconditional apology be made. He said that there were numerous orders that could be made if unfair discrimination was proved.

Mr Davies said that this had to be balanced in the sense that a person who was 85 years old could not actually demand the same life assurance premiums as a 21 year old person. Thus in his view discrimination in terms of the size of premiums paid would in these circumstances not be unfair. This he said would differ from the situation where an insurance company, for example, stated that it would not take over the counter motor business from anyone who was "coloured" – which he explained was the policy at an insurance company in Cape Town years back when he had worked for them. This would clearly be unfair discrimination today.

The meeting was adjourned.