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JOINT AD HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
8 December 1999
Definitions (A2) - available midday of 10/12/99
"Parked" Definitions (A3) - see Appendix 1
Definition of Unfair Discrimination (A8) - see Appendix 3
Preamble - a draft (A1)
Object of Act (A4)
Sectors without any definitions (A5)
Definition to be inserted in clause 1 (A6)
Definitions to be retained in Chapter 2 (A7)
Preamble - second draft by NIPILAR (A9)
The Committee discussed the definitions section in the Bill. The members decided that the list of prohibited grounds of discrimination would be an open list but, in spite of this, considered an alternative formulation to the words ‘or any other recognised ground’. Further, they noted that certain grounds would be defined in the Bill while others would be left for the courts to define. They also considered extending the grounds in the list: the grounds they examined were ‘marital status’, ‘pregnancy discrimination’, ‘sexual harassment’, and ‘unfair discrimination’.
From these deliberations, the drafting team was asked to formulate:
- A definition of family status (which may be used in lieu of marital status).
- A definition of sexual harassment (which should be an amalgamation of the two options they presented).
- A definition of unfair discrimination (along the guidelines suggested by the committee).
The Committee considered Chapters 1 and 2 of the Bill as a whole. Only a framework of these chapters was created with several clauses being left out for proper consideration later on. On chapter 2 the Chairperson Mr M Moosa said the ANC is of the opinion that the sectors must be retained in the Bill rather than in the Schedule.
Clause 6(1) as taken directly from the Constitution was retained, without amendments. Clause 6(2) was renumbered as Clause 7, since it deals with a different issue from Clause 6 (1). It was agreed to remove Clause 6(3) and include it in the Preamble. As for Clause 8 it was agreed that race and gender, because of their historical nature, should be emphasised in the Bill.
The committee started by dealing with the definitions chapter. The question that lay before the committee was to what extent they would define the prohibited grounds. It was obvious that some of the prohibited grounds of would be defined and some would not be defined (as they would rather be left to the courts for definition). Mr M Moosa (Chairperson, ANC) said that the decision as to which grounds would be defined and which would not, would depend on the committee’s desires.
Marital status and pregnancy discrimination
"Parked" Definitions (A3) - see Appendix 1
The Chairperson, referring to the definitions of ‘marital status’ and ‘pregnancy discrimination’ in the Bill (see S1 (xi) and S1 (xiv) of the Bill respectively) asked the drafting team why these two grounds had been ‘unpacked’ (meaning, why did they decide to define these two concepts completely while other prohibited grounds were listed but undefined). He also asked whether the ground of marital status would still have to be included in the Bill if the committee decided to include the grounds of family status and family responsibility as prohibited grounds of discrimination.
The former question was not answered but the drafters noted in response to the second question that family status alone would not cover what was envisaged by marital status.
Ms S Camerer (NNP) referred specifically to the ground of ‘marital status’ and noted that the Constitutional Court and the Customary Marriages Act had interpreted and extended this concept. She added that it was also clear what marital status meant in terms of the common law and in terms of gay rights. The point emerging from her comments was that it was not necessary for the drafters to give a complex definition of marital status.
Her question was, if ‘marital status’ as the drafters had defined it, was included in the Bill, would such inclusion have any unforeseen consequences for other legislation. Her question was not answered.
Ms D Smuts (DP) commented that the reason for these grounds being listed as prohibited grounds of discrimination was for ‘added substantive equality’. She noted that ‘pregnancy discrimination’ was a ground which had to be recognised in its own right. Thus if a woman had been discriminated against on the grounds of pregnancy it would not have to be included under the broad concept of ‘sex discrimination’. While she noted the importance of listing the grounds, she stated that they should not be defined by the drafters but that it should rather be left to the courts to deal with the various forms in which these grounds arose. She concluded that she saw no reason to ‘unpack’ these grounds.
The drafters replied that they were simply trying to define concepts which were already listed in the Constitution. They noted that the definitions were not aimed so much at the courts but, rather, were intended to be easy to use by the public (in the various sectors) by giving them a sense of what was wrong or unlawful.
Mr M Pheko (PAC) commented that the legislation should reflect the culture and the values of the public. He criticised (referring to the comments heard thus far) that these laws were not coming from Africa, ‘they [were] coming from elsewhere.’ He declared that the laws being proposed were ‘decadent’.
The Chairperson reiterated his earlier comments and question: there were many prohibitions listed in the Bill; the drafters had ‘unpacked’ some of them; he asked specifically why they had unpacked ‘marital status’ and ‘pregnancy discrimination’ and also whether the definition of marital status would still be required if 'family status' was included as a prohibited ground.
The drafters replied that they had not defined ‘family status’. The Chairperson noted that he wanted to touch on the possibility of ‘family responsibility’ being used in lieu of ‘marital status’.
The drafters said that certain types of marriages were discriminated against in the past. The result of this discrimination was that social families came into existence (this refers to families, living and operating as families, while the marriage was not recognised by law). It was their intention, through the definition of marital status, to indicate that religious marriages are on par with other marriages. Thus, they were trying to capture the institution of social marriages.
When the Chairperson asked them why they defined these concepts and not others they replied that they only resorted to definitions where the meaning as envisaged by the Bill was not the normal meaning attributed to the concept.
The point was demonstrated with the following examples:
Pregnancy discrimination – refers not only to actual pregnancy but also to intended pregnancy, or even the case where, for example, a woman was not hired because the potential employer thought she was of a child-bearing age, might want to have children, and accordingly did not hire her.
Marital status – the definition indicates that the Bill also accepts relationships other than marriage.
The Chairperson decided to put aside the discussion on pregnancy discrimination and marital status for the time being and moved on to the next issue.
The prohibited grounds and whether it should be a closed list
Definitions (A2) - see Appendix 2
Referring to the prohibited grounds, he asked if there was support for a closed list. The answer was a unanimous ‘no’. The committee directed its attention to section 1(xviii) (that portion of the definitions section which lists the prohibited grounds), specifically the portion which makes the list an open list, namely ‘or any other recognised ground’.
The Chairperson drew attention to the proposition that had been made in the submission of the Gender Research Programme: Centre for Applied Legal Studies (CALS). They suggested that after the prohibited grounds have been listed, instead of saying ‘or any other recognised ground’, it should rather be stated:
‘or any additional ground that –
causes or perpetuates disadvantage;
undermines human dignity; or
affects persons or groups of persons in a comparably serious manner.’
The Chairperson said that if they were going to have an open list then this would be a good way to go.
Thus, the two options before the Committee were:
to maintain the wording in the Bill (‘or any other recognised ground’),OR
to use the wording suggested by CALS.
Dr Davies commented that they should also have the option of enlarging the list of stated prohibited grounds. Other grounds, which the Committee wanted to address and possibly include, were: nationality, family responsibility and family status, socio-economic status, and HIV/AIDS status.
The Chairperson said that it was clear that there would not be a closed list and they were looking at enlarging the list. The committee now turned to the next issue.
Definitions (A2) - see Appendix 3
The drafters put two options before the committee.
The first one defined sexual harassment as ‘engaging in unwanted verbal, non-verbal or physical conduct of a sexual nature, including requests for sexual favours and unwelcome or repeated sexual attention, when-
a) a persons rejection or submission to such conduct is used explicitly or implicitly as a basis for decisions adversely affecting that person;
b) it is aimed at or has the effect of creating an intimidating, hostile or offensive environment;
c) it is aimed at or has the effect of interfering with that person; or
d) it adversely affects the opportunities or dignity of that person;’
The second option came from the Sex Discrimination Act of Australia and was the following:
1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:
a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
(‘conduct of a sexual nature’ includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.)
Dr Davies commented that he thought that the Australian definition was clearer than the first option, while the first option contained certain aspects which the second option lacked. He thought that it would be a good idea to amalgamate these two options by formulating a third option which would contain the best characteristics of the two.
Accordingly, the Chairperson instructed the drafting team to do this. They moved on to the next issue.
Document: Definition of Unfair Discrimination (A8) - see Appendix 3
Three options were put before the committee. The first option was a suggestion made by the Community Law Centre/Women’s Legal Centre. The second option was a redraft of a previous definition according to the committee's instructions. The drafting team noted that regarding the third option, they were unsure of the committee’s instructions to them.
[Regarding Option 2, the drafters commented that if the committee chose this option, then it was their suggestion that (c) and (d) be removed from the definition. This was noted, however, as being an issue on its own.]
[Regarding Option 3, the Chairperson immediately commented that this definition did not seem to work.]
Dr Davies commented that they should distinguish unfair discrimination from mere differentiation. He suggested that differentiation be defined along the lines of a distinction between individuals according to reasonable and justifiable criteria.
On this issue of differentiation the Chairperson remarked to the drafting team that somewhere in the Preamble and in the Objectives and Purpose Clause it should be made clear that the Bill does not outlaw all differentiation.
Ms Camerer (NNP) suggested that they use the definition of the Community Law Centre (Option 1) and then simply add the elements which were being proposed by Dr Davies to it.
The Chairperson said that, while he liked the definition from the Community Law Centre, the definition from the drafting team touched on elements which the committee wanted to deal with (such as the enjoyment of human life). He said that their definition was more nuanced. However, neither of the definitions dealt with the question of differentiation which had been raised by Dr Davies (and by Professor Turok the previous day). He said that he would prefer a definition which starts off by defining discrimination and then goes on to say when such discrimination would be unfair.
Dr Davies commented that the second option was ‘okay’ but the problem that he had with it was that discrimination had to be separated from normal differentiation or it could result in all kinds of vested interests being alarmed. He said that there was a need to write differentiation in somewhere and somehow. Thus, it should be clear where the boundary gets crossed for differentiation to become unfair.
He added that this clarity should exist not only for lawyers, but that the ordinary person should be able to read and understand it
Mr S Grove (ANC) suggested that the definition start off by declaring that unfair discrimination is not allowed. It must then go on to say when discrimination is unfair. He noted that he would like to argue in favour of option 1 if (a) of that definition was redrafted.
The Chairperson agreed that option 1 had captured the concepts of disadvantage and opportunity quite well but noted that the question was whether they should define discrimination or whether they should define unfair discrimination.
Mr S Grove said that they should not start by defining unfair discrimination because ‘if this is unfair discrimination then what is discrimination’?
Ms S Camerer noted that they were in consensus on this issue. It would be helpful however if they had a draft that takes into account (a) and (b) of option 1 together with (a) and (b) of option 2.
Ms D Smuts (DP) commented that not every differentiation would constitute discrimination. Accordingly, her party had no difficulty with bringing differentiation in somewhere. She said that the Preamble might be a good place to start.
Mr D Hanekom (ANC) said that it would be easy to change the definition provided by the Community Law Centre by simply making a distinction between differentiation and discrimination.
Mr Moonsamy (ANC) noted that option 2 captured what they, as a committee were trying to achieve as it would have the effect of righting the wrongs of the past.
Mr Aucamp (AEB) referred to the Table of Non-Derogable Rights (the portion which refers to equality) in Chapter 2 of the Constitution. [This portion states that the right to equality is protected only insofar as the unfair discrimination is based solely on the grounds of race, colour, ethnic or social origin, sex, religion or language. Mr Aucamp was of the opinion that this test of ‘solely’ was a good way to determine when the discrimination could be considered unfair.
The Chairperson noted however that the portion of the Constitution to which Mr Aucamp was referring applied only under extraordinary circumstances (when there was substantive emergency). He continued that they should continue with a simple definition of discrimination but it should also bring in the areas of the systemic imbalances of the past.
Concerning the proposed definition of discrimination Professor S Gutto promised that the drafting team would try to work something out in written form. Mr M Moosa (Chairperson, ANC) suggested that the definition proposed by the Community Law Centre/Women’s Legal Centre must be kept as such and be regarded as Option 1 of the definition of discrimination.
Mr S Grove (ANC) drew the Committee's attention to the fact that in principle the Option 1 definition is what is contained in Clause 6 of the Bill. He suggested that if Option 1 is considered, Clause 6 should be read into that. The Chairperson proposed that another definition must be developed which will be Option 2.
Chapter 1 of the Bill
The Chairperson directed that the drafting team must "put together the definitions clause".
Clause 2: Objects of the Act
Over and above the proposition that Clause 2 should read: "The objects of this Act are to prevent or prohibit unfair discrimination and to promote substantive equality", the Chairperson directed that the drafting team must put some more information explaining the objects of the Act as required by this clause.
Clauses 3 5: Interpretation of the Act / Guiding Principles / Application of the Act
The Chairperson proposed that these clauses be left as is for the mean time.
He stressed that the "nitty gritties" of these clauses would be attended to later but at the moment only a framework was being formed.
The drafters inform the Committee about the new developments to this chapter: the definitions appearing in the various sections of this chapter have been moved to Clause 1 except for the definition of ‘minister’ in Clause 37 which the drafters felt need not be defined.
The Chairperson asked the Committee members to comment on both Parts A and B of Chapter 2 of the Bill.
The Chairperson and Ms T Madonsela of the drafting team both mentioned that they felt that Clause 6(1) should remain in the Bill at all costs. Mr Surty (ANC) pointed out that Clause 6(1) is advancing the provisions of Section 9(4) in the Constitution. Mr Aucamp (AEB) complained about the use of examples of abusive words in Clause 8(e). He said this has the potential of leading to an "uncontrollable situation".
The Chairperson proposed a discussion on the sectors and controlled activities. Ms S Camerer (NNP) said she believes that the sectors should be included in the schedule. Ms T Madonsela said the sectors are part of the Bill, and there is nothing that can be done without them. The Chairperson Mr M Moosa said the controlled activities, is "far too criminalistic". He said the ANC is against the controlled activities, instead, it is of the opinion that the sectors must be retained. He went on to say that they must be retained in the Bill rather than in the Schedule. The Chairperson suggested that a Chapter 2, which will show the legal mechanism in the Bill, be drafted.
Chapter 2 (continued)
The chairperson suggested that this clause be retained without amendments, because it is taken directly from Section 9(2) of the Constitution.
Ms S Rajbally (MF) concurred with the chairperson, and said that the Bill should give recognition to the Constitution, which is the supreme law of our land.
Ms D Smuts (DP) suggested that the phrase "the state" be included in this clause to allow it to apply vertically as well as horizontally.
Professor Gutto informed the committee that Clause 5(1) of this Bill, already binds the state to this Act. He said that to include "the state" in Clause 6(1) would be repetitive.
The Co-chair agreed with Professor Gutto, and the committee agreed to retain this clause without amendments.
The chairperson suggested that this clause be renumbered as Clause 7 because it deals with a different issue. He asserted that this clause clearly expresses the meaning and intention it wishes to convey. He does not foresee difficulties with regard to this clause because it does not prohibit the media from reporting hate speech. He said that there is a clear distinction between reporting incidences of hate speech and propagating hate speech.
Ms D Smuts argued that this clause is too broad, which makes it vulnerable to constitutional challenges.
Mr Moosa asked Ms Smuts to explain how Clause 6 (2) could be unconstitutional, and contrary to Section 16(2) of the Constitution. The right to free speech is not curtailed by Clause 6(2), but rather limited. This clause has the same effect of limitation, as Section 36 has on the Constitution. Section 16(2) of the Constitution sets out exemptions to Section 16(1).
Ms D Smuts said that Section 16(2) already exists as a limitation on the freedom of speech.
Mr Moosa said that Clause 6(2) does not prohibit the media from reporting on hate speech. The test for contravening this clause would be intention and reasonableness for disseminating such information.
Ms T Madonsela of the Department said that the committee is not implementing Section 16(2), which is limited by Section 36 of the Constitution. It is implementing equality legislation, which will in effect limit some freedoms, such as freedom of religion, which is subject to equality.
Ms Smuts asked the chairperson if the advertisement with Cherlize Theron would contravene this legislation as it clearly discriminates against men.
Mr Moosa said that one should look at the intention of the advertisement, and it is evident that there is a clear intention to advocate against crimes against women and not to discriminate against men. He added that the media can report about anything which happens in society, as it the essence of their profession.
Mr Moosa asked the drafters to examine what is meant by the word ‘indicate’ in Clause 6(2)(b), and to report on this tomorrow.
Mr Hanekom (ANC) suggested that the phrase ‘indicate’ in Clause 6(2)(b) be rephrased as ‘reasonably be construed as...’
Finally the chairperson confirmed that Clause 6(2) be redrafted as Clause 7 in this Bill.
Mr Moosa suggested that this Clause be flagged, as it does not relate to this section. The committee agreed and said that it should move to the mechanism clause.
All the definitions in this clause have been removed, as requested by the chairperson yesterday.
The chairperson felt that this clause is unnecessary, and it was placed solely for the purpose of emphasis. The sentiments expressed in this clause sound good but they do not constitute law. The committee agreed that this clause should be moved to the Preamble.
This contains a list of approximately 17 prohibitions. This Bill gives special treatment to race and gender, given the history of past imbalances in these areas. The chairperson asked the committee whether this Bill should give such special attention to race and gender. He noted that the drafters of the Constitution had given special attention to race and gender.
Ms Camerer (NNP) said that Section 16(2) (c) of the Constitution focuses on four issues, namely: race, ethnicity, gender and religion.
The Co-chair, Ms Jacobus, said that it is important that they highlight all forms of discrimination which are still evident today.
Ms Smuts (DP) argued that all forms of discrimination should receive equal treatment.
Dr Davies (ANC) objected, saying that this country has a fundamental relationship with the inequalities of the past, which were based on race and gender discrimination. It is therefore valid that race and gender are highlighted.
Mr Hanekom (ANC) agreed with Dr Davies, and said that there should be a special way of highlighting race and gender.
Mr Moosa interjected by asking whether disability should share the same status as race and gender in the prohibition clause of the Bill.
Mr Boyce (ANC) said that gender, race and disability should be given the same status as they are all still discriminated against.
Ms Camerer (NNP) said that the Constitution should be our guiding principle, therefore race and gender should be their primary focus for addressing the imbalances of the past.
Before adjourning the meeting, the chairperson asked the drafters to redraft Chapter 1 and Chapter 2 based on today’s discussion. He requested the drafters to draft a clause on disability, as well as to remove the promotion of equality concepts from Clauses 9 and 12.
Measures to prevent and eliminate racial discrimination and racism and to promote racial harmony
9. (1) In the prosecution of any offence, if it is proved that unfair racial discrimination or racism played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence.
(2) The State must take steps to promote racial harmony in all fields by eliminating any form of racial discrimination or racism in any law, policy or practice for which it is responsible.
(3) The South African Human Rights Commission must, in its report referred to in section 15 of the Human Rights Commission Act, 1994 (Act No. 54 of 1994), include an input on the extent to which racism or racial discrimination persists in the Republic, the effects thereof and recommendations on how best to address the problems identified.
(4) The Commission’s report referred to in subsection (3) may include specific mention of worst cases of unfair discrimination as well as best examples in the promotion of equality and the elimination of unfair discrimination.Gender discrimination
Measures to prevent and eliminate gender discrimination and to promote gender equality
12. (1) In the prosecution of any offence, if it is proved that gender discrimination played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence.
(2) The State must take steps to promote gender equality in all fields, by eliminating any form of gender discrimination in any law, policy or practice for which it is responsible, especially in respect of—
(a) the eradication of gender-based violence;
(b) the elimination of the oppression of women by religious, cultural and customary rules and practices;
(c) the inequality of access to resources;
(d) the inequality of access to employment opportunities as a result of the sexual division of labour;
(e) the eradication of multiple discrimination.
(3) The Commission on Gender Equality must, in its report referred to in section 15 of the Commission on Gender Equality Act, 1996 (Act No. 39 of 1996), include—
(a) an input on the extent to which gender discrimination persists in the Republic;
(b) the effects of gender discrimination; and
(c) recommendations on how best to address gender discrimination.
(4) The Commission’s report referred to in subsection (3) may include specific mention of worst cases of unfair discrimination as well as best examples in the promotion of equality and the elimination of unfair discrimination.
Definition of Unfair Discrimination (A8)
Discrimination is unfair if:
a) it impairs or is likely to impair the fundamental human dignity of any individual, group, class or category of person; or
b) perpetuates or exacerbates or is likely to perpetuate or exacerbate existing patterns of disadvantage based on or related to the prohibited grounds.
[Regarding (b), the CLC has provided a definition of discrimination elsewhere which supposedly, would go with this definition of unfair discrimination.]
Unfair discrimination means any act or omission, (including a policy, law, rule, practice, condition, or situation) which is aimed at or has the effect of
a) causing disadvantage to or preventing a person or persons from equal enjoyment of human rights and freedoms or access to opportunities in all areas of life; or
b) perpetuating systemic forms of inequality, including the social consequences of past discrimination, particularly on the grounds of race, gender, and disability; or
c) failure to accommodate the needs of or enable any person or group of persons, identified by one or more of the prohibited grounds, to enjoy full and equal access to or participate or advance equally in all areas of life; or
d) harassment of a person or group of persons on the ground of sex, race, disability, sexual orientation or any of the prohibited grounds or combination of such grounds.
On the basis of one or more of the prohibited grounds.
[Regarding (d); should this provision be approved, a provision could be added in the defence clause to insulate harassment from the defences.]
1. No person may unfairly discriminate directly or indirectly.
3. Unfair discrimination means any act or omission, (including a policy, law, rule, practice, condition or situation) which is aimed at or has the effect of
(e) causing disadvantage to or preventing a person or persons from equal enjoyment of human rights and freedoms or access to opportunities in all areas of life; or
(f) perpetuating systemic forms of inequality, including the social consequences of past discrimination, particularly on the grounds of race, gender, and disability; or
(g) failure to accommodate the needs of or enable any person or group of persons, identified by one or more of the prohibited grounds, to enjoy full and equal access to or participate or advance equally in all areas of life; or
(h) harassment of a person or group of persons on the ground of sex, race, disability, sexual orientation or any of the prohibited grounds or combination of such grounds.
On the basis of one or more of the prohibited grounds.
4. Examples on race and gender discrimination to be removed from chapter 2 and inserted here. This helps clean up chapter 2 and turn it into chapter 3 which constitutes a chapter on sectors only. Issues such as discrimination on the ground of pregnancy and marital status to be included in the new chapter 2.
5. Reference to CEDAW and race convention as schedules to be made in the new chapter 2.
[Regarding 3(h); should this provision be approved, a provision could be added in the defence clause to insulate harassment from the defences.]
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