Deliberations

Meeting report

JOINT AD HOC COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL [B57-99]
7 December 1999
DELIBERATIONS

Documents handed out:
Summary of Submissions prepared by the Department on B57-99
Summary of main points in the Public Oral Presentation by Prof Gutto of the drafting team [available here on afternoon of 9/12/99]
Document on definition of Unfair Discrimination (see Appendix 2)
Draft of the Preamble prepared by NIPILAR (see Appendix 1)

SUMMARY
The various political parties explained their stance on various contentious issues of the Bill as raised during the public hearings. The drafting team outlined the main points raised during the public hearings and their response to these points. The committee was given an alternative draft for the Preamble prepared by the National Institute for Public Interest Law and Research (NIPILAR) at the request of the committee.

MINUTES
It was agreed that the different political parties give their views of what should be included and excluded from the Bill, particularly in the light of the evidence presented at the public hearings.

African National Congress (ANC)
The Chairperson, Mr M Moosa (ANC), said that arising out of the hearings, the ANC are still working on their proposals for the Bill. The following issues would have to be dealt with:
Definitions (clause 1)
Mr Moosa said that the concern outlined by far too many people is that the present definitions are not clear and exact. He expressed the view that there is a need for a single definition, but that he is not clear as to what exactly that would be.

Enquiries (Onus and defences)
Mr Moosa said that during the hearings the question was raised whether or not the test for reasonableness and justifiability is appropriate as a third stage. The ANC view is that there is a need to have a three-stage enquiry. Reason being that one still needs to test reasonableness and justifiability of discrimination.
As for unjustifiable hardship Mr Moosa said that it is unclear how this matter is going to be dealt with.

Sectors
The broad view is that sectors are important and should be included in the Bill, but not in their present form.

Enforcement mechanism
The courts are proposed to be a better route than a tribunal.
Also the ANC proposes the inclusion of a promotion of equality chapter, which would call upon government and the private sector to promote equality.

Sexual Harassment
The broad view is that the section on sexual harassment be included in the Bill, but that it does not talk to the main definition.

Prohibition Clause
The question was raised whether this prohibition clause should be open ended or a closed list. During the hearings it was argued for a closed list as it provides certainty. The view of the ANC is that this needs to be discussed thoroughly.

Democratic Party (DP)
Definitions
Ms D Smuts (DP) agreed with the ANC proposal that a single definition should be included.

Enquiries
The DP argues for the inclusion of a two-stage enquiry as set out by the Constitution. The two-stage approach would provide that discrimination could be rebutted once proved that it is fair.
As for unjustifiable hardship the DP expressed the view that it is unfair to load this on the respondent.

Enforcement mechanism
Ms Smuts said the High Court is the best option as it can develop the jurisprudence, rather than the magistrates’ court that does not create precedence.
As for the inclusion of a promotion of equality chapter, Ms Smuts said it does not form part of the purpose of this Bill.

Sexual Harassment
Ms Smuts said the Committee should stick to the purpose of the Bill, which does not include sexual harassment as a separate issue.

New National Party (NNP)
Enquiries
Ms S Camerer (NNP) said the enquiry should stick as close as possible to that set out in the Constitution.

Sectors
Ms Camerer agreed with the ANC view that this chapter is very confusing as set out in the Bill. She said that this chapter needs attention, but due to the lack of time, it should be dealt with later in the schedules.

Prohibition Clause
Ms Camerer said that in considering the prohibition clause the committee should stick to the provisions of the Constitution.

In conclusion MS Camerer said the committee should approach this Bill very carefully and not to go beyond the constitutional requirement.

Pan Africanist Congress of Azania (PAC)
Mr M Pheko (PAC) said in general the PAC would like to see some changes to the Preamble.

Afrikaner Eenheids Beweging (AEB)
Mr C Aucamp (AEB) said his party would prefer a smaller piece of legislation, which must look at discrimination and not so much social engineering.

Inkatha Freedom Party (IFP)
Prof L Ndabandaba (IFP) said the bill provides a "perfect opportunity to move from formal equality to substantive equality".
Definitions
Prof Ndabandaba said the bill goes to the extent of defining sexual harassment and therefore should also include a definition of racial harassment.

Federal Alliance (FA)
Mr A van Niekerk suggested that the problem areas must be identified and then the bill should address these problems. He agreed with the NNP view that an attempt should not be made to include everything, given the short period of time available.

African Christian Democratic Party (ACDP)
Mr Z Madasa (ACDP) said the committee should consider the constitutionality of this Bill and whether it complies with the requirements as set out in the Constitution. He was particularly concerned about the addition of other Chapters in the Bill, which are not required by the Constitution.

In response to the concern raised by Mr Z Madasa and other members about the inclusion of other issues such as sexual harassment, Mr Moosa said S9 (4) requires this legislation and there is no law that says that other things cannot be included in the same legislation. He said that should Parliament see fit to include other clauses, they are entitled to do so.

The committee then moved on to considering the documents handed out:
The Preamble
The committee's attention was drawn to a new draft of the Preamble prepared by the National Institute for Public Interest Law and Research (NIPILAR) at the request of the committee (see Appendix 1).

Summary by Professor Gutto
Professor Gutto, a member of the drafting team, gave a summary of the main points raised during the public hearings. The drafting team accepted the proposal of a single definition approach to the definition of unfair discrimination. He said that it is important that the reformulation of this definition be clear but sophisticated to incorporate the strong support for race, disability and gender, as areas requiring special emphasis in the legislation. He said that there is no reason why the definition part of legislation may not incorporate specific examples.

He supported the retention of the employment sector in the Bill in its present form and indicated that it will reinforce the Employment Equity Act. Section 46(1)(a) and (3) of the Bill will ensure that there is no conflict between the Equality Act and the Employment Equity Act. He added that this would also avoid the perceived conflict of forums for resolution of complaints.

With regard to enforcement mechanisms, the South African Human Rights Commission (SAHRC) and the Commission for Gender Equality (CGE) had provided useful suggestions for slightly amending the provisions in Chapter 4 of the Bill to allow the CGE to be involved in the initial process of enforcement of the Bill, to introduce procedures whereby the SAHRC facilitates out-of -court settlement, and to introduce interim enforcement mechanisms to kick-start implementation (while the process of training judicial officers and the designation of ‘Equality Courts’ are being undertaken).

Professor Gutto said that the SAHRC and CGE are already in place to deal with issues relating to this Bill, and that the Minister will not be too enthusiastic to have a different mechanism which would increase the budget. He suggested that the role of CGE be reinforced, and that procedures be established for the filing of complaints with and their investigation by the CGE and SAHRC.

The chairperson before adjourning the meeting asked the drafters to retain clauses 3, 4 and 5 in their present form, and to deal with Chapter 2. He requested that Chapter 2 be redrafted to give the committee an idea what it would look like without containing any definitions.

Co-chair, Ms L Jacobus (ANC, NCOP), concluded by saying that the aim of meeting had been to hear the views of the drafting team and then to break into party study groups to deliberate on these matters.

The meeting was adjourned and the political parties spent the afternoon session in their study groups.

Appendix 1:
New draft of the Preamble prepared by the National Institute for Public Interest Law and Research (NIPILAR)

ALTERNATIVE PREAMBLE DRAFT
REPUBLIC OF SOUTH AFRICA
PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR
DISCRIMINATION BILL, 1999

(As introduced)

(MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT)
[B -99]

BILL
To give effect to section 9(4) of the Constitution of the Republic of South Africa, 1996, read with Item 23(1) of Schedule 6 thereto, so as to prevent or prohibit unfair discrimination as contemplated in the Constitution; to eliminate unfair discrimination; to promote equality; and to provide for matters connected therewith.

The purpose of this Act is to prevent and prohibit unfair discrimination, and to achieve equality in all organs of society, and in fulfilment of these goals, to correct the conditions of disadvantage experienced by, but not limited to, women; indigenous Afrikaans, including Khoi Khoi and San people; Coloureds; Indians; and persons with disabilities in South Africa, by giving effect to the principle that the prevention and prohibition of unfair discrimination, and promotion of equality means more than treating people in the same way, but also requires special measures and accommodation of difference.

(this could stand on its own, as is, that is, with no Preamble. One could then craft 'definitions' to operationalise this 'statement of Purpose', period)

RECOGNISING THAT -

* Throughout the history of South Africa_, as constituted in 1910,
such conditions have existed that have formed the foundation of the struggle against colonialism, apartheid, and other forms of social and economic inequalities which have caused and continue to cause pain and suffering to the great majority of its people;

* Central to colonialism was a long and brutal dispossession of land, resources and labour; conversion of these into capitalist real estate; common resources into private property; and Afrikans into chattel labour units;

* Apartheid was the culmination and consolidation of this dispossession and conversion through legal, administrative and enforcement measures;

* when dispossession was firmly consolidated by apartheid, racism assumed a dispossession-maintenance function, and was used to rationalise Afrikan dispossession. Racism was the essence of apartheid;

* eighty-seven per cent of all productive land in South Africa is still controlled by whites, leaving 13% as state land with no security value to people occupying it, this colonial status of Afrikans is not recognised in law; and consequently law has not established rights and freedoms arising from this colonial status;

* failure to recognise the colonial status of Afrikans and the rights and freedoms arising therefrom is in conflict with the spirit of the Proclamation of Teheran of the International Conference on Human Rights at Teheran on 13 May, 1968, the Covenant on Civil and Political Rights, and other international instruments;

* the Constitution of the Republic of South Africa, 1996, commits South Africa and its people to the values of unity, human dignity, the achievement of equality and the advancement of human rights and freedoms;

* South Africa has international legal obligations in terms of binding treaties and customary international law in the field of human rights relating to the promotion of equality and the prohibition and prevention of unfair discrimination;

* Although progress has been made in re-constructing a society based on equality, justice and human rights and freedoms, structural and systemic inequalities exist which undermine the values of our constitutional democracy;

AND BEARING IN MIND THAT -
* national legislation must be enacted in terms of section 9 of the Constitution to prevent or prohibit unfair discrimination, and to promote the achievement of equality;

* There is a need to make provision for the advancement and protection of persons disadvantaged by the original dispossession of land and resources as experienced since the earliest occupation by colonial settlers, and by continued unfair discrimination from that time henceforth;

AND IN ORDER TO -
* actively promote the building of a society that is rich in diversity, that is caring, compassionate and that strives progressively to achieve equality and live in peace within South Africa, and with neighbours in other Afrikan countries and the rest of the world community;

* protect Afrikan traditional lands, that is, prohibit alienation of traditional lands; accelerate resettlement and restitution
* give effect to the right to equality as contemplated in the Constitution;
* set out measures for the prevention and prohibition of unfair discrimination and the promotion and achievement of equality of conditions
* address and eliminate the imbalances and inequalities, particularly in respect of race and gender, existing in all spheres of life as a result of present and past unfair discrimination brought about by the Apartheid system, thereby contributing to the total transformation of South African society from one characterised by the inequalities and injustices inherent in apartheid to one where the universal principles of equality, fairness, justice and human dignity apply to everyone.
conform to the international agreements referred to in section 2, particularly the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women;

Appendix 2:
DEFINITION OF UNFAIR DISCRIMINATION

Background

Concerns (with courts as target group in mind)
· Conflicting definitions with different and conflicting concepts
· Relationship between generic definition and the rest, not clarified
· Compound discrimination difficult to deal with
· Confusing language

The Flipside
- No clarity on the specific forms through which discrimination on some of the key grounds of discrimination, expresses itself.
- No meaningful integration of CEDAW and the Convention on Racial Discrimination into SA domestic law.
- No highlighting racism and racial discrimination as key historical legacy that the constitution and therefore this bill must talk to.
- The needs of ordinary persons and paralegals.

Bench marking and Home growing/ Responsiveness

Options
1. Single definition of unfair discrimination in a chapter where race, gender and disability examples are also provided and wording that links the examples to main definition and the possibility of discrimination on more than one ground, is included

2. Single definition of unfair discrimination in the definitions section, with examples on gender, race and disability under it.

3. Single definition of unfair discrimination in definitions and examples of unfair discrimination on the basis of race, gender and disability in a separate chapter on "Designated Groups"

4. Single definition only. Examples will follow later by way of schedules.

Tentative Proposals

Option 1
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) undermining on the basis of one or more of the prohibited grounds, the equal enjoyment of human rights including human dignity and access to opportunities in all areas of life to a person or group of persons.

(b) creating or sustaining systemic forms of inequality and disadvantage that prevent persons or group of persons identified by one or more of the prohibited grounds, from developing their full human potential and participating fully in society.

(c) perpetuating the social consequences of past discrimination particularly on the ground of race, gender and disability.

(d) 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 any areas or sectors.