Impact of the Promotion of Equality and Prevention of Unfair Discrimination Act: hearings

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Meeting report

JOINT MONITORING COMMITTEE ON THE IMPROVEMENT OF THE STATUS OF YOUTH CHILDREN AND PEOPLE WITH DISABILITIES AND JOINT MONITORIN

JOINT MONITORING COMMITTEE ON THE IMPROVEMENT OF THE STATUS OF YOUTH, CHILDREN AND PEOPLE WITH DISABILITIES; JOINT MONITORING COMMITTEE ON QUALITY OF LIFE AND THE STATUS OF WOMEN AND PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
16 October 2006
IMPACT OF THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT: HEARINGS

Co-chairpersons:
Ms F I Chohan-Khota (ANC), Kgoshi L M Mokoena (ANC, Limpopo)

Documents handed out:
South African Human Rights Commission submission Part1, Part2, Part3 & Part4
Department of Justice and Constitutional Development briefing
Directorate of Victim Support and Specialized Services briefing: Part1, Part2, & Part3
Operation Isondlo: A report on its successes

SUMMARY
The South African Human Rights Commission and the Department of Justice and Constitutional Development briefed the Committees on progress with implementing the Promotion of Equality and Prevention of Unfair Discrimination Act. The functioning of Equality Courts emerged as central to the discussion.

The Commission’s work focused mainly on complaints regarding racial discrimination and hate speech. Equality cases were handled at provincial levels but greater public awareness was needed about this process.

The Department highlighted the work of the newly established Directorate for the Promotion of the Rights of Vulnerable Groups, particularly with regard to greater accessibility to the courts system. Court officials would be better trained to improve the application of the legislation. The Department would also phase out temporary appointments and create permanent positions for court clerks. The Department also provided a brief overview of the progress made in improving the effectiveness of the maintenance system.

Members raised concerns about the lack of knowledge of court officials in both the content as well as the practical application of the legislation. The overemphasis on racial discrimination and hate speech, while the importance of socio-economic rights was neglected, was also highlighted.

The Committees would produce a joint report on the week-long hearings. The report was expected to be tabled in Parliament on 8 November and would be debated in both the National Assembly as well as the National Council of Provinces.

MINUTES
Opening Remarks by Ms F I Chohan-Khota (ANC)
The Chairperson welcomed the Department of Justice and Constitutional Development (DoJ) as well as the SA Human Rights Commission (SAHRC). She said that Parliament had scheduled week-long hearings on the impact of the Promotion of Equality and Prevention of Unfair Discrimination Act (No.4 of 2000) on South African society. She requested Ms C Botha (DA), the House Chairperson to elaborate more on this process.

Ms Botha (DA) explained that the presiding officers of Parliament had requested the review process. This was an ongoing process and Parliament had held a range of public hearings, the most recent of which was in Limpopo and Mpumalanga, and had also received written submissions. The submissions by the Department of Justice and Constitutional Development as well as the SAHRC were two important presentations within this process.

Ms Botha continued that the recent hearings in Limpopo and Mpumalanga indicated the familiarity of the public with the Maintenance Act as well as the Domestic Violence Act. However, the use of the Equality legislation was limited. The current hearings would provide Parliamentarians with insight into the challenges facing the implementation of this legislation as well as the shortcomings of the legislation itself. One of these challenges could be the difficulty in understanding legal language used in these laws.

She added that in order to raise greater awareness about the legislation, promotional documents had been prepared as well as a leaflet. These would be translated into all the official languages shortly.

A report should be submitted to Parliament on 8 November and would be debated by both the National Assembly and the National Council of Provinces.

The Chairperson thanked Ms Botha for her introduction. She said that the Department would provide a summary of the extent to which the maintenance system had been improved. She said that access to this and thus the ability to provide for families was fundamental to the achievement of equality.

South African Human Rights Commission submission
Commissioner K Govender led the SAHRC submission. Advocates Mbatha and Muhammed, from the Mpumalanga and Western Cape SAHRC offices respectively highlighted the provincial challenges to the application of the specific legislation as well as the functioning of equality courts. Ms J Cohen, the Parliamentary officer of the SAHRC, provided an additional overview.

The SAHRC informed the Committee that Equality Courts were important components in ensuring that the constitutional values of equality and dignity were achieved. These would assist the eradication of unfair discrimination and the building of a national culture of tolerance and respect for diversity. The SAHRC had little experience in resolving gender cases as the Commission on Gender Equality had a constitutional mandate to deal with such matters.

Most of the cases managed by the SAHRC and thus its experience of the Act were in relation to racial discrimination and discrimination against people with physical disabilities. The disability work of the Commission was mainstreamed through its various components and was not located in a particular department. A new position of disability coordinator had been created within the office of the Chief Executive Officer.

Equity court work was conducted through the Legal Services Department, based at the Head Office and the legal sections within each of the provincial offices. The majority of the offices have law clinics status. There was a lack of awareness that a lawyer was not needed in the equality court proceedings. Insufficient and inadequate training had been given to court officials and had an impact on the functioning of the courts.

The provincial managers of the Western Cape and Mpumalanga as well as the Parliamentary representative of the SAHRC briefed the Committee.  Adv Mohammed highlighted that most of the cases resolved in the Western Cape involved individuals who could afford good legal representation. There was thus a perception that those who were wealthier only could access the services of the Commission.

Ms Cohen had not yet received cases for mediation from magistrates. Most cases were very often suited for mediation because of the nature of the relationship between the two parties as well as the continuity of such a relationship. It was thus in the interest of both parties for the case to be referred for mediation. She noted that prosecutors and police were not informing people that a case could be heard in the equality court rather than a criminal court. She concluded that the Equality Act necessitated a radical mindshift in terms of how cases were approached legally. This system should be made more accessible despite the enormous challenges.

Discussion
Ms Chohan-Khota raised her concerns regarding the level of training and familiarity of clerks of courts with the Equality legislation and processes. Could this merely be a lack of competency in applying the legislation or insufficient support mechanisms subsequent to their training?

Commissioner Govender responded that clerks were trained, but would easily forget such training. The cases handled also involved the use of discretion and many lacked the ability and skill to act on this. There was a need for more enthusiasm in the training of clerks and a need to acquire a basic knowledge and skills.

Mr J A Semple (DA) commented that a recent oversight visit of the Joint Monitoring Committee on the Improvement of the Status of Women highlighted the lack of adequate library resources in addition to the lack of adequate training that hampered the effectiveness of equality courts. The legislation could therefore not be applied adequately.
 
Ms W S Newhoudt-Druchen (ANC) asked why the referral system was not being utilized.  She continued that although mediation was a better solution than going to court, she was concerned that the penalties did not include an obligation to do community service.

Adv Thipang (SAHRC Chief Executive Officer) replied that the most of the cases it had received were resolved through its internal processes. Not many cases were thus referred to the courts. However, the Commission would like to increase its ability to litigate rather than merely compiling case reports. A monitoring system of how well the courts function had to be in place. Currently the Commission merely made informal referrals.
 
The Chairperson commented that the mediation process should not be considered an inadequate process.
 
Mr J H Jeffrey (ANC) commented that the documents handed out to the Committee contained contradictory statistical information on the provincial and total number of cases regarding equality.

Commissioner Govender responded that a comprehensive break down of the statistics was provided in the Equality Court Survey Reports.

The Chairperson requested additional information on settlement dates and when the cases mentioned in the presentation had been lodged.

Mr G Solomon (ANC) also raised his concerns regarding the training of judicial officers in the application of the Act. Who was accountable for such training? The SAHRC had to establish communication with those authorised to train officials, as they were obligated to do so.

Adv Thipang answered that the SAHRC had a strained relationship with the DoJ. Meetings with officials to discuss such issues had not materialised. The inefficiency of court clerks was a great obstacle in the effective functioning of the courts and he welcomed an opportunity to discuss this with the Department.

Ms Newhoudt-Druchen asked why some equality courts were not accessible to people with disabilities such as hearing problems and sight problems. What would be done to improve the situation?

Adv Thipang answered that the Commission were in discussions with the Department regarding this matter. Many courts have yet been made accessible.
 
Department of Justice and Constitutional Development briefing
Ms Lulama Nongogo (Chief Director: Policy, Research, Co-ordination and Monitoring) presented an assessment of the Department’s progress in the implementation of the Promotion of Equality and Prevention of Unfair Discrimination Act as well as the Equality Courts Project.

The Chief Directorate for the Promotion of the Rights of Vulnerable Groups had been established in 2005. The purpose of this structure was to promote accessibility of justice for vulnerable groups in courts as well as to facilitate the development of programmes and policies relating to the promotion and protection of the rights of such vulnerable groups. The work of the directorate depended on the feedback from courts that were tasked to enforce legislation.

The two sub directorates within this structure were that of Victim Support and Specialised Services as well as Child Justice and Family Law. The work of the former focused on the implementation of the Service Charter for Victims of Crime as well as victim support in courts. Projects such as the Equality Courts Project, the Sexual Offences Courts project, as well as the Small Claims Court were also the responsibility of this unit.

Currently, 220 designated Equality Courts existed. In terms of the Department’s Medium-term Strategic Framework (MTSF) target, an Equality Court should be located in all 366 Magisterial Districts. This target would be achieved before the end of this financial year. The Act provided that equality cases should be heard in an informal boardroom setting. Less than 700 cases had been reported. Most cases reported pertained to hate speech and racism.

The Department would phase out the contractual appointments of clerks. Clerks and other court officials would be trained so as to develop the capacity of courts. Training would be facilitated by the Justice College of the Department and would take place over a four-day period. It would cover the areas of social context, jurisdiction, locus standi, the regulations, section 21 orders, the development of equality rights, analysis and application of case law. This training programme had been criticised for not adequately equipping officials to handle equality cases. Clerks felt that the training did not capacitate them to assist clients and they preferred a more practical course, which provided insight into the types of possible cases. A meeting with the Justice College would take place later in October to discuss this issue.

Adv Pieter Du Randt (Acting Deputy Director-General) briefed the Committee on the progress made in improving the maintenance system through the Department’s Operation Isondlo. This system suffered from inefficiencies, the lack of resources as well as staff capacity. Key objectives of the system included the capacity building of courts, the enforcement of the Maintenance Act, the decrease in the backlog of maintenance cases as well as to raise awareness and educate the public on maintenance issues.

Legally trained maintenance officers had been appointed and had improved the quality of service and led to greater application of the Maintenance Act.  The recruitment of permanent maintenance clerks had reduced the number of temporary clerks and volunteers at many Justice Service Points. Paralegals would be appointed in due course to increase the organisational capacity of Family Law sections of the courts.

The appointment of maintenance investigators resulted in greater accessibility to the maintenance system, as women were no longer required to provide financial information that would enable the presiding officer to make an order for maintenance. This often led to victimisation. A 65% reduction of the cycle times for the hearing of maintenance matters had been recorded in areas where these investigators had been appointed. The TransUnion Information Support Services supported the work of these investigators and was a good instrument in the effective and efficient tracking of maintenance defaulters.
 
Discussion
Ms Botha commented that the problems with the application of the Act could be related to the language employed by the Act. She said that various concepts were difficult to understand. Terms such as fair discrimination and unfair discrimination were even tricky to understand for those involved in drafting the legislation. This made it difficult for enforcement agencies such as the police service to recognise an equality case.

Ms Said (Chief Director: Promotion of the Rights of Vulnerable Groups) answered that more awareness had to be created about issues of equality, discrimination and human rights especially in the context of past discrimination. The low reporting rate of such incidences could be explained by the mere fact that people regard discrimination as part of their lives and were thus unaware that institutions such as Equality Courts existed to challenge such discrimination. It was true that the legalistic nature of the language in the legislation and the Equality Courts posed a challenge. This made it difficult for a person to know when an action is discriminatory and thus fully within the ambit of the Equality Courts.

Ms Botha commented that the needs within South African society had changed subsequent to the promulgation of the equality legislation. The need for this legislation should be assessed, as most issues pertaining to equality were also addressed in legislation such as the Maintenance Act as well as the Domestic Violence Act. Perhaps racism and hate speech were not considered as such salient issues. Parliamentarians had to make sure that the legislation in place was still needed in society especially in the light of the limited resources at the state’s disposal. 

Ms Nongogo responded that a need still existed in society for this kind of legislation. The problem of its implementation had to be addressed. Training and awareness programmes were thus very important.
 
Mr Solomon said that equality legislation was also central to the attainment of socio economic rights and did not merely focus on incidences of racism and hate speech. Mechanisms had to be developed to ensure that the legislation is enforced to challenge the infringement of socio economic rights.

Ms Said answered that the Department had to promote a holistic approach to the equality legislation to ensure that socio economic rights were protected. All courts, including the Small Claims Court as well as the Maintenance Courts had to apply the equality legislation. She emphasised the need to train magistrates and other court officials in this regard.

Mr M Thetjeng (DA, Limpopo) raised his concerns that the lack of permanent appointments of court officials, especially clerks posed a threat to the effective operation of the courts.

Ms Nongogo acknowledged the need for permanent and fully trained staff for especially Equality Courts. Although the Act made provision for the training and appointment of clerks to perform clerical functions; a large number of these trained clerks have not yet been appointed. However, they were capable of performing the functions and assisting in court proceedings adequately.139 Equality Clerks had been contractually appointed in the last financial year. These contracts had been terminated on 31 March 2006 as the directorate sought to transform these posts into permanent positions. This process was continuing and some regions have advertised these positions. A pool of fully trained clerks had to be available at all times, and therefore a higher number of clerks would be trained.
 
Mr P Maloy (ANC) raised his concerns regarding the persisting lack of affordable access to banking for the beneficiaries of the maintenance system.

Ms Said responded that the challenges of the maintenance system needed to be tackled through a broad maintenance strategy.

Ms Semple said that brochures should also be given to Members of Parliament so that they can distribute it.

Ms Nongogo agreed to provide these brochures.

Mr A Madella (ANC) expressed his concerns regarding the lack of accessibility of courts. What mechanisms were there to improve the situation? He commented that the R10 million annual rise in the budget for the maintenance of court infrastructure would possibly not be enough. The continued lack of accessibility was a violation of rights.

A representative from the finance division of the Department answered that the current budget for the infrastructure upgrade of court buildings only focused on the upgrade of existing court structures. Accessibility issues for new court structures were taken into account during the initial design phase. The cost of this was thus included in the total cost of the new building.

Closing Remarks
Ms Chohan-Khota highlighted the important issues that had emerged from the two briefings.

She said that training of courts officials was important to the functioning of equality courts and the court system as a whole.

Greater coordination between the national and provincial departments as well as bodies such as the Human Rights Commission were needed to prevent duplication of work and functions in the enforcement of the legislation as well as the functioning of equality courts.

Greater public awareness should be promoted. Since information packets were costly to produce, information about the functioning of such courts as well as the relevant legislation should be well focused. Moreover, greater coordination of such promotional activities was needed.

She stresses the speedy completion of the Equality regulations.

The three Committees would produce a joint report on the weeklong proceedings and both Houses of Parliament would debate the report.

The meeting was adjourned.

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