Impact of the Promotion of Equality and Prevention of Unfair Discrimination Act: hearings
Monitoring Improvement of Quality of Life and Status of Women
16 October 2006
Meeting Summary
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Meeting report
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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