PUBLIC HEARINGS: PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL, 1999
A: General Remarks on the Bill:
1. Many terms used in the Bill are "overbroad andunconstitutional". Where the Common Law operates effectively, the Bill should not intervene, eg clause 8(e). Industry-based control for the press and the advertising industry is more appropriate than regulating the press by means of some of the provisions in this Bill. (Advertising Standards Authority of South Africa: EQ68) The Bill is far too detailed.
(National Newspapers: EQ18)
2. Prof K Durrheim of the Dept of Psychology of the University of Natal points out the following potential problems with the legislation:
(a) How will the Bill eliminate verbal harassment? This legislation will only achieve real transformation if it is supported by extensive education and empowerment programmes.
(b) It is possible that this legislation which is intended to prevent discrimination could be used to justify and entrench discrimination since the precise meaning of "fair", "unfair", "just", "unjust", "reasonable" and "justifiable" are historical concepts and what is "fair", etc at one stage or in a particular context may not be so at another time or in another context.
(c) It is widely accepted by scientists that "race" is not a defensible biological concept and yet this usage of the term is implied in the Bill. (Prof K Durrheim, Dept of Psychology, University of Natal: EQ18)
3. The Bill is too vague, undefined and uncertain and will damage industry, especially and by way of example the insurance industry. (Financial Services Board: EQ31) (Garth Griffen: EQ32)
4. The Bill introduces great uncertainty into the business sector by attempting to be specific in areas covered by other Acts, eg the Employment Equity Act, 1998 and can impact significantly on both social and economic policy, an aspect that should be dealt with by NEDLAC. It has the potential to impact negatively on South Africa's international standing. The Bill should contain less detail, especially as far as the sectors are concerned. (Garth Griffen: EQ32)
5. The Bill makes no provision for the application of the principles of vicarious responsibility and section 60 of the Employment Equity Act, 1998, could possibly serve as a good example. (Black Sash: EQ34)
6. The Bill risks undermining GEAR which is intended to counter poverty and inequality. The Bill is so wide-ranging that its full ramifications are impossible to foresee. It could create numerous unintended and negative consequences, especially for the economy. It erodes the principle of equality before the law and undermines due process by reversing the normal onus of proof in civil litigation. A narrowly tailored statute prohibiting racially discriminatory treatment motivated by racist prejudice would meet the constitutional requirement, acknowledge the poverty and pain caused by Apartheid and avoid the unintended consequences of undermining investment and growth. Conduct of this kind could be made actionable under civil law in the ordinary civil courts (SA Institute of Race Relations: EQ35)
7. The Bill goes beyond the constitutional mandate and will seriously harm investor confidence and the economy. (British Chamber of Business in Southern Africa: EQ 73) The practical effect of the Bill on small businesses will devastating. There should have been greater consultation with business and NEDLAC. It is suggested that the Constitution be amended to extend the deadline and to allow proper consideration of the legislation by all interested parties. The Bill goes beyond the prohibition of unfair discrimination and includes in the definition of "unfair discrimination" the failure to "reasonably accommodate" disadvantaged persons and the failure to "remove barriers", thereby including affirmative action measures in an attempt to eliminate inequalities, something not intended by the Constitution. This is compounded by the fact that the only defence against a charge of unfair discrimination is "unjustifiable hardship". This is argued to be vague and unduly harsh, ignoring the realities of everyday commercial business practice. These difficulties, read with the provisions in respect of the sectors dealing with the provision of goods, services, and facilities, partnerships and associations, will stifle entrepreneurship and inhibit commercial activity.
(South African Chamber of Business: EQ39).
(AHI: EQ41)
(Business South Africa: EQ63)
(South African Insurance Association: EQ58)
8. The term "doofstom" ("deaf and dumb" in English) is derogatory and discriminatory.
(Attache Sign Language School: EQ 21)
9. It is argued that the Bill is so convoluted, complicated, repetitive and inconsistent with the Constitution and Constitutional Court pronouncements that it seems impossible to redraft it or to draft a completely new Bill in time. It is suggested that the Constitution be amended to extend the constitutional time limit. There are many provisions in the Bill which make no sense. There are many instances of drafting inconsistency. The definition clauses are repetitive and couched in negative terms. The provisions on the sectors do not take account of existing legislation and in some instances trump this legislation. The use of examples is unacceptable and will lead to legal uncertainty. Terminology is often inconsistent with the Constitution.
(General Council of the Bar: EQ76)
10. The Bill deals with issues affecting provinces, especially in the sectors, which are functional areas of concurrent national and provincial legislative competence and it is argued that the Bill should be dealt with in accordance of section 76 of the Constitution. In similar vein, the tasking of national Ministers with responsibilities which fall within the executive domain of provincial executives is problematic and will undermine effective administration at both provincial and national level. (General Council of the Bar: EQ76)
11. The use of footnotes is bound to cause confusion. (General Council of the Bar: EQ76)
12. Crucial concepts such as "service providers", "accommodation" and "association" are not defined. (General Council of the Bar: EQ76) 13. The Bill has to be comprehensive and all-encompassing. If the Bill is to meet the needs of SA it has to be forward looking and far reaching. To limit the scope would create a lawyer's paradise and a judge's nightmare and would make it very difficult for victims of unfair discrimination to obtain redress. (SAHRC: EQ50)
14. The Bill is "too all-embracing" and has many legal ramifications for business, many unintended, increasing the administrative burden on business. (American Chamber of Commerce: EQ49)
15. Specific self-regulatory processes within the business structure should be used, rather than to attempt to deal with this detail in the Bill, especially in respect of business and commercial communications in the advertising and marketing contexts, which should be removed from the Bill or amended. (American Chamber of Commerce: EQ49)
(Freedom of Commercial Speech Trust: EQ47) (Advertising Standards Authority of South Africa: EQ68)
16. The Bill is not in line with the spirit and provisions of the Constitution since it is argued that it will not give equal protection before the law and will not be consistent with the concept of an open society. The Bill should be reconsidered with a view to replacing it with a programme to ensure equality before the law as guaranteed by the Constitution. (Free Market Foundation of Southern Africa: EQ64)
17. The Bill is supported in general, especially placing the onus of proof on the alleged discriminator and the outlawing of insulting speech. (CARAS Trust: EQ53)
18. In trying to prohibit unfair discrimination and achieve substantive equality, the Bill fails to separate the fundamentally different concepts of discrimination, inequality and affirmative action. It creates a dual jurisdiction with existing legislation, eg the Employment Equity Act, 1998, thereby giving rise to operational uncertainty.
(British Chamber of Business in Southern Africa: EQ 73)
(Business South Africa: EQ63)
19. The Bill in its present form, contains a number of serious flaws. The effectiveness of the legislation will be undermined by its undue complexity, contradiction and vagueness and may be open to constitutional challenge as a result. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
20. It is suggested that judgements emanating from this legislation be published in some form or other and that the Bill specifically makes provision for this. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
21. The Bill infringes the constitutional right of freedom of expression protected by section 16 of the Constitution. (Print Media Association: EQ75)
(Freedom of Expression Institute: EQ70)
22. It is suggested that the following provision be inserted in the Bill to protect witnesses or complainants from any reprisals as a result of their involvement in any case of unfair discrimination:
"All persons have the right to enforce their rights under this Act, to participate in proceedings under this Act, and to refuse to participate in unfair discrimination, without reprisal or the threat thereof.". (IDASA: EQ60)
23. To protect the rights of people living with HIV/AIDS, the Bill must provide explicit protection for these people. (AIDS Law Project: Centre for Applied Legal Studies: EQ59)
24. Complainants should be allowed to bring cases on the basis of anonymity/confidentiality and have automatic recourse to in camera proceedings. (AIDS Law Project: Centre for Applied Legal Studies: EQ59)
B: Clause 1 of the Bill: 1. Definition of "accommodation":
(i) Since there is no longer reference to "accommodation" or "reasonable accommodation" in the definition of "discrimination" (see definition of "discrimination" proposed by EQ67), it is suggested that the definition of "reasonable accommodation" be replaced with the following definition of "accommodation:
"‘accommodation’ means any modification, adjustment, change or action that may enable any person or group of persons who is or who are identified by one or more of the prohibited grounds to enjoy full and equal access to, or to participate or advance equally in, any areas or sectors.". (Gender Research Programme: Centre for Applied Legal Studies: EQ67)
(ii) The meaning of "reasonable accommodation" is question and it is suggested that the word "reasonable" be deleted. (Business South Africa: EQ63) (iii) It is suggested that the definition of "reasonable accommodation" be expanded to include accommodation of systemic discrimination. (Gender Project: Community Law Centre: EQ45)
2. Definition of "advertisement":
It is suggested that the following definition be inserted in the Bill:
"'advertisement' means any visual or aural communication, representation, reference or notification of any kind which is intended to promote the sale, leasing or use of any goods or services, or which appeals for or promotes the support of any cause. Display material, menus, labels and packaging fall within the definition. Editorial material is not an advertisement, unless it is an editorial for which consideration has been given or received.". (Advertising Standards Authority of South Africa: EQ68)
3. Definition of "controlled activities":
It is suggested that the following definition be used:
"'controlled activities' are -
(a) the provision of goods, services or facilities to members of the public;
(b) the provision of commercial premises or residential accommodation to members of the public;
(c) the provision of education to members of the public;
(d) the provision of health care services to members of the public;
(e) the granting of rights in land or property to members of the public;
(f) the provision of insurance, including life insurance, short-term insurance, health insurance and medical aid cover;
(g) the provision of pension or retirement benefits;
(h) the recruitment for, admission to and membership of professions, clubs and associations.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
4. Definition of "disability discrimination":
(i) It is suggested that a definition of "disability" be included in the definition clause, perhaps the definition of "disability" used by the World Health Organisation. (Black Sash: EQ34)
(ii) The definition of "disability discrimination" should be amended to read as follows:
"'disability discrimination' includes -
(a) any act, policy, requirements, practice or conduct which has the effect ..;
(b) any systemic, societal or individual act, conduct or practice which has the direct or indirect effect of unfairly defining persons with disabilities by -
(i) denying or removing from any person who has a visual or hearing impairment or any other disability from their supporting or enabling facility necessary for their function in society, such as a hearing aid, a guide dog, braille, sign language or appropriate information technology, and including any other care services and support, communication or enabling facilities for multi-disabled persons.".
(DEAFSA: EQ 43)
(iii) The present definition of "disability discrimination" should be amended by stating that this type of discrimination extends to "the defining of, perceiving of, or limiting of people with disabilities by their disability rather than by examining societal and individual biases and stereotypes that continue to disadvantage and discriminate against people with disabilities.". This will address the systemic societal and individual discrimination of people with, or perceived to have, HIV/AIDS. (SAHRC: EQ50)
(iv) The question is raised whether it is wise to define "disability discrimination" as the practical effect will be to undermine a disabled person's sense of dignity. (Business South Africa: EQ63)
(v) There should be a definition of "disability" that specifically refers to"HIV", the following definition being suggested:
"'disability' means -
(a) a physical or mental impairment, including infection with the HIV, that substantially limits, or is perceived to limit, one or more of the major life activities;
(b) a record of having such an impairment;
(c) being regarded as having such an impairment.". (South African Council of Churches: EQ61)
5. Definition of "family responsibility:
(i) It is suggested that the following definition be used:
"'family responsibility' means responsibility in relation to a complainant's spouse, partner, dependent child or other members of his or her immediate family requiring care or support.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
(ii) It is suggested that the following definition might be appropriate:
"'family responsibility' means the responsibility of a person in relation to their spouse or partner, their dependent children, or in relation to other members of their immediate family who need their care or support.". (National Coalition for Gay and Lesbian Equality)
6. Definition of "gender":
It is argued that the present definition of "gender discrimination" is confusing and it is suggested that the following definition of "gender" be inserted in the Bill:
"'gender' describes socially determined characteristics and roles that are attributed to men and women. The social relations between men and women that derive from these characteristics and roles have the effect of creating or sustaining forms of domination and disadvantage. Gender is distinguished from sex, which is biologically determined.". (Commission on Gender Equality: EQ36)
7. Definitions of "harassment", "harassment on the grounds of race" and "sexual harassment:
(i) The definition of "harassment on the grounds of race" should be based on the wording of section 16(2) of the Constitution. (National Newspapers: EQ18)
(ii) As far as "sexual harassment" is concerned, it is recommended that this be amplified to cover situations where behaviour is based on perceptions or stereotypes. (Black Sash: EQ34)
(iii) It is suggested that the present general definition of "harassment" already covers "racial harassment" and it is recommended that this latter definition be deleted. Since the present definition of "racial harassment" seems to relate mainly to hate speech, it is further suggested that a separate provision be inserted in the Bill dealing with hate speech, to read as follows:
" (1) No person may engage in any act or omission which directly or indirectly has the effect of inciting war or hostility, hatred, harm or imminent violence towards a person or group of persons and which is based on -
(a) one or more of the prohibited grounds;
(b) that person's or that group's actual or presumed association with another person who may be identified by any of the prohibited grounds;
(c) a characteristic that applies generally to persons who are identified by any of the prohibited grounds;
(d) a characteristic that is generally attributed to persons who are identified by any of the prohibited grounds.
(2) A person who fails to take steps to prevent or end an act or omission referred to in subsection (1) must be treated as having carried out the said act or omission.".
(Black Sash: EQ34)
(Gender Research Programme: Centre for Applied Legal Studies: EQ67)
(iv) It is suggested that in the definition of "sexual harassment" the words "or offending" be added after the words "interfering with". (Law Society of SA: EQ 82)
(v) It is suggested that the following definition of "harassment" be used:
"'harassment' means any communication or conduct related to sex, gender or sexual orientation which -
(a) creates a hostile or intimidating environment for another person, group or category of persons;
(b) consists of any actual or intimated change in any decision or conduct concerning the person affected in exchange for sexual favours;
(c) denigrates, humiliates or shows hostility or aversion towards another person,
based on his or her membership or perceived membership of a group identified with reference to one or more of the prohibited grounds or related to a characteristic associated with a prohibited ground.".
There should also be a general prohibition of harassment which could read as follows:
"Nobody may subject anybody else to harassment.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC) (vi) It is suggested that the definition of "sexual harassment" be broadened to include conduct of a non-sexual nature, affecting the dignity of men and women, eg sexist jokes, and that sexual harassment should not be seen as separate from the general definition of "harassment". (Gender Project: Community Law Centre: EQ45)
8. Definition of "indirect discrimination":
It is suggested that indirect discrimination receive greater prominence in the Bill by adding the following definition:
"'indirect discrimination' means a condition, requirement, policy, situation, rule or practice that has, or is likely to have, the effect of disadvantaging an individual or a group of persons who are identified by any of the prohibited grounds.". (SAHRC: EQ50)
9. Definition of "language":
It is suggested that, language being a prohibited ground, "language" should be defined as follows:
"'language' means any of the official languages, as well as sign language and other languages referred to in section 7(1) and (5) of the Constitution.". (DEAFSA)
10. Definition of "marital status":
(i) It is argued that the present definition is unclear and incomplete. The following replacement is suggested:
"‘marital status’ includes the status or condition of being -
single;
married, whether in terms of the Marriage Act, 1961 (Act No. 25 of 1961), or the Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998), or any recognised religious law;
married but separated or divorced;
widowed;
in an intimate relationship, irrespective of whether it is a heterosexual or same sex relationship where the partners co-habit to form a family unit or not.". (Gender Research Programme: Centre for Applied Legal Studies: EQ67)
(ii). It is suggested that the following definition be used:
"'marital status' includes the status or condition of being single, married, married but living separately from one's spouse, divorced, widowed or in a relationship, whether with a person of the same or the opposite sex, involving a commitment to reciprocal support in a relationship.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
11. Definition of "organ of state":
It is suggested that the following definition be used:
"'organ of State' means any functionary or institution -
(a) exercising a power or performing a function in terms of the Constitution or a provincial constitution;
(b) exercising a public power or performing a public function in terms of any legislation; or
(c) exercising a public power or performing a public function in terms of customary law or tradition.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
12. Definition of "partner":
It is suggested that the following definition might be appropriate:
"'partner' means a person irrespective of sexual orientation, or, marital status, who shares an intimate and committed relationship with another person based on a mutual obligation of support for basic living expenses during the period of the relationship.". (National Coalition for Gay and Lesbian Equality)
13. Definition of "pregnancy":
(i) It is suggested that the following definition be used:
"'pregnancy' includes any condition related to pregnancy, intended pregnancy, potential pregnancy or termination of pregnancy.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
(ii) There should be a definition of "pregnancy", the following being suggested:
"'pregnancy' includes intended or potential pregnancy, termination of pregnancy or any medical condition related to pregnancy.". (South African Council of Churches: EQ61) (Gender Project: Community Law Centre: EQ45)
(iii) It is suggested that the following definition of "potential pregnancy" be used to read as follows:
"'potential pregnancy' refers to the fact that -
(a) a woman is or may be capable of bearing children;
(b) a woman has expressed an intention or desire to become pregnant;
(c) a woman is likely, or is perceived as being likely, to become pregnant.". (Gender Project: Community Law Centre: EQ45)
14. Definition of "prohibited grounds":
(i) The use of the words "or any other recognised ground" makes the definition overbroad and vague. It is recommended that this definition be amended to read as follows:
"prohibited grounds are specified or unspecified:
(a) specified grounds are race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth;
(b) unspecified grounds are grounds which the complainant proves on a balance of probabilities to be based on attributes or characteristics which have the potential to impair the dignity of a person or affect him or her adversely in a manner comparable to a specialised ground.".
It is argued that there should be a clear distinction between specified and unspecified grounds of discrimination, the former being more onerous for the respondent to counter. In the case of unspecified grounds there is a greater onus on the complainant. (See also the related amendment of clause 45, dealing with the burden of proof, proposed by National Newspapers). (National Newspapers: EQ18)
(ii) The present wording in this definition "any other recognised ground" could potentially include any ground of differentiation and it is suggested that this phrase be deleted and replaced by the following wording:
"any other ground that has the potential to undermine the human dignity of a person or group or to cause or perpetuate disadvantage.".
It is also suggested that the following prohibited grounds be expressly added to the present list:
"HIV status (AIDS status should perhaps be included in a definition of "disability"), family status and responsibility, nationality and refugee status.". (Black Sash: EQ34) (iii) It is suggested that the following prohibited grounds be inserted:
"Family responsibility and status, HIV/Aids status, socio-economic status.".
(Commission on Gender Equality: EQ36)
(iv) It is suggested that the following definition be used:
""'prohibited grounds' include one or more of the following listed grounds of discrimination:
race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth,
or any additional ground that -
(a) causes or perpetuates disadvantage;
(b) undermines human dignity; or
(c) affects persons or groups of persons in a comparably serious manner.". (Gender Research Programme: Centre for Applied Legal Studies: EQ67) (Human Rights Committee: EQ 79)
(v) It is suggested that this definition be amended to read as follows:
"‘prohibited grounds’ means one or more of the following grounds:
race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, HIV/AIDS status, nationality, socio-economic status and family responsibility and status.".
A closed list is suggested. (NADEL)
(vi) The use of the words "any other recognised ground" creates uncertainty as to its exact meaning and is too open-ended. (AHI: EQ41)
(General Council of the Bar: EQ76)
(vii) It is suggested that HIV/AIDS, socio-economic status, nationality and family status and responsibility be included as prohibited grounds. (SAHRC: EQ50)
(National Coalition for Gay and Lesbian Equality)
(viii) Serious consideration should be given to removing the unspecified grounds from the prohibited grounds. (National Association of Broadcasters: EQ48) (ix) The present definition is open-ended so it is impossible to determine what those grounds are. It is argued that there are dangers in having an open-ended list and it is very difficult to provide a formula for the inclusion of grounds which are not listed. Hence it is suggested that there be a closed list, which can be added to by way of amendments to the legislation. The following definition is consequently suggested:
"'prohibited grounds' are race, gender, sex, pregnancy, family responsibility, marital status, sexual orientation, disability, ethnic or social origin, nationality, colour, age, religion, conscience, belief, culture, language, birth, socio-economic stereotype and HIV status.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
(x) It is suggested that the following grounds be added to the prohibited grounds:
"HIV/AIDS status, socio-economic status, family responsibility and nationality.". (IDASA: EQ60)
(xi) HIV/AIDS should be added as one of the prohibited grounds, together with "family status and responsibility", "socio-economic status" and "nationality". As an alternative, if HIV/AIDS is incorporated into the definition of "disability" it must be explicitly incorporated, as opposed to a veiled and implied reference. If it is not added as a prohibited ground the presumption of unfairness as stated in section 9(5) of the Constitution, does not apply, unless it can be shown that "it is based on attributes or characteristics which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner.". (AIDS Law Project: Centre for Applied Legal Studies: EQ59)
(xii) The following definition is suggested:
"race, gender, sex, pregnancy, marital status, family status or responsibility, ethnic of social origin, social or economic status, nationality, colour, sexual orientation, age, disability, HIV status, religion, conscience, belief, culture, language, [and] birth or any other [recognised] ground used to undermine the human dignity of a person or group or to cause or perpetuate disadvantage.". (South African Council of Churches: EQ61)
(xiii) It is suggested that the following prohibited grounds be added:
HIV/AIDS status, family status and family responsibility and socio-economic status. (Gender Project: Community Law Centre: EQ45)
15. Definition of "socio-economic status":
(i) It is suggested that the following definition be used:
"'socio-economic stereotype' means the product of adverse assumptions concerning people who are disadvantaged by poverty, low employment status or lack of low level educational qualifications.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
(ii) It is suggested that the following definition be used:
"'social and economic status' means the disadvantaged status of a person or group as a result of factors such as a lack of income or access to resources, employment status, lack of education or level of education.". (South African Council of Churches: EQ61)
16. Definition of "substantive equality":
It is suggested that this definition be deleted. It is argued that there is no need for such a definition since the meaning of substantive equality has been written into the Bill. It is also argued that this definition in the Bill is incorrect. It is argued that by seeking to define this, the Bill sets up a distinction between equality and substantive equality, which is "extremely dangerous". It has moreover always been argued and accepted by the Constitutional Court that equality is substantive equality. (Gender Research Programme: Centre for Applied Legal Studies: EQ67)
17. Definition of "the State":
It is suggested that the following definition be used:
"'the State' includes any department of State or administration in the national, provincial or local sphere of government.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
18. Definition of "unfair discrimination":
(i) The definition is overbroad and vague (National Newspapers: EQ18)
(ii) It is recommended that the present definitions of "unfair discrimination", "race discrimination", "gender discrimination", "disability discrimination", "pregnancy discrimination" and "discrimination in relation to employment", which are inconsistent with one another and cause confusion, be replaced by a single definition of "discrimination" which would be subject to fairness and apply to all grounds and sectors. This would achieve greater legal certainty and be more comprehensible for lawyers and lay persons. The division of forms of discrimination into different categories has regressive implications as it does not take into account the intersectionality of grounds. The Constitutional Court has argued that there is often a complex relationship between grounds of discrimination and went on to warn that "the temptation to force them into neatly self-contained categories should be resisted.". (Black Sash: EQ34) (Commission on Gender Equality: EQ36)
(Gender Research Programme: Centre for Applied Legal Studies: EQ67)
(NADEL)
(Human Rights Committee: EQ 79) (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC) (National Coalition for Gay and Lesbian Equality) (AIDS Law Project: Centre for Applied Legal Studies: EQ59) (South African Council of Churches: EQ61)
(iii) It is recommended that the following definition of "discrimination" be used:
"'discrimination' means an act or omission, including any condition, requirement, policy, rule, situation or practice, that results in the unequal treatment of a person or group of persons on the basis of -
(a) one or more of the prohibited grounds;
(b) that person's or that group's actual or presumed association with another person who or group which may be identified by any of the prohibited grounds;
(c) a characteristic that applies generally to persons who are identified by any of the prohibited grounds;
(d) a characteristic that is generally attributed to persons who are identified by any of the prohibited grounds,
and includes the failure to accommodate a person or groups of persons identified by a prohibited ground.". (Commission on Gender Equality: EQ36)
(Gender Research Programme: Centre for Applied Legal Studies: EQ67)
(iv) It is recommended that the present definition of "unfair discrimination" be used for the entire Bill since some of the other definitions in this regard, especially in the sectors are at variance with this definition. (SAHRC: EQ50)
(v) In line with its argument in paragraph (i) above, theWomen's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC suggests the following definition:
"'discrimination' means any act or omission which directly or indirectly -
(a) imposes burdens, obligations or disadvantages on; or
(b) withholds benefits, opportunities or advances from,
any person or persons on one or more of the prohibited grounds.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
(vi) It is suggested that the proviso at the end of the definition of unfair discrimination be replaced by the following:
"Provided that it is not unfair discrimination to -
implement affirmative action or remedial measures designed to mitigate hardship and disadvantage suffered by disadvantaged or oppressed persons or groups, or to further equal opportunity, or that is geared towards the elimination of unfair discrimination in accordance with the purpose of the Constitution or this Act.". (IDASA: EQ60)
(vii) The question is raised whether an attempt should be made to define "unfair discrimination", the scope of which should be left to the courts to decide. If this definition is to be retained, the terms "reasonably accommodate", "removal of barriers" and "is likely to have" should be deleted. (Business South Africa: EQ63)
(viii) It is suggested that a single, inclusive and expansive definition of "unfair discrimination" be used for the entire Bill, but with separate definitions for concepts such as "disability" and "pregnancy". (Gender Project: Community Law Centre: EQ45)
19. Definitions Generally:
It is suggested that "unfair discrimination", "disability discrimination", "reasonable accommodation" and "marital status" should not be defined but left to the courts to develop. (Business South Africa: EQ63)
C: Clause 2:
The question is raised whether clause 2(b)(i) and (ii) in fact implement the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women. (Law Society of SA : EQ82)
D: Clause 3: 1. It is suggested that clause 3(1), (2) and (3) be amended to read as follows:
"(1) Any person applying this Act must interpret its provisions to give effect to -
the Constitution, the provisions of which include the promotion of equality through legislative and other measures designed to protect or advance persons, or categories of persons disadvantaged by unfair discrimination;
the Preamble, the objects and guiding principles of this Act, thereby fulfilling the spirit, purport and objects of this Act;
any prescribed code of good practice that is consistent with this Act.
Any person interpreting this Act -
must, where appropriate, consider international law, particularly the international agreements referred to in section 2;
may, where appropriate, consider foreign law;
must prefer any reasonable interpretation that is consistent with international law over any alternative interpretation that is inconsistent with international law: Provided that the interpretation that is consistent with international law provides greater protection to disadvantaged groups than that which is inconsistent with international law. (3) Any person interpreting this Act must, where a dispute arising from this Act revolves around an issue covered by -
a provision of an international agreement that binds the Republic as contemplated in section 231 of the Constitution; or
a principle of recognised customary international law as contemplated in section 232 of the Constitution,
attempt to resolve the dispute in conformity with the principle of recognised customary international law or the provision of the international treaty in question as the case may be: Provided that the principle or provision provides greater protection to disadvantaged groups than that which is inconsistent with international law.".
(Gender Research Programme: Centre for Applied Legal Studies: EQ67)
2. It is suggested that clause 3(4) be amended as follows:
"The interpretation and application of this Act must be contextual and purposive. The employment of a purposive and contextual approach to interpretation will not operate to the exclusion of any other methods of interpretation.".
E: Clause 4:
1. These guiding principles are argued to place positive obligations on NGO's and that clause 4(2) should be revisited to make it clear that NGO's are not obliged to provide legal assistance as is currently suggested. It is suggested that these general sentiments which should not be of an obligatory nature, rather be inserted in the Preamble. (Black Sash: EQ34) (AHI: EQ41)
(Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
(South African Council of Churches: EQ61)
F: Clause 5: 1. It suggested that clause 5(1) be amended to provide that "the Act bind the State and all persons." (Gender Research Programme: Centre for Applied Legal Studies: EQ67)
(Law Society of SA : EQ82)
2. The prohibition of unfair discrimination and affirmative action in the workplace is regulated in the Employment Equity Act, 1998, and this whole aspect should be removed from the Bill as this dual jurisdiction will cause confusion and uncertainty. The Employment Act, 1998, for example, excludes small businesses from the ambit of the affirmative action Chapter in this Act and by now applying this Bill to small business, their exclusion from the Employment Equity Act, 1998, is defeated.
(South African Chamber of Business: EQ39.).
3. Clause 5(2) should read as follows:
"If any conflict relating to a matter dealt with in this Act arises between this Act and the provisions of any other law, other than the Constitution or an Act of Parliament expressly amending this Act, the provisions of this Act must prevail: Provided that this Act applies to unfair discrimination in employment only to the extent that it deals with matters which are not regulated by the Employment Equity Act, 1998.". (Department of Labour)
G: Clause 6:
1. Because it is vague and unclear, and does not fit in with the general prohibition, clause 6(2) should be deleted. This will prohibit the press from informing the public about the racist remarks of others. If the press does overstep the mark in this regard complaints should be addressed to press-related bodies or dealt with by the Common Law. This provision will also lead to frivolous complaints. (National Newspapers: EQ18) (Gender Research Programme: Centre for Applied Legal Studies: EQ67)
(National Association of Broadcasters: EQ 48)
(Freedom of Commercial Speech Trust: EQ47) (Print Media Association: EQ75)
(Freedom of Expression Institute: EQ70)
(Business South Africa: EQ63)
2. It is suggested for the sake of clarity that clause 6(1)(the general prohibition clause) should also refer to "the State", in addition to any person. The following definition is suggested by Gender Research Programme: Centre for Applied Legal Studies:
"Prohibition of unfair discrimination 6. (1) The State may not unfairly discriminate directly or indirectly against any person or group of persons.
(2) No person may unfairly discriminate directly or indirectly against any person or group of persons.". (Black Sash: EQ34)
(Gender Research Programme: Centre for Applied Legal Studies: EQ67) (SAHRC: EQ50)
3. It is suggested that clause 6(3) be deleted and inserted in the Criminal Procedure Act, 1977, or alternatively, be inserted in a separate provision. (Gender Research Programme: Centre for Applied Legal Studies: EQ67) (Business South Africa: EQ63)
4. It is suggested that clause 6(2) be amended to read as follows:
"No person may -
(a) disseminate or broadcast any information;
(b) publish or display any advertisement or notice,
that indicates or could reasonably be understood by a person or group of persons being discriminated against to indicate an intention to unfairly discriminate.". (Law Society of SA : EQ 82)
5. It is suggested that the general prohibition clause read as follows:
"Prohibition of unfair discrimination
(a) The State and any organ of State may not unfairly discriminate against anyone.
(b) A natural or juristic person may not unfairly discriminate against anyone in relation to any controlled activity.". ("controlled activity" being defined in the definitions)
This clause should then be followed by the provisions dealing with unfair discrimination, to read as follows:
"Unfair discrimination
Discrimination is unfair if -
(a) it impairs or is likely to impair the fundamental human dignity of any individual, group, class or category of persons; or
(b) it perpetuates or exacerbates or is likely to perpetuate or exacerbate existing patterns of disadvantage based on or related to the prohibited grounds.".
In the prohibition of unfair discrimination a distinction is suggested between discrimination at the instance of the State and discrimination by the private sector; hence the reference to "controlled activities" for the private sector. As can be seen from the definition of "controlled activities" reference is made to the "provision of" so as to protect the recipient of the benefit as opposed to the provider thereof, which takes into account the power imbalances in society and seeks to ensure that this legislation is accessible to the poor and disadvantaged, as opposed to operating as a tool for the well resourced in society. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
6. Because clause 6(3) will strike at the heart of freedom of expression, it is suggested that this clause be removed. (Print Media Association: EQ75)
7. It is argued that clauses 6(2) and 14(a) are unnecessarily wide, especially in the light of the South African Advertising Code and it is suggested that these provisions, insofar as they are related to the contents of advertisements, be amended in such a manner that the "first port of call" in the event of allegations of unfair discrimination is the Advertising Standards Authority since it is generally accepted that self-regulation works best within the framework of statute law. Self-regulation has the advantages of speed, flexibility and affordability. The following provision is suggested:
"Where a person is aggrieved by advertising which he or she believes to be unfairly discriminatory, such complaint shall in the first instance be referred to the Advertising Standards Authority of South Africa for investigation and adjudication, in accordance with its Code and procedures.". (Advertising Standards Authority of South Africa: EQ68)
H: Part B of Chapter 2 dealing with Race and Gender: 1. It is suggested that the definitions in this Part be deleted and the remainder of the provisions in this Part be retained (perhaps in an annexure/code/schedule, together with the sectors) to highlight areas of discrimination in respect of race and gender but that they be developed in a uniform manner. (A possible example as far as gender is concerned which could be placed in such an annexure/code/schedule/guidelines, as suggested by the Gender Research Programme: Centre for Applied Legal Studies is set out at the end of this document.) The aspects dealing with the promotion of equality in this Part should be moved to the Chapter dealing with the promotion of equality. (Black Sash: EQ34)
(Commission on Gender Equality: EQ36)
(Gender Research Programme: Centre for Applied Legal Studies: EQ67)
(NADEL)
(Gender Project: Community Law Centre: EQ45)
2. It is suggested that specific prohibitions and provisions dealing with the elimination of disability discrimination be inserted in the same manner as with gender and racial discrimination.
(Commission on Gender Equality: EQ36)
(Gender Research Programme: Centre for Applied Legal Studies: EQ67)
(NADEL)
(DEAFSA: EQ43)
(SAHRC: EQ50)
3. The definitions in this Part are self-contained and do not relate to the definition of "unfair discrimination" and create confusion. Some of the provisions in this Part are vague and will make enforcement difficult. There is confusion and contradiction arising from the many areas of overlap between the general prohibition in clause 6(1) and the specific prohibitions in the remainder of Chapter 2, which will frustrate attempts to enforce prohibitions, whether of a general or specific nature. Hence the need for a single definition of "discrimination" and a prohibition of unfair discrimination that applies to all the prohibited grounds. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
4. It is suggested that clause 7(1) should refer to "abuse" in addition to "violence". (Law Society of SA: EQ82)
5. Clause 7(1)(a), read with other provisions in the Bill, which, in effect, prohibits any distinction on the grounds of national origin, could be argued to be unconstitutional since a number of the provisions of the Constitution extend rights to citizens only, eg political rights. (General Council of the Bar: EQ76)
6. Clause 8(a) and (e) should be deleted for the same reasons that clause 6(2) should be deleted. (National Newspapers: EQ18) (National Association of Broadcasters: EQ 48)
(Freedom of Commercial Speech Trust: EQ47)
(Print Media Association: EQ75)
(Freedom of Expression Institute: EQ70)
7. It is suggested that clause 8(a) be amended to read as follows:
"The dissemination of any propaganda or idea, suggesting the racial superiority or inferiority of any person or group of persons, including incitement to cause harm, racial abuse and group defamation and including incitement to, or participation in, any form of racial violence.
It is also suggested that such action be made punishable by law, in line with Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination. (South African Jewish Board of Deputies: EQ46)
8. It is suggested that the words "or any other business or activity or field" be added to clause 8(b). (Law Society of SA : EQ 82)
9. It is suggested that clause 8(b) be amended to read as follows:
"the operation of any activity or policy which is intended to promote, or has the effect of, exclusivity, based on racism or racial discrimination and which results in the de facto exclusion of persons of a particular race group under any principle that appears to be neutral, such as in sport, financial services, the recognised professions and health services.". (SAHRC: EQ50)
10. It is suggested that clause 9(1) be deleted and inserted in the Criminal Procedure Act, 1977, or alternatively, be inserted in a separate provision. (Gender Research Programme: Centre for Applied Legal Studies: EQ67) 11. In terms of clause 12(2)(c) the State must take steps to promote gender equality in all fields, amongst others, in respect of the inequality of access to resources. It is suggested that a similar provision be inserted in clause 9, dealing with the promotion of racial harmony. (SAHRC: EQ50)
12. The term "gender discrimination" used in clauses 10, 11 and 12 should be replaced with the concept of "discrimination based on gender" and be dealt with in an annexure/code/schedule/guidelines. The following is suggested in this regard:
"Discrimination based on gender includes -
(a) the same as clause 10(a);
(b) any act, omission, conduct, condition, rule, policy, requirement, situation or practice which has the effect of creating or sustaining systemic forms of domination and disadvantage which perpetuate and re-enforce unequal gender relations and prevent women from being able to develop their full human potential and participate fully in society.".
It is further suggested that the concept of "gender-based violence" (to be used in the schedule) should be defined and that "pregnancy discrimination" should be replaced with "discrimination based on pregnancy". Further examples of discrimination based on gender should be added, namely "virginity testing" and "exclusion or expulsion of scholars on the grounds of pregnancy.". (Gender Project: Community Law Centre: EQ45)
13. It is argued that the reference to sexual orientation in the definition of "gender discrimination" in clause 10(a) is inappropriate since it is independent of gender. (IDASA: EQ60)
14. It is suggested that "gender" as a ground be included in the definition of "gender discrimination" and that the words "irrespective of their marital status" be removed. (Business South Africa: EQ63)
15. It is suggested that the definition of "gender discrimination" should include domestic violence, rape and any other forms of criminal abuse. (Law Society of SA: EQ82)
16. It is suggested that clause 11(e) be deleted. (Business South Africa: EQ63)
17. It is suggested that clause 12(1) be deleted and inserted in the Criminal Procedure Act, 1977, or alternatively, be inserted in a separate provision. (Gender Research Programme: Centre for Applied Legal Studies: EQ67)
18. The rationale behind clause 12(2)(d) is dealt with in the Employment Equity Act and is not needed in this clause. It should be deleted. (Labour Project of the Centre for Applied Legal Studies: EQ66) (Business South Africa: EQ63)
I: Parts C to L of Chapter 2 dealing with Sectors Generally:
1. The provisions contained in these Parts are inconsistent and could overlap in certain sectors, eg the inconsistent use of the words "unfair" and "unreasonable" in the prohibitions contained in the sectors. It is suggested that these provisions be removed from the body of the Bill and inserted in a separate code of practice/annexure/schedule/guidelines to be formulated within a specified time and in consultation with civil society. This would enable proper consultation so that a comprehensive set of guidelines can be developed, which can be amended easily to reflect changes in society. (Black Sash: EQ34)
(National Newspapers) (Commission on Gender Equality: EQ36) (NADEL)
(Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
(National Coalition for Gay and Lesbian Equality)
(AIDS Law Project: Centre for Applied Legal Studies: EQ59)
(South African Council of Churches: EQ61)
2. It is suggested that the following provisions be used to achieve what is set out in 1 above:
" (1) The Minister may issue guidelines to the interpretation of this Act by way of schedules to the Act, setting out the extent to which and the manner in which any provisions of this Act apply in a sector. (2) The guidelines referred to in subsection (1) must be developed in consultation with the South African Human Rights Commission, the Commission on Gender Equality and any other relevant role-players.
(3) The Ministers responsible for education, health, land matters, pensions, finance, trade and industry, sport and labour must, in conjunction with other relevant Ministers, develop guidelines as set out in subsection (1) and (2) within 12 months of the enactment of this Act.".
Pursuant to this approach, clause 3(1) should have the following new paragraph:
"any guidelines issued in terms of this Act.". (NADEL)
3. The Bill should not list all examples of unfair discrimination found in all sectors but conduct in specific sectors should be regulated by the various Ministers in the legislation that falls under their jurisdiction.
(South African Chamber of Business: EQ39). (AHI: EQ41)
(British Chamber of Commerce in Southern Africa: EQ73)
(Business South Africa: EQ63)
4. There is no consistent use of the words "unfairly" and "unreasonably" in the provisions dealing with the sectors. It is suggested that "unfairly" be used in all cases. Unfairness should be the test. (AHI: EQ41)
(SAHRC: EQ50)
5. It is suggested that a sector be inserted dealing with Justice related issues, where examples of unfair discrimination should be spelt out, eg the failure to take legal action in order for disabled persons to protect or exercise their rights, eg in defending themselves or giving evidence in courts, police stations, etc, failing to continue with cases due to the lack of interpreters, the stopping of legal proceedings as a result of a person's disability or lack of communication. (DEAFSA: EQ43)
6. There are clear advantages for including specific sectors in the Bill, eg facilitating the proof of a prima facie case of unfair discrimination and fulfilling an educational function. (SAHRC: EQ50)
(IDASA: EQ60)
7. The selection of the various forms of discrimination included in the different sectors seem to be arbitrary. Prevalent forms of unfair discrimination are omitted and most instances included in the sectors can be adequately covered by a general prohibition of unfair discrimination, with the result that the nuances and differences in the way discrimination occurs within the various sectors are not adequately taken account of. The different concepts and terminology used in dealing with unfair discrimination within each of the sectors can also cause confusion, eg "unfair or unreasonable discrimination" and "unfair disadvantage". The provisions in the sectors do not take account of existing legislation and in some instances trump this legislation. Many of the sectors are drafted in such a way that they are vague, difficult to enforce and are not entirely consistent with the jurisprudence of the Constitutional Court. The relationship between certain of the sector-specific defences and the general defence in clause 43 is also a source of concern since some of these sector-specific defences can effectively negate key prohibitions within a particular sector. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC) 8. It is suggested that the following provisions be used to achieve what is set out in 1 above:
" (1) The Ministers responsible for the controlled activities must, in consultation with the Minister, formulate and publish codes of practice in relation to the controlled activities within a reasonable time and not later than 3 February 2001.
(2) These codes will be developed in consultation with organs of civil society.
(3) In interpreting this Act, a court must take account of codes or guidelines that have been developed.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
9. It is suggested that differentiation based on objective actuarially and commercially based evidence should not be regarded as unfair discrimination in the "business-related sectors particularly, as is the case in other countries. (Business South Africa: EQ63)
10. Because the treatment of equality in the sectors is confusing and does not allow for recognition of discrimination on multiple grounds, it is suggested that the following provisions be inserted in the Bill:
" (1) The Minister may issue guidelines to the interpretation of this Act by way of schedules to the Act, setting out the extent to which and the manner in which any provision of this Act applies in a sector.
(2) In interpreting this Act a provision in any schedule hereto shall not, by reason of conflict between such provision and a provision or provisions contained in any other part of the Act, have lesser status than such part of the Act.". (Gender Project: Community Law Centre: EQ45)
J: Part C of Chapter 2: Employment Sector: 1. The inclusion of an employment sector is problematic for the following reasons:
* It makes little sense to have provisions relating to discrimination in employment in different Acts.
* The problem of a multiplicity of laws and the jurisdictional confusion and uncertainty that this causes, is compounded by the fact that the notion of unfair discrimination is differently treated in the Employment Equity Act, 1998.
* Further confusion may arise as the test in this Bill (3 stage) differs from that in the Employment Equity Act (2 stage), which might be open to constitutional challenge on the ground that different categories of persons could be treated differently according to whether they are regulated by this Bill or the Employment Equity Act.
* Depending on the way that clause 5 of the Bill is interpreted, it could be argued that because of the extended notion of unfair discrimination in clause 13 and the grounds in clause 14, employees who fall within the ambit of the Employment Equity Act could also fall within the ambit of this Bill, giving rise to forum shopping (Labour Project of the Centre for Applied Legal Studies: EQ66) 2. The Bill contains a definition of "employment" which includes independent contractors. This is argued to be a departure from well-established law, which makes a distinction between employees and independent contractors, the latter being excluded from labour law, precisely because they are not employees as they work for their own accord on contract. If the intention is to include independent contractors in the Bill it should be done in a separate clause and not in the provisions dealing with employment, perhaps in clause 32 dealing with goods, services and facilities. The definition of "employment" is also problematic because it introduces a concept of work "for consideration". This is argued to be an English concept and foreign to our law and is at odds with the definition of "employee" in the Labour Relations Act, the Employment Equity Act and the Basic Conditions of Employment Act. (Labour Project of the Centre for Applied Legal Studies: EQ66)
3. Since the Bill in the employment sector covers members of the SANDF and the intelligence services, which are not covered in the Employment Equity Act, it is suggested that consideration rather be given to addressing their exclusion in the Employment Equity Act, by either amending the Employment Equity Act or by including the necessary provisions in the legislation which regulates these services and by deleting the employment sector in this Bill. The employment sector in this Bill creates a piece-meal approach. It is consequently suggested that Part C of Chapter 2, with the exception of clause 15, be deleted. To sum up, no labour issue which is the subject matter of any other Labour statute should be regulated by the Bill. The current version of the Bill will lead to a great deal of confusion and jurisprudential uncertainty as there is potential overlap between the Bill and the subject matter in other labour laws, in particular the Employment Equity Act. If it is felt that the treatment of unfair discrimination in the Employment Equity Act is inadequate, it would be preferable to seek to meet the shortcomings by amendments to the Employment Equity Act. (Labour Project of the Centre for Applied Legal Studies: EQ66)
(Business South Africa: EQ63)
(Gender Project: Community Law Centre: EQ45)
4. In the light of all the above relating to the employment sector, the following amendments to various clauses, in addition to the deletion of Part C of Chapter 2 and clause 12(2)(d), of the Bill are suggested:
* that the wording relating to the application of the Bill be revised to ensure that all unfair discrimination measures in employment are only regulated by the Employment Equity Act and that the proviso in clause 5(2) be removed;
* that a provision be inserted in clause 32 to protect independent contractors.
(Should these proposals not be followed, alternatives are also suggested and are set out in EQ66.). (Labour Project of the Centre for Applied Legal Studies: EQ66)
5. It is suggested that clause 13 in this sector be replaced by the following definition of "employee" and that clause 14 be deleted:
"'employee' means any person other than an independent contractor who -
(a) works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) in any manner assists in carrying on or conducting the business of an 'employer';
and 'employed' and 'employment' have corresponding meanings.". (Department of Labour)
6. It is important to have a sector dealing with employment in order to cover unfair discrimination, which is not covered by the Employment Equity Act, 1998, such as the South African National Defence Force and the National Intelligence Agency and it is also suggested that the following definition be included:
"'employee or worker' includes an applicant for employment.". (SAHRC: EQ50)
7. (a) Clause 14(a) should be deleted for the same reasons that clause 6(2) should be deleted. (Print Media Association: EQ75)
(b) Clause 14 should be deleted in its entirety since the Employment Equity Act, 1998, already deals with unfair discrimination in employment. (National Newspapers: EQ18)
8. The use of the concept of "work of equal value" in clause 14(f) can create great uncertainty. (AHI: EQ41)
9. Clause 14 refers to "unreasonable discrimination" which is a new concept and is not defined in the Bill. (Business South Africa: EQ63)
10. The reference to "potential applicants" in clause 14(a) is unclear and a new concept of "unjustly disadvantaging/unjustly excluding" is introduced in clause 14(a), (d) and (e). (Business South Africa: EQ63)
11. The words "creating informal barriers to equal access to employment opportunities" in clause 14(b) are vague and ambiguous. (Business South Africa: EQ63)
12. The question is raised what the term "contracting opportunities" in clause 14(e) means and it is argued that this provision impacts on the contractual freedom of persons and institutions in the world of commerce. (Business South Africa: EQ63)
13. Clause 14(f) refers to "unequal pay for work of equal value". The question is raised what criteria will b used to determine whether work is of "equal value". (Business South Africa: EQ63)
14. It is argued that clause 14(g) is vague and ambiguous. (Business South Africa: EQ63
15. It is suggested that 15(c) should be amended to include the Commission on Gender Equality. (NADEL)
16. The use of the words "relevant Ministers" in clause 15 is too vague. (General Council of the Bar: EQ76)
K: Part D: Education: 1. It is suggested that clause 17(1)(g) be amended to read as follows:
"(g) in the forcible segregation of learners with special needs into special schools, based on their disabilities and not on their educational interests or capabilities: Provided that nothing in this Act prohibits the placement of learners in alternative schools which cater for specific language and culture groups within a reasonable distance from home.".
(DEAFSA : EQ43)
2. It is suggested that clause 17(1)(h) should also refer to language diversity. (SAHRC: EQ50)
L: Part E: Health Care:
1. It is suggested that clauses 19 and 20 be moved to a schedule and that the definition of "health care services" be amended as follows, in line with the National Health Bill:
"'health care services' include -
(a) those services necessary to ensure a state of complete physical, mental, emotional and social well-being and not only ....; (b) reproductive health care services and refer to those services necessary to ensure a state of complete physical, mental, emotional and social well-being and not only those services aimed at the absence of disease and disorders of the reproductive process.".
Reference should also be made to "reproductive health benefits" in the definition of "health care benefits". (Gender Project: Community Law Centre: EQ45)
2. It is suggested that the following paragraph (iii) be added to the definition of "health care services" in clause 19:
"(iii) health care benefits in the case of infants, including infants with disabilities, should not be limited to health care as defined in (i) and (ii) but should be read to include early childhood development, intervention and any other sectoral services.".
This is argued to be necessary since health care services for children with disabilities will have little effect if they are not provided within the holistic framework of education and social services. (DEAFSA: EQ 43)
3. It is suggested that the definitions in clause 19 should ensure that there is no discrimination against a woman or persons in a same sex relationship in respect of medical aid. The same applies to pension benefits and housing subsidies. (Law Society of SA: EQ82)
4. It is suggested that clause 20(1) be amended to read as follows:
"Subject to available resources no person or the State may unfairly discriminate against any person in the provision of health care or reproductive health care services, including but not limited to the following:". Clause 20(2) should be amended accordingly.
(Gender Project: Community Law Centre: EQ45)
5. It is suggested that clause 20(1)(i) read as follows:
"by revealing any information regarding a person's health, including his or her health status, or treatment or stay in a public or private health establishment to an employer .....". (Gender Project: Community Law Centre: EQ45)
6. It is suggested that clause 20(1)(k) read as follows:
"No person or the State may deny a person requiring emergency treatment such treatment if the establishment is open and able to provide the necessary treatment.". (Gender Project: Community Law Centre: EQ45)
7. The addition of the following paragraphs to clause 20(2)are suggested:
"(f) by creating barriers to education access to information regarding reproductive health;
(g) by creating barriers to reproductive health care services
(h) by refusing to inform a person of -
(i) the public health services and resources available in his or her community;
(ii) the conditions governing access to those services and resources; and
(iii) the implications and consequences of using those services and resources;
(i) by refusing to inform a person in an appropriate manner of -
(i) the person's health status;
(ii) the range of diagnostic procedures and treatment options generally available to the person; and
(iii) the benefits, risks, costs and consequences generally associated with each option.". (Gender Project: Community Law Centre: EQ45) 8. Clause 20(1)(f) prohibits unfair discrimination in the provision of health care services and benefits by assuming that persons with disabilities should not or cannot procreate, adopt or care for a child or foster or nurture a family environment purely on the grounds that a person or a couple may have a disability. It is suggested that this prohibition should also be extended to persons who are gay or lesbian. (IDASA: EQ60) 9. It is argued that clause 21(1) is far too general. (Law Society of SA: EQ82)
10. The words "relevant Ministers" in clause 21 are too vague. (General Council of the Bar: EQ76)
11. It is suggested that the provisions of the Medical Aid Schemes Act would more than adequately address the matters addressed in this sector and this Bill should not attempt to duplicate these complex issues in a simplistic manner. (Business South Africa: EQ63)
M: Part F: Accommodation, Land and Property:
1. The exact meaning of clause 23(d) is questioned. (Law Society of SA: EQ82)
2. The use of the words "relevant Ministers" in clause 24 is too vague. (General Council of the Bar: EQ76)
3. The provisions of this Part entitle any person to accommodation, notwithstanding his or her income and they also prohibit the eviction of any tenant due to non-payment of rental if the tenant lacks income or resources. Clause 23(d) is argued to be very vague and that clause 23(e) is extremely broad. (Business South Africa: EQ63)
N: Part G: Insurance:
1. It is suggested that the definition of "insurer" in clause 25(i) be clarified to include an agent. (Black Sash: EQ34)
2. It is suggested that provisions be inserted into the Bill to provide clearly that the provisions of the Bill are not infringed where a contract of insurance differentiates or makes a distinction, exclusion or preference on bona fide and reasonable grounds, based on actuarially and statistically based considerations. (Life Offices' Association of South Africa: EQ 72) (Business South Africa: EQ63)
3. Since many of the risk factors taken into consideration by insurers are listed under the prohibited grounds it is clear that some of the practices currently used will have to be defended as justifiable, as indeed they are. The Bill will add unnecessarily to the cost of insurance by not allowing companies to practise proper underwriting principles or by spending great amounts of time and money proving their actions as justifiable. The Bill, in its present form, will therefore make insurance less accessible to people and overseas investment in the insurance industry will be in jeopardy. The Bill will undercut the basis on which insurers differentiate in underwriting and accepting risks. To the extent that the Bill seeks to promote equality by eliminating market forces and freedom of contract, it is unconstitutional. It also cuts through insurers' rights to choose their trade, occupation or profession freely. It also deprives insurers of the right to sell products which are marketable and profitable, constituting a deprivation of property. The definitions used in clause 25 are inappropriate and include terms which are no longer used in insurance legislation. The following alternative wording has been suggested for the Insurance Sector:
"Definitions 25. In this Part -
(i) 'insurance policy' includes any long term policy referred to in the Long Term Insurance Act, 1998, and any short term policy referred to in the Short Term Insurance Act, 1998, but does not include a retirement annuity fund;
(ii) 'insurer' means a person who issues insurance policies or makes such policies available to others.
Prohibition of unfair discrimination in provision of insurance services
26. (1) Every person has a right not to be unfairly discriminated against in respect of insurance services on the grounds of race, gender, sex, pregnancy, marital status, ethnic origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(2) Every person having legal capacity has a right to contract on equal terms without unfair discrimination because of race, gender, sex, pregnancy, marital status, ethnic origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(3) An insurer may discriminate against any person in the provision of insurance on the grounds of gender, sex, pregnancy, marital status, sexual orientation, age or disability if -
(a) the discrimination is based on actuarial or statistical data from a source on which it is reasonable for the insurer to rely; and
(b) the discrimination is reasonable having regard to the data.". (South African Insurance Association: EQ58)
4. It is suggested that clause 25 be deleted. (The Life Offices' Association of South Africa: EQ 72)
5. It is argued that clause 26(c) be made clearer. (Black Sash: EQ34)
6. It is suggested that clause 26(d) be amended to read as follows:
"(d) any act or omission referred to in paragraphs (a), (b) and (c) in relation to persons solely on the basis of HIV status;
(e) any other policy or practice in relation to the provision of insurance policies which has the direct or indirect effect of discriminating against any person on one or more of the prohibited grounds.". (Black Sash: EQ34)
7. Because "services" is not defined, clause 26(d) is confusing and unclear. (AIDS Law Project: Centre for Applied Legal Studies: EQ59)
8 The use of the words "relevant Ministers" in clause 28 is too vague. (General Council of the Bar: EQ76)
O: Part H: Pensions:
1. It is suggested that the following definition be added in clause 28:
"pension provider" means a person who arranges or makes available retirement funds or applies retirement rules to others.". (Black Sash: EQ34)
2. It is suggested that the following subsections be inserted in clause 29:
" (2) The Minister responsible for pensions must, by notice in the Gazette, determine a date after which the provisions of subsection (3) shall apply.
(3) No pension provider may unfairly discriminate against any person in the provision of pension funds or in the application or interpretation of rules in any manner, including the following:
(a) by refusing to provide or make available pension funds to any person;
(b) in the terms or conditions in terms of which or the manner in which pension funds or rules are provided, made available, applied or interpreted;
(c) in the provision of benefits, facilities and services related to pension funds;
(d) in any other manner including any policy or practice in relation to the provisions of pension funds or the application or interpretation or rules which discriminate against a person or persons on any of the prohibited grounds.". 3. Clause 29 should be amended to address the problem where the parents of a child have died and the relatives or persons supporting the child are able to obtain access to the pension. (Law society of SA: EQ82)
4. Differentiation on reasonable grounds supported by actuarial or statistical data is not regarded as unfair discrimination in terms of the Canadian Human Rights Code. Sound financial operation of a retirement fund depends on differentiations based on actuarial grounds. If funds are constrained from applying these traditional risk management techniques, the result will be a general erosion of the level of member benefits and the demise of benefit funds. Clause 29 contains provisions that pose a threat to the viability of the retirement fund industry. Rules of funds will not be able to exclude any person from membership of a fund or from receiving benefits on any of the prohibited grounds, which, in terms of the Bill, is an open-ended list. (Institute of Retirement Funds: EQ65)
((Business South Africa: EQ63)
5. The use of the words "relevant Ministers" in clause 30 is too vague. (General Council of the Bar: EQ76)
6. Clauses 30 and 51(4) require the Minister to promote equality in the retirement fund sector and provision is made for codes of good practice. While these clauses provide the means for dealing with substantive issues of equality in this sector, it will be essential to involve the retirement fund industry in this process because the absence of detail in the Bill leaves the range and scope of the ant-discrimination provisions uncertain.
(Institute of Retirement Funds: EQ65)
P: Part I: Goods, Services and Facilities: 1. In order to protect particularly the banking system it is suggested that this sector be protected in clause 43 by being allowed to use objective commercial principles and criteria. (Business South Africa: EQ63) 2. The use of the words "relevant Ministers" in clause 33 is too vague. (General Council of the Bar: EQ76)
Q: Part J: Associations and Partnerships: 1. The provisions of section 34, dealing with associations, is unacceptable. (British Chamber of Commerce in Southern Africa: EQ73)
2. The provisions of section 35, dealing with partnerships, is unacceptable. It impacts on the right to freedom of association. (British Chamber of Commerce in Southern Africa: EQ73) (Business South Africa: EQ63)
3. The use of the words "relevant Ministers" in clause 36 is too vague. (General Council of the Bar: EQ76)
R: Part K: Sports and Clubs: 1. It is suggested that a further subclause be added to clause 39 to read as follows:
"Nothing in this Act shall prevent designated groups (disabled persons) or deny the rights of designated groups from forming their own associations or clubs where they can exercise their freedom of association.". (DEAFSA: EQ 43)
2. The provisions in this Part impact on the right to freedom of association. (Business South Africa: EQ63)
S: Part L: Professions:
The use of the words "relevant Ministers" in clause 42 is too vague. (General Council of the Bar: EQ76)
T: Clause 43:
1. Clause 43(3), dealing with "unjustifiable hardship", should be deleted since it is an unduly oppressive requirement for the respondent and might also restrict the court's discretion. The fact that the only defence against a charge of unfair discrimination is "unjustifiable hardship" is argued to be vague and unduly harsh, ignoring the realities of everyday commercial business practice.
(South African Chamber of Business: EQ39.).
(AHI: EQ41) (National Newspapers: EQ18)
(SA Institute of Race Relations: EQ35)
(Freedom of Commercial Speech Trust: EQ47)
(British Chamber of Commerce in Southern Africa: EQ73)
(Business South Africa: EQ63)
2. Because there can never be a defence to any form of harassment, it is suggested that clause 43(1) be amended by adding the following:
"Provided that conduct which amounts to harassment on any of the prohibited grounds is, per se, unfair.".
NADEL, however, suggests that there should be a defence in cases of vicarious liability. (Black Sash: EQ34)
(NADEL)
3. It is suggested that the present defence of "reasonable" and "justifiable" be replaced by a defence of "fairness". It is suggested that the factors mentioned in clause 43(3) and (4) be included as factors in clause 43(2), since the effect of this clause at present is that the test of "unreasonable hardship" in clause 43(4) overrides the factors spelt out in clause 43(2). (Black Sash: EQ34)
4. It is suggested that the following provision be added to clause 43:
"Nothing contained in this Act shall derogate from the right of educational, religious, welfare and similar such institutions established, funded and administered by a bona fide religious community to limit admission to and administration of such institutions to members of their own faith, provided that in doing so, they do not discriminate on the grounds of race or any similar such grounds.". (South African Jewish Board of Deputies: EQ 46)
5. Clause 43, read with clause 45, is inconsistent with sections 9 and 36 of the Constitution. (General Council of the Bar: EQ76)
6. It is suggested that clause 43(3) and (4), dealing with unjustifiable hardship be deleted. It is argued that, in terms of section 9 of the Constitution, the absence of hardship for the respondent is irrelevant. (National Association of Broadcasters: EQ 48) (Business South Africa: EQ63)
(South African Insurance Association: EQ58)
7. It is suggested that clause 43(2) be amended to allow "the application of objective commercial principles and criteria in selling or providing goods, services and facilities in a free market economy.". (Human Rights Committee: EQ 79) (Business South Africa: EQ63)
8. Concern is expressed about the implications of using the concepts of "reasonableness and justifiability" as the basis for the general defence in the Bill, which are relevant to an inquiry under section 36 of the Constitution concerning the justifiability of limiting a right in the Bill of Rights. The introduction of these concepts introduces a three-stage burden of proof requirement, giving the respondent 3 opportunities to defend a claim of unfair discrimination, that is that the discrimination is not based on one or more of the prohibited grounds, and if it is, that the discrimination is not unfair and if it is unfair, that the unfair discrimination is reasonable and justifiable. This makes issues of proof and interpretation very complicated. It is consequently suggested that the Bill deal with the determination of unfair discrimination, measures to redress disadvantage and the burden of proof in the following way, after the provisions suggested in paragraph 5 in the comments dealing with clause 6:
"Determination of unfair discrimination
Whether discrimination is unfair depends on its context and all relevant circumstances, in particular the following:
(a) the impact of the discrimination on the complainant;
(b) the position of the complainant in society and whether he or she has suffered in the past from patterns of disadvantage;
(c) the nature and extent of the discrimination;
(d) whether it has a legitimate purpose;
(e) the nature and importance of its purpose;
(f) whether and to what extent it achieves its purpose;
(g) whether and to what extent its purpose may be achieved by less intrusive means;
(h) whether and to what extent the respondent has taken such steps as a being reasonable in the circumstances to overcome disadvantage or to accommodate diversity arising from or related to one or more of the prohibited grounds; and
(i) whether it is consistent with the applicable codes of practice, if any.
Measures to redress disadvantage
(1) Acts or omissions designed to protect or advance groups or categories of persons disadvantaged by unfair discrimination, or the members of such groups or categories of persons, do not constitute unfair discrimination.
(2) The State and organs of State must implement measures to protect and advance Black people, women and people with disabilities.
(3) Natural and juristic persons engaged in any controlled activity must implement measures to protect and advance Black people, women and people with disabilities.
Proof of unfair discrimination
Discrimination is presumed to be unfair unless the contrary is established.".
It is argued that in terms of this scheme, the complainant must establish:
(a) an act or omission;
(b) the effect of which imposes a disadvantage or withholds a benefit;
(c) on one or more of the prohibited grounds.
Once these are established, it is for the respondent to show that the discrimination is not unfair. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
(IDASA: EQ60)
9. Clauses 43 and 45 do not allay the fears of the retirement fund industry because methods of dealing with risk fundamental to the industry will be challenged and whenever a prima facie case of unfair discrimination is made out, the fund will bear the onus of proving that such differentiation was justifiable. The cost implications of this litigation will be enormous. (Institute of Retirement Funds: EQ65) 10. Clause 43(1) should be amended to read as follows:
"It is a defence to a claim of unfair discrimination that the act or omission is reasonable and justifiable in the circumstances: Provided that such defence is not available in discrimination disputes under the Employment Equity Act, 1998.". (Department of Labour)
U: Clause 45:
1. Clause 45, in its present form and by using the words "prima facie" could lead to too light an onus on the complainant, paving the way for frivolous claims. (Freedom of Commercial Speech Trust: EQ47). It is suggested that this clause be amended to read as follows:
"If the complainant proves that the respondent differentiated against him or her on a prohibited ground which caused prejudice to him or her or which caused a violation of his or her right to dignity, the respondent must prove on a balance of probabilities that-
(a) the differentiation was not based on a prohibited ground; or
(b) where the respondent fails to prove (a), that the differentiation did not amount to unfair discrimination in terms of section 43.". (National Newspapers: EQ18)
2. It is argued that the burden of proof should not go further than that provided for in section 9(5) of the Constitution. (AHI: EQ41)
3. Clause 45 would appear to be in direct contravention of the Constitution by presuming a respondent to be guilty until his or her innocence is proved. It is suggested that this be re-worded. (The same sentiments as expressed by National Newspapers in paragraph 1 above apply) (American Chamber of Commerce: EQ49)
4. It is argued that the onus of proof in clause 45(1) and (2) is unconstitutional. It is suggested that the clause be amended to ensure that there is a clear differentiation between specified grounds and unspecified grounds. (National Association of Broadcasters: EQ 48)
5. The reversal of the burden of proof will prove to be harsh on advertisers/agencies/media owners. (Freedom of Commercial Speech Trust: EQ47)
6. Placing the burden of proof on the respondent is not in line with the law. By so doing, management time in business will be taken up dealing with frivolous claims by employees against employers, the vast majority of claims being settled in favour of the employer. This, together with the fact that questions of fact will be decided by a court consisting of lay assessors, will be likely to introduce unwanted uncertainty in the business operating environment. (British Chamber of Commerce in Southern Africa: EQ73)
7. The burden of proof should not shifted to the respondent. (Business South Africa: EQ63) (South African Insurance Association: EQ58)
V: Chapter 4: Equality Courts/Enforcement Mechanism Generally:
1. It is recommended that the alternatives to the Equality Courts be explored, since the Bill, in its present form, will place further onerous duties on a court system which is already overburdened. (National Newspapers: EQ18) (SA Institute of Race Relations: EQ35) (Commission on Gender Equality: EQ36) (SAHRC: EQ50)
(American Chamber of Commerce: EQ49)
2. Consideration should be given to administrative adjudication rather than using the overburdened courts, where persons, other than judicial officers or lawyers, could be used and where alternative dispute resolution procedures could be applied. (MS Bham: EQ29)
3. Such a mechanism could comprise 4 commissioners from the SAHRC, 2 commissioners from the Commission on Gender Equality, 4 judicial officers and 2 equality assistants, who could be seconded from their present positions. This (trained) component (tribunal) could then move around the country, with a commissioner paired with a judicial officer. Matters could be referred from outlying rural courts, police stations, advice offices and other sources. The Bill could require court officials to assist a complainant in approaching the correct forum. These tribunals could have the same powers as those of equality courts and function in the same manner as equality courts. Decisions of these tribunals could be taken on review or appeal to the relevant High Court. (Commission on Gender Equality: EQ36)
4. It is suggested that until the Equality Courts are effectively implemented, the SAHRC and the CGE should be designated as forums of first instance and that provision be made for a "fast-tracked access to the High Court" in appropriate circumstances. This will require increasing the capacity of these Commissions. In line with this approach and to ensure that Equality Courts are set up as soon as possible, it is suggested that the Bill be amended to include a statutory timeframe within which the Equality Courts should be established. Other statutory timeframes for implementation are also suggested. (NADEL)
5. The establishment of Equality Courts will undermine the efficiency of the judicial system in its entirety and it is suggested that the ordinary courts of the land hear matters relating to discrimination. (General Council of the Bar: EQ76)
6. The Minister should have statutory timeframes within which to implement some aspects of the enforcement mechanism, eg training of court personnel. (SAHRC: EQ50)
7. The SAHRC suggests, as an alternative, pending the establishment of Equality Courts after a period of 5 years, the establishment of a separate tribunal, along the lines of the Pension Funds Adjudicator, in terms of section 30B of the Pensions Fund Act, 1956. (SAHRC: EQ50)
8. There should be some sort of sifting process before a case is submitted to court, to avoid frivolous and vexatious claims, possibly by courts assistants. (National Association of Broadcasters: EQ 48)
9. The creation of Equality Courts is supported, especially since the Magistrates' Courts are situated throughout the country. (Human Rights Committee: EQ 79)
10. Tribunals are more appropriate to deal with unfair discrimination claims for the following reasons:
They are speedy, coherent and effective. They are user-friendly and inquisitorial in nature, more suited for mediated solutions and not dependent on lawyers. They are cost-effective because of their streamlined procedures and because they are not dependent on expensive legal counsel. They are accessible and not intimidating. They complement the work of the courts (through an appeal and referral mechanism). They promote public participation. They are impartial and independent and are not prone to attacks of bias because of their composition.
Bearing SA' s history in mind, a tribunal, comprising people from the community, will engrave onto the social fabric the values of human dignity and equal opportunity and give power to the powerless to influence the development and consolidation of ideals human dignity, equality and human potential. The promotion and protection of these values will consequently not be left in the hands of a few privileged individuals and will require the participation of all sectors in society. The possibility of a jury, selected from tax records or voters' rolls, guided in legal issues by a legally qualified chairperson, could be explored. It is suggested that a tribunal could consist of not less that 3 and not more than 5 members, who are fit and proper persons, seconded to the tribunal by the SAHRC, the Public Protector, the Judicial Service Commission, the Houses of Traditional Leaders, the Commission on Gender Equality and NGO's involved in social justice advocacy. Tribunals could be permanent or set up to deal with specific cases. Tribunals could have the following powers in terms of clause 48:
* determine whether there has been unfair discrimination in any case;
* grant an interim order or declaratory order;
* negotiate a settlement between parties;
* direct that specific steps be taken to prevent unfair discrimination;
* grant an interdict, restraining unfair discriminatory practices;
* order an audit of unfair discrimination practices;
* refer involved legal issues to the High Courts. (IDASA: EQ60)
W: Clause 46:
1. It is suggested that the Commission on Gender Equality and all constitutional institutions be added as institutions which can institute proceedings on behalf of litigants. (Commission on Gender Equality: EQ36) (NADEL)
(Law Society of SA : EQ82)
(General Council of the Bar: EQ76)
2. It is suggested that clause 46(1)(b) be amended to require the Minister to issue the guidelines in question within six months of the enactment of this legislation. (NADEL)
(Law Society of SA: EQ82)
3. The attempt in clause 46(3) to avoid overlapping between the Equality Courts and other courts (including the Labour Court) is insufficient.
(South African Chamber of Business: EQ39. ) (Business South Africa: EQ63).
4. The effect of clause 46(2) is that a person (legal person), for example, a competitor of an advertising agent, which has published an advert, could act on behalf of a category of persons depicted in the advert without their consent and institute proceedings in court. It is suggested that persons or institutions instituting proceedings in terms of this legislation should be able to show some sort of direct interest in the matter. (Freedom of Commercial Speech Trust: EQ47)
5. It is suggested that the words ''relevant roleplayers" in clause 46(1)(b) be made clearer by way of definition. (Human Rights Committee: EQ 79)
6. In order to avoid delays, clause 46(1) should specifically provide that, within 10 days of receiving a summons in an equality matter, the clerk of the court must take the summons to the presiding officer in order to determine whether a referral to a more appropriate forum is necessary. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
7. Clause 46(2) should be worded more in line with section 38 of the Constitution, with the proviso that any national institution should be able to institute proceedings in its own name. The Commission on Gender Equality, the Commission for the Protection and Rights of Cultural and Linguistic Communities and the Pan South African Language Board should be able to institute proceedings on their own behalf. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
8. Clause 46(1)(a) is too wide and may lead to abuse. The parties should be able to object and argue why the matter should remain in the Equality Court. (Business South Africa: EQ63)
9. Clause 46(3) should be amended to read as follows:
"No proceedings may be instituted in terms of or under this Act in relation to unfair discrimination in respect of issues relating to employment if the issues in question are regulated by the Employment Equity Act, 1998: Provided that the Labour Courts shall have exclusive jurisdiction in such matters.". (Department of Labour)
X: Clause 47:
1. Since the Equality Courts are civil in nature, the criminal procedure provisions in clause 47(4)(c) and (d) should be deleted and clause 47 should have an additional paragraph to read as follows:
"the subpoena of and duty to produce documents or give evidence of witnesses.". (National Newspapers: EQ18)
2. It is suggested that clause 47(1) be amended by the addition of the following paragraph:
"the Minister must appoint a presiding officer of the Equality Court for two regions in each province within six months of the enactment of this Act.". (NADEL)
3. It is suggested that clause 47(3)(a) be amended as follows:
"Subject to the laws governing the public service, the Director-General of the Department [may]must, for every equality court, appoint one or more officers in the Department, [ormay] andmust appoint one or more persons in the prescribed manner and on the prescribed conditions, as equality court assistants, who must generally assist the court to which they are attached in performing its functions and who must perform the functions of such assistants as may be prescribed.".
(NADEL)
4. It is suggested that magistrates' courts must not be limited to hear cases that fall within their normal jurisdiction, but be granted the power to make orders which exceed their jurisdiction but which could then be confirmed by a judge of the relevant High Court (in chambers). This is argued to enhance accessibility. (NADEL)
(Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
5. It is suggested that training for the judiciary be made compulsory. (Law Society of SA : EQ 82)
6. It is suggested that the pool for presiding officers of Equality Courts be widened to include equality activists, people with training and experience in the field of equality and human rights, such as academics, practising lawyers, etc. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC) Y: Clause 48:
1. (a) Clause 48(2)(d) should be amended to read as follows:
"an order for the payment of [any] damages in respect of [any proven] financial loss[,including future loss] or in respect of the impairment of dignity, pain and suffering or emotional and psychological suffering, as a result of the unfair discrimination in question: Provided that the onus shall be on a balance of probabilities and that the Common Law requirement in regard to blameworthiness are present.".
(b) Clause 48(2)(e) should be deleted since it is purely punitive in nature and is unknown in our civil law, where punitive damages are not awarded. (National Newspapers: EQ18)
(SA Institute of Race Relations: EQ35) (National Association of Broadcasters: EQ 48) (Business South Africa: EQ63)
2. Clause 48(2)(e) allows the court to award damages to a body or organisation such as the SAHRC, a body which is allowed to institute proceedings in terms of this legislation, giving it a financial stake in initiating legislation. (SA Institute of Race Relations: EQ35)
3. It is suggested that the following subclause be added to clause 48 to ensure that referrals to other appropriate forums take place as early as possible:
"For the purposes of this Act, the clerk of the magistrate's court must convene a mandatory pre-trial conference within four weeks of the closing of pleadings, at which the presiding officer must decide the appropriateness of the case for referral to another dispute resolution forum and any other matters concerning the management of the case.".
This will require a minor consequential amendment to clause 46(1)(a). (NADEL)
4. It is suggested that the following subclause be added to clause 48:
"For the purposes of this Act, a presiding officer of the equality court is empowered to accept and consider the tabling of amicus briefs where appropriate.".
For this purpose the Minister should be empowered to make regulations relating to an amicus.
(NADEL)
(Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
5. It is suggested that clause 48(2)(k) be amended to read as follows:
"(k) an order that an unconditional apology be made in the form of a publication where appropriate;". (Law Society of SA: EQ 82)
6. In respect of clause 48(2)(p) relating to an order of costs against any party to the proceedings, it is suggested that the costs order should be appropriate for the forum in which the proceedings are being conducted, bearing in mind that all courts can be Equality Courts. It is also suggested that specific provision be made for imprisonment for contempt of court. (Law Society of South Africa: EQ82)
7. It is suggested that persons who claim damages, should approach the ordinary courts. (National Association of Broadcasters: EQ 48)
8. It is suggested that the powers of the Equality Courts as contemplated in clause 48(2)(f), (g), (i), (k), (l) and (o) and clause 48(5) should be properly confined and qualified so that these powers cannot be exercised to infringe the freedom of expression unjustifiably. It is suggested that they be amended to exclude activity that falls outside the scope of section 16(2) of the Constitution. These provisions will amount to a serious inroad into editorial independence and grant wide powers to the State to regulate the content of the print media. (Print Media Association: EQ75) (Freedom of Expression Institute: EQ70)
9. Provision should be made for relief in the case of frivolous or vexatious actions. (Business South Africa: EQ63)
Z: Clause 49:
1. Lay assessors are unlikely to have the same training or experience as judicial officers and their role should be confined to advising judicial officers, who should decide all questions of law and fact. Judicial officers who disagree with assessors on questions of fact should be obliged to explain in full their reasons for their decisions. (SA Institute of Race Relations: EQ35)
2. It is suggested that clause 49(3)(a)(i) should be amended to include "religious environment". (Law Society of SA: EQ82)
AA: Clause 50:
It is noted that clause 50 does not provide for appeals to the Constitutional Court. (General Council of the Bar: EQ76)
BB: Clause 51:
1. It is suggested that clause 51(5) be amended so that the prescribed equity plans are also submitted to the Commission on Gender Equality. (Commission on Gender Equality: EQ36)
(NADEL)
2. It is suggested that all the provisions in the Bill dealing with the promotion of equality should be moved to Chapter 5 of the Bill (clause 51), which deals with the promotion aspect, that is clauses 15, 18, 21, 24, 27, 30, 33, 36, 39 and 42. (NADEL)
3. It is suggested the following subclause be added to clause 51:
"The Minister must issue codes, by way of schedule to the Act, setting out examples of measures that can be taken to promote equality and to make reasonable accommodation.". (NADEL)
4. It is suggested that clause 51(1) be amended to include NGO's in appropriate circumstances, in addition to constitutional institutions. (Law Society of SA : EQ82)
5. Clause 51(4) should also apply to the Minister of Labour. (Law Society of SA: EQ82)
6. The Bill should make it clear that the prescribed equity plans contemplated in this Bill are not the same as the information required from organs of State as contemplated in section 184(3) of the Constitution. (SAHRC: EQ50)
7. Where it is not exactly clear in the Bill which Ministers are responsible for implementing equity plans, it is suggested that a mechanism be established in Government to establish the responsible Ministers. (SAHRC: EQ50)
8. It may be appropriate for the equity plans to be reviewed by a committee of the relevant Ministers for endorsement or recommendations for improvement or alignment with other sectoral initiatives to avoid duplication of effort. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
9. The following provisions are suggested for clause 51, dealing with the promotion of equality:
"The State, all organs of State and the constitutional institutions referred to in Chapter 9 of the Constitution must, in the exercise of their powers, duties and functions, accord equal concern and respect to every individual, group or category of persons and must promote -
(a) the spirit, purport and objects of this Act;
(b) the full and equal enjoyment of all rights and freedoms by every individual, group and category of persons;
(c) the redress of disadvantage caused by unfair discrimination;
(d) the elimination of patterns of disadvantage caused by unfair discrimination.". (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
10. Clause 51(1), dealing with the promotion of equality in the future could be used to address uncertainties, but it is argued that it would be ideal to introduce specific reference in the body of the Bill as to what does not constitute unfair discrimination in the retirement fund sector, eg reasonable and bona fide differentiation based on actuarial or statistical data. Alternatively the sector dealing with the retirement fund sector should be deleted from the Bill and the matter be dealt with in the Pension Funds Act. (Institute of Retirement Funds: EQ65)
CC: Clause 52: 1. It is suggested that clause 52(1)(a) to (k) should be amended to require the Minister to make the regulations in question "within six months of the enactment of this Act and in consultation with the South African Human Rights Commission, the Commission on Gender Equality and other relevant role-players.". (NADEL)
2. It is suggested that the socio-economic status of a litigant be a factor when the granting of legal aid is considered, that is in respect of clause 52(1)(j). It is suggested that the words "to everyone" be added to clause 52(5).
(Human Rights Committee: EQ 79)
3. It is suggested that the making of these regulations be subject to a statutory time limit to avoid a delay in the implementation of the legislation, as was the case in the Domestic Violence Act, 1998.
4. It is argued that clause 52(1) gives the Minister a discretion to make regulations. It is suggested that the word "may" should be changed to "must". (Human Rights Committee: EQ 79)
5. It is suggested that clause 52(3), giving the Minister the power to create an offence for the contravention of the regulations, be deleted. (Human Rights Committee: EQ 79)
DD: Clause 53:
1. Clause 53(1)(a) should be revisited since the Minister's power to designate presiding officers might be unconstitutional and be seen as interfering with the independence of the judiciary. This aspect should be the responsibility of the President, acting on the advice of the Judicial Service Commission or Magistrates' Commission. (National Newspapers: EQ18)
(Deputy Judge President of the Johannesburg High Court, HCJ Flemming: EQ30)
(AHI: EQ41)
(General Council of the Bar: EQ76) (Business South Africa: EQ63)
2. Clause 53(1) and (4) should be amended to require the Minister to issue the contemplated policy directives and training courses "within six months of the enactment of this Act.".
(NADEL)
(Law Society of SA: EQ 82)
(Human Rights Committee: EQ 79)
3. It is suggested that clause 53(4) be amended to require the Minister to consult with NGO's, in addition to the Magistrates' Commission and Judicial Service Commission, in respect of policy directives and training courses. (Law Society of SA: EQ82)
EE: Clause 54:
1. It is suggested that clause 54 be amended to include a representative of the Commission on Gender Equality on the Review Committee. (Commission on Gender Equality: EQ36) (NADEL)
(Law Society of SA: EQ82)
(General Council of the Bar: EQ76)
2. It is suggested that the 5 year time limit in clause 54 be reduced to 3 years. (SAHRC: EQ50)
3. It is suggested that the Review Committee should consider the need for a separate or independent tribunal, in conjunction with any review of the Open Democracy Act and the Administrative Justice Act. (Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC) FF: Two-stage vs Three-stage test:
1. Black Sash argues in favour of a two-stage test (firstly, determining whether any form of discrimination has taken place on any of the prohibited grounds and secondly, whether such discrimination is fair, at which stage reasonableness should only be considered as part of the defence of fairness) rather than the three stage test which the Bill presently suggests, that is firstly, is there discrimination, is it unfair, is it reasonable and justifiable? The three stage test is argued to be anomalous, eg one could have unfair discrimination which is reasonable or justifiable. It is further argued that this could lead to reasonableness being considered twice, that is when determining whether unfair discrimination has taken place and when considering the defence. (Black Sash: EQ34)
2. The following argue in favour of a three-stage test, which is in line constitutional jurisprudence and is argued to be more workable in practice: (Commission on Gender Equality: EQ36) (Gender Research Programme: Centre for Applied Legal Studies: EQ67)
(NADEL)
(Women's Legal Centre: Socio-Economic Rights Project: Community Law Centre: UWC)
3. It is suggested that the following new clause be inserted, after the general prohibition in clause 6, facilitating a three-stage test:
"Unfair discrimination 7. (1) In determining whether the State or any person has unfairly discriminated against any person or group of persons, a court shall enquire into -
(a) whether there has been discrimination on a prohibited ground; and
(b) if so, whether this discrimination is unfair.
(2) In determining whether the discrimination is unfair, a court shall consider the impact of the discrimination on the complainant and his or her group, including -
(a) the historic and socio-economic context in which the discrimination occurred or occurs;
(b) the position of the complainant in society and whether he or she is a member of a group that has suffered in the past from patterns of disadvantage;
(c) the disadvantage suffered by the complainant, including the extent to which the discrimination has affected his or her rights and interests;
(d) the relationship between, and the effects of, discrimination on more than one prohibited ground;
(e) additional criteria set out in the sectors.". (Commission on Gender Equality: EQ36) (Gender Research Programme: Centre for Applied Legal Studies: EQ67)
4. In order to provide a clear and logical flow to the three-stage test, it is suggested that the following new provisions relating to defences and the burden of proof follow on the above new clause 7:
"Defence to a claim of unfair discrimination 8. (1) It is a defence to a claim of unfair discrimination that the act or omission is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
(2) The factors to be taken into account in deciding whether the act or omission is reasonable and justifiable in the circumstances, include -
(a) the purpose of the unfair discrimination;
(b) the nature and extent of the unfair discrimination, including the nature and extent of the resultant disadvantage;
(c) the relationship between the unfair discrimination, including the resultant disadvantage, and its purpose; and
(d) whether there are less restrictive and disadvantageous means to achieve the purpose.
(3) For the purposes of subsections (1) and (2), there shall be no finding that the act or omission was reasonable and justifiable in the circumstances, unless it is established that the person or group affected by the unfair discrimination cannot be accommodated to the point of undue hardship.
(4) In determining whether there has been undue hardship all relevant circumstances must be taken into account, including -
(a) the nature of the benefit accruing to, or disadvantage suffered by, any person;
(b) the effect of the disadvantage suffered by the person unfairly discriminated against;
(c) the financial circumstances of the person who has a duty not to discriminate unfairly in the particular circumstances;
(e) any positive measures.
Burden of proof
9. (1) If the complainant alleges discrimination on one or more of the listed grounds and makes out a prima facie case of such discrimination in terms of this Act, the respondent must -
(a) prove that the discrimination is not based on one or more of the listed grounds; or
(b) if it is proved that the discrimination is based on one or more of the listed ground, prove that the discrimination is not unfair.
(2) If the complainant alleges discrimination on an additional ground, then the complainant must -
(a) prove discrimination on that additional ground; and
(b) prove that the discrimination is unfair.
(3) If the discrimination is proved to be unfair, then the respondent must prove that the unfair discrimination is reasonable and justifiable in terms of section 8.". (Commission on Gender Equality: EQ36)
(Gender Research Programme: Centre for Applied Legal Studies: EQ67)
GG: Annexure: Example of provisions in respect of "Gender equality and unfair discrimination on the basis of gender" to be inserted in an annexure/code/schedule/guidelines:
"Examples of unfair discrimination on the basis of gender include, but are not limited to the following:
Unfair discrimination on the basis of sex, pregnancy, marital status, domestic or family responsibilities in the domestic, political, economic, social, cultural, civil field or any other field.
Gender-based violence, including witchcraft or ritual related violence.
Any system, law, policy or practice that prevents or excludes women from inheriting property.
Female genital mutilation and other violations of bodily integrity.
Sexual harassment,
Any law, policy or practice, including traditional, customary or religious practices that disadvantages women.
Any law, policy or practice that specifically results in women having unequal access to, or enjoyment of, land, finance and other resources.
Any law, policy or practice that prevents or excludes women from accessing reproductive health care services.
Additional criteria for determining whether gender discrimination is unfair:
In determining whether a claim of discrimination based on gender is unfair, a court may consider whether -
the act or omission has, or is likely to have, the effect of creating or sustaining systemic forms of domination and disadvantage which perpetuate and re-enforce unequal gender relations and prevent women from being able to develop to their full human potential and participate fully in society;
the impact of the sexual division of labour; and
the impact of gender discrimination,
is increased by the impact of other prohibited grounds.".
(This example could also perhaps inform the drafting of similar provisions for race and disability.) (Gender Research Programme: Centre for Applied Legal Studies: EQ67)
HH: Complaints and Investigation Procedures:
IDASA argues that complaints and investigation procedures should be spelt out in the Bill to assist persons wishing to enforce their rights. It suggests that the South African Human Rights Commission should play a crucial role in this regard, which in any event has a constitutional mandate to do so. The following provisions are suggested:
"Institution of proceedings in terms of or under Act 1. (1) The following may institute proceedings in terms of or under this Act:
(a) Any person acting in that person's interest;
(b) any person acting on behalf of another person who cannot act in that person's own name;
(c) any person acting as a member of, or in the interests of, a group or class of persons;
(d) any person acting in the public interest;
(e) any association acting in the interests of its members,
and will be known as the complainant.
(2) The complainant may institute proceedings under this Act by executing a complaint form and filing it with the Commission, for service upon the responding party, known as the respondent.
(3) The respondent may respond to the complaint by filing a response with the Commission, for service upon the complainant.
(4) Where two or more complainants -
(a) bring into question a practice of infringement engaged in by the same person; or
(b) have questions of law or fact in common,
the Commission may combine the complaints and deal with them in the same proceedings.
Decision not to deal with complaint 2. (1) Where it appears to the Commission that -
(a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act;
(b) the complainant has not exhausted other options such as complaints procedures and internal dispute resolution mechanisms available to the respondent;
(c) the subject matter of the complaint is trivial, frivolous, vexatious or made in bad faith;
(d) the complaint is not within the jurisdiction of the tribunal; or
(e) the facts upon which the complaint are based, occurred more than 12 months before the complaint was filed,
the Commission may, after conducting appropriate inquiries, decide not to deal with the complaint.
(2) Where the Commission decides not to deal with a complaint, it shall advise the complainant in writing of its decision and reasons and of any procedure for having the decision reconsidered by the tribunal.
Investigation of complaints 3. (1) The Commission shall investigate a complaint and may endeavour to effect a settlement.
(2) An investigation may be made by a member or employee of the Commission who is authorised by the Commission as an investigator.
Powers of investigator 4. The investigator may -
(a) enter any place, other than a place that is being used as a dwelling, at any reasonable time, for the purpose of investigating a complaint;
(b) request the production for inspection and examination of documents or things that are or may be relevant to the investigation;
(c) upon giving a receipt therefor, remove from a place documents produced in response to a request under paragraph (b) for the purpose of making copies thereof and shall promptly return them to the person who produced them; and
(d) question a person on matters that are or may be relevant to the complaint subject to the person's right to have counsel or a personal representative present during such questioning, and may exclude from questioning any person who may be adverse in interest to the complainant.
Entry into dwellings 5. (1) An investigator shall not enter a place that is being used as a dwelling without the consent of the occupier except under authority of a warrant issued under subsection (x).
(2) Subject to subsection (1), if a person who is or may be a party to a complaint, denies entry to a place, or instructs an investigator to leave the place, or impedes of prevents an investigation therein, the Commission may refer a matter to a tribunal or may authorise the investigator to apply for a warrant to enter under subsection (x).
(3) If a person refuses to comply with a request for production of documents or things, the Commission may refer the matter to a tribunal, or may authorise the investigator to apply for a search warrant under subsection (x).
(4) Where a court is satisfied on evidence upon oath or affirmation that there are in a place documents that there is reasonable ground to believe will afford evidence relevant to the complaint, the court may issue a warrant in the prescribed form authorising the investigator to search a place for any such documents and to remove them for purposes of making copies thereof and the documents shall be returned promptly to the place from which they are removed.
(5) Where a court is satisfied on evidence upon oath or affirmation that there is reasonable ground to believe it is necessary that a place being used as a dwelling or to which entry has been denied be entered to investigate a complaint, the court may issue a warrant in the prescribed form, authorising such investigator by the investigator.
(6) No person shall interfere with an investigator in the execution of a warrant or otherwise impede an investigation under this Act.
(7) Subsection (6) is not contravened by a refusal to comply with a request for the production of documents or things made under section 4(b).
Report 6. Upon completion of the investigation, the investigator shall submit a written report, containing recommendations to the tribunal for review.". (IDASA: EQ60)