introduction

The Commission for Gender Equality (CGE)[1] is an independent statutory body, established in terms of Section 187, Chapter 9[2] of the Constitution of South Africa, Act 108 of 1996.

Our mandate is to promote respect for gender equality and the protection, development and attainment of gender equality. The powers and functions of the CGE are detailed in the Commission on Gender Equality Act 39 of 1996. In terms of Section 11(1), the CGE must inter-alia evaluate any law proposed by Parliament, affecting or likely to affect gender equality or the status of women, and make recommendations to Parliament with regards thereto.

In terms of the Principles relating to the Status of National Institutions (The Paris Principles), as adopted by the General Assembly resolution 48/134 of 20 December 1993, various principles are espoused in relation to national institutions supporting and promoting human rights.

Our own Chapter 9 institutions are also based on these Principles, which includes the mandate to report to UN or regional treaty bodies on the status of human rights as independent national institutions of human rights.

Central to these is that such national institutions shall be vested with competence to promote and protect human rights, be given as broad a mandate as possible, and that the principle of independence is guaranteed.

The Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights on 25 June 1993, emphasizes the responsibilities of all States to develop and encourage respect for human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion. It also expressed deep concern by various forms of discrimination and violence, to which women continue to be exposed all over the world. The Vienna Declaration supports a rights-based approach to the protection and promotion of human rights.

The Vienna Declaration emphasizes that “all human rights are universal, indivisible and interdependent and interrelated.

In terms of the African (Banjul) Charter on Human and Peoples’ Rights to which SA is also a signatory, the adherence to the principles of human and peoples' rights and freedoms contained in the declarations, conventions and other instruments adopted by the Organization of African Unity, the Movement of Non-Aligned Countries and the United Nations is further reaffirmed.

The State is furthermore obliged by various international and regional instruments that it has ratified to take steps toward the promotion and protection of human rights. For example, the SA Government ratified the Convention on the Elimination of All forms of Discrimination against Women (commonly referred to as CEDAW) which places positive as well as negative obligations on state bodies, inter alia to ensure the equal rights of men and women to enjoy all economic, social, cultural, civil and political rights. Article 2(a) of CEDAW further obliges state bodies to embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle.

Comments and recommendations are made, taking into account the following relevant constitutional provisions and principles:

Section 7 (2) of the Constitution compels the state to fulfil the rights stipulated in the Bill of Rights.

Section 9 of the Constitution[3] compels the State to enact legislation promoting, equality, in South Africa. The law of general application limits the right to equality, to the extent that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors[4].

Chapter 9 of the Constitution provides for the establishment and governing principles of State Institutions supporting constitutional democracy.

Section 181 of the Constitution subjects these institutions only to the Constitution and the law. The Constitution compels other organs of state, through legislative and other measures, to assist and protect theses institutions, and to ensure their independence, impartiality, dignity and effectiveness.

Section 187 of the Constitution provides for the functions of the Commission for Gender Equality.

The CGE commends Parliament for the much needed review on the impact of the Equality Act, with a special focus on women and person with disabilities. We would like to thank the Joint Monitoring Committee on Improvement of Quality of Life and Status of Women and the Joint Monitoring Committee on Improvement of Quality of Life and Status of Children, Youth and Persons with Disabilities for inviting the public to participate in this process, by calling on the public for written submissions. In particular, we would like to commend the Committees for placing a special emphasis on the progress and challenges on the implementation of the Equality Act, and how to strengthen the Act and its implementation for consolidation of democracy.

Taking into account the aforementioned, and having regard to the implementation of the Commission on Gender Equality Act No. 39 of 1996 (CGE), its related and enabling legislation and the day-to-day functioning of the CGE, these submissions have further analysed the implementation of the CGE mandate against the backdrop of the international human rights instruments, constitutional mandate, Promotion of Equality and Prevention of Unfair Discrimination Act No.4 of 2000 (PEPUDA), and highlighted the challenges.

The challenges and recommendations submitted are as follows.

PART 1: RECOMMENDED CHANGES TO THE CONSTITUTION

The CGE should be empowered to take steps to ensure appropriate redress where gender discrimination has occurred.

Section 184 (2)(b) of the Constitution empowers the South African Human Rights Commission to take steps to secure appropriate redress where human rights have been violated. The CGE has noted that Section 187(2) of the Constitution fails to empower the CGE to take steps to secure appropriate redress where gender discrimination occurs.

Recommendation:

We would like to recommend that Section 187(2) of the Constitution be amended to include the following: “to take steps to secure appropriate redress where gender discrimination has occurred”.

PART 2: RECOMMENDED CHANGES TO THE COMMISSION FOR

GENDER EQUALITY ACT NO 39 OF 1996

Name of Act

Section 181 and Section 187 of the Constitution refers to the Commission for Gender Equality, whilst the Commission on Gender Equality Act 39 of 1996 refers to the Commission on Gender Equality. The CGE notes that the title of the Commission in the Act 39 of 1996 differs from the title of the Commission as stated in the Constitution of 1996.

Recommendation:

For the purposes of consistency, we would like to recommend that the title of Act 39 of 1996, be amended to “Commission for Gender Equality” which will correspond with the Constitution of South Africa of 1996.

Preamble

The Vienna Declaration emphasizes that “all human rights are universal, indivisible and interdependent and interrelated.

The preamble usually contains the spirit and purpose of the Act. An important principle such as the independence of a Chapter 9 institution is lacking. To this end, we recommend that the preamble contains the aforesaid principles.

Member of the Commission

The CGE Act fails to clearly define who a ‘member’ of the Commission is. The word “member” and “Commission” are used interchangeably in the CGE Act. The inclusion of a definition for the word “member” will create consistency in the CGE Act.

Recommendation:

The word “Member” in the CGE Act is to be clearly defined as a Commissioner of the CGE.

Composition of Commissioners

Section 3 of the CGE Act provides for the composition of Commissioners. Subject to section 119(2) of the Constitution, the Commission shall consist of a chairperson and no fewer than seven and no more than eleven members.

Recommendation:

The CGE would like to recommend a reduction in the number of Commissioners required for the composition of the Commission. We would like to recommend that the Commission consists of two Commissioners, in addition to the Chairperson of the Commission.

We therefore recommend that the Act be amended to: “The Commission shall consist of a Chairperson and two fulltime Commissioners, who shall:-…”

Criteria for the appointment of Commissioners

Due to the nature and the Constitutional mandate of the Commission, while taking into account the role of Commissioners, it would be prudent for Commissioners to have a strong basis and understanding of the law, governance, as well as the legal framework within which it operates. It is also customary in most jurisdictions to have a retired Chief Justice as the Chairperson of a National Institution of Human Rights.

Recommendation:

We would recommend that Section 3 (1) be amended to include a subsection (c) which states  that Commissioners must have no less than fifteen years experience and “at least one of whom has a legal background.”

Term of Commissioners

Section 3(4) provides for a fixed term of office for Commissioners, for a period not exceeding 5 years, who may be appointed for one additional term. This provision does not stipulate a minimum term of office for Commissioners. The absence of a minimum term for Commissioners, as the Act currently stands, has the potential to create uncertainty, which could also impede on the governance and effectiveness of the Commission.

Recommendation:

Section 3(4) should be amended to provide for a non-renewable term for Commissioners. In addition, the Act should stipulate a minimum term for Commissioners, which should not be less than two years.

Powers and Functions of the Commission

Section 11 of the CGE Act empowers the CGE to perform certain functions, which includes a list of the following entities which the CGE is empowered to monitor and evaluate, namely: Organs of state at any level; statutory bodies or functionaries; public bodies and authorities; private businesses, enterprises and institutions.

Recommendation:

Section 11(1)(a) be amended to extend the CGE’s powers and functions, to enable them to monitor and evaluate policies and practices of all persons and entities. An additional subsection under Section 11(1) be included as the following: Section 11(1) (v) person or entity.

The CGE should be entitled to litigate in its own name

It is concerning that Section 11 of the CGE Act stipulates the powers and functions of the CGE, and does not in fact accord the CGE any express power to litigate in its own name or on behalf of any other person. This is in conflict with PEPUDA, which empowers the CGE to litigate in its own name.

While, in our view it is strongly arguable that the CGE still has the power to litigate either in its own name or on behalf of a person or group or class of persons, particularly when regard is had to its broader constitutional mandate as well as its structure and composition. The absence of explicit provisions in the CGE Act creates uncertainty in this regard.

To date, although the CGE has engaged in litigation, it has intervened using the rules of the court, which is limited to amicus interventions. It is also the practice of the Constitutional Court to request the CGE to provide its perspectives, depending on the matter. This is distinguishable from instances where the CGE would seek to litigate (either in its own name or on behalf of groups of persons) in the capacity of Applicant/ Plaintiff in proceedings. It is the latter situation that we are concerned with. We acknowledge that Section 20(1)(f) of (PEPUDA) expressly empowers CGE to institute proceedings in their own name, but this expressed provision is only restricted to matters before the Equality Courts.

Recommendation:

The CGE Act should be amended to include the following provision: “The CGE may bring proceedings in a competent court or tribunal in its own name, or on behalf of a person or a group or class of persons.”

Indemnity against costs

Section 17 of the CGE Act deals with legal proceedings against the Commission and indemnifies the CGE, and its employees from liability in respect of its mandate, but does not expressly indemnify the CGE from a cost order in respect of litigation. In addition to the CGE’s explicit powers to litigate, the Commission runs the risk of having a cost order granted against them in respect of a matter litigated in the name of the CGE. The CGE, as an institution supporting democracy, will not take on frivolous matters, but will litigate in matters concerning public interest. This will assist the CGE to litigate in matters concerning public interest, without the fear of an adverse cost order.

Recommendation:

We would like to recommend that all Chapter 9s be indemnified from all cost orders in respect of public interest litigation.

Executive Authority

Treasury Regulations identifies the Chairperson as the executive authority. The CGE Act omits to identify the executive authority. In terms of the principles of governance the Chairperson is the executive authority. To prevent any confusion and having regard to the interpretation of statutes, the CGE Act must clearly define the executive authority as the Chairperson of the Commission, as opposed to referring to the regulations for clarity.

Recommendations:

The act must state that the executive authority of the CGE is the Chairperson.

PART 3: PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT NO 4 OF 2000

As a result of our country’s notorious history with regard to discriminatory legislation, the Constitution acknowledges that there were various forms of discrimination, such as race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Therefore the Constitution includes an equality clause in the Bill of Rights, which prohibits discrimination on many grounds, including ethnic or social origin, race, gender, birth and colour.

Women have suffered as a result of gender discriminatory laws and practices, and have also had to endure the additional burden of other forms of discrimination, such as race, gender, birth and colour and so forth.

We do recognise the importance of the right to equality, but emphasise that this should be in accordance with the Constitutional principles of equality. It is not possible to lay down an absolute standard or test for justification of an infringement of rights. One has to apply these principles, and weigh all these factors together.

The prohibition of direct discrimination and the promotion of formal equality, will not guarantee substantive equality. We need to acknowledge the social, religious and cultural context of the lived realities on the ground. Many women continue to choose to live in these realities, while others are coerced into it, which will prevent them from enjoying substantive equality. The promotion of gender equality remains a real challenge to ensure democracy.

Positive steps must therefore be taken to prevent the hardships and effects caused by such discrimination. PEPUDA is a step in ameliorating the position of women in our country.

Implementation of the Equality Courts

While the legislative provisions of PEPUDA remains laudable, implementing and monitoring these provisions remains a challenge. PEPUDA does not make provision for the formulation of specific rules of procedure applicable to the equality courts. These rules of procedure, which must reflect the ethos of ‘PEPUDA’ have yet to be promulgated. The issue of rules of procedure denies ‘access to justice’ as currently the Magistrates Court Rules or the High Court Rules are applicable, which makes the functioning of these courts formal.

It is further noted that the Department of Justice has been slow in setting up these courts, and the implementation of further courts must be hastened. The structural setting and design of the courts, are makeshift, usually on the mornings of the hearings often intimidates complainants and witnesses. All Court personnel needs to be sensitised on the provisions of the Act, and the social context issues which underpins the ethos of the Act, including but not limited to gender discrimination. Equality Courts are not given the priority and support as espoused in the legislation.

The CGE has noted the following challenges with regard to the efficiency and effectiveness of the Equality Courts: Equality Courts have not been set up country wide. Ordinary people, who lack means and access to services, are most likely affected by discrimination. Most cases brought to the Equality Courts have been by academics or legal experts, with the intention to develop legal jurisprudence amongst others. While this is laudable, it only goes to a limited extent to address the deep seated and systemic inequalities rife in our society.

Preamble

The Preamble in PEPUDA acknowledges the impact of colonialism, apartheid and patriarchy as a contributor of social and economic inequalities in South Africa, but fails to expressly acknowledge the role of socialisation in the oppression of the great majority of our people. Whilst the preamble refers to CEDAW, at the same time it fails to make adequate reference to the promotion of gender equality against the backdrop of human rights principles.

Recommendation:

Issues relating to socialisation should be included in the preamble. Greater emphasis should be placed on gender equality, by including a paragraph dealing specifically with gender equality.

Definition of prohibited grounds of discrimination

We wish to point out that some of the prohibited grounds of discrimination are not defined in Chapter 1 of PEPUDA.

Recommendation:

For the purposes of clarity, we would like to recommend that all the grounds of unfair discrimination be defined in the definition of the act, such as race, gender, sex, disability, ethnic or social origin, colour, sexual orientation, conscience belief, culture, birth and religion.

Legislative Responsibility of Reporting To Parliament

It is concerning that the CGE is to monitor gender discrimination, while we are not tasked with the legislative responsibility of reporting to Parliament on the extent to which gender discrimination persists. Section 28 of PEPUDA should be expanded to compel the CGE to report to Parliament on the extent of the measures taken by the State and society to address gender inequality.

Recommendation:

We would like to recommend that PEPUDA be amended to compel the CGE to report to Parliament annually, on the status of gender discrimination, as well as measures taken to address gender imbalance in society.

Interpretation of Act

Section 3(2) provides for the interpretation of this Act to take into account international law and international agreements; customary international law; any relevant law or code of practice in terms of a law; as well as comparable foreign law. No specific reference is made to domestic customary law, which is practiced locally, and indigenous to South Africa.

Recommendation:

Amend Section 3.2 (b) of the Act by inserting the word “domestic” to the clause to read: “international law, particularly the international agreements referred to in section 2, domestic and international customary law.

Additional ground of discrimination against women

The prohibition of unfair discrimination on the ground of gender seems limited to those listed under Section 8 of PEPUDA. This fails to take into account the psycho-social forms of discrimination against women, which impact on their dignity, and their right to substantive equality. The concept of discrimination should be broader than taking into account the material impact of discrimination, but should also acknowledge the social interaction and institutional context of structures which impacts adversely on women.

Recommendation:

The following be included as an additional ground under subsection 8(j) of PEPUDA : any other form of direct or indirect discrimination which impacts adversely on women.

Children

Section 8(d) refers to the dignity and well being of a girl child. We believe that the safety net for girl children should be extended to all children.

Recommendation:

The word “the girl child” be replaced by the word “children”

Prohibition of harassment

Section 11 prohibits anyone to subject a person to harassment. This section as it stands in the Act appears to be an after thought, and not clearly defined. Due recognition is not given to harassment in our country. It is recommended that this section be expanded to include, but not limited to, sexual harassment in the workplace, stalking, bullying or any other behaviour that impacts adversely on the dignity of a human being.

Recommendation:

The word “harassment” should be defined in Section 1 of PEPUDA. The definition should also make reference to cross cutting issues, e.g. the intersection between race and gender.

Prohibition of Dissemination and Publication of Information

Section 12 deals with the prohibition of dissemination and publication of information that unfairly discriminates. It is noted that, despite the fact that the purpose of the section is commendable, the section needs to focus more on the actual impact of the alleged discrimination on the aggrieved party. For example, many gender-related complaints about advertising are reported to the CGE, and we have noted that on many occasions, such complaints are dismissed on the basis of the absence of intent on the part of the respondent.

Emphasis should rather be placed on the impact of the alleged discrimination on the aggrieved party, rather than focusing on whether or not there was an assumed “clear intention” on the part of the respondent to unfairly discriminate. This would be in line with current constitutional interpretation approaches and substantive equality jurisprudence in terms of focusing on the actual impact on the aggrieved party.

Recommendation:

The focus should be shifted from the clear intention to discriminate, to the actual impact of the dissemination or the publication of information.

Protection of witnesses

PEPUDA fails to protect witnesses and complainants wishing to lodge complaints, or provide evidence in court. This has the effect of limiting cases of discrimination being processed in these courts.

Recommendation:

PEPUDA is to provide for the physical protection of complainants and witnesses in need of protection, at the expense of the state.

Legal Representation

People who appear before the court are informed of their right to legal assistance, and at times are referred to the Legal Aid Board or Justice Centres. They are rarely referred to Chapter 9 Institutions, who are obliged in terms of their mandate, to legally assist and support complainants in matters of discrimination. Whilst this is contained in Section 20(9) of PEPUDA, in practice, referrals to Chapter 9’s are rarely made, and in some cases it is dependent on the personality of the presiding officer. This principle should be consistently applied, and hence it is recommended that presiding officers must be legally obliged to refer persons requiring assistance to the relevant Chapter 9 Institution.

Recommendation:

It must be incumbent upon the state to refer unrepresented parties in matters before the Equality Court to Chapter 9 Institutions.

Indemnity of cost order

S21(o) of PEPUDA empowers the Equality Court to make an appropriate cost order against any party to the proceedings. Costs against litigants will, and have deterred matters of serious discrimination, for fear of an adverse cost order. This is one of the reasons for the limited number of cases before the Equality Courts. In practice thus far, it is arguable that in the majority of matters before the court, litigants have the material means. The issue of costs unintentionally perpetuates the inequality in society by excluding financially disadvantaged persons from taking matters to the Equality Courts.

Recommendation:

All persons including Chapter 9 institutions should be exempt from a cost order in matters before the Equality Court. Cost orders should only be granted in matters that are frivolous or vexatious.

Establishment of Equality Review Committee

S32 of PEPUDA provides for the establishment of an Equality Review Committee to advice and report to the Minister of the impact and operation of PEPUDA, as well as other laws that impact on equality.

To date, meeting procedures has not been developed, and this Committee does not meet regularly, which hinders the performance of this Committee.

Recommendation:

Meeting procedures should be formulated, which will assist in facilitating regular meetings of the Equality Review Committee.

Conclusion

As a result of our country’s notorious history with regard to discriminatory legislation, the constitution acknowledges that there were various forms of discrimination, such as race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Therefore the Constitution includes an equality clause in the Bill of Rights, which prohibits discrimination on various grounds. Women has suffered as a result of gender discriminatory laws and practices, and have also had to endure the additional burden of other forms of discrimination, such as race, gender, birth and colour etc. Positive steps must therefore be taken to prevent the hardships and effects caused by such discrimination.

The Equality Courts was established as a forum where South Africans can exercise and enforce their Constitutional Right to Equality. In order to ensure the effective functioning and impact of the Equality Act, the Public has to be informed about their rights to equality, as well as the various forums where these rights can be enforced. It is quite evident from our monitoring of the Equality Courts that these courts are not clearly demarcated and visible, even to the court officials employed at the court. This renders these courts almost inaccessible, and therefore ineffective in ensuring the promotion and protection of the right to equality. It is therefore imperative that we continue to raise awareness around issues of equality. The Promotion of Equality, and Prevention of Unfair Discrimination Act, is a step in ameliorating the position of women in our country.

[2] Constitution of South Africa, Act 108 of 1996.

[3] Constitution of South Africa, Act 108 of 1996.