ATC140324: Report of the Portfolio Committee on Women, Children and People with Disabilities Public Hearings on the Women Empowerment and Gender Equality Bill [50-2013], dated 5 March 2014.

Preamble

No inputs received

1

Definitions

CGE/Triangle Project/ International Liaison and Dialogue Research/SWEAT: Definition list must be extended to embrace LGBTI individuals

Yes

Definition of GBV to be amended to include acts of violence committed against LGBTI due to actual or perceived sexual orientation or gender identity.

CGE: recommends a broader definition of what constitute empowerment

Referring to Section 9(2) will lead to a narrow application of empowerment

No

The Bill focuses on women empowerment. The Department does not object to a revised definition of women empowerment. There is no need for a definition just on empowerment

Sonke Gender Justice ( Sonke )/ The Southern African Liaison Office: Definition of GBV should be extended to include acts of violence committed against LGBTI as they constitute a group of people disadvantaged by unfair discrimination historically and currently due to actual or perceived sexual orientation/gender identity

Definition excludes violence against LGBTI. Violence committed to LGBTI amount GBV as it is committed on the bases that the targeted person does not conform to socially and cultural gender norms.

Yes

The Department does not object to the inclusion of LGBTI in the definition

Sonke : Gender discrimination definition should be revised and must include LGBTI who are subjected to discrimination

As stated above, discrimination against LGBTI amounts to gender discrimination as the targeted persons failure to conform to socially and culturally accepted gender norms.

Yes

Definition may be amended to include sexual orientation and gender identity

Sonke /Business Engage:

- Gender equality be amended to explicitly state that women and girls constitute a group of people disadvantaged by unfair discrimination and that gender equality is sought to provide women and girls with equality in terms of rights and access which they continue to be denied

- Applied to gender non-confirming persons to afford equal rights and access to gender confirming persons

- Include the LGBTIs

The definition of gender equality is generally accepted but is also a gender neutral definition of the term.

No

Yes

The current definition is already aligned to that of SADC Protocol

The definition may be amended to include words “despite their sexual orientation and gender identity”

Sonke : Gender mainstreaming – the definition should be extended to ensure that women and girls’ needs must be prioritised through gender mainstreaming

The definition of gender mainstreaming is gender neutral, it omits to recognise women, girls and a group of people disadvantaged by unfair discrimination. This proposed extension will bring the Bill in line with Section 9(2) of the Constitution

No

The current definition is aligned to the SADC Protocol

Sonke / Retailer’s Association : substantive gender equality – should be amended to include reference to equality in terms of outcomes to accord it with the definition of substantive equality.

This is currently not in alignment with the definition of substantive equality, in that it does not speak to equality in terms of outcomes.

Generally substantive equality is refers to equality on substance rather than in form

The Department is of the belief that “in fact” includes the outcomes and it also includes substance, so it will still consider extending the definition

The Department will further include LGBTI in the definition of gender equality

Sonke : Women empowerment – this should be amended by including the definition of substantive equality this will align the Bill with the Constitution

The definition needs to be qualified in the context of the Constitution and the Bill

The Department will consider extending the definition to cover substantive equality

POWA/ The Southern African Liaison Office / Community Law Centre (UWC): gender – the current definition is limited, it fails to include LGBTI

No

LGBTI do not confirm to roles ascribed socially

Centre for Applied Legal Studies (CALS): women empowerment – use the UNFPA definition which reads as follows “women empowerment has five components: women’s sense of self-worth; their right to have and to determine choices; their right to have access to opportunities and resources; their right to have the power to control their lives both within and outside the home; and ability to influence the direction of social change to create a more just social economic order, nationally and internationally

While noting that the Bill refers to the Constitution Section 9(2), the term must be clearly defined in a manner that articulates the Ministry’s understanding of Women’s Empowerment and the ways in which the proposed positive measures will meet the needs of women; address inequality and remedy historically definition

Yes

The department supports the recommendation to be incorporated in the current definition

CALS: insert a new definition of discrimination against women – to be defined according to Article 1 of CEDAW – the terms shall mean any distinction, exclusion or discrimination made on the bases of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the bases of equality of men and women, human rights and fundamental freedom in the political, economic, social, cultural, civil or any other activity.

CALS urges to consider including a clear definition of discrimination

No

Not used in the body

CALS: Substantive equality – we propose that a broader definition be included

To be alligned to Section 9(2) of the Constitution

Yes

The definition may be extended to cover the outcomes

CALS: Additional – designated bodies – provide the definition or criterion to be used when designation of a public and private body is made

No

However, the Department will consider providing the criterion under Application of the Bill. New section: 2 (4) to be introduced to cover the criteria for designation.

CALS: Add new term – intersectional and multiple form form of discrimination

No

Not used in the body of the Bill

CALS: add new term Meaningful participation of women

Yes

The Department will provide a definition

Justice Alliance of SA: private body – churches that do not carry on trade should be excluded as they don’t fall under sub (a) and (b) some may fall on (c)

Yes

The Department does not object to exclusion of churches and charitable organisations in the definition. The Department suggests the inclusion of public benefit organization as defined in the Income Tax Act, 1962 (Act 58 of 1962)

FOR SA: private body –should exclude churches and charitable organisations

Yes

Definition to be revised to exclude churches and charitable organisations

BWA: Definition of discrimination must be deleted

The Bill refers to the definition in PEPUDA, it is better not to use separate definition by rely on Constitutional definition of discrimination

No

The definition of discrimination in PEPUDA is broad enough and aligned to Section 9 of the Constitution

Legal Resource Centre (LRC)/ BWA: Substantive gender equality – this definition must be deleted or amended

The definition does not cover what is generally regarded as substantive gender equality

Yes

The Department will consider revising the current definition

Tshwaranang : many of the definitions in the Bill are weak, unclear and seem contrary to the promotion of women empowerment, these include terms like gender equality and gender mainstreaming

The definition on gender mainstreaming is aligned to SADC protocol. The definition of gender equality will be amended

POWA: Women empowerment should also include the advancement of women by other legislation, international and regional treaties

No

The Department will align definition to the UNFPA as it is generally accepted

LRC: Gender definition is not aligned to the one provided in the constitution and the Bill excludes LGBTI

Yes

The definition may be reviewed to include LGBTI as above

Vodacom: define designated private body and designated public body

Yes

The department proposes that the definition to read designated private body and designated public body refers to public and private bodies designated in terms of clause 2(2) and (3)

Vodacom: Define Decision Making Structure

Yes

The Department suggests to revise the definition to include in text “decision making position and structure” in order to cover both formal and informal

Centre for Constitutional Rights: gender equality must be revised

definition contradicts clauses 3(e) and 4(1)(c)

No

There is no contradiction as the term progressive realisation is referred to in the Constitution. The Department is of the opinion that it will be unrealistic to expect designated bodies to meet 50% representation immediately.

Centre for Constitutional Rights: Definition of gender equality appear to conflate women’s’ empowerment with gender equality and has a different meaning to that in PEPUDA

No

Definition is aligned to the SADC protocol

Retailer’s Association: definition of discrimination is not provided and should be and be aligned to that of the Constitution

No

Definition is provided, refer to Section 1 page 9

Retailer’s Association : Gender mainstreaming definition must be adjusted to cover gender issues rather than other broader concerns that although legitimate but beyond objectives of the Bill and what is generally regarded as forming part of the Bill.

No

Aligned to SADC protocol

Centre for Law and Society: supports clause 1 and states that it remains an important and admirable goal

Noted

WARD: Supports this clause

Noted

2

Application of the Bill

Centre for constitutional Rights; CALS; BUSA: provide criteria/guidelines to be used by Minister to designate private and public body

Yes

The department proposed that a criteria be provided as a new clause 2 (4) and will be aligned to the thresholds outlined in the Employment Equity Act however may include local government and SA Defence Force who are excluded in the referred Act

CGE: Bill duplicates some functions assigned to CGE in terms of the CGE Act

No

The Ministry and the CGE have different roles and responsibilities.

The mandate of the Minister is women’s empowerment which is a means to gender equality. The Ministry also facilitates the implementation of gender mainstreaming in the public and private sector. The Minister further develops guidelines and codes of good practices. The Ministry conducts research, monitor and evaluate to develop policy as instructed by the President. The Ministry sets women empowerment and gender equality on the agenda of Cabinet. The minister is a member of Parliament, votes and places women empowerment on the agenda of parliament.

The Constitutional Mandate of the CGE is to promote the respect for gender equality and protect and develop the attainment of gender equality. The CGE Act further affirms the independence of the CGE and requires it to monitor and evaluate practices of organs of state, at any level, statutory bodies or functionaries, public bodies and private business, enterprises and authorities in order to promote gender equality. The Constitution states that the CGE is accountable to the National Assembly. Section 15(2) of the CGE Act requires the CGE to report annually to the President.

Parliament has in its possession a National assembly report by the Ad hoc Committee on the Review of chapter 9 and Associated Institutions, 31 July 2007. See also attached a document CGE Memorandum on the Legal Mandates of the CGE and the Ministry of Women, Children and People with Disabilities (Annexure 2) developed by CGE that clarifies separation of roles between the CGE and the Ministry.

Sonke : The EEA and PEPUDA covers what the Bill is addressing. The Bill duplicates the powers of the Minister of Labour and of Justice

No

The Bill elevates women in these Acts as a priority for the relevant Departments. The Department is not an implementing body so the honours will be for those departments to implement empowerment and equality matters. Chapter 5 of PEPUDA is not yet promulgated so there is no duplication.

Sonke : Clause 2(2) Should mandate proper costing and budgeting for women empowerment and gender mainstreaming of designated bodies

Concerned about the use of the term progressive realisation. This means that provision of right will be linked to availability of resources.

Yes

The plans contemplated in clauses 4, 5, 6, 7, 8, 9 and 11 and 12 will incorporate budgets for women empowerments and gender mainstreaming

JASA: The Bill must provide proper and adequate guidelines on how to designate public and private bodies.

Clauses 2(2) and 2(3) do not provide the guidelines as to the exercise of this discretion

The Department will consider providing the criteria for designation

Cause for Justice: it imposes burdensome obligations on designated public and private bodies. Bodies should be allowed to opt out or dispute their designation based on their existing policies, measures and statistics regarding the promotion of women in their organisations.

No

Legislation cannot be influenced by policies of public and private bodies

Business Engage; FOR SA; Joshua Generation Church; The Anglican Catholic Church; Crystal Park Baptist Church; AGS: juristic person includes churches, Churches/religious organisations and charitable should be excluded in the application of the Bill

Yes

The Department is proposing amendment of the definition of private body to exclude churches, charitable organisations and religious organisations to be aligned to the Income Tax Act .

Cause for Justice/Vodacom/ BWA: There is no clarity with the organisations that would have to comply with the provisions of this Bill.

The application of the Act is out of sync with the provisions of the Constitution which provides that Action by the State must be lawful, reasonable and procedurally fair.

No

Criteria of designation will be provided

Women in Agriculture & Rural Development (WARD): Support the clause in its current form

Noted

CGE : The Minister is accorded unlimited discretion to designate any public or private entity subject to her jurisdiction. Such a provision is overbroad, therefore the Bill fails the test of legality and certain sections fall to be unconstitutional.

No

The Department proposes that a new subsection be included as 2 (4) to cover the criteria Minister will use when designating. The Department has further proposed exclusion of certain private bodies. There will thus be no unlimited discretion accorded to the Minister

BUSA: The word ‘may’ in sub clauses (2) and (3) should be replaced with ‘must’

Yes

The Department proposes that the word be substituted as per recommendation

WARD: Supports this clause

Noted

3

Objectives of the Bill

WARD: Support the clause in its current form

Noted

Cause for Justice: Provide the public with relevant statistics that proves the need for the Bill

Yes

See the Statistics SA report Number 03-19-00: “ Social Profile of Vulnerable Groups in South Africa, 2002 – 2010 ” released December 2011 which proves that women need an intervention to ensure that they benefit from all laws and programmes on development and empowerment, the report is attached as annexure 3

Vodacom: Support the objectives of the Bill, but suggests that it would be more beneficial to address root-causes of under-empowerment such as poor education, unwanted teenage pregnancy and domestic violence.

The WEGE Bill is not congruent with sections 42 and 63 of the EEA because they provide for a different representivity requirement

No

The Bill seeks to address Protective Discrimination legislation that prevented women from participating in some sectors

Business Engage: clause is misleading as designated bodies may not have obligations in terms of the country’s commitments to international agreements.

Yes

Will consider to exclude private bodies from international agreements wherein these have not been domesticated

Centre for Constitutional Right : notion of a minimum 50% representation and meaningful participation of women in decision making structures is problematic and anomalous for two reasons: Section 3(e), 4.1 (c); 9.1 and 10.1 imply that the Bill essentially seeks to achieve more than 50% representation

The Constitution seeks achievement of substantial equality, the opportunity and means to be equal within an environment not precise demographic representation. There is thus no Constitutional ground for demographic representation in any area other than in a balanced manner in the public administration and composition of the judiciary.

No

The Constitution does not define measures in Section 9(2) but these measures should not be limited to public administration and composition of judiciary but extend beyond these.

BUSA;

The Objectives of the WEGE Bill are unrealistic. The Bill imposes further regulatory provisions that will deter investors and compromise economic growth.

No

The Bill seeks to attain gender equality through empowering women

POWA: Protocol to the African Charter on Human and Peoples Right on the Rights of Women in Africa must be included in the objectives

Yes

The protocol will be included

Centre for Law and Society: supports clause 3 and states that it remains an important and admirable goal, however the Minister has no powers to enforce compliance

Clause 3(d) must provide that the plans to be submitted by the designated public and private bodies must be consulted with women to incorporate women’s needs

Women need a justiciable mechanism through which the Ministry can intervene and compel compliance where women complain about their experiences of public or private bodies’ disregard for gender equality

The Bill in its current form envisions the equality and women empowerment plans emanating from the top levels and implemented downwards, without consideration for the actual needs of women on the ground

Yes

No

No objection, the Department suggests amendment of enforcement clause

This is covered by clause 8 (3) which state that the policies, plans, programmes must be approved by the GFP in the case of public body and by the Accounting Officer in the case of Private Body

CALS: Urges the Ministry to engage with the South African Law Reform Commission (SALRC) with a view to assessing the need for a legislative audit which would ultimately inform the objectives and contents of the WEGE Bill.

In the introduction of CALS submission, it acknowledges and commends the efforts of government and in particular the Ministry of Women, Children and People with Disabilities’. It notes under the objectives, various items of legislation relevant to issues addressed in the Bill.

No

The existing national and international research report show poor implementation of legislation. The Bill’s objectives are informed by research report.

SWEAT SISONKE: The objectives must include sex workers

The objectives exclude sex workers. The Bill creates a dichotonomy between women employed in the formal sector and those in the informal sector e.g. sex workers, domestic workers, farm workers whose work is not fully protected by the constitution

The Sexual Offences Act 32 of 2007 criminalises sex work and the Bill systematically excludes sex work from government’s attempt at women’s empowerment and gender equality.

Clause 3(e) is specifically tailored to benefit women who are already employed within the formal sector both in public and private sector

No

Yes

The DOJCD is in the process of developing legislation on prostitution and has already published a discussion paper (SALR Project 107, Adult Prostitution). Inclusion of this will constitute duplication.

Additional text to cover other structures (including community structures) including boards that take decisions .

Community Law Centre (UWC): Objective 3(g) is weak; it does not directly articulate the necessity to address the widely held notions of women’s inferiority or to correct patriarchal prejudices and perceptions.

The Bill or other strategies of the Ministry articulate more strongly that patriarchal values and systems are a driver of women’s inequality, disempowerment and exclusion; articulate that patriarchal norms continue to vex the implementation of existing laws, policies and programmes that could make meaningful differences in the lives of women, girls and gather gender non-conforming people.

Ministry develop a costed strategy and provide guidance to other relevant government departments across spheres to develop their own strategies to challenge patriarchy within these spheres and across society.

Yes

The Department recommends text that will include a new clause that prohibits practices that discriminates on the ground of gender

BWA: In order to achieve its objectives, the Bill should focus on the core areas of concern where other laws do not currently provide for sufficient rights and measures to address women empowerment and gender equality.

JD Group, Group Legal and Compliance : Clause 3(e) is open ended in that it provides for ... “progressive realisation of a minimum of 50% representation ...”without clarity as to what progressive means, whether in times of time frames or otherwise.

No

Due to difference in sectors, the time frames will be included in the Notice for designation

Tshwaranang : The Bill makes reference to a broad scope of legislation which will need to be aligned. However, how this will happen is missing

Retail Association: The objectives are generally supported, but concern is raised that the objectives referred to in paragraphs (b), (d), (e) and (f) apply to undefined designated bodies. It undermines certainty and the objectives of the Act.

Business Engage: Designated private bodies do not have any obligations in terms of the international instruments

Business Engage: With regard to the submission of plans, it is not clear what “consideration, evaluation and guidance” means

It is not clear also how long after the submission of plans would the Minister consider, evaluate and guide.

WARD: Supports this clause, however, the objective should include the requirement that when the public body build’s roads or erect taps in rural areas, they must consult with communities, especially women on where the road should cross and where the tap should be erected

4.

Education and Training

Community Law Centre (UWC): The section fails to achieve what it could

The clause must be amended to include a sub-clause requiring evidence-based communication and education strategies across government departments, including the public broadcaster. These strategies must challenge entrenched beliefs of women’s inferior status.

Yes

However the recommendation is that this be incorporated under clause on public education

BUSA: The Bill fails to state how the plans and measures will be considered to have complied with the provisions of the applicable legislation and international instruments

The Minister must be obliged to establish standard plans and measures that the bodies must comply with

The Bill gives private bodies far reaching social mandate

The Bill fails to clarify which women are being referred to in this instance, which leaves the public and private bodies confused as to whether it refers to employed women or women in general including those unemployed

Section 4(1 )( c) will prove to be a challenge to implement and enforce because traditionally women have not been attracted by professions that are labour intensive.

Yes

Yes

The proposal will be considered

The Bill refers to women in all walks of life

POWA: LGBTI people should be included and protected from dropping out as a result of pressure and stigma

Yes

It is proposed that clause 4 (1) (e) be amended to include a sentence to end with women including the LGBTI

Voice Movement Therapy Eastern Cape: This section is designed for the elite group.

Home Based Care Givers must be trained.

No

It is not designed for the elite. The Department recommends the amendment of clause 4(1) to read as follows: “designated public bodies and designated private bodies must within their ambit of responsibility develop and implement plans and measures in compliance with applicable legislation to...”

Home Based Care Givers will dully fall under Department of Social Development and of Health

Retail Association: The obligations under this section are unclear and require definition.

No

Refer to the above recommendation on clause 4(1)

Nozibusiso Khambule : Expose rural women to be able to participate in the education of their children, establish exchange programmes with urban areas.

The Department will consider this

Cause for Justice: delete “...address the pervasive discriminatory patriarchal attitudes and lingering effects of apartheid faced by women in the education system...”

No

Women still experience the effects of apartheid and patriarchy despite democratic dispensation.

Sonke : Include education and training of men and boys to shift their gender inequality conduct and attitudes, the curriculum should include the importance of women’s human rights and the history and context of unfair discrimination against women.

Implement multi-faceted inter-departmental efforts to prevent violence against women and girls.

Yes

The Department does not object

Vodacom: remove this obligation from the private bodies

No

The Department proposes amendment to clause 4(1) to read as follows: designated public bodies and designated private bodies must within their ambit of responsibility develop and implement plans and measures in compliance with applicable legislation to...

Business Engage: The Companies Act does not mention training and education

No

May be required to be amendment

WARD: Supports this clause because it provides that women should be trained and empowered to take up decision making positions in formal and informal sectors, it will also provide an opportunity for training women with disabilities who did not get an opportunity to go to school

Noted

BWA: The Bill contradicts the Constitutional right in section 29 (1) which provided for an absolute right to basic education in that the WEGE Bill provides for progressive realisation of rights

The Bill creates onerous obligations to the private designated bodies

Section 29 (1) (b) talks to progressive realisation of rights with regards to further education

It is not onerous if the recommendation is in the ambit of their responsibility –this is what the Bill contemplates.

5.

Access to health case, including reproductive health.

Community Law Centre (UWC): The Bill takes a cautious approach in various clauses making reference to concepts such as “within available resources” clauses 5(1) and 10(3) and progressive realisation” clause 12(1). This approach fails to underscore the importance that should be placed on promoting changes in the lives of more than 50% of our population. It also perpetuates one of key issues that has hampered the implementation of existing law and policy.

Remove words such as “within available resources” and progressive realisation of”

No

Requiring public designated bodies and private bodies to attain this requirement immediately will be unrealistic

BUSA: Access to health care and reproductive health remains the responsibility of the public body

Recommends that the private body be excluded from this responsibility

No

The department proposes amendment to clause 4(1) read as follows: designated public bodies and designated private bodies must within their ambit of responsibility develop and implement plans and measures in compliance with applicable legislation to...

Voice Movement Therapy Eastern Cape: Mobile health facilities are strongly needed.

Yes

The Department has no objection

BWA: Section 27 (2) of the Bill of rights in the Constitution requires the state to take reasonable legislative measures within the state’s resources to achieve progressive realisation of health care, food, water and social security

The WEGE Bill undermines the Constitution in this regard as the current measures in addition to be vague, hold the potential to create very unreasonable and onerous obligations to designated bodies

No

See clause 5, there is no contradiction as the Bill requires designated bodies to provide these according to their available resources

Retail Association: No guidelines for submission of plans and the Bill does not refer to resources for the evaluation of plans

Clarify the international instruments referred to.

Yes

During the notice of designation will provide this

Nozibusiso Khambule : Empower and inform women in rural areas about health issues and the consequences of not using health facilities and their resources, most blame witchcraft due to lack of health empowerment.

Yes

The department has no objection

Cause for Justice: DWCPD provide research facts indicating that women have less access to health care than other groupings in South Africa.

Define ‘reproductive health’

Clause 5 should be redrafted to provide protection for bodies’ rights to freedom of conscience, religion, thought, belief and opinion and the right to freedom of association.

Yes

See attached Report prepared by DWCPD on Gender Statistics on Service Delivery as Annexure 4

Sonke : Section 5 should be amended to:

· Mandate the Minister to publish a fully costed and budgeted women’s health policy in the Government Gazette within a year from the passing of the Bill into law which includes directives for healthcare service providers on service delivery and provides guidance for the development of healthcare models and accompanying implementation plans

· Mandate Minister to conduct a thorough consultative process with healthcare professionals, public health specialists and NGOs providing services to and advocating for women’s rights to healthcare to inform the women’s health policy

· Mandate public and private bodies to develop models and implementations to increase men’s utilization of and access to healthcare services, include directives in this regard

Yes

NO

No

The department has no objection

No need to conduct this through legislation

No need to conduct this through legislation

WARD: Supports this clause because it will address the challenges women in rural areas face in terms of access to health and reproductive health, these include:

· Clinics that a very far from the communities;

· Lack of transport; women end up giving birth in the street while travelling to the clinics

This section will facilitate the return of among others, the:

· Midwifery system

· Family planning clinics,

Noted

6.

Public education on Prohibited practices, including gender based violence

Community Law Centre (UWC): This clause is weak, it does not directly articulate the necessity to address widely held notions of women’s inferiority or to correct patriarchal prejudices and perceptions

No

See recommendation on training of prohibited practices

CGE: Does not support this clause

Noted

BUSA : It is a momentous task for business

Government, especially the Department should have programmes that drive this kind of education as it falls squarely within its mandate

Replace ‘may’ with ‘ must’under clause 6(2)

Yes

The Department has proposed revision on this clause to add text as follows: “designated public bodies and designated private bodies must within their ambit of responsibility develop and implement training plans and measures in compliance with applicable legislation to...”

POWA: Commends the Bill for including this section, but it fails to take into account the existing challenges with regards to the implementation of gender based violence (GBV) related legislation such as the Domestic Violence Act, 1998 and the Criminal Law (Sexual Offences) Amendment Act, 2007, which includes but not limited to negative attitudes within the criminal justice system which often discourages survivors of GBV from further reporting.

The Bill does not take into account challenges relating to the LGBTI people more importantly acknowledge the killing of lesbian women as a serious violation of this provision.

Noted

The issue of LGBTI is already addressed under definition

Retail Association: No guidelines for submission of plans and the Bill does not refer to resources for the evaluation of plans

Clarify the international instruments referred to.

Noted

Sonke : Include education and training of men and boys to shift their gender inequality conduct and attitudes, the curriculum should include the importance of women’s human rights and the history and context of unfair discrimination against women.

Implement multi-faceted inter-departmental efforts to prevent violence against women and girls.

Noted

NO objection

WARD: Supports this clause because public education will empower women to make informed decisions – information is power

Noted

7.

Equal Representation and Participation

Community Law Centre (UWC): Duplicates existing laws

The Bill must not duplicate existing legislation, it must address the failures of implementation

No

Bill does not seek to duplicate existing legislation

CALS: Clause 7 does not necessarily address the persistent inequality between men and women, the economic and social privilege that certain groups of women enjoy as a direct result of apartheid policies and will not benefit women who are unemployed and working in the informal sector.

Yes

The department has no objection in incorporating race, gender and other disadvantaging factors

Centre for Law and Society: The formal requirement for 50% representation of women and equal access to opportunities within public and private bodies appears to be advancing the position of women, however they do not guarantee that women will enjoy equal outcomes.

Formal equality requirements are particularly dangerous when coupled with weak enforcement mechanisms, as is the case in this Bill.

Noted

CGE: The Bill addresses challenges faced by a small percentage of women in South Africa, namely, those that are in employment or participating in public life and as a result speaks to a limited set of difficulties they continue to experience.

It does not address the challenge to empowerment and equality experienced by the majority of South African women, namely those unemployed, located in rural areas or vulnerable sectors of the economy.

Yes

The department recommends amendment to include decision making position, structures (including community) and board

CGE: No timeframe is set for implementation of the plans and measures

NO

The time frames will be according to the notice of designation for that particular sector. It will be impractical to have similar timeframe for all sectors

BWA: Progressive realisation of substantive equality is supported

The establishment of numeric targets does not reflect the provisions of the constitution in Section 9(3) which provide that the State may not unfairly discriminate against any person on a number of grounds, including sex and gender.

This section also appears to contradict the EEA and the BBBEEA which strives for demographic representation, both regionally and nationally relative to the economically active population

Noted

Section 9(2) in the Bill of Rights of the Constitution provides: equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons disadvantaged by unfair discrimination may be taken

The Bill does not seek to duplicate these Acts but elevate to elevate And provides for the targets of all legislation and should be aligned in terms of the SADC Protocol on gender and development.

POWA: Commends the Bill for including this section and its inclusion of the definition of discrimination which is in line with the CEDAW definition.

Concern is that the obligations to progressively realise the minimum of 50% are similar to those provided for in the EEA. It is not clear how the Bill seeks to overcome the existing challenges relating to the submission of the Employment Equity plans which include the representation of women with designated plans.

Support the Bill however it needs to define ‘meaningful participation’ to provide guidance on the very designated stakeholders in developing their plans and promoting gender equality.

Recommends a thorough analysis of existing legislation be conducted in this regard to avoid duplication thereby taking into account of challenges with these. Laws

This will deepen substantive equality vision.

Noted

No

Yes

Many government and civil society institutions have conducted analysis on the implementation of the existing laws on women empowerment, gender based violence, health, education, land and housing, access to fair labour, alcohol consumption and HIV, unpaid work and other areas. For example, the following website among others, have many research reports on these topics, therefore it is critical to start implementing rather than duplicating research that has already been conducted:

1. http://www.labour.gov.za/DOL/documents/annual-reports/Commission%20for%20Employment%20Equity%20Report/2012-2013/annual-report-comission-for-employment-equity-report-2012-2013

2. http://www.health.gov.za/

3. http://www.mrc.ac.za/gender.reports.h

4. http://www.csvr.org.za/index.php/publications.html

5. http://www.genderlinks.org.za

6. http://www.hsrc.ac.za/en/research-outputs

The EEA does not address progressive realisation

No objection

Gun Free South Africa (GFSA): Welcomes this section and recommends that the two public bodies/ key positions responsible for firearms control are specifically identified, namely the Firearms Appeal Board and the Designated Firearms Officers

No

Bill is not the right tool to legislate this

Voice Movement Therapy Eastern Cape: This section in its current for serves the interest of the upper class.

Other measures must be incorporated that would be helpful even to the poor of the poorest

Noted

Retail Association: Progressive realisation is supported

The target for a minimum of 50% representation is discriminatory and unconstitutional

The provision to submit plans lacks structure, detail and content.

The obligations are excessive, given the limited ability of the implementing departments to monitor and enforce such plans.

The provision that ‘despite any other law’ is irregular as the law that can supersede other laws is the Constitution. This provision weakens existing laws which may overlap with this provision

Noted

No

Noted

Noted

NO

Section 9 (2) provides ... for measures designed to protect and advance persons or categories of persons disadvantaged by unfair discrimination. Measures include quotas

The Department has no objection

The Bill requires other Act to align other the quotas

Cause for Justice: legislating substantive equality is to divorce equality from reality and human dignity. To impose an arbitrary percentage, 50% or any other percentage is to force choices onto people, thereby preventing them from making their own choices and consequently infringing on their right to human dignity.

Noted

Sonke : Clause 7(1) raises the Concern about the use of the term progressive realisation. This means that provision of right will be linked to availability of resources.

Measures set out to attain 50% representation and participation should be amended to provide more details as follows:

· Women’s capacity to participate must be built through the provision of long-term management and governance training – clause 7(1)(a)

· Communities understanding and attitudes to acceptance of women’s capabilities and participation must be enhanced through capacity building and training on women’s human rights, historical and contextual training on unfair gender discrimination and training on gender sensitivity – section 7(1)(b)

No

The descretion will be according to the notice of designation for that particular sector. It will be impractical to have similar timeframe for all sectors

Business Engage: The target foe laws and policies on women empowerment and gender equality should be based on a broad representation of society rather than an apparent mandatory minimum percentage

Noted

Section 9 (2) provides ... for measures designed to protect and advance persons or categories of persons disadvantaged by unfair discrimination. Measures include quotas

WARD: Supports this clause, however, it is recommended that it should include a sub-clause that mandates all infrastructure development in the rural areas to consult with the communities, especially women on the building of roads and erection of water taps.

The department does not object

8.

Gender Mainstreaming

Community Law Centre (UWC): The word ‘may’ in clause 8(2) indicates that it is discretionary

Yes

The department has no objection to changing

CGE: No time frames set

The assignment of accountability for implementation of gender mainstreaming must be covered by relevant regulation under the Act in terms of effective monitoring and evaluation mechanisms.

The time frames will be according to the notice of designation for that particular sector. It will be impractical to have similar timeframe for all sectors

Wits Institute for Social and Economic Research ( WiSER )

The responsibility for monitoring gender mainstreaming should be given to the DPME which has the capacity to monitor

Noted

The Southern African Liaison Office: Recommends simultaneous mainstreaming of gender and women with disabilities

Yes

No objection

BWA: The provisions to support gender mainstreaming are vague

Noted

Retail Association: The application of this section is problematic and unclear

No

Section 8 (6) contemplates publishing of guidelines that will clarify application of this clause

Cause for Justice: Clause 8(2)(c)(ii) be specific about the “disparities” referred to

Noted

Sonke /Business Engage: replace the word “may” with “must”.

The Minister should be obliged to develop guidelines within a year of the passing of the Bill

Yes

No objection

Business Engage: Why should the policies, plans, programmes and strategies be approved by the Accounting Officer of the private body?

What is the penalty for non-compliance

NO

The Accounting Officer may delegate this responsibility to the person responsible to women’s empowerment

WARD: Supports this clause – if gender is mainstreamed in all service delivery, women would benefit from the efforts of transformation

Noted

9.

Measures to empower women and eliminate discrimination

Community Law Centre (UWC): In spite its title “Measures to empower and eliminate discrimination” it contains no provisions to challenge or address patriarchal value systems in South Africa.

Will impact on the lives of women in formal employment, it includes little to address the opportunities and empowerment of women who are unemployed or working in the informal sector.

Support clause 9(4)(c)(iii) however it should have been the starting point

- Provide guidelines for implementation of programmes to challenge patriarchy

- Establish accessible and effective complaints mechanisms and other strong strategies to monitor and enforce the implementation of existing laws

Recommends the institution of a comprehensive audit to evaluate the gaps in current legislation and policy relating to all areas of women’s lives, such an audit must also identify which failures are the result of poor implementation.

Yes

The department does not object to inclusion of women in informal and provisions to address patriarchy

CGE: Does not support the Bill in its current form because there is no checks and balance provided to protect entities which may be faced with legitimate constraints such as a shortage of skills and operational requirements.

No certainty is provided for compliance. The situation will be exploited by entities which will only develop plans and not fulfil their substantive obligations and then rely on the loophole provided for their non-compliance.

Appropriate check and balance in the form of clear guidelines in the regulations as provided for in clause 19

CGE recommends that a time frame of three years after promulgation be inserted for full compliance with this clause

Yes

Minister may develop guidelines to address checks and balances

It is unrealistic to provide uniform timeframes for all sectors

Retail Association: This section sets targets of representation with no relationship to the proportion of women in the relevant group. It also purports to override other legislation, this is irregular and creates uncertainty

Noted

Cause for Justice: Propose that clause 9(4)(a) be deleted, alternatively be amended to include the words “over which it has full control” after the word “circumstances’

NO

The department object to deletion but does not object to amendment to include the words “over which it has full control”

Sonke : Under clause 9(9) replace the word “may” with “must”.

Yes

The Department has no objection

Vodacom: The Bill is requiring high levels of representation, because the demographics of the economically active populations are such that there are only 46% active women

Propose that the level of representation be according to the demographics of the economically active populations, 46% active women

Noted

WARD:

· We support clause 9, however there areas that are of interest to WARD which it does address – for example, women empowerment includes consultation if a road is to be built in an area, currently we see officials coming to tell us that they are demolishing your house because the planned road will go through your house

• We are not consulted when a communal water tap is erected, normally it is erected outside the houses

Yes

The department supports inclusion of consultation with women on decisions to develop infrastructure in their communities.

WARD:

• A key-contributing factor to women's inability to overcome poverty is lack of access to, and rights in, land. Discriminatory customary and social practices are largely responsible for these inequities.

• Where women have been allocated land due to the land reform process, water rights still belong to the former owner therefore food security is negatively impacted upon.

• The Department of Rural Development and Land Reform land audit report that was presented on the 23th October 2013 reveals that of the 22,726,252 ha owned by men women only own 5,191,159. This is actually a quarter of what men own.

• Therefore the Bill must be specific that women should have access to 50% state owned land and communal land

• Women must also access funds to acquire and till the land

• we recommend that clause 9(6)(a) be expanded or a separate subsection be added that focuses on women’s access to natural resources, especially land.

Noted

No objection

10.

Economic Empowerment

The CGE does not support the Bill in its current form because of an absence of proper benchmarking and an inability to define women’s economic empowerment clearly.

It is envisaged that lower interest rates, soft loans and subsidised financial products that are linked to economic development of women would be relevant measures in this regard but they are not enumerated in the Bill.

The Ministerial guidelines in regulations under the Act would provide greater clarity

Noted

The guidelines will seek to provide clarity in this regard

Retail Association: This section potentially has the most impact, but it lacks sufficient details to be effective.

Noted

Sonke : Under clause 10(6) replace the word “may” with “must”.

Yes

The department does not object

Vodacom: Consider the fact that the pool of economically active, suitably skilled and qualified women may be insufficient to achieve the prescribed target

Noted

WARD: We support clause 10 , however, we recommend that it should also provide for the establishment of the Women’s Fund or Women’s Bank

Yes

No objection

11.

Socio economic empowerment of women in rural areas

Centre for Law and Society: Clause 11 claims to trump all other laws, however, it provides no remedy for women who have been aggrieved by a public or private body’s non-compliance with the requirements to facilitate sustainable livelihoods and decent work for women, ensure land in the hands of women, improve conditions for women on farms, and ensure equal representation of women in traditional councils (clause 11(1 )( a)-(d).

Weak enforcement undermines this clause.

Yes

The Department will amend the clause on enforcement and will also collaborate with the CGE.

CGE: The rights of rural women continue to be subdued by skewed land ownership, limited access to credit and constrained opportunities which inhibits their economic empowerment alongside rural development.

The Bill fails to address this issue which is set out in article 14 of CEDAW

The CGE supports this clause

Recommends that the Minister be obliged to provide guidelines to achieve compliance with the proposed provisions

Noted

No objection to recommendation

Voice Movement Therapy Eastern Cape: The scarcity of water in rural areas makes it impossible for women to initiate organic gardens even at their backyards.

Some other parts of rural areas have no electricity

noted

Legal Resource Centre: The Bill makes a serious assumption that women in rural areas live in farms or are married to men working on farms or seek access to agricultural land. Women in rural areas are not a homogenous group of individuals, the problems they face in respect of gender equality and empowerment are not all related to land and farm work.

Section 11(d) further cements the plight of women in rural areas to work under or submit to traditional leadership, which is steeped in patriarchal principles and believe systems.

It is silent on how this representation must be achieved and what should happen in the event of non-compliance

No

Clause 11 (1) (a) states that the Bill is not limited women in farms. Clause 11 is a matter of emphasis, women in rural areas benefit throughout the Bill

Urban & Rural Women: Empowering women and girls in rural areas on free basic services is very critical – provide transport and closer supply of water.

No

Refer to clause 16

Retail Association: There is considerable scope to promote community initiatives and advocacy to achieve the objectives of the Bill. This provision should be clearly articulated with obligations being clearly defined and capable of interpretation.

Yes

No objection to the inclusion

Cause for Justice: Explain “sustainable livelihoods and decent work for women...” in sub clause (a)

No

It is only defined once in text

Sonke : This clause is silent about issues of poor access to government services for rural women which persist as a problem

Add an item on access to government services including healthcare, police and the justice system.

Yes

No objection to add item on access to government services

Vodacom: Provide guidelines on what is expected

Noted

Business Engage: This clause may not apply to many private bodies

WARD:

· We support clause 11 however we want it to specifically address issues of access to water, health care, electricity, roads, schools, transport, communication networks,

• Women in the rural areas have no access to news papers therefore cannot even know about tenders because they are advertised in news papers and the website, we want the Bill to incorporate this in the tender processes

Noted

No objections

12.

Socio economic empowerment of women with disabilities

CGE: Supports this clause

Recommends that the Minister be obliged to provide guidelines to achieve compliance with the proposed provisions

Noted

Voice Movement Therapy Eastern Cape: Disabled women are more vulnerable than any other group. They are the target. They are also being raped .

Noted

The Southern African Liaison Office: Welcomes the recognition of the intersectionality of women and disability however, it should not be limited to socio-economic empowerment alone, it should highlight the double burden of women with disabilities

Yes

No objection

Retail Association: There is considerable scope to promote community initiatives and advocacy to achieve the objectives of the Bill. This provision should be clearly articulated with obligations being clearly defined and capable of interpretation.

No

The Department recommends that words should be added to include “within their level of responsibility”

Cause for Justice: Provide research facts that women with disabilities are currently worse of than men with disabilities

Yes

See attached report prepared by the Department on Gender Parity between men and women with disabilities (Annexure 5)

Sonke : This clause is silent about issues of poor access to government services for rural women which persist as a problem

Add an item on access to government services including healthcare, police and the justice system.

Yes

No objection to add item on access to government services

Vodacom: Provide guidelines on what is expected

Yes

Guidelines may de provided as provided for in clauses 17 and 18

13.

Powers of Minister

CGE: The Bill creates uncertainty regarding the powers of the Minister in relation to the CGE, in contravention of protection of the latter by the Constitution.

Supports the clause on collaboration with certain entities, however the nature of this relationship is not clear.

No

No duplication because the Minister regulates where as CGE does not have this power

The department does not object to collaboration. The CGE does not implement, so the collaboration will be in the areas of monitoring, investigation and enforcement.

Sonke : obligate Minister and CGE to collaborate on matters concerning women’s empowerment and gender mainstreaming and set out the areas of cooperation

Noted

Vodacom: The WEGE Bill makes reference to delegation within the Department and not to Inter-Departmental delegation

14.

Guidance by Minister

Community Law Centre (UWC):

Recommends that various departments responsible for implementing existing legislation, policy and programmes must be required to implement effective public awareness campaigns regarding the content of the existing legal framework. The campaigns must ensure that information is provided in local languages using local radios, print and social media platforms.

Recommends that training of government officials on the content and duties ascribed through existing legislation be prioritised

Yes

Department does not object However the recommendation is that it be entertained in clause 4(4)

CGE: The CGE supports this clause in its current form

Noted

Retail Association: This clause lacks substance and clarity

The guidelines contemplated will provide additional clarity

Vodacom/Business Engage: Define guidance

No

Use the dictionary meaning of

15.

Gender Units and Accountability

Community Law Centre (UWC): the requirement clause 15(1) that the appointment of GFPs be at senior management is one step to the right direction, however the word ‘senior’ is open to some interpretation

The provisions in clause 15(3) that the Minister may make regulations to set out the qualifications, skills and duties of GFPs is supported

There is no reporting requirement in clause 15

Recommends that ‘may’ be replaced by ‘must’. The provisions of clause 15 depending on the content of the regulations contemplated in clause 15(3) should assist in addressing some of the failures in previous attempts to entrench a system of GFPs in government departments.

Recommends the inclusion of the reporting requirement and that it should be mandatory to report on the annual report

No

Senior Management Service in terms of Public Service act is clearly defined thus not open to interpretation

CGE: Does not support the time frame of three years, it should be reduced to one year

Yes

The Department has no object ion to reduce the time frame of three years and suggests that; the time frame be reduced to one year.

Department of Rural Development and Land Reform (DRDLR): The Bill must specify the senior management levels to be at Chief Director or Deputy Director General

Directors do not sit at EXCO or any meetings with the Ministers, and they are not included in teams that develop the Departments’strategies

No

Senior Management Services (SMS) includes Director to Director General.

Cause for Justice: Recommends that accountability for non-compliance should be placed on the entire Board and not the individual.

No

The inclusion of the entire board will make it impossible to enforce compliance. Some board members are non executive members of private bodies.

Vodacom: The meaning of “accountable’ is not clear.

Consequences of non-compliance should be clear

No

The word “accountable” is not used in the text.

16.

Enforcement

Community Law Centre (UWC): The formulation of clause 16 is weak. No penalties are stipulated.

A question is asked whether can such a law as the proposed WEGE Bill be enforced?

Effective remedies are essential to the full realisation of the right to equality that is protected by section 9 of the Constitution.

Recommend further debate and consideration to understand what penalties and enforcement mechanisms can be employed with respect to all legislation, policy and programmes relating to women’s empowerment and gender equality

Recommends political will to commit resources and uphold accountability because courts and independent oversight bodies such as the CGE and the SAHRC may fail.

Yes

CALS: Clause 16 is not very clear and may be weak. The current enforcement mechanisms are weaker than those that were proposed in the earlier. The use of the term “any dispute resolution mechanism’ does not provide the requisite to ensure that the objectives of the Bill are achieved and non-compliance is addressed.

Centre for Law and Society: Weak mechanisms for enforcing the rights that the Bill is trying to promote

Women want a justiciable mechanism through which the Minister can intervene and compel compliance where women complain about their experiences of public and private bodies’ disregard for gender equality

BWA: The Bill should clearly specify the steps in the enforcement process together in the compliance of enforcement

Yes

The Department has recommended amendment to section 16 to improve enforcement section

CGE: The Bill does not comprise of any effective enforcement mechanisms which will ensure compliance with the empowerment and equality provisions in numerous pieces of legislation including the WEGE Bill when it is promulgated.

Recommends that the CGE be expressly referenced because it has jurisdiction in gender related disputes

Women’s Legal Centre: One of the current challenges is lack of enforcement of existing laws in place to advance women’s equality.

There is a clear need for oversight and accountability to ensure that there are consequences when departments fail to deliver, and the private sector is also held accountable for not meeting its obligations. The private sector is also required (by the Constitution and other pieces of legislation) to end discriminatory practices and to advance women’s equality.

JD Group; Group Legal & Compliance: Clause 16 weakens the essence of this proposed legislation

Stricter consequences must be included. Breach must be an offence. Fines must be imposed and compliance notices be issued, which will serve as a binding ruling on the breaching entity.

Window dressing should be an offence to ensure substance over form is attained.

A mechanism should be put in place to encourage whistle blowing on entities who window dress and thus flount the spirit of this proposed Bill.

Tshwaranang : The word ‘ may’ must be replaced with ‘must’ to create and support accountability and transformational change.

The previous version of the Bill provided for offences and penalties, which has now been removed, which begs the question of how compliance with the legislation will be ensured. If there are no consequences for non-compliance or sexist/misogynist practices, what is the value of this legislation .

Yes

The Department does not object to replacing may with must

Retail Association: This clause lacks substance and clarity

Noted

Cause for Justice: clarify the enforcement mechanism

Noted

Vodacom: “ Any dispute resolution mechanism” is not clear.

Consequences of non-compliance should be clear

WARD:

• We do not support clause 16 as it is because it does not give the Minister powers to enforce compliance in case of non-compliance.

• The Minister must be able to take the designated public bodies or designated private bodies to court to enforce non-compliance

• Women must also be able to litigate in court against designated public and private bodies to enforce the provisions of this Bill

17.

Code of Good Conduct

Sonke : Under clause 17 replace the word “may” with “must”.

Yes

The Department has not objection in replacing the word “may””with “must

18.

Framework on Women Empowerment

Sonke : Under clause 18 replace the word “may” with “must”.

Yes

The Department has not objection in replacing the word “may””with “must

19.

Regulations

Sonke : Under clause 19 replace the word “may” with “must”.

Yes

The Department has not objection in replacing the word “may””with “must

Situation of women in South Africa

Community Law Centre (UWC)

Welcomes efforts by the State to address the significant gender inequalities and violations of the rights of women, girls and LGBTIs.

The WEGE Bill represents a step in that direction.

The Bill duplicates existing legislation and policy, it fails to address things that are not addressed in existing law and policy

It fails to engage with the issue of weak implementation of existing laws

Supports the efforts to address the persistent marginalisation and exploitation of women, they The Community Law Centre does not believe that the Bill in its current form is the correct measure to achieve this.

Women from birth to death continue to face numerous challenges, discriminations and violations across the settings of their lives and circumstances.

High levels of crime continue unabated. Challenges to access justice persist in spite of reforms in the justice system.

Conviction rates remain low and the victimisation of women and LGBTI people at the hands of state officials tasked with upholding the Constitution and the law continue.

Noted

CALS

Twenty years after the abolishment of the apartheid system, most women in South Africa, and in particular, poor black African women in rural and urban settings, are yet to benefit from the constitutional democracy.

Noted

Urban & Rural Women

It is estimated that about 14 million people live in rural municipalities falling under the jurisdiction of traditional leaders. It is alos primarily in these areas where people live in abject poverty and where there is a lack of access to economic opportunities, poor infrastructure and lack of access to basic services.