Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]
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| We further support section 15 which requires the Minister of Labour in conjunction with other Ministers to undertake an audit of all laws, policies and practices in social security policies and legislation. Further the Minister is required to report his/her findings to the South African Human Rights Commission within two years after the enactment of the bill.
In comparative terms, the provisions of this Bill regarding the prohibition of discrimination are better than the EEA. This may lead to a skewed jurisprudence where workers relying on this legislation will have a better deal relative to the EEA. The possibility of amending the EEA to put it on par with this legislation should be considered. Recommendation: · At this stage we recommend that employment be dealt with in the schedules as part of the general approach to dealing with sectors. The issues posed in this submission regarding employment should form a part of the process to refine the employment section. The premise of our submission is that this Bill has to deal with employment in one way or the other. What needs to be further fleshed out is the relationship with the EEA to remove any confusion and ambiguity that may ensue. 8. Promotion of Equality and Positive Measures COSATU supports the promotional measures contained in each of the sectors, which provide for measures to be taken by the responsible Minister. We further support chapter 5, which is dedicated to the promotion of equality. This willensure that substantive equality will be promoted in a programmatic manner. The “equity plans” envisaged in section 51 would assist promotion of equality in a structured and programmatic manner, and authorise special measures in sectoral laws, policies and programme to address equality issues. 9. Enforcement Mechanism In general we believe that enforcement mechanisms must be accessible and understandable to ordinary people. An effective enforcement mechanism is one that can address various forms of discrimination adequately and one that can provide redress for any victim regardless of their circumstance. For this reason we welcome the guiding principle, which provides in 4(4): “Dispute resolution must be expeditious, affordable and participative, and where appropriate, informal.” In terms of section 47(1)(a) every magistrate’s court and every High Court is an equality court for the area of its jurisdiction. The Minister can designate everymagistrate, additional assistant magistrate and judge to be a presiding officer of the equality court in terms of section 47(1)(b). In principle COSATU supports the underlying principles for the establishment of the Equality Courts. We support the proposal to reinforce the enforcement mechanism put forward by the Women’s Legal Center and the Socio-Economic Rights Project with regard to the following: · Referrals; · Enforcement of Rights; · Accessibility; · Amicus Curiae; · Rules of Court; · Guiding Principles; · Assessors; · Jurisdiction.8
Clause 5(1) of the Bill confuses the binding nature of this bill on the state and its scope of application. According to clause 5(1) “this Act binds the state”. Previous drafts of the bill provided that “this Act binds the State and all persons.” It is not clear what informs this shift from the previous drafts. The removal of “all persons’ from the application of the Bill could be interpreted to mean that the Act would only apply to the state and not all persons. However, the content of the bill indicates otherwise. In sections dealing with sectors, it is clear that the bill will bind all persons other than the state. Recommendation: · We therefore propose that the application clause should state that the bill applies to the state and private bodies. 11. Implementation Overall COSATU supports a gradual or incremental approach to implementing the bill. Priority should be given to establishing the enforcement institutions and training of presiding officers. A gradual approach is preferred, as it will ultimately ensure a workable system. 11.1 Training of Judicial Officers The training of judicial officers is of importance, as those who will be appointed will not have any prior experience in dealing with equality matters and in conducting court proceedings in an informal and simple manner. We therefore support the proposal that the process of training judicial officers should not delay the implementation of the Act. Therefore training should start as soon as possible after the enactment of this Act. 11.2 Review of the Act In terms of section 54, the Minister must establish a Review Committee within five years after the commencement of this Act. The role of the Committee is to advise the Minister about the operation of the provisions of the Act and report to the Minister on the operation of this Act. It is important for this committee to be instituted immediately upon the commencement of this Act, to ensure adequate monitoring of the operation of the Act. This will provide the Minister with an informed and more comprehensive report about the operation of this Act and whether there is a need for further amendments to this legislation. 12. Conclusion COSATU would like to express its gratitude to the Ad-hoc Joint Committee for providing us the opportunity to present this submission. We have indicated our support for this piece of transformative legislation, which will help unravel the legacy of apartheid discrimination. At the same time, we highlighted a number of flaws, which need to be corrected. By pointing out the flaws in the bill our goal is to reinforce the Bill. In our view this is not an insurmountable hurdle, and our proposed legal amendments will demonstrate possible ways of amending this legislation within the time constraints. We hope that the Committee will respond positively to the proposals put forward in this submission, the equality alliance and other progressive organisations. Further we call on the committee not to be detracted from their important task by those working to derail the Bill and pledge our further support in whatever way is appropriate. Deaf Federation of South Africa (DEAFSA) SUBMISSION BY DEAFSA (DEAF FEDERATION OF SOUTH AFRICA) PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL, 1999
There are still many policies, including regulations within such policies, which have the effect of unfair discrimination against people with disabilities. 2. Secondly, we are concerned that people with multi-disabilities (such as deafblind people) are not adequately covered in the definition of disability discrimination which do not cater for care services and support or enabling facilities. Therefore, we suggest that Section 1 (vi) (i) be expanded to read as follows: “... 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 people.” 3. While Chapter 1, Section 1 include the definition of “disability discrimination” (par. (vi) and this is being covered as part of the prohibited grounds of discrimination in par. (xvii), we suggested that language, being one of the prohibited grounds of discrimination, also be given a definition in the Bill by inserting the following definition: “language” means any of the official languages, as well as Sign Language and other languages referred to in Section 7(1) and 7(5) of the South African Constitution. Rationale Notwithstanding the fact that Sign Language is mentioned in par. (vi) sub-par. (b) (I), the Bill should state clearly that the prohibition of unfair discrimination on the basis of language is not limited to the official languages, but also includes Sign Language and other languages as well. 4. Section 17 (1) (g) should be amended to read as follows: “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.” Rationale For example, Deaf learners have the right to be placed in Sign Language sites of learning (as proposed by the Department of Education) provided that such sites of learning exist in a province. 5. A sub-paragraph (iii) should be added to Section 19 to read as follows: “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.” Rationale Health care services for infants and children with disabilities will have little effect if they are not provided within the holistic framework of education and social services. 6. Part B (Prevention, prohibition and elimination of unfair discrimination relating to race and gender and promotion of racial harmony and gender equality) should be expanded to include other cultures and disabilities as well. Rationale While we fully agree with Section 8 (e), we are concerned that Deaf people are not adequately protected in this area of name-discrimination such as the labels of “deaf and dumb” or “deaf-mutes” which Deaf people view to be wholly derogating to their dignity. This principle does not apply only to Deaf people but also to other culture, religious and language groups 7. It is our concern that unfair discrimination within the legal framework itself is not being addressed in the bill. This is illustrated in the fact that there is no chapter for Justice itself, alongside other fields such as education, health care, etc., where various grounds of unfair discrimination should have been identified. Examples of the such grounds within the field of Justice are the following: · To take legal action or protection or not to take legal action or protection whereby people with disabilities are not enabled to exercise their rights of expression in either defending themselves or giving evidence (at places such as courts, police stations and protection units). · To throw out or dismiss court cases due to the person’s disability and lack of interpreters. · To stop legal proceedings as a result of the person’s disability and lack of communication from or with the State (police/prosecutor). · To conduct or determine parole conditions without freedom or right of expression.
The Act should not be misinterpreted as to prevent Deaf people or people with disabilities to form their own clubs or associations where they can pursue their respective and common goals or objectives within the broad society. Equality Alliance PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL SUBMISSION BY THE EQUALITY ALLIANCE What is the Equality Alliance? 1. The Equality Alliance ("the alliance") is a broad formation of civil society organisations working in different sectors. These sectors include trade unions, gender equality, HIV/AIDS, labour research, general human/legal rights and lesbian and gay equality. Refer to the list of members at the bottom. 2. The alliance works for full and substantial equality for all people living in South Africa, particularly those people subject to inequalities and unfair discrimination based on their race, gender, sexual orientation, disability, nationality, socio-economic status and HIV/AIDS status. Purpose of submission 3. The alliance welcomes the Promotion of Equality and Prevention of Unfair Discrimination Bill (“the bill”). We support its scope and intent to prohibit unfair discrimination and promote equality, particularly in areas outside of the employment context. If passed by parliament, the bill will represent the most significant legislation since the constitution to address the issues of equality and the elimination of unfair discrimination. 4. Even though the Constitution of South Africa promises equality, justice and dignity for all, many South Africans are still subject to inequalities, harassment and unfair discrimination on the basis of various grounds including race, gender, disability, sexual orientation, socio-economic status and HIV/AIDS status. 5. This submission is aimed at ensuring that : · Parliament takes cognisance of issues affecting women(black women in particular), lesbian and gay people, poor people disadvantaged as a result of their socio-economic status, people who are not South African nationals, and people living with HIV/AIDS. · Parliament includes provisions in the Bill which effectively remove unfair discrimination against, and promote substantial equality for the groups of people listed above.
of unfair discrimination. Summary of submission 7. In summary, the alliance submission makes the following proposals:- · We propose that the current definitions of various forms of discrimination (unfair discrimination, race discrimination, gender discrimination, disability discrimination, pregnancy discrimination, discrimination in relation to employment) be replaced by a single definition of discrimination to apply to all grounds and sectors. The alliance recommends the development of the definition of “discrimination” to promote the definition of “equality” as being equality of outcomes. This would align the Bill closer to emerging jurisprudence from particularly the Constitutional Court. · We propose that the bill provides that once a complainant makes out a prima facie case of unfair discrimination in terms of the Act the burden of proof shifts to the respondent to prove either that the discrimination was not based on one or more of the prohibited grounds or that the discrimination is fair in terms of the defence. · Parliament is requested to amend section 6 to make sufficient provision for actions based on more than one ground of discrimination. · We propose that the sections on discrimination within particular sectors be removed from the main body of the legislation and contained in a separate code of practice to be formulated in a specified time frame and in consultation with civil society · The alliance recommends that the duty to accommodate should be defined in such a way so to challenge systemic inequality and promote transformation of institutions and practices. · The alliance recommends that the definition of “unjustifiable hardship” should be developed to be strong and flexible, in favour of victims of discrimination. The purpose of this will be to limit the scope of discretion in interpreting “unjustifiable hardship” so as to ensure proper protection for victims of inequality and discrimination. · We note that nationality, HIV/AIDS status, socio-economic status and family responsibility or family status have been removed from the list of prohibited grounds in the current draft of the Bill. We submit that these grounds must be added into the list of grounds on which unfair discrimination is prohibited. · We make specific comments on the Bill’s enforcement mechanism and proposals on the Equality Courts and the need for an interim equality tribunal. · The alliance recommends strongly that parliament reconsiders the inclusion of provisions prohibiting practices which constitute specific common law offences, which are more appropriately and dealt with in other legislation. The elimination of unfair discrimination and the promotion of equality 8. Definition of discrimination - We propose that the current definitions of various forms of discrimination (unfair discrimination, race discrimination, gender discrimination, disability discrimination, pregnancy discrimination, discrimination in relation to employment) be replaced by a single definition of discrimination to apply to all grounds and sectors. The main reasons for this proposal are: - · The definitions of discrimination in the Bill are inconsistent with one another and this creates potential for confusion where, as is likely in many cases, discrimination is pleaded on alternative grounds. A complainant would have to satisfy different tests for each ground. We consider it undesirable to have different standards of discrimination for different grounds. · In addition, we are concerned that this would make the legislation inaccessible to many of those whom it is intended to protect. We believe that the use of a single, comprehensive definition, to apply to all forms of discrimination, would achieve far greater certainty in terms of what behaviour amounts to discrimination on any ground and would be more easily comprehensible to lawyers and lay people alike. · The definitions all use different concepts. This is also likely to give rise to confusion in cases, and prevent the development of a coherent jurisprudence of what constitutes unfair discrimination. · The division of discrimination into different categories does not take into account the intersection of various grounds of discrimination that occurs in real cases (e.g. discrimination is usually a result of a combination of grounds such as race, gender, socio-economic status). It will make it difficult to prove cases of discrimination that are based on an intersection of grounds and cannot be neatly pigeon-holed into one or other category of discrimination. It will also make it more difficult to develop a jurisprudence of substantive equality (equality of outcomes). · In order to reflect the historical and on-going importance of discrimination based on race, gender and disability, separate sections can be included in the draft Bill dealing with these areas. However, these sections should not attempt to define ‘racial discrimination’ etc. but should rather identify and prohibit specific examples of prevalent forms of unfair discrimination on these grounds. This should not be a closed list. This would be along the lines of the forms of unfair discrimination prohibited in the current sections of the draft Bill dealing with race and gender. Examples of forms of unfair discrimination on particular grounds can also be included in the sectoral codes. Finally, provisions can be included in the preamble and the interpretative guidelines to encourage an interpretation of discrimination that advances equality of outcomes. 9. Burden of proof - We propose that the bill provides that once a complainant makes out a prima facie case of unfair discrimination in terms of the Act the burden of proof shifts to the respondent to prove either that the discrimination was not based on one or more of the prohibited grounds or that the discrimination is fair in terms of the defence. This approach to the burden of proof mirrors s.11 Employment Equity Act which provides : “Whenever unfair discrimination is alleged in terms of this Act, the employer against whom the allegation is made must establish that it is fair” 10. Inter-sectionality and discrimination - Parliament is requested to amend section 6 to make sufficient provision for actions based on more than one ground of discrimination. Further, distinction should be drawn in the Bill between individual instances of discrimination and the systematic impact of discrimination. This is necessary to promote protection from structural forms of discrimination. 11. Duty to accommodate - the duty to accommodate should be defined in such a way so to challenge systemic inequality and promote transformation of institutions and practices. The duty to accommodate should not just be confined to individuals, but should ensure that rules, practices and policies promote full and equal participation and advancement by disadvantaged groups. The duty to accommodate should be defined in such a way so to challenge systemic inequality and promote transformation of institutions and practices. The duty to accommodate should not just be confined to individuals, but should ensure that rules, practices and policies promote full and equal participation and advancement by disadvantaged groups. 12. Defences and unjustifiable hardship - the defence to a claim of unfair discrimination should be based on the concept of ‘fairness’, and not whether the unfair discrimination alleged is ‘reasonable and justifiable’ in the circumstances. In other words, a respondent should be able to defend a claim of discrimination on the grounds that it is fair as opposed to that it is reasonable and justifiable. The Bill should include a list of factors that must be taken into account in deciding whether the challenged condition, requirement, policy, situation, rule, practice, act or omission is fair in the circumstances. These should be in line with the factors that the Constitutional Court has said must be considered in order to determine whether the discriminatory provision has impacted on the complainants unfairly. The respondent must also show that it has take steps to accommodate the person or group affected by the discrimination up to the point of unjustifiable hardship. In order to determine whether unjustifiable hardship would result from the accommodation sought by the complainant, all relevant circumstances must be taken into account. Some of these circumstances should be specified in the Bill (as is the case presently). It should be clear that the financial burden on the respondent is not the sole consideration. 13. Sexual Harassment - Sexual Harassment should not be subjected to the “fairness”, or in the alternative, the “reasonable and justifiable” test. This is because there can be no instances in which Sexual Harassment could be either “fair” or “reasonable and justifiable”. Furthermore, this places and unfair burden of proof on victims and equally provides a defence to complaints that would be degrading and humiliating to victims. This would be contrary to the bone mores of society on this matter. Exclusion of sectors in the Bill 14. The Bill currently prohibits unfair discrimination within the following sectors: employment; education; health care; accommodation, land and property; insurance; pensions; goods, services and facilities; associations and partnerships; clubs and sport and professions. The Equality Alliance believes that unfair discrimination within each of these sectors should not expressly be dealt with in the Bill. The main reasons for this are: · The potential confusion that different definitions of unfair discrimination can give rise to. For example, the confusion of how unfair discrimination in the employment context relates to the general prohibition of unfair discrimination. · The initial purpose of adopting a sectoral approach was to take account of the differences and nuances in the way discrimination occurs within particular sectors. However, the way in which the sectors are currently drafted do not take account of these differences and nuances. Prevalent forms of discrimination in particular sectors are not referred to, e.g. language barriers within the health sector. In fact, most of the forms of unfair discrimination within each of the sectors can adequately be covered by the general prohibition of discrimination. · There are different concepts and terminology used in dealing with unfair discrimination within each of these sectors. Each of these different concepts require that different tests be applied. For example, some sectors refer to “unjust exclusion”, “unfair disadvantage” and “unfair discrimination”. This will cause confusion as to what test should be applied in order to determine whether unfair discrimination has occurred within that particular sector. · Many of the provisions dealing with unfair discrimination within the sectors are inconsistent with relevant legislation within a particular sector. For example, the health sector makes much more limited reference to unfair discrimination in relation to privacy than the most recent version of the National Health Bill. This again gives rise to potential confusion.
· Unfair discrimination within particular sectors should not be included in the Bill. Instead, there should be a single workable definition of discrimination, which would clearly cover forms of discrimination within particular sectors. · The sections on discrimination within particular sectors be removed from the main body of the legislation and contained in a separate code of practice to be formulated in a specified time frame and in consultation with civil society · In the first chapter of the bill, there should be a general prohibition on ‘unfair discrimination’ in all areas and sectors. The general prohibition should bind the State and all private parties. All forms of harassment, including sexual harassment, should also be prohibited. · In addition, specific forms of discrimination within particular sectors should be dealt with either in terms of guidelines, codes of conduct or regulations. This is important because: there are certain differences in the way that discrimination occurs in particular sectors, which need to be taken account of; these would serve a useful interpretative purpose as well as an educational role. · The Bill should make it mandatory for these guidelines/codes to be formulated in consultation with civil society and within a specific time frame. The legislation should also specify exactly who bears the responsibility for formulating these codes/guidelines. · The Bill should make it mandatory for courts to take account of these codes/guidelines in interpreting the legislation. · In addition to the sectors currently reflected in the Bill, a sector on family, culture and religion should be included in the codes/guidelines. Enforcement mechanisms 16. The legacy of inequality and discrimination dominates the daily lives of all South Africans. The bill is a tool against inequalities and discrimination. The Alliance believes strongly that the bill requires strong and effective enforcement mechanisms. 17. An effective enforcement mechanism is one that can address these many forms of discrimination adequately and one that can provide redress for any victim regardless of their circumstances. Thus the Alliance supports applauds the bill’s guiding principles which provide in clause 4(4): “ Dispute resolution must be expeditious, affordable and participative, and where appropriate, informal.” 18. The Equality Courts - the alliance cautiously supports the creation of Equality Courts within the magistrates’ courts and the High Courts. We believe however, that an intermediate step is necessary to ensure adequate application and enforcement. This will enable speedier implementation while the magistrates’ courts are being transformed. . However, we are concerned however, that this legislation is adding an additional burden on an already overburdened system. We have two recent examples of the judicial system’s failure to cope with additional obligations created by new laws – the new Domestic Violence Act and the Maintenance Act. In theory, both these Acts go a long way toward promoting gender. Unfortunately, they are not being implemented due to lack of police resources and the inefficiency and intransigence of the magistrates’ courts. This lack of enforcement frustrates Parliament’s enactments and has adverse gender implications since most of those affected by the non-enforcement of the new Domestic Violence Act and the Maintenance Act are women. The magistrates’ courts are understaffed and have at times demonstrated an appalling lack of gender sensitivity. Consider the sentencing of convicted rapists and the less publicised indifference to women seeking maintenance for their children. The apartheid era mentality still predominates in the magistrates’ courts - there is no clear understanding of gender. This lack of experience and understanding in dealing with equality and discrimination issues will gravely undermine this legislation The Bill does not provide for the immediate appointment of presiding officers, nor does it give any indication of when every magistrate’s court and High Court will become a functioning equality court. It would appear that the Bill anticipates an incremental approach to the implementation of the legislation. This submission recognises that access to the forums for resolution of equality cases will, of necessity, be limited. However, the proposal wants to ensure that though limited, the forum is effective. While we acknowledges that the Department of Justice has begun the process of transforming and improving the administration of justice in the magistrates’ courts, the performance of the magistrates’ courts remains poor. It will be a long time before the accessibility and ability to deliver of the equality that Parliament envisages will be a reality. Therefore, although South Africans can be proud of the constitutional and legislative advances, including this Bill, made towards equality, such advances without being accompanied by adequate enforcement are worthless. 19. An Interim Equality Tribunal - the alliance is putting forward a recommendation for an interim structure that will utilise the resources of the Commission on Gender Equality (CGE) and the South African Human Rights Commission (SAHRC). The interim structure would be dissolved after thirty months and the adjudication of equality cases will revert to the magistrates’ courts as currently envisaged by the Bill. The temporary interim enforcement mechanism would function until such time (two and a half years) as the necessary reforms and training of the magistrates’ courts has been accomplished. This proposal is cost effective and provides the Parliament and Government with the opportunity to ensure the successful implementation of equality legislation. This temporary structure would take the form of an “interim tribunal” composed of four commissioners two from the SAHRC and two from the CGE and four judicial officers. These eight “presiding officers” would be seconded from their current institutions for a period of two and one half years. As already provided for in the Bill, the presiding officers would be supported by two equality assistants located in central courts in each province. The presiding officers would move around the country in a circuit court arrangement with a “commissioner” paired with a judicial officer. The presiding officers would be specially trained to ensure that they have the skills and expertise in equality legislation. Matters could be referred from outlying rural courts, police stations, advice offices and other sources. This legislation should extend a duty to court officials to assist a complainant in approaching the correct forum. 20. How would the tribunal work? We recommend the following practical arrangements: · The two-member panels would be assigned two or three provinces each, based on the population sizes of the provinces. · The panel would then be required to hold hearings at a minimum of two different magistrates’ courts in each province. Permanent courtroom and office space would be allocated to them at each location. · At each of these locations a permanent equality assistant and a clerk would be appointed to handle administrative matters. · Correspondence for the tribunal can be sent to any of the locations assigned for hearings within the province. · The powers of the presiding officers will be the same as those enumerated in the current Bill in sections 48 and 49. · Legal qualifications though desirable would not be required for the seconded Commissioners because they would be paired with a judicial officer. Presiding officers and equality assistants will be specially trained to handle cases arising under this legislation. · The presiding officers seconded to the Interim Equality Tribunal would not be functioning as “commissioners” of their respective commissions during their tenure as presiding officers. · In the event a matter is brought before the tribunal by either the SAHRC or the CGE, the presiding officer seconded from that Commission will be required to recuse themselves.
· An emphasis on an inquisitorial approach, as opposed to the existing adversarial approach of our courts, this will help keep the tribunal accessible to the poor and uneducated. · Limited pre-trial procedures (possibly a statement of case from a complainant, together with a statement from the Respondent). · Procedures must aim at the achievement of an expedited hearing. Unnecessary postponements and delays should be limited. · Flexible rules of procedure, in the discretion of the presiding officer, dispensing with the ordinary rules of evidence, and adopting an informal approach. · Empowering presiding officers to conciliate certain matters, without conducting a full hearing, where appropriate, or by consent between the parties. Should a hearing become necessary, the hearing would be conducted by another presiding officer panel. 22. Powers of presiding officers - The presiding officers would have the discretion to make the following orders: - · Making a settlement an order of court where appropriate; · Special damages for actual financial loss; · Preventative damages, in the form of an award to a body or organization responsible for addressing discrimination; · Interdicting / restraining discriminatory practices; · Directing steps to be taken in order to stop unfair discrimination; · Ordering a respondent to provide the opportunities and privileges that were unfairly denied to the complainant; · Ordering the implementation of special measures to address the discrimination by the Respondent; · Directing that reasonable accommodation be made; · Referring concerns regarding systemic discrimination to the SAHRC and the CGE for further investigation. · The Presiding Officers would also have wide discretion as to making cost orders, working from the central premise that each party pay their own costs. In cases of gross inequality, ordering a guilty defendant to pay the complainant’s costs.
· Monitoring the implementation of the Act; · Making recommendations regarding amendments; · Assisting the public in lodging complaints with the Equality Division; · Appearing in the division as an amicus curia (friend of the court), on behalf of complainants, or in its own name; · Developing and publishing guidelines and codes-of-conduct relating to discrimination; · Assisting departments and organisations to develop internal mechanisms to deal with complaints of discrimination; · Training of organisations around the treatment of discrimination; · Popularising and running information campaigns on the legislation and the remedies available; · Training of paralegal and advice officers among others, with regard to the legislation; · Receiving reports from all Equality Courts regarding the number, nature and outcomes of all matters dealt with; · Reporting annually to Parliament on the above issues.
26. The Alliance supports the inclusion of HIV/AIDS as a grounds for non- discrimination. The Alliance believes that the exclusion of HIV/AIDS from the Bill leaves a major gap in terms of achieving substantive equality for all South Africans, particularly when we are faced with an epidemic affecting all South Africans. People who have been diagnosed as HIV positive, or are living with AIDS, are being discriminated against severely in various contexts and environments ranging from everyday social interaction to the fields of education, employment, and sports. That the discrimination suffered by such persons has a negative impact on their human dignity and enjoyment of equality is unchallenged. The alliance thinks it is important that the equality legislation explicitly recognises that unfair discrimination on the basis of HIV/Aids status is prohibited.
a national emergency, one which the government, private sector and civil society is only now turning its full attention to. This is apparent from the Partnership Against AIDS (PAA) initiative launched last year and the formation of the Inter-Ministerial Committee (IMC) on HIV \AIDS. SA faces the challenge of preventing and reducing new HIV infections but is also expected to foster acceptance, openness and respect for the equality and dignity of people living with HIV/AIDS (PLWHA's) in a society that is often hostile and not accepting of PLWHA's. 28. Human rights abuses and the denial of equal access to public and private resources characterise the social response to HIV \ AIDS and the treatment of PLWHA's. While discrimination against PLWHA’s has traditionally occurred in the denial of access to public and private services, it also occurs through the stigmatisation and marginalisation of PLWHA’s. 29. In this regard, the Equality Alliance fully supports the submission of the of the Aids Law Project (ALP). The ALP submission also contains an historical account of how previous drafts of the Bill dealt with HIV/AIDS. Exclusion of Nationality 30. Though mention is made of nationality in terms of the sections dealing with racism, the Alliance is of the opinion that nationality should be separately dealt with as a ground on its own. South Africa suffers from high levels of xenophobia and it is essential that sufficient protection is provided in this regard. Further, in the context of the history of the South African liberation struggle, and the support by foreign nationals for that struggle, we have a moral obligation to ensure that protection is provided from xenophobia. 31. We note that nationality has been removed from the list of prohibited grounds in the current draft of the Bill. 32. The question of the extent to which Constitutional rights extend to non nationals is complex. Even if there is no clause in the Bill preventing unfair discrimination on the grounds of nationality it does not, in our view, automatically follow that a person will be able to discriminate legitimately against any person who is not a South African national. 34. The right to equality as set out in the Constitution applies to “everyone” (s.9(1)). S.9(4) specifically provides that “No person may unfairly discriminate against anyone on one or more grounds including...” (our emphasis). 35. In Balord and other v University of Bophutswana and Others 1995 (2) SA 803 it was held that the term “every person” in the Interim Constitution included both citizens and non citizens. It is arguable, if the matter were to be challenged before the courts, that the right to equality in s.9 of the Constitution would be interpreted in line with such caselaw. This is particularly so as the prohibited grounds set out in the Constitution are open ended. 36. Furthermore, both the Constitution and the Bill are to be interpreted in accordance with international law. Article 26 of the International Convention of Civil and Political Rights, to which South Africa is a signatory, specifically includes national origin as a prohibited ground of discrimination. In Larbi Odam and Others v Member of the Executive Council for Education (North West Province) and Others, 1997 (12) BCLR 1655 (CC), the court held that citizenship was an unspecified ground of discrimination. 37. If the courts hold that the prohibited grounds should include nationality the question is then whether the s.36 limitation can justify any form of unequal treatment. It is established jurisprudence that the s.36 limitation cannot apply to exclude a class of people from a Constitutional right on the grounds of a set of criteria such as nationality per se. There must in addition be some justifiable circumstantial and factual reason entailing a consideration of the factors set out in s.36(1)(a-e). It “involves a weighing up of competing values and ultimately an assessment made on proportionality” (S v Mkawanyane and Another 1995 (3)SA 391 (CC)). 38. This weighing up exercise would be a matter for the courts. In a regulation limiting the right to appointment as educator to South African citizens was inconsistent with s.8(2) of the Interim Constitution (equivalent to the current s.9(3)) and had no valid justification in terms of s.33 (equivalent to the current s.36). The regulation was therefore declared invalid. The court had regard to the fact that non citizens are a minority with little political influence and that citizenship is a personal attribute over which one has relatively little control. 39. Notwithstanding the decision of the court in Larbi, we do believe that there are limited circumstances where it is reasonable and justifiable for South African nationals to be given preferential treatment and this is supported by international law on the issue. The Human Rights Committee established under the auspices of the International Convention on Civil and Political Rights has also held that differentiation which is reasonable or objective does not amount to discrimination in terms of Article 26 of the Convention (General Comment 37 United Nations, New York 1989 paragraph 7). 40. We therefore believe that it would be preferable to expressly include non nationals in the legislation, acknowledging their prima facie right to equal treatment but qualifying this right by the defence set out at s.43 of the current Bill. The advantage of this approach is that the factors set out in s.43 are far more clearly delineated and comprehensive than those in the general s.36 limitation and in our view leave far less to the discretion of the judiciary if challenged. Exclusion of Socio-economic status 41. Poverty is endemic to South African society. Indeed, one of the greatest legacies of apartheid has been the gross socio-economic inequalities created by the system of structural discrimination. It is therefor essential that parliament legislates against discrimination on the grounds of socio-economic status, as to overlook this would be to turn a blind eye to the most dominant form of post-apartheid discrimination.
rights included in the Bill of Rights. Section 9(2) of the Constitution expressly recognises that “equality includes the full and equal enjoyment of all rights and freedoms.” This must include the economic and social rights enshrined in the Bill of Rights. As Chaskalson P, pointed out in Soobramoney v. Minister of Health, the commitment to transforming the conditions of poverty and inequality existing in our country “lies at the heart of our new Constitutional order.” This commitment, he said, is reflected particularly in the sections dealing with socio-economic rights in the Bill of Rights. 44. Thus it is critical that the new equality legislation protects equal access to these constitutionally protected rights. In circumstances in which low socio-economic status is a major source of discrimination against individuals and groups in the sphere of access to socio-economic rights, its exclusion as a ground would make the new equality legislation less relevant to the real experiences of discrimination by poor South Africans. The poor also often lack the political and economic “muscle” to combat systemic forms of discrimination against them. Legal remedies are thus essential to assist them in challenging unfair discrimination against them by more powerful social groups. 45. While the alliance recognises that the legislation cannot eliminate the inequalities inherent in a market-based economy, it can at least seek to combat the exclusion of the poor from accessing social goods, services and facilities arising from irrational prejudices and stereotyping. For example, in Canada in the housing context, such a ground has paved the way for challenges to setting minimum income criteria for renting properties, the exclusion of social assistance recipients from gaining access to housing._ 46. It will be argued that this legislation should only list as prohibited grounds those grounds listed in Section 9 (3) of the Constitution. The list in Section 9(3) is open-ended and does not preclude its expansion in other pieces of legislation. As stated earlier there is legislative precedence for the expansion of the prohibited grounds. Exclusion of family status 47. For women in general, one of the main causes leading to sex discrimination relates to child care and domestic responsibility. Discrimination based on family responsibility arises when care givers in a family who care for children or dependent family members suffer discrimination because of these responsibilities. 48. Further, Lesbian and Gay people who have families are often discriminated against in their pursuit to care for their families. Often, society does not recognise their families and do not accord them family status. Further, Lesbian and Gay people who do have opposite-sex partners are often discriminated against for not having families. It is therefore essential that this Bill addresses this form of discrimination. 49. It is very important to ensure that family responsibility and family status be included as prohibited grounds of discrimination in this legislation. This will ensure that the discrimination faced by women, care givers, lesbian and gay people is eradicated. Common law offences 50. The alliance recommends strongly that parliament reconsiders the addition of certain provisions prohibiting practices which constitute specific common law offences, which are can more appropriately and comprehensively be legislated on in other legislation. 51. Specifically, it is recommended that Section 23 (2) which prohibits commercial sexual exploitation of children and Section 12 (c) that prohibits Female Genital Mutilation should be reconsidered. The South African Law Commission proposals on amendments to the Sexual Offences Act adequately deal with sexual offences relating to the commercial sexual exploitation of children. Female Genital Mutilation would be better dealt with in relevant legislation. In other words, the law must not treat female genital mutilation and sexual offences against children just as acts of unfair discrimination. They are both criminal acts which must be dealt with in criminal law and not in equality and discrimination legislation. Endorsement of other submissions 52. The alliance endorses the submissions of the following organisations: - · AIDS Law Project · Black Sash · Community Law Centre, University of the Western Cape · Congress of South African Trade Unions · Legal Resources Centre · National Association of Democratic Lawyers - Human Rights Research and Advocacy Project · National Coalition for Gay and Lesbian Equality · Women’s Legal Centre Members of the Equality Alliance AIDS Law Project Black Sash Community Law Centre, University of the Western Cape Congress of South African Trade Unions Freedom of Expression Institute Human Rights Committee Legal Resources Centre National Association of Democratic Lawyers - Human Rights Research and Advocacy Project National Coalition for Gay and Lesbian Equality South African Municipal Workers’ Union Women’s Legal Centre FEDUSA FEDUSA SUBMISSION ON THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL (B57-99) 1. INTRODUCTION FEDUSA supports a constitutional dispensation based on the values of equality, dignity and freedom. The Promotion of equality legislation currently before Parliament, as required under section 9 (4) of the Constitution, would give effect to the unfair discrimination provision as required. The Bill aspires to fulfill what Section 9(4) of the Bill of Rights in the Constitution requires. In FEDUSA’s opinion what has to be produced is a law that defines that people should not be discriminated against and if they are, what enforcement procedures and penalties are in place. 2. THE STRUCTURE OF THE BILL FEDUSA would also like to indicate that a major concern exists with the structure of the Bill. In addition to specific provision, the entire structure of the Bill could be changed for the better. The Bill is too lengthy and includes multiple definitions of unfair discrimination. Currently the Bill contains a general prohibition of unfair discrimination, followed by prohibitions of unfair discrimination with specific reference to race and gender (Part B, S 7 – 12), followed by a prohibition of unfair discrimination in specific sectors including employment (Parts C – L). Multiple definitions provide something for everyone. However the inclusion of multiple definitions of discrimination may be more problematic than clarifying. Disadvantaged groups do not fit into tight categories. As far as specific sections are concerned FEDUSA would like to make the following comments: The following sections have been identified as vague and not benefiting the purpose of this bill. Yüklə 1,52 Mb. Dostları ilə paylaş:
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