Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]

The investigator may undertake very basic mediation, or may refer a complaint back to the Commission for formal mediation, dependant upon the complexity of the complaint. Any mediated settlement will be referred to the Tribunal for approval.
Investigation of complaints

1.--(1) The Commission shall investigate a complaint and may endeavour to effect a settlement.

(2) An investigation may be made by a member or employee of the Commission who is authorized by the Commission as an investigator.

Powers of Investigator:

(3) The Investigator may,

(a) enter any place, other than a place that is being used as a dwelling, at any reasonable time, for the purpose of investigating the complaint;

(b) request the production for inspection and examination of documents or things that are or may be relevant to the investigation;

(c) upon giving a receipt therefor, remove from a place documents produced in response to a request under clause (b) for the purpose of making copies thereof and shall promptly return them to the person who produced them; and

(d) question a person on matters that are or may be relevant to the complaint subject to the person's right to have counsel or a personal representative present during such questioning, and may exclude from the questioning any person who may be adverse in interest to the Complainant.

Entry into dwellings

(4) The investigator shall not enter a place that is being used as a dwelling without the consent of the occupier except under the authority of a warrant issued under subsection (8).

Denial of entry

(5) Subject to subsection (4), if a person who is or may be a party to a complaint denies entry to any place, or instructs the investigator to leave the place, or impedes or prevents an investigation therein, the Commission may refer the matter to the Tribunal or may authorize the investigator to apply for a warrant to enter under subsection (8).

Refusal to produce

(6) If a person refuses to comply with a request for production of documents or things, the Commission may refer the matter to the Tribunal, or may authorize the investigator to apply for a search warrant under subsection (7).

Warrant for search

(7) Where a court is satisfied on evidence upon oath or affirmation that there are in a place documents that there is reasonable ground to believe will afford evidence relevant to the complaint, he or she may issue a warrant in the prescribed form authorizing the investigator to search a place for any such documents, and to remove them for the purposes of making copies thereof, and the documents shall be returned promptly to the place from which they were removed.

Warrant for entry

(8) Where a court is satisfied on evidence upon oath or affirmation that there is reasonable ground to believe it is necessary that a place being used as a dwelling or to which entry has been denied be entered to investigate a complaint, he or she may issue a warrant in the prescribed form authorizing such entry by the investigator.

Obstruction

(9) No person shall interfere with the investigator in the execution of a warrant or otherwise impede an investigation under this Act.

(10) Subsection (9) is not contravened by a refusal to comply with a request for the production of documents or things made under clause (3)(b). Report

2. Upon completion of the investigation, the Investigator shall submit a written report, containing recommendations, to the Tribunal for review.
REPRISALS

Idasa notes that there are no specific provisions regarding reprisals, and recommends a section protecting participants under the Act, from negative consequences as a result of their participation. For example, witnesses in a complaint concerning employment may still be working for the Respondent, and may fear reprecussions for participating. The Reprisals section provides some reassurance that they can not be penalized by the employer for their participation. Additionally, Complainants themselves may be in a position where they may face reprisals for exercising their rights in bringing the complaint.

Should this happen, the reprisal forms the basis of a separate, but obviously connected, complaint. It is therefore Idasa's suggestion that there should be a provision governing reprisals.
1. All persons have the right to enforce their rights under this Act, to participate in proceedings under this Act, and to refuse to participate in unfair discrimination, without actual reprisal or the threat thereof.
EXCLUSION OF NATIONALITY AS A PROHIBITED GROUND

1.xvii and 2.(a) (vi)

It is Idasa's position that Nationality should be included as a prohibited ground for unfair discrimination. Given the unfair discrimination faced by non-South African nationals, particularly from other African countries, who are in South Africa legitimately, nationality needs to be an enumerated prohibited ground of discrimination. Where South African nationality is a bona fide requirement (for example in the professions or by law) then the discrimination should not be found to be unfair or will alternatively, be reasonable and justifiable.

Alternatively, provisions could be enacted creating exemptions where the right to non-discrimination on the basis of nationality will not be infringed.

DEFINITION OF GENDER DISCRIMINATION

10. (a)The definition of gender discrimination contained in this section should not include "any distinction, exclusion or restriction" made on the basis of sexual orientation. Sexual orientation most definitely must be a protected grounds, but it is entirely inappropriate as part of the definition of gender discrimination. Including sexual orientation as an aspect of gender discrimination reflects a fundamental misunderstanding of discrimination on that ground, which is independent of gender.

Example: If a male employs a homosexual male, and upon discovering his employee's homosexuality, fires him, this unfair discrimination has nothing to do with the employee's gender, his being a male. Similarly, a lesbian woman who faces unfair discrimination on the basis of being in a same sex relationship, is suffering this discrimination, not because she is a woman, but because she is a lesbian.

HEALTH CARE: SEXUAL ORIENTATION AS A PROHIBITED GROUND

20. (1)(f) Prohibits discrimination in the provision of health care services including the assumption that persons with disabilities should not or cannot procreate, adopt or care for a child, or foster or nurture a family environment purely on the grounds that a person or a couple may have a disability or disabilities.

This provision should be extended to include the prohibited grounds of sexual orientation, as gay and lesbian persons face unfair discrimination with respect to procreation, adoption, care of a child, and ability to provide a family environment purely on the basis of their sexual orientation.

AFFIRMATIVE ACTION OR REMEDIAL PROGRAMMES

Section 1(xxvi)(aa) dealing with affirmative action provisions could be better drafted:

Provided that it is not unfair discrimination to-
implement affirmative action or remedial measures designed to mitigate hardship and disadvantage suffered by disadvantaged or oppressed persons or groups, or to further equal opportunity, or that is geared towards the elimination of unfair discrimination, in accordance with the purpose of the Constitution or this Act.
Institute of Retirement Funds

INSTITUTE OF RETIREMENT FUNDS (OF SOUTHERN AFRICA)

17 November 1999
Promotion of Equality and Prevention of Unfair Discrimination Bill
IRF Support for the Constitution

The Institute of Retirement Funds (IRF) represents a significant segment of the retirement fund industry and serves as a co-ordinating body in the industry at large. Our aim and objective is to protect, promote and advance the interests of pension, provident , retirement annuity and similar funds, their trustees, members and persons associated with such funds in Southern Africa.

We fully support the Constitution with its Bill of Rights, including its prohibition of unfair discrimination. The cautionary comments made hereinafter must be understood in this light.
Size and significance of retirement fund industry

The latest report by the Financial Services Board (Registrar of Pension Funds) supplies the following data.

Funds supervised by the FSB (which excludes State Funds, Transnet, Telkom, Post Office and industrial funds): 15 957

For the financial year ending in 1997, applicable to registered funds:

Contributions R45 799 million (13,8% increase over 1996)

Benefits paid R51 422 million (16,7% increase over 1996)

Assets R542 564 million (12,7% increase over 1996)

The above gives an idea of the size of the retirement fund industry and its growing importance to the South African economic and socio-political environment.

Constitutional principles already applied in dispute resolution

Courts and tribunals such as the Labour Courts and the Pension Funds Adjudicator have already applied principles derived from the Constitution in decisions on retirement fund matters. In an address to the Pension Lawyers Association Conference in Johannesburg in 1999, the Pension Funds Adjudicator stated:

“Anti-discrimination law is in its infancy in South Africa. Pension Fund Administrators have organised their affairs and structured benefits without the advantages of extensive legal arguments about the modern doctrine of equality. The new Constitution is a map for the future and seeks to redeem past injustice. Nevertheless, prudence dictates that we should proceed cautiously and without misplaced reformist zeal. A judicial finding that a commonly accepted pension fund practice is discriminatory, and hence unlawful, can have potentially crippling financial effects….”
The IRF would like to echo this cautionary note, not only in respect of judgements by courts and tribunals, but also in respect of the prospective legislation, which must provide clarity and recognition of the fundamental principles on which a sound retirement fund industry is based.
Grounds of concerns

Care must be taken to avoid the translation of legitimate objectives into provisions that undermine the principles of sound retirement provision.

· Differentiation on reasonable grounds supported by actuarial or statistical data is not, for instance, regarded as unfair discrimination terms of the Canadian Human Rights Code (1981).
· Sections 30 and 51 (4) provide for the responsible Minister to promote equality by eliminating any inequality in any law, policy or practice for which he is responsible, and preparing equity plans to achieve reasonable progress towards equity in (inter alia) the retirement fund sector. Provision is also made for establishing codes of good practice. These sections provide the means for dealing effectively with the substantive issues of equality in the retirement fund industry. It will be essential to involve the retirement fund industry in the process. Unfortunately, the absence of detail here leaves the range and scope of the anti-discrimination provisions in the Bill uncertain.
· Section 29 contains provisions that represent a potential threat to the viability of the retirement fund industry. Rules will be prevented from excluding any person from membership of a retirement fund or from receiving fund benefits on any of the prohibited grounds. “Prohibited grounds” includes not only specifically listed grounds, but also “any other recognised ground”. Funds are generally extensions of terms and conditions of employment. The prospect looms if funds having to justify restriction of membership to employees of particular employers, for instance.
· It is not clear that the proviso (bb) to the definition of “unfair discrimination” will suffice to prevent frivolous and costly applications.
· Sound financial operation of a retirement fund depends (generally) on differentiations based on actuarial grounds. If funds are constrained from applying these traditional risk management techniques, the result will be a general erosion of the level of member benefits and the hastened demise of defined benefit funds in particular.
· Section 13 defines unfair discrimination to include “any distinction, exclusion or restriction made on the basis of one or more of the prohibited grounds, or on any other ground which is aimed at or has the effect of impairing or nullifying the enjoyment or exercise by a person or group of persons, of employment opportunities, as well as the failure to identify and take reasonable measures to remove any barriers to the full enjoyment of employment opportunities by persons who were historically denied such opportunities by law or practice”. This section is both wide and of uncertain application. It could include retirement fund provision. Not only are “prohibited grounds” the basis for unfair discrimination, but any other grounds. This introduces a host of imponderables into the operation of retirement funds. It is probable that perfectly reasonable financial soundness practices will have to be defended at cost to funds and their membership, unless greater clarity as to the scope of application to the retirement fund sector is created up front.

· Section 51 (1), with its provisions for further legislation and codes of good practice could be used to address uncertainties, but it would be ideal to introduce specific reference in the body of the Bill to what does not constitute unfair discrimination in the retirement fund sector. That is, reasonable and bona fide differentiation based on actuarial or statistical data should be excluded from categorisation as “unfair discrimination”. Alternatively, the specific section dealing with the retirement fund sector could be dropped, and the matter dealt with in terms of comments to the Pension Funds Act. Other areas of fund operation where differentiation can arise, such as surplus distribution for example, are also best dealt with in the framework of the Pension Funds Act.

· Sections 43 and 45, dealing with defences to claims of unfair discrimination, provide little comfort. Methods of dealing with risk fundamental to the retirement fund industry will be challenged and whenever there is a prima facie case of differentiation on a prohibited ground, the fund will have the onus of proving such differentiation justifiable. The cost implications as the areas of uncertainty are gradually eliminated through litigation are a threat to the industry.
· The Constitution does not require that legislation promoting equality be passed to the 4th of February 2000. Whilst section 9(4) specifically prescribes that “national legislation must be enacted to prevent or prohibit unfair discrimination”, section 9(2) provides that “legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”
· The retirement industry is regulated by, inter alia, the Pension Funds Act 24 0f 1956 and the Regulations passed in terms thereof. Other legislation such as the Financial Institutions Act impact on the retirement industry which is regulated by Registrar of Pension Funds.
· Section 30A of the Pension Funds Act provides for the consideration and adjudication of complaints, and the office of the Pension Funds Adjudicator to dispose of complaints lodged. The statutory Pension Funds Adjudicator has the power to investigate any complaint and make the order which any court of law may make. In fact the Pension Funds Adjudicator has through a number of determinations dealt with issues of unfair discrimination and will continue to do so, enforcing the values enshrined in the Bill of Rights. Some of the determinations include Clarence v Independent Schools (PFA/WE/53/98); TWC v Rentokil (PFA/KZN/129/98); Van der Merwe v Southern Life (PFA/WE/21/1/98); etc.
· The Employment Equity Act 55 of 1998 already has considerable governance of these issues. The IRF strongly suggests that it would be better to frame the promotion of equality and the prohibition of unfair discriminatory clauses in the pension Funds Act and the Employment Equity Act.
Conclusion

The IRF supports the elimination of unfair discrimination in the retirement fund industry. What exactly is unfair, and the ways of eliminating unfairness without damaging the industry, are our concerns. The IRF recommends that the Bill would appropriately be referred to NEDLAC before submission to parliament, because of the potentially wide implications for labour, employers and society at large of implementing the proposed legislation in this form.

Johannesburg High Court

JOHANNESBURG HIGH COURT

Submission on the draft
Promotion of Equality and Prevention of Unfair Discrimination Bill 57 of 1999
The Bill of Rights in the Constitution of the Republic of South Africa (1996) is the foundation of the new democratic dispensation in South Africa. It enshrines the values of human dignity, equality and freedom. Equality itself is a value fundamental to the new democracy, one that s 9 of the Constitution seeks to promote, requiring legislation to be enacted to prevent or prohibit unfair discrimination (s 9(4)). The draft Promotion of Equality and Prevention of Unfair Discrimination Bill 57 of 1999 is thus to be welcomed as a measure designed to ensure the equality of all before the law.
As members of the judiciary charged with the application and enforcement of the law, including the right to equality, the judges of the Johannesburg High Court wish to comment on the Bill, but only in so far as it affects the enforcement of the right to equality and the prohibition against unfair discrimination. We record that our submission is necessarily brief because of time constraints; and that although we do have reservations about various other provisions of the Bill we shall not deal with them here.
Sections 47 and 53 of the Bill provide, in summary, that every existing court is an equality court for the area of its jurisdiction. But only those magistrates and judges who are designated by the Minister of Justice may preside in an equality court. And only a judicial officer who ‘by reason of his or her training, experience, expertise and commitment to the values of equality and human rights’ may be so designated (s 53(1)(a)). The Minister is required to establish ‘uniform norms, standards and procedures to be observed by presiding officers’ and must issue ‘policy directives and develop training courses’ for that purpose (s 53(4)(a)).
These provisions fail to take into account the separation of powers fundamental to our democracy and enshrined in the Constitution. They give to the executive the power to determine which members of the judiciary shall perform certain tasks, and they allow the executive to determine how legislation should be interpreted. There is implicit in the Bill an attack on the judiciary. Provisions in the Bill suggest that only those judicial officers selected by the Minister, a politician, who are trained in accordance with policy emanating from the office of politicians, are capable of, and can be entrusted with, the enforcement and promotion of a right and a value that is fundamental to our democracy and our legal system. Yet s 39 (2) of the Constitution requires all courts to promote the ‘spirit, purport and objects’ of the Constitution, which most obviously embrace the right to equality.
The provisions of the Bill in this respect are repugnant. They undermine the judiciary, and they suggest a political dimension that is antithetical to the very notion of judicial independence. They undermine too the status and the work of the Judicial Service Commission, which is charged with the duty to appoint appropriately qualified people, who are fit and proper to hold office as judges (s 174 (1) of the Constitution). The implication of these provisions of the Bill is that not all people selected by that Commission are fit and proper for the purpose of determining equality and anti-discrimination matters: only those judicial officers designated by the Minister are equal to the task of dealing with equality issues. The result will be a ranking and a hierarchy of judicial officers which is contrary to the notion that all judges have equal status.
The establishment of special equality courts suggests that equality is an issue that arises in only some matters and in some instances. That is far from being the case. Equality is a value that we have all been enjoined by the Constitution to promote: and it is a right to which every litigant in civil proceedings and every accused in a criminal trial is entitled. All judicial decisions should thus take equality into account. The Bill seems to suggest that in any case where equality becomes an issue, and in every case where there is unfair discrimination, direct or indirect, the matter should be referred to a specially designated judicial officer. Apart from the repugnancy of this notion, it is impossible to implement it from a practical perspective.
We note too that s 50 of the Bill, which makes provision for appeals against the decisions of an equality court either to a High Court or to the Supreme Court of Appeal, makes no provision for the designation of judges of appeal as ‘equality judges’.
We therefore call upon the Department of Justice and the State Law Advisers to amend the Bill, before it is put to Parliament, in such a way as to provide that all courts are required to enforce and promote the right to equality: and to jettison the provisions that undermine the independence and the standing of the judiciary.
Koinonia Centre

KOINONIA CENTRE

ASSEMBLIES OF GOD FELLOWSHIP

KLERKSDORP

We are excited and pleased about the fact that we now live in a country that is alltogether democratic and where the rights of all individuals are protected.
Yet, in saying this, we are concerned that the Government through legislation now wants to remove the rights of certain groups to accommodate the rights of another which in turn comes down to reversed discrimination.
As a Fellowhship and in particular myself as a Minister of the Gospel has to strongly object to the Equality Bill as it will take away the rights of many people, professions, organisations, as well as Churches. The Government through legislation will decide who we employ, who we appoint as Office-bearers, who we must marry, regardless of our own understanding and believe in the matter.
We cannot and dare not do anything contrary to what the Word of God instructs and as believers have to act according to our faith in God. If this Bill is passed it will breach our Religious freedom, our privileged rights, will have serious repercussions and therefore we cannot support the Government in the Promotion of this Bill.
PASTOR KOOS ROETS
Life Offices' Association

LIFE OFFICES’ ASSOCIATION SUBMISSION

A. THE LIFE OFFICES’ ASSOCIATION (LOA)

1. The Life Offices Association represents the vast majority of registered long-term insurers in South Africa and is authorised to make these comments on behalf of its members. We attach a list of LOA member offices.

2. In terms of its constitution:-
2.1 The LOA is a forum where member offices can interact to promote their interests and the interests of current and future stakeholders. The LOA recognises that these interests will be served best by a sound economy with the benefits of economic growth being shared by an increasing proportion of the population;
2.2 The LOA introduced and maintains self-regulatory mechanisms deemed necessary to protect stakeholder interests and promote responsible business practises;
2.3 The LOA upholds the values of integrity and openness.
B. THE LONG-TERM INSURANCE INDUSTRY

3. “Insuring human life values against risk to life and health is one of the major enterprises of our modern day society. Premature death, disability and superannuation, are valid risks faced by every mortal man. Fortunately, most of the economic consequences of these major risks are subject to scientific treatment through the insurance medium, with a resultant decrease in many of life’s uncertainties.”1