Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]
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contributed to the co-ordination its activities. PURPOSE OF SUBMISSION 6. This submission is aimed at ensuring that parliament takes cognisance of lesbian and gay equality in finalising the Promotion of Equality and Prevention of Unfair Discrimination Bill ("the Bill"). 7. The NCGLE welcomes and supports the Bill as a timely intervention in the development and implementation of appropriate legislation to promote substantive equality and eliminate unfair discrimination in society. The NCGLE fully endorses and supports the purpose and application of the Bill. The NCGLE acknowledges the legacy of discrimination against black people, women, disabled people, poor people, people living with disabilities and non-South African nationals. 8. Regrettably, the Bill has been dismissed and unfairly criticised by sectors of South African society. This is against a range of independent civil society bodies representing diverse political opinions who support the Bill because it is necessary to eradicate unfair discrimination and social inequality. The National Coalition for Gay and Lesbian Equality supports the Bill as a fair, just, democratic Bill and as an appropriate response to the effects of disabling, racist and sexist policies of the past. The Coalition calls on all political parties in parliament and society as a whole to support the bill above their party political or sectional interests. 9. Even though the Constitution promises equality, justice and dignity for all, many lesbian and gay South Africans are still subject to harassment, prejudice, hate crimes and unfair discrimination. Therefore, through this submission the Coalition requests parliament to review the Bill with a view to the complete elimination of unfair discrimination in against lesbian and gay employees in particular. In particular we argue for the inclusion of family status and responsibility in the list of prohibited grounds. 10. In addition to the above aims, the Gay and Lesbian Coalition requests Parliament to seriously consider all the issues raised in the submissions of the Equality Alliance and its members – in particular those submissions calling for the inclusion of nationality, HIV/AIDS status and socio-economic status in the list of prohibited grounds. In this instance we refer specifically to the submissions of the AIDS Law Project. UNFAIR DISCRIMINATION EXPERIENCED BY LESBIAN AND GAY EMPLOYEES Langemaat v Minister of Safety and Security and Others 11. The decision by the Pretoria High Court which declared the regulations and rules which define "dependant" in the SAPS medical aid (PolMed) as violating the provisions of the Constitution indicates that there is an urgent need for all employers and benefit providers to revisit the definitions of terms such as "family", "dependant" and "household" (also see other relevant terms listed in paragraph 12 below). In the challenged rules, "dependant" was defined as "the legal spouse or widow or widower or a dependant child". The rules were challenged as unfair discrimination on the grounds of sexual orientation and marital status. (Unreported judgment – Case No. 19077/97) LEGAL CLARITY 12. Unfair discrimination on the grounds of sexual orientation and marital status is prohibited and unlawful. There is little doubt that the laws, rules and regulations inherited from the previous legal order are in conflict with the Constitution and labour laws of South Africa. Without dwelling at length on the extent of this conflict, there is some merit in briefly outlining the difficulties which the NCGLE has with some of the definition used in laws, rules, regulations, practices and policies governing the provision of benefits in South Africa. This may assist employers and benefit providers in re-aligning their benefits, rules and regulations to include lesbian and gay employees and their partners in an equitable manner.
13. The rules and regulations of many employers and benefit providers include terms and definitions which have been used to define domestic relations and benefit beneficiaries. These terms include single, married, dependant, marital status, husband, wife, spouse, family, divorced, divorcee, widow, widower and household. 14. For example the term "spouse" is generally defined as "the legally married husband or wife of a member". 15. The current definitions and terms referred to in paragraph 13 are problematic because they discriminate on grounds of sexual orientation and marital status. They exclude and fail to acknowledge gay and lesbian partners. Lesbian and gay people are not allowed to get married. Further, many heterosexual and same-sex couples who do not get married but cohabit are also unfairly excluded from benefits. UNFAIR DENIAL OF BENEFITS 16. As a result of the use of these definitions and terms, partners of lesbian and gay employees, or any dependent child of such partner, are unfairly excluded from a range of employment benefits. 17. Denial of these benefits constitutes flagrant violations of the spirit, letter and purport of the Constitution, the Labour Relations Act and the Employment Equity Act. Benefits comprise substantial portion of income and savings of many South Africans. The denial of these benefits to members who are in gay or lesbian partnerships or other long term partnerships outside of conventional marriage means that they receive substantially less benefits than do their heterosexual married colleagues.
HOW TO GIVE EFFECT TO THE LEGAL OBLIGATIONS PROHIBITING UNFAIR DISCRIMINATION ON THE GROUNDS OF SEXUAL ORIENTATION AND MARITAL STATUS 19. Domestic relations law (generally known as family law) has failed to keep pace with changing social realities. The failure to recognise and support relationships other than conventional marriage has created substantial uncertainty regarding the rights and obligations of individuals in non-conventional relationships. The exclusion of lesbian and gays from marriage and the absence of legally recognised alternatives to conventional marriage has left many couples unable to define their relationships as they choose and has led to unfair treatment. 20. A number of recent statutory provisions, documents issued by government departments and judicial decisions demonstrate that within the legislative, executive and judicial arms of government, there is an acknowledgment of concepts of "partner", "spouse" and "family" need to become more inclusive. For instance: Section 35 (2)(f) of the Constitution provides that: "Every person who is detained, including every sentenced prisoner, shall have the right ... to communicate with, and to be visited by, his or her spouse or partner, next-of-kin…" 21. The Department of Welfare's White Paper defines "family" as follows: "Individuals who either by contract or agreement choose to live together intimately and function as a unit in a social and economic system. The family is the primary social unit which ideally provides care, nurturing and socialisation for its members. It seeks to provide them with physical, economic, emotional, social, cultural and spiritual security." (Government Gazette No. 16943 2 February 1996); 22. In the recent decision of the Constitutional Court in the Fraser case, Justice Mahomed stated that "family law" could no longer be based on "simplistic" distinctions between married and unmarried people because "in modern society stable relationships between unmarried parents are no longer exceptional." (Fraser v Children's Court of Pretoria North and Others 1997 (2) SA 261 at 272E-G) 23. The Basic Conditions of Employment Act (75 of 1997) provides or family responsibility leave in the event of the death of a "spouse or life partner". This definition avoids discrimination on the basis of sexual orientation or marital status. 24. Thus, a clear trend is being established in public policy and law to eliminate bias in support of Eurocentric nuclear and Judeo-Christian definitions of family and towards a recognition of diverse religious, cultural, social and sexual orientation determinations of family life, or spouse. PROPOSED INCLUSION OF FAMILY STATUS AND RESPONSIBILITY 25. 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. 26. 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. 27. 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. 28. The NCGLE recommends that family status should be included as a specifically prohibited ground for discrimination. 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. The examples and developments given above provide sufficient motivation in support of the NCGLE’s recommendation. 29. A possible definition for family responsibility could be: - “family responsibility” means the responsibility of a person in relation to their spouse or partner, their dependant children, or in relation to other members of their immediate family who need their care or support.” “partner” means a person irrespective of sexual orientation, or, marital status who shares an intimate and committed relationship with another person based on a mutual obligation of support for basic living expenses during the period of the relationship. 30. The proposed definition will establish certainty for the courts and affected groups alike in the elimination of unfair discrimination and the promotion of substantial equality. Without inclusion of family status and responsibility, lesbian and gay people will continue to face unfair discrimination based on their sexual orientation and their marital status. PUBLIC INTEREST 31. Apart from fulfilling constitutional obligations the Bill will guide the state and the public in promoting diversity and tolerance in society because it eliminates unfair discrimination which contributes to general social conflict. 32. Lesbian and gay families have historically been denied equality. Benefit providers, employers, the state and society at large have a real interest in stable and committed family relationships. Stable and committed family relationships minimise social conflict; reduce dependence on the public purse and promote a human rights culture — essential requirements for sustainable long term economic growth and employment equity. CONCLUSION 33. Notwithstanding the proposed amendment, the National Coalition for Gay and Lesbian Equality, on behalf of its members and affiliates, once again congratulates the government for its commitment to economic empowerment and participation of poor and marginalised communities. The Bill is a major step forward for black (African, Coloured and Indian) workers, women, disabled people, people living with HIV/AIDS and lesbian and gay people. The Bill is a culmination of the struggles of the labour movement and poor people for democracy, justice and equality for all in South Africa. Prepared by the Equal Rights Project National Coalition for Gay and Lesbian Equality
NATIONAL INSTITUTE FOR PUBLIC INTEREST LAW AND RESEARCH (NIPILAR) Critique by Ngubeni ka Nkophe National Institute for Public Interest Law & Research (Policy & Research Department) Background The National Institute for Public Interest Law and Research (NIPILAR) was established in 1986 as a black-led anti-apartheid organisation to provide legal assistance to individuals and community organisations, which had been adversely affected by apartheid law, policies and practices. Since then, NIPILAR has developed and grown into a fully fledged national human rights institute to take up a host of human rights activities which include: provision of legal assistance to individuals and communities through the advice centre network; focus on public awareness, education and research; and monitoring of human rights and democracy in South Africa.
This intervention therefore is in line with the mission of NIPILAR with regard to human rights and democracy, particularly from the perspective of the majority of Africans. Our critique flows from the now generally acknowledged fact that the very existence of any normative structure such as the Constitution, Bill of Rights, Employment Equity Ad, Equality Bill, etc., is an indictment against a society that renders these necessary. Existence of a normative structure is simultaneously a protest against a defect in the way society is organised as well as a demand for structural and systemic change. Ii: is the prevailing condition of inequity in EmpIoyment, which necessitates promulgation of the EmpIoyment Equity Act. It is the absence of rights that renders the Bill of Rights necessary. It is the prevalence of general inequality that renders enactment of the Equality Bill necessary. Examples of Good Frameworks One needs only to study the 1947 Constitution of India to see the most advanced document with built-in remedies pertaining to the Scheduled classes or the Dalit. India recognised its problem honestly. The problem remains though because the Constitution did not fix the social reality on the ground. India's case is similar in some ways to that of the founding fathers of the holy church, who tirelessly preached heavenly psychology on earth for the last two thousand years. But when you look at us, Jesus Christ! The passage above is a plea and protest against a trend towards the juridicisation of public discourse in ways, which factor out humanity in favour of hegemonic discourse with its cold-hearted logic of dialectics. Public discourse in SA should be able to allow people to also "think with their hearts." The matter of logic should coincide with the logic of the matter, the logic of social reality, the reality of the people's lives. Body of the Bill In so far as the body of the Bill is concerned, it is our belief that many NGOs, CBOs and the controlling structures of the economy have the expertise to address the detail. The approach we adopt derives from our belief that the majority of Africans simply does not, and cannot, have access to the benefits of litigations or court decisions short of a radical transformation of the whole system. They lack the resources to do so. That is why NIPILAR applauds Government Equality Bill because it is in the interests of democracy and human rights, especially if we constantly remind ourselves that the market system, by its very nature, inexorably continues to re-assert the legitimacy of inequality, in spite of its other social or economic benefits. That is, business does not, cannot promote or protect human rights simply because capitalism does not contain such a dynamic. Which is not to say that business does not benefit workers or communities; this merely asserts that such benefits are, to some extent, side effects of the main focus of business. Though we know well that the devil is in the detail, such legal detail is the playground of lawyers. OverwheImingly members of our constituency only appear in court as spectators to the jargon of law. Hence the technicalities of law offer little comfort to these people. PREAMBLE to the Equality Bill The Preamble is the background against which the legislation will be interpreted. The Preamble is therefore the soul and substance of the legislation. If there are fatal errors in the Preamble, the Act is rendered ineffective by this conception and, by the same token, may as well be considered dead in the water by its destination. Let the Preamble declare Africans to be "a colonised people". Let it grant them "the indigenous status" so that there are corresponding rights and freedoms attaching or arising from this condition. These will be specific rights to land, minerals, water and forests as well as rights to culture, language, knowledge and knowledge production, including the power to determine what is useful knowledge. This will be a new category in this country much as it is a familiar one in North America. In Canada, for instance, First Nations have Treaty Rights that cannot be extinguished by any legislation. First Nations claims on the state substantively differ from claims on the state made by women or disabilities community First Nations demand self-determination, right to hunt, fish; right to revert to their own justice system and system of education; to adopt their own children or conclude treaties with whomever they so wish. Whereas the Aboriginal Peoples of North America or Australia and New Zealand constitute tiny minorities, they have progressively benefited from the existence of dear legal framework of Africans, on the other hand, are subsumed under the general population with the devastating effect of always being lost in the shuffle. Though NIPILAR received the copy of the Bill rather late for preparing a strong case, we are glad to have the opportunity to express views relevant to the majority of this country - Africans. The method we use is to quote the paragraph of the Preamble and then critique it to expose its ideological nature as well as built-in inefficacies. · RECOGNISING THAT - "Throughout the history of South Africa, its people have been inspired by the values of equality, social justice and human dignity which formed the foundation of the struggle against colonialism, apartheid and all other forms of social inequality which have caused and continue to cause pain and suffering to the great majority of its people". Preamble is unbalanced, ideological and potentially harmful to the cause of equality and of preventing unfair discrimination. It starts out with "Throughout the history of South Africa" without specifying the period, say, as 1910 or 1652 or a million years ago. This leaves the concept without a clear referent. The second totally ideological notion is "people". "People" as a concept is an abstract category with no analytic use, too vague, too broad, and badly in need of concreteness. It is just mere existence with no essence. These first eight words of the sentence leave the preamble largely unoperationalisable. Using the word 'people' in the preamble sets the stage for a nightmare of contradictory interpretations as well as court challenges. "Its people" appears twice in camouflage. To improve the efficacy of the legislation, I recommend deletion of 'its people'. Replace with Black people Africans/indigenous people, women, children, senior citizens, etc. Then, we come to the values that inspired its people", namely: "values of equality, social justice and human dignity". Without any grasp of what "South Africa" is, "the values of Equality, social justice and human dignity" are nonsensical, for instance, in pre-colonial life or in pre-1910 South Africa. Which people are these? But the clause: which formed the foundation of the struggle against colonialism, apartheid and all forms of social inequality..." partially unveils some of the enigma at least about "people". They are those who struggled against colonialism, apartheid, etc. Yet another mystery still remains about "people" who are associated with "colonialism, apartheid... which have caused and continue to cause pain and suffering to the great majority of its people". In other words, colonialism, apartheid and all arms of social inequality which have caused and continue to cause pain and suffering to the great majority of its "people" do not have "people" promoting and imposing them. So far, values are classified as either helpful or harmful and are named. Yet, people, who are embodiments and personifications of these values, are neither classified as helping or harming nor are they named. This .shows lack of balance. ·THAT - "These values originate from the traditional philosophy of ubuntu or botho, which has shaped the fabric of a free and democratic South Africa and has moulded its human relations". This part too is ideological. It twists "ubuntu" to insinuate values that did riot exist before colonialism but interpret "ubuntu" in the context of colonialism. Present South Africa is by no means moulded by "ubuntu". Colonial and apartheid inhuman relations mould it. Ubuntu cannot be interpreted to convey pusillanimous surrender before the contest on the ~)art of the majority. This is open to ideological manipulation. · RECOGNISING THAT - "the Constitution of the Republic of South Africa, 1996, commits South Africa and its people to the values of unity, human dignity, the achievement of equality and the advancement of human rights and freedoms, non-racialism and non-sexism". This contradicts the opening clause of the Preamble, which states that "throughout the history of SA, its people have been inspired by the values of equality, social justice and human dignity". To commit "people" to the values that inspired them throughout their history sounds a redundant retreat.
"South Africa is a proud member of the family of nations and, as such, is bound by the standards and norms of international law relating to human rights in terms of which discrimination based on, among others, race., gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth constitutes a gross violation of human rights". A good article. But I would remove "family of nations" and substitute "United Nations" to make it clear. However, the sentence is factually wrong as a result of one word: "gross" At a glance, one recognises that discriminating on any one of these grounds is not necessarily a gross violation of human rights". Recommendation: 1. Delete "family of nations" and replace with "United Nations Organisation" and 2. Delete "gross".
"Although progress has been made in re-constructing a society based on equality, justice and human rights and freedoms, forms of structural arid systemic inequality still persist which undermine the values of our constitutional democracy". Yüklə 1,52 Mb. Dostları ilə paylaş:
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