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

6. Please favour us with your formal acknowledgment.
RUSSELL GADDIN

NATIONAL CHAIRMAN

· our underlining
Winnie Mandela Residents Association, Olifantsfontein

WINNIE MANDELA RESIDENTS ASSOCIATION, OLIFANTSFONTEIN

We would like to have an opportunity to appear before the committee on the above stated matter [the Promotion of Equality and Prevention of Unfair Discrimination Bill].
REASONS

As the community based organisation we would like to address the committee about lack of involvement of CBO’s in national legislation and policy framework for the sake of ground roots policy understanding and policy implementation as lack of equality and unfair discrimination being the illness suffered by the local communities or the ground roots people.

Mr I Mkhabela
Matter – Promotion of Equality and Prevention of Unfair Discrimination to the Community based Organisations
1. Employment

Community based organisations have been isolated from the employment policy frameworks, from labour relation and basic conditions of employment act to employment equity bill whereas CBOS being the most structures suffering the consequences of proper welfare, elimination of poverty which result in poor living conditions to the floor level society caused by retrenchments and unfair dismissals without alternatives or basic upgradings to them through economic and business development programmes. Community based organisations are the only structures that can identify potential entrepreneurs more better than the local authorities.

2. Education

When legislation South African School Act No 84 / 1996 the government neglected assurance of the democratic consigns in balancing representation into the school governing bodies by not involving community based organisations in terms of S23(8) of the act into decision makings of the schools, whereas knowing exactly that parents of learners are most at work and those around are so disadvantaged literally and capacity building wise as well as leadership skillwise, whereby [illegible] play a role on the policy formulation of the schools, which will give the educator and [illegible] lot more powers of running the school the way they like, because parents does not know the functions of educators and learners at schools, they cannot guard against any failure in the school management process. Community based organisations can ensure a proper management in schools if they are directly involved and given powers to do so.

3. Health Care

There has been a crisis in the health care services of which the public service commission has failed to resolve, more especially in the public hospitals where patients are left stranded for the whole day without attendants, such cases are reported regularly to the local community based structures but because the community based structures are not recognised in the public services if taking actions that is ignored by the senior structures, whereas national parliament made promises and making proper governing legislation by the local public services centres, if not empowering CBOS to guard against them, that will be continued.

4. Land and Property

This is a major problem faced by the community based organisations on the housing delivery and land redistribution programmes as the approach on such programmes by local and provincial covered lot more of corruption, nepotism, which violates terms in the constitution and development facilitation act where community based organisations are regarded as stakeholders and the participation of people on the ground are not told exactly of the aims and objectives of the project to be developed, description of the project and the property description status as well as the direct costs and services to be implied into the project where local authority and professionals overlapping with the funds which directly violates the commitment made by our national government in terms of land development objectives because currently local authorities have deployed strict conditions that are more difficult for the ground roots society to access residential stands and houses not everybody is accessed easily to the housing backlog of the country.

The bulking of services into the upgrading projects of the informal settlements has hided lot more corruptions and lack financial transparency, and lack of policy understanding and the local structures overruling the developing projects in the disadvantaged areas such as Winnie Mandela Park Informal Settlements and others which I cannot mention in which they too mislead the projects because of not knowing the development policies of the country, such as development facilitation act which requires a broader application as it is a resource that contained the commitment of our government to offer skills and capacities to CBO stakeholders for quality service delivery purpose, local government authorities have overlapped on the housing projects and land redistribution programmes because of not applying properly the aspects of land development objectives and its policy DFA 67. 1995 in terms of identifying the administratives and technical skills to the affected people. Community based organisations are the only structures that know exactly what is needed for the people as well as to who are the stakeholders.
5. Safety and Security

Community policy forums had been deprived powers to assess and monitor the police officers performance in terms of policies governing South African Police Service, whereas members of the police still undermine community based organisations made by CBOS are not considered by police officers and their seniors when legislating matters strict measures and competent management needs to be assured and monitary role and powers be given to the community based organisation for the democratic and fair or good governance.

6. Services and Facilities

Our organisation as the community based organisation has been refused special electricity installation and sports facility developments on the ground that we did not through the ANC branch executive committee by ESKOM and Kempton Park Tembisa MLS, therefore we hope that the unfair discrimination of community based organisations will be addressed by this bill only the national government and make easily accessible ways for the CBOS to lay claims of any violations of the government policies, and criticise any failures.

7. Media Services

South African media service has deployed quite difficult criteria to publicise any failures where CBOS will be asked many questions if those structures are not favoured by those institutions or parastatals which is more discouraging for CBOS to challenge failures of local authorities through media and publicity services.

8. SMME Development

The national government must speedily regulate laws that must govern the SMME developments as the financing institutions are so hard with their internal consideration criteria to give loans to people with technical skills but facing difficulties in getting money for their founding equipments materials and facilities to start their own business, those laws must ensure an easy access to administrative skills department to non matriculants with business focus.

Women's Legal Centre & Socio-Economic Rights Project, UWC (23/11/99)

WOMEN’S LEGAL CENTRE AND SOCIO-ECONOMIC RIGHTS PROJECT,

COMMUNITY LAW CENTRE (UWC): JOINT SUBMISSION
23 November 1999
1. INTRODUCTION

1.1 The Promotion of Equality and Prevention of Unfair Discrimination Bill, 1999 [hereafter referred to as ‘the Bill] must properly fulfil the constitutional mandate to enact national legislation “to prevent or prohibit unfair discrimination.” (s 9(4)). It must at the very least meet the minimum requirement of section 9(4) of the Constitution to prevent or prohibit unfair discrimination by private people and corporations.

1.2 Equality legislation can play a key role in promoting the transformation of our society by providing concrete mechanisms for challenging unfair discrimination on one or more grounds in terms of section 9(3) of the Constitution. The Constitutional Court has said that these grounds have “the potential, when manipulated, to demean persons in their inherent humanity and dignity.” According to the Court, the equality clause in the Constitution “seeks to prevent the unequal treatment of people based on such criteria which may, amongst other things, result in the construction of patterns of disadvantage such as has occurred only too visibly in our history.” (Harksen v Lane NO and others 1997 (11) BCLR 1489 (CC), para. 49). We accordingly fully support the objectives of this legislation.
1.3 The Bill must fulfil four main criteria. It must:

· be legally coherent and comply with the Constitution;

· be workable;

· provide accessible remedies, especially for disadvantaged groups, to obtain redress against unfair discrimination; and

· promote equality and transformation of our society.
1.4 We are concerned that the Bill in its present form is unduly complex and contains a number of internal contradictions. The interrelationship between different sections of the Bill - the many definitions of discrimination, the sections on race and gender, the sectors, and the general defences in section 43 is not clear. We believe that these defects will hamper the Bill in achieving its objectives of assisting disadvantaged people to challenge discrimination and promoting transformation.

1.5 In this submission, we set out some of our main concerns with the Bill, and also provide a set of recommendations on how the Bill could be improved. The main focus of the submission is what we see as the “backbone” of the legislation: the definition of discrimination, the prohibition of unfair discrimination, defences and burden of proof.

2. DEFINITIONS OF DISCRIMINATION

2.1 The Bill contains many overlapping definitions of discrimination, each using different concepts. These include:

‘disability discrimination’ - s1(vi);

‘pregnancy discrimination’ - s 1 (xiv);

‘unfair discrimination’ - s 1(xxvi);

‘racial discrimination’ - s 7(1);

‘gender discrimination’ - s 10;

unfair discrimination in relation to employment - s 13(ii).

This host of different definitions is problematic for the following reasons:
2.2 It will be confusing for courts or other forums to decide what test to apply in a particular case. For example, if a person is being discriminated against as a disabled women, should the courts apply the definition of disability discrimination, gender discrimination or the general definition of unfair discrimination?
2.3 The division of forms of discrimination into different categories has regressive implications as it does not take into account the intersectionality of grounds. The Constitutional Court has said that there is often a complex relationship between grounds of discrimination. It went on to warn that the “temptation to force them into neatly self-contained categories should be resisted.” (Harksen v Lane NO and others at para. 49). By attempting to give separate definitions for race discrimination, gender discrimination, disability discrimination, pregnancy discrimination etc., the Bill attempts to divide discrimination into different categories. The likely effect of this will be that complainants will have to elect which category of discrimination they wish to rely on. This will negate the reality that the discrimination experienced is often the result of a combination of a number of grounds e.g. race, sex, disability, socio-economic stereotype etc.
2.4 South Africa is not obliged to follow the exact words of the international instruments cited in order to incorporate their provisions in domestic law. International treaty provisions can be ‘transformed’ in domestic law. This means that the treaty provisions are translated into terms and concepts that are consistent with those of the domestic legal order. Provided the domestic legislation gives proper effect to the relevant treaty obligations, it is not necessary to take over the precise definition of ‘racial discrimination’ in the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the definition of ‘discrimination against women’ in article 1 of the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). If the Equality Bill accords with the constitutional provisions and jurisprudence relating to section 9 of the Bill of Rights, we submit that it will give proper effect to the obligations arising from CERD, CEDAW and other human rights treaties South Africa has ratified (e.g. articles 2(1) and 26 of the International Covenant on Civil and Political Rights, 1966)
Recommendation

We accordingly recommend that the current definitions of the various forms of discrimination be replaced with a single definition of ‘discrimination’ that will apply to all grounds and sectors. Our proposal for this definition is as follows:

Discrimination means any act or omission which directly or indirectly -

(a) imposes burdens, obligations or disadvantages upon, or

(b) withholds benefits, opportunities or advances from any person or persons on one or more of the prohibited grounds.
This definition makes it clear that the ultimate test for discrimination is the effect of the act or omission, whether that effect be direct or indirect. This definition makes it unnecessary in our view to provide separate definitions of direct and indirect discrimination.
3. THE DEFINITION AND PROHIBITION OF ‘UNFAIR DISCRIMINATION’ IN THE BILL

3.1 The Bill purports to define ‘unfair discrimination’ (s 1(xxvi)). The determination of the unfairness of the discrimination complained of is essentially a contextual enquiry which focuses on the impact of the discrimination complained of on the complainant.

3.2 Section 6(1) provides that no one may unfairly discriminate “directly or indirectly”. Paragraph (i) of the definition of “unfair discrimination” again defines it as an act or omission which has “the direct or indirect effect” of causing disadvantage to people. This repetition is confusing. It probably means that no one may directly or indirectly do or omit to do anything which has the direct or indirect effect of causing disadvantage to people. The link between the conduct and the disadvantage becomes impossibly remote.
3.3 In any event, the Bill’s definition of ‘unfair discrimination’ is circular: “unfair discrimination means...unjustly or unfairly causing disadvantage to....”

The introduction of the concept of injustice in this context and its relation to unfairness is also bound to cause confusion. Care should be taken to avoid the use of many different concepts as this will lead to difficulties in the interpretation of the Act.

3.4 Paragraph (iii) of the definition of “unfair discrimination” includes “racial and sexual harassment” within its ambit. These two concepts are separately defined but there is also a further definition of “harassment”. It is not clear whether “racial harassment” and “sexual harassment” are forms of “harassment” which have to comply with the definition of the latter concept.
3.5. There is also a concern that paragraph (iv) may be too broad, and thus likely to be ineffective.
3.6. Paragraph (b) of the proviso excludes any discrimination “on the basis of an inherent requirement of a job or a situation”. This exclusion will at worst deprive the whole definition of any coherent and practical meaning or at best make it all but impossible to apply. What does it mean to say that discrimination does not constitute unfair discrimination if it is done “on the basis of an inherent requirement of ... a situation”? What is an “inherent requirement”? What is a “situation”? The relationship between this specific defence and the general defence to a claim of unfair discrimination in section 43 is also unclear.
Recommendation

We recommend that the Bill contain the following general prohibition of unfair discrimination:

Prohibition of unfair discrimination

(a) The state and any organ of state may not unfairly discriminate against anyone.

(b) A natural or juristic person may not unfairly discriminate against anyone in relation to any controlled activity [see further section 7 on the sectors].
This should be followed by the following sections dealing with unfair discrimination:
Unfair discrimination

Discrimination is unfair if it:

(a) impairs or is likely to impair the fundamental human dignity of any individual, group, class or category of person; or
(b) perpetuates or exacerbates or is likely to perpetuate or exacerbate existing patterns of disadvantage based on or related to the prohibited grounds.
4. DEFENCES AND BURDEN OF PROOF

We are concerned about the implications of using the concepts of “reasonableness and justifiability” as the basis for the general defence in the Bill. These concepts are relevant to an enquiry under s 36 of the Bill of Rights concerning the justifiability of limiting a right in the Bill of Rights in terms of a law of general application. The introduction of the concept of ‘reasonable and justifiable’ in the Bill in fact introduces a three-stage burden of proof requirement. In other words, once the applicant makes out a prima facie case of unfair discrimination in terms of the Act, the respondent has three opportunities to defend the claim against him or her:

(a) that the discrimination is not based on one or more of the prohibited grounds;

(b) if is, that the discrimination is not unfair;

(c) if it is unfair, that the discrimination is nonetheless reasonable and justifiable in terms of section 43.
The Bill in its current form does not follow through the logic of its own approach. It currently omits step (b) from its burden of proof provision i.e. the unfairness enquiry. A three-stage enquiry in a Bill of this nature will potentially make issues of proof and interpretation in a discrimination case very complicated.
Under the burden of proof section (s 45), one of the things that the respondent must prove, is that the discrimination is not based on one or more of the prohibited grounds. But under the current definition of unfair discrimination, only some forms of unfair discrimination are defined as discrimination on the prohibited grounds. For example, sub-paragraphs (i), (ii), (iii), and (iv) of the definition of ‘unfair discrimination’ do not refer to the prohibited grounds. It is thus not clear whether it is also a defence to these other forms of unfair discrimination if it is proved that it was not done on any of the prohibited grounds?
Similarly the relationship between many of the specific prohibitions contained in Chapter 2 of the Bill and the general defence provisions in Chapter 3 is not clear (see para 7 below).
Recommendations

We recommend that the Bill deal with the determination of unfair discrimination, measures designed to redress disadvantage, and the burden of proof provision in the following way:

Determination of unfair discrimination

Whether discrimination is unfair depends on its context and all relevant circumstances and in particular:

(a) the impact of the discrimination on the complainant;
(b) the position of the complainant in society and whether he or she has suffered in the past from patterns of disadvantage;
(c) the nature and extent of the discrimination;
(d) whether it has a legitimate purpose;
(e) the nature and importance of its purpose;
(f) whether and to what extent it achieves its purpose;
(g) whether and to what extent its purpose may be achieved by less intrusive means;
(h) whether and to what extent the respondent has taken such steps as are reasonable in the circumstances to overcome disadvantage or to accommodate diversity arising from or related to one or more of the prohibited grounds; and
(i) whether it is consistent with the applicable code of practice, if any.
Measures designed to redress disadvantage

(a) Acts or omissions designed to protect or advance groups or categories of persons disadvantaged by unfair discrimination, or the members of such groups or categories of person, do not constitute unfair discrimination.

(b) The state and organs of state must implement measures to protect and advance black people, women and people with disabilities.
(c) Natural and juristic persons engaged in any controlled activity, must implement measures to protect and advance black people, women and people with disabilities.
Proof of unfair discrimination

Discrimination is presumed to be unfair unless the contrary is established.

In terms of this scheme, the complainant must establish:

1) an act or omission;

2) the effect of which imposes a disadvantage or withholds a benefit

3) on one or more of the prohibited grounds.

When these elements are established, it is for the respondent to show that the discrimination is not unfair.

5. SPECIFIC FORMS OF DISCRIMINATION

5.1 We are concerned with a number of aspects of part B, Chapter 2 of the Bill dealing with race and gender discrimination.
5.2 Each part contains its own definition of prohibited forms of discrimination. Those definitions are apparently self-contained and unrelated to the definition of “unfair discrimination”. But it creates a great deal of confusion to have a general definition of unfair discrimination on the one hand and separate free-standing definitions of a variety of other forms of discrimination on the other.
5.3 Some of these provisions are drafted in a vague way that will make their enforcement very difficult (see for example, sections 8(b) and (c))
5.4 There is a great deal of confusion and contradiction arising from the vast areas of overlap between the general prohibition in section 6(1) on the one hand, and the specific prohibitions in the remainder of chapter 2 on the other, and between the various specific prohibitions. We believe that these areas of overlap will frustrate attempts to enforce the prohibitions whether of a general or specific variety.
Recommendation

We accordingly refer to our recommendation in paragraphs 2 and 3 above that the Bill include one general definition of discrimination and a prohibition of unfair discrimination that applies to all the prohibited grounds.

6. PROHIBITED GROUNDS OF DISCRIMINATION

6.1 Paragraph (i) of the definition of unfair discrimination is based on the concept of “prohibited grounds”. But the definition of ‘prohibited grounds’ (s 1 (xvii) is open ended so that it is impossible to determine what those grounds are. They are said to “include” the specified grounds “or any other recognised ground.” One is accordingly told that the prohibited grounds are not limited to those specified, without any indication what the further prohibited grounds are or how one should determine them. It is not clear how a ground comes to be “recognised” - by society, the Constitutional Court, the new Equality Courts created by the Bill?

Recommendation

We believe that there are significant dangers in having an open-ended definition of the prohibited grounds of discrimination. It is very difficult to provide a sufficiently precise formula for the inclusion of grounds which are not listed. We recommend that only a list of prohibited grounds is provided, and not a general definition. The list set out here is comprehensive. If in future it is shown that other grounds require to be added, the statute may be amended accordingly. Amendment of an Act of Parliament is easier to accomplish than amendment of the Constitution. The fact that section 9 of the Constitution contemplates the existence of prohibited grounds additional to those listed in section 9(3) does not mean that the Equality Act must make similar provision for the addition of new grounds by judicial interpolation. If, in future, the Constitutional Court declares a ground of discrimination not listed in the Equality Act to be a prohibited ground in terms of section 9(3), that ground could by legislative amendment be added to the grounds prohibited under the Equality Act.