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

7.4 Specific forms of discrimination within particular sectors should be dealt with either in terms of guidelines, codes of conduct or regulations. 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.
8. ENFORCEMENT

8.1 Referrals

Section 46(1) provides for referral of cases from Equality Courts to other more appropriate forums. We are concerned that it is unfair to complainants to expect them to wait until trial for an appropriate referral to be made. We therefore propose that specific referral provisions are included into the Act. For example, the Act could provide that within ten (10) days of receiving a summons in an equality matter, the Clerk of the Court must take the summons to the Magistrate in order to determine whether a referral is necessary.
8.2 Enforcement of Rights

Section 46(2) provides that certain individuals and institutions can institute proceedings in terms of the Act. We are concerned that the wording in this section does not follow the constitutional wording for enforcement of rights. We propose that section 46(2) should follow the scheme set out in section 38 of the Constitution, with the proviso that any national institution should be able to institute proceedings in its own name. We support the Commission for Gender Equality, the Commission for the Protection and Rights of Cultural and Linguistic Communities and the Pan South African Language Board being able to bring cases on their own behalf.

8.3 Accessibility

Section 47(1) of the Act provides that every Magistrate’s Court and every High Court is an Equality Court for the area of its jurisdiction. We support the idea that Magistrate’s Courts and High Courts should be able to make determinations in equality cases. However, we are concerned that in order to make this legislation accessible, particularly to complainants from poor and vulnerable groups, it is important that the forum of first instance is accessible to them. We therefore support a provision being included in the Bill that makes the Magistrate’s Court the mandatory court of first instance, unless otherwise agreed between the parties.

8.4 Amicus Curiae

Currently, the Supreme Court of Appeal, the Constitutional Court and the Labour Court provide for amicus curiae to intervene in cases on application to the Court. We suggest that amicus curiae interventions are useful form of intervention in equality cases, even at a Magistrate’s Court level. We therefore support the inclusion of a provision in the Act that provides for the admission of amicus curiae to legal proceedings brought in terms of this Act. The Act could provide the Minister with the power to include rules relating to the submission of amicus curiae in equality cases.

8.5 Rules of Court

Section 47(5) provides that except as otherwise provided in the Act, the provisions of the Magistrate’s Court Act, the High Court Act and the rules made thereunder apply with the necessary changes. We are concerned that the rules governing the Magistrate’s Court and the High Court are overly rigid and do not provide for a situation where a complainant brings a case and does not have legal representation.

8.6 We support the development of new rules of procedure for the conduct of matters before the Court, to be approved by a Minister of Justice. The rules referred to must be developed so as to facilitate an inquisitorial approach to the adjudication process and with due regard to the principles of flexibility, limited pre-adjudication proceedings, expedited hearings, and ease of access for complainants.
8.7 Guiding Principles

Section 4(2) of the Guiding Principles in the Act creates an obligation on non-governmental service providers, to provide legal and paralegal assistance within their available resources to victims of unfair discrimination. While we support the fact that NGOs who are specifically working in this area should assist individuals to bring complaints of discrimination and the State should have a duty to assist people who have suffered discrimination, we believe that a legal obligation cannot be placed on NGOs without the financial assistance necessary to carry out the obligations. NGO’s assisting with implementation of the Act should be funded and the Legal Aid system should be expanded to fund cases of this nature.

8.8 Assessors

The Bill includes extensive provisions regulating the appointment of assessors in section 49. We support the fast-tracking of the appointment of assessors to assist Magistrates in these cases in the initial period in which the Act comes into operation. We believe that Magistrates who have received some training together with assessors could provide an interim solution for a one or two year review period, which would enable “equality Magistrates” to be trained properly in order to perform the task of adjudicating such cases.

8.9 We support a five year review plan of the implementation of this Act, which will identify whether there is a need for a separate or independent tribunal to deal with equality cases. This should be considered in conjunction with any review of the Open Democracy Act and the Administrative Justice Act.
8.10 The Act provides at section 47(1) for the appointment of Magistrates to the Equality Courts. We are concerned that the pool from which presiding officers of Equality Courts are drawn should be expanded to include equality activists, people with training and experience, who have expertise in the field of equality and human rights relevant to the application of the Act. This could include human rights activists, academics, practising lawyers who are not currently appointed as ordinary Magistrates.
8.11 Publication

In order for the equality jurisprudence and cases which are decided by the Equality Court to impact on South African society and to build a culture of respect for equality rights, it is important that the judgments emanating from these cases are published in some form. This should be explicitly provided for in the Act.

8.12 Jurisdiction

The rules provide that the jurisdiction provisions in the Magistrate’s Court and High Court Acts will apply to these matters. We support that the jurisdiction of the equality division should not be limited in terms of the quantum of any award it may order. In the case where the order goes beyond that of the Magistrate’s Court jurisdiction, the award should be referred to the High Court for confirmation of the amount of the award.

9. PROMOTION OF EQUALITY

9.1 The Bill contains promotional measures in each of the sectors which provide for measures to prevent and eliminate unfair discrimination and to promote equality to be taken by the responsible Ministers. In addition, the Bill contains a chapter dedicated to the promotion of equality. We support the necessity for substantive equality to be promoted in a programmatic manner.

9.2 In particular 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 programmes to address equality issues. The effect, authority and quality of equity plans could be further enhanced by requirements that plans be reviewed regularly, law reform programmes by national and provincial spheres be encouraged, and their implementation monitored by the constitutional institutions and, possibly, a committee consisting of the relevant ministers or their directors-general. It may be appropriate that plans should first be submitted for scrutiny by a committee of the relevant Ministers for endorsement or recommendations for improvement or alignment with other sectoral initiatives to avoid duplication of effort.
9.3 Various sectoral laws employ an array of statutory methods to promote equality and address unequal distribution of resources. The following are examples:
9.3.1 Decision-making principles:

One method is to structure the discretion of decision-makers in resource allocation with principles that insist on the weighting of the decision-making process in favour of equality promotion. For example, the principles contained in the Development Facilitation Act of 1995 insist on the integration and densification of residential areas to address past discriminatory town planning practices. Similarly, the Marine Living Resources Act of 1998 uses normative equity principles to justify and promote the allocation of resources to disadvantaged persons.

9.3.2 Prioritised planning and budget alignment

The draft Municipal Systems Bill of 1999 requires municipalities to plan and prioritise development with regard to special measures to achieve equality of service delivery and other municipal development obligations to all residents in municipalities’ jurisdictions. Approved plans must be aligned with budgets and budget cycles, and the draft bill envisages internal monitoring and enforcement mechanisms.

9.3.3 Special institutional arrangements with equity mandates, such as Development Tribunals, housing boards and rental housing tribunals, are well-equipped (in terms of statutory powers) to make a difference.
9.4 Thought could be given to use this bill of general application to further bolster the capacity of these and other equality promoting instruments which deal with sector specific equity issues and are specifically designed to address the respective social and economic rights. The equity plans and their legal status and enforceability could be useful tools to encourage law reform aimed at the progressive realisation of the constitutional rights.