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

2.2 The proviso in clause 46(3) be similarly amended so as to ensure that all unfair discrimination and affirmative action claims are prosecuted through the CCMA and the Labour Courts.
2.3 One definition of unfair discrimination be included in the Bill. However, the following should be ensured: (i) that the test for unfair discrimination in employment follows the test in the EEA, and (ii) that the onus provision also follows that in the EEA. This might necessitate a different treatment of unfair discrimination in the employment sector from the remainder of the Bill.
2.4 The defences to claims of unfair discrimination of an inherent requirement for the job and affirmative action as contained in the EEA be included in the employment sector.
2.5 The definition of ‘employment’ be amended to reflect the definitions in the Labour Relations Act, Basic Conditions of Employment Act and the Employment Equity Act, to avoid the problem of confusion.
The provision relating to independent contractors be removed to Part I section 32.
2.6 Section 14 either be deleted or the following amendments made to the wording:

(i) ‘Any person’ in the introductory section be changed to ‘any employee’ to bring the wording in line with that in the Employment Equity Act. The rationale is that the section relates to the employment relationship and this should be reflected in the provisions. This would not have the effect of excluding members of the NIA, NDF or SASS as it is arguable that they may be regarded as employees. If not, then a special provision can be inserted to ensure that they are covered.

(ii) Subsection (e) of section 14 dealing with independent contractors be moved to Part I, section 32.
(iii) Subsection (g) of section 14 be deleted as it is vague and meaningless.
2.7 The purpose of an employment sector in the Bill would presumably be to cover any employees excluded by the EEA. The main category if the above amendments are introduced would be members of the NIA, SASS and NDF as they are excluded from the EEA. It should be borne in mind, however, that unless the provisions relating to unfair discrimination in employment are consistent in both the EEA and the Bill, employees falling under the EEA and members of the forces falling under the Bill could be subject to different treatment when they raise claims of unfair discrimination. This could lead to their raising a claim of unequal treatment on the grounds that different laws treat them differently on the issue of unfair discrimination.
CARAS Trust

The Promotion of Equality and Prevention of Unfair Discrimination Bill

Representations by the CARAS TRUST
The CARAS TRUST - Centre for Anti-Racism and Anti-Sexism - wishes to support in broad terms the Promotion of Equality and Prevention of Discrimination Bill. In particular we consider constructive a number of its features which may seem controversial to some people.
Some of our Trustees and our Consultants have lived and worked overseas during periods of exile and have experienced comparable anti-discriminatory legislative regimes; therefore we are in a position to make some comments. The following points are raised in order of their importance rather than their position in the Bill.
· We support the placing of the onus of proof upon the alleged discriminator. This is not grounded in assumptions about the pre-eminence of the interests of the discriminatee. It is that putting the onus there is the only way to judge the issue on objective evidence rather than speculative issues around the motive of the alleged discriminator. In other words it is not possible - or even useful - to prove whether or not a person intended to discriminate: at what level for instance are we do judge an intention? But it is possible, on the basis of documents relating to procedures to judge whether a person has in effect disadvantaged another on the grounds of a perception that overrode the qualities apparently sought. Thus a person who offered more than others in the way of the characteristics sought but who failed to be chosen can show that the effect of the selection procedure was discriminatory, regardless of the intentions - however those are judged.
·We support the outlawing of certain insulting speech. To do so sets a benchmark or standard by which a society should be able to judge its progress. No doubt, actual prosecutions of people using such language will constitute a small proportion of the occasions on which it is used - just as the Swedish legislation outlawing the practice of hitting children was used as a statement of aspiration rather than a law with which to punish parents and other carers. But it is important that our country goes forward with a clear vision of the inclusive society which rejects exclusivity of access and leadership, and the language that upholds an ideology of superiority.
· We reject the idea that proscribing certain insulting ways of addressing others is an infringement of freedom of speech. The history of our country is such that inflammatory language can be dangerous. People whose dignity and respect have been constantly attacked over the centuries on the grounds of their race, sex etc do not now in the new situation take phlegmatically to reminders of the pain of racism and sexism. Nor is it the position of those who have not suffered such treatment to pronounce upon whether reactions to such insults is ’over-reactive’ etc, since they do not have the necessary experience to judge. It is not the right of any person to damage another or put the society at risk. To prevent their doing so is not an infringement of rights but a promotion of those of vulnerable people.
· We think the inclusion of the word ‘Boer’ as one of the outlawed insults may be inappropriate because it is ambiguous, having a perfectly acceptable meaning as well as a derogatory one. It also looks like a somewhat forced attempt to be ‘even-handed’ between Black and White people, when in truth there is no comparison about the hurt inflicted, given the power imbalance between them.
· It is perhaps worth making the point that in principle the legislation is necessary because from it will flow changes in behaviour, and from that, in time, changes in attitudes. When legislation was first introduced in Europe and the United States there was objection on the grounds that ‘legislation cannot change minds’. Nor is it intended to do so. A law outlawing murder is not intended to forbid murderous thoughts, only to forbid their being acted out. Until there was anti-discriminatory legislation in those countries the great majority of the population continued to discriminate on a huge scale. When it was passed, the overt behaviour changed dramatically. People in organisations who opposed discrimination were much strengthened
· We support the use of the positive statement in the title that the purpose is to promote equality by preventing discrimination. The CARAS TRUST has no illusions that preventing discrimination will end racism and sexism rapidly - they are the product of centuries of profound conditioning. But they can create better access for disadvantaged people in the meantime. These things dovetail through time.
MARGARET LEGUM, TRUSTEE OF CARAS TRUST
Commission on Gender Equality

Submission To The Ad hoc Parliamentary Committee On The Promotion Of Equality And The Prevention Of Unfair Discrimination Bill

By The Commission on Gender Equality
Executive Summary

1.The Commission on Gender Equality (CGE) welcomes the Promotion of Equality and Prevention of Unfair Discrimination Bill (the Bill). We appreciate the enormity of the task the legislature faces in drafting this legislation: promoting substantive equality and preventing unfair discrimination.

2. As you are aware the CGE is a Chapter 9 institution tasked by the Constitution with the responsibility of supporting democracy in South Africa, through the promotion of gender equality and the elimination of gender inequality in our society.
3.This Bill represents the most significant piece of legislation since the Constitution on issues of equality and the elimination of unfair discrimination. We consider it a critical tool to assist us in our work of promoting gender equality and preventing gender discrimination.
4.The CGE’s submission focuses on five principal areas:
·The Bill’s enforcement mechanism – the necessity for an interim tribunal before the Equality Courts can be established in the magistrates’ courts.

·Positive measures to promote equality – the necessity for this legislation to recognize the role of the Commission on Gender Equality as a co-custodian with the South African Human Rights Commission (“SAHRC”), of equality in South Africa.

·The definition of unfair discrimination – the need to have one definition that applies to all forms of discrimination.

·Other Gender concerns such as the need to include Family Responsibility and status, HIV/Aids, and socio-economic status as prohibited grounds of discrimination.

·The Bill’s treatment of discrimination in specific sectors
5.In terms of the enforcement mechanism, the CGE recommends that the section dealing with the equality courts be amended to provide for the creation of an interim equality tribunal. The CGE agrees with the intent of the drafters of mainstreaming equality adjudication through the “normal” court system. However, we believe that the magistrates' courts in particular are not ready to assume this responsibility. Creating an interim tribunal does not involve creating a new permanent structure; it will allow the necessary time for the equality training and upgrading of magistrates’ skills to occur without prejudice to people who need the immediate implementation of the legislation.
6.It is recommended that the tenure of this tribunal not be more than three years. The tribunal will be composed of eight “presiding officers”; all the presiding officers will be seconded from their current positions – 4 judicial officers; 2 commissioners from each, the CGE and the SAHRC. The tribunal will operate on a circuit court arrangement with a panel of two presiding officers hearing cases. Presiding officers will be assisted by a clerk, and two equality assistants who would be permanently located in two magistrates’ courts per province. The position of equality assistants is already provided for in the Bill.
7.There is precedent for this type of tribunal. The office of the Pension Funds Adjudicator could provide a model for this tribunal. The Pension Funds Adjudicator resolves disputes in the pensions industry and brings principles of equity to bear in his determinations. The important difference between the two would be that the Pension Funds Adjudicator is a permanent institution while the equality tribunal would be temporary.
8.With regard to the roles of the CGE and the SAHRC, the CGE requests that Parliament give recognition to the CGE as a co-custodian of equality legislation. The Constitution provided for both the creation of the SAHRC and the CGE because the drafters recognized the importance of gender discrimination, and that without gender equality, democracy and transformation of South Africa would remain incomplete. The following sections will have to be amended to include the CGE. Chapter 2, section (15), and Chapter 5 section 51(4) dealing with “[m]easures to prevent and eliminate unfair discrimination and to promote equality”. Chapter4, section 46(2) which states who may institute proceedings under the equality legislation. Chapter 7, section 54 dealing with the establishment of the Review Committee.
9.CGE recommends that the various definitions of unfair discrimination in Chapter 2 be deleted and replaced by a single definition of “discrimination” that applies to all grounds and sectors. The purpose of this is to avoid confusion that will arise due to the fact that in a particular case various grounds of discrimination may intersect for example gender, race, and disability. We recommend that the definition of discrimination be in line with how the Constitutional Court has interpreted the concept of discrimination.
10.Finally, the CGE strongly recommends that family responsibility or status, HIV/Aids, and social and economic status be included in the list of prohibited grounds in this legislation. Discrimination on these grounds serves to entrench gender inequality because women are particularly vulnerable to these forms of discrimination.
The CGE thanks the Ad Hoc Committee on the Promotion of Equality and Prevention of Discrimination Bill for this opportunity to address this Parliament on this very important legislation.
Introduction

1.The Commission on Gender Equality (CGE) is one of six independent statutory bodies established in terms of Section 187 of the Constitution of the Republic of South Africa (The Constitution).1 The CGE is mandated by the Constitution to “promote respect for gender equality and the protection, development and attainment of gender equality.”

2.In terms of its enabling statute, the Commission on Gender Equality Act2 (The CGE Act) the CGE’s functions include:
· Monitoring and evaluating the policies and practices of government, the private sector and other organizations to ensure that they promote and protect gender equality;

· Receiving gender related complaints;

· Public education and information;

· Reviewing existing and upcoming legislation from a gender perspective;

· Investigating inequality; and

· Commissioning research and making recommendations to Parliament or other authorities.

3.In accordance with these powers, and recognizing the critical importance of this legislation as a mechanism through which indirect and systemic discrimination with regard to gender equality can be addressed, the CGE has reviewed the Promotion of Equality and the Prevention of Unfair Discrimination Bill (the Bill). In addition, the CGE participated in the processes convened by the Equality Legislation Drafting Unit3. Furthermore, the CGE also initiated and participated in various civil society initiatives to discuss and debate proposed legislation to promote equality and prohibit unfair discrimination4.

4.The CGE welcomes the Bill and appreciates the enormity of the task the Bill is set to achieve namely the promotion of substantive equality; and elimination of unfair discrimination. The Constitution has made it clear that the purpose of this legislation is to facilitate the translation of the Equality Clause into reality for South Africans. Through its submission the CGE wishes to ensure that the Bill achieves its Constitutional objectives and brings South Africa in line with its international obligations.5

Constitutional and Legislative Framework of Equality Legislation

5.The Constitution has equality as a core value and as one of its primary rights. The Constitution supports a substantive understanding of equality as opposed to a formal understanding of equality. Formal equality is simply about the equal treatment of people. It focuses on individuals and does not account for the social and economic disparities that exist. The disadvantages faced by groups such as black people, women, the disabled and other disadvantaged groups are ignored.

6.This Bill may be seen as going beyond the Constitutional mandate of section 9(4), which specifically calls for “national legislation to prevent or prohibit unfair discrimination”. If this legislation simply outlawed unfair discrimination it would be taking a formal equality approach. The CGE believes that in order to prevent unfair discrimination the legislation must promote substantive equality.
7.Under a formal equality paradigm, affirmative action and any other positive differential treatment measures would be unacceptable. Substantive equality focuses on both equality in treatment and equality in outcomes. Given South Africa’s history of inequality and the systemic discrimination against the majority of the population, a substantive approach to equality is imperative.
8.The Constitutional Court has endorsed a substantive approach to equality. In Brink v. Kittshoff, a case involving sex discrimination, the Court decided that the main purpose of the equality clause is to remedy systemic patterns of disadvantage based on race and sex discrimination in South Africa, which manifests itself most acutely in the case of black women.6
9.Moreover, both the Employment Equity Act of 1998 (EA) and the Labour Relations Act of 1996 (LRA) have adopted a substantive equality approach. Both Acts recognize that in certain circumstances it is necessary to treat groups of people differently in order to achieve equality.
10.The CGE applauds the Bill’s adoption of a substantive equality approach as evidenced by the following:
·The Bill’s endorsement of affirmative action and other positive differentiation measures;

·The Bill’s adoption of a definition of unfair discrimination that includes both direct and indirect discrimination; and

·The inclusion of the duty to accommodate.
11.The CGE wishes to underscore the importance of the inclusion of the duty to accommodate groups identified by any of the prohibited grounds. South Africa would not be alone in extending this duty beyond the disability area. In Canada the duty to accommodate has been employed involving a worker who was dismissed for refusing to work on a Saturday which she observed as a Sabbath.7 Also, in a case involving pregnancy, a court decided that an employer was required to accommodate a pregnant employee who could not work safely in spray painting areas by reassigning her to a packing area.8
12.The CGE has identified five principal areas on which to focus its submission:
A.The Bill’s enforcement mechanism – the Equality Courts and the necessity for an interim equality tribunal.
B.Positive measures to promote equality: the necessity for this legislation to recognize the role of the CGE as a co-custodian with the South African Human Rights Commission (SAHRC) of equality in South Africa.
C.The Bill’s treatment of “unfair discrimination” in general and in specific sectors.
D.The Bill’s treatment of discrimination in specific sectors.
E.Other Gender Issues - Inclusion of “Family Responsibility and Family Status”, HIV/Aids, and “social and economic status” as additional prohibited grounds of unfair discrimination.

13.The CGE therefore makes the following recommendations in the spirit of support and out of the desire to ensure that the Bill delivers on the Constitutional promise on equality.

A. Improving The Enforcement Mechanism

The Equality Courts

14.The CGE 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.
15.Since its inception two years ago the CGE has worked to ensure that women, particularly the most marginalised i.e. those in poor rural and peri-urban areas, are able to access the legal system and that the system itself can become a vehicle for promoting equality.
16.Although the CGE is not an implementing agency, in view of scarce resources and in the context of this pivotal equality legislation, it is willing to contribute by playing a more “hands-on” role. The CGE therefore, is putting forward a recommendation for an interim structure that will utilise its own and the SAHRC’s resources. 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.
17.The CGE believes that this legislation is an important tool in making the legal system accessible to the most vulnerable groups in society, such as women, rural people, and the poor. These vulnerable groups are most likely to require the protection of this legislation. Reliable and straightforward access to enforcement is critical to the efficacy of this legislation. The principle of access includes access to enforcement in rural areas, the user friendliness of the forum, and access to legal representation.
18.For this reason, the CGE proposes that a temporary interim enforcement mechanism be established which would function until such time (two and a half years) as the necessary reforms and training of the magistrates’ courts has been accomplished.9 This proposal is cost effective and provides the Parliament and Government with the opportunity to ensure the successful implementation of equality legislation.
19.Although the Bill implicitly recognises the importance of accessibility by making provision for every magistrate’s court and every High Court to eventually become an equality tribunal, 10 the magistrates’ courts in particular do not at present provide an accessible and efficient forum for the adjudication of equality cases.
20.The CGE shares the Bill’s vision of ensuring that equality is mainstreamed throughout the judicial system. 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 equality and the CGE strongly supported both Acts. 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.
21.The magistrates’ courts are understaffed and have mostly 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 understanding of gender issues. This lack of experience and understanding in dealing with equality and discrimination issues will gravely undermine this legislation.
22.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.11 It would appear that the Bill anticipates an incremental approach to the implementation of the legislation. This submission recognizes that access to the forums for resolution of equality cases will, of necessity, be limited. However, the CGE’s proposal wants to ensure that though limited, the forum is effective.
23.While the CGE 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. Although South Africans can be proud of the constitutional and legislative advances, made towards equality, such advances without being accompanied by adequate implementing mechanisms are worthless.
24.The CGE is mindful of both the time and resource constraints involved in the endeavour to implement this Bill, and we are cognisant of Government’s enormous challenge to ensure delivery. This proposal seeks to aid the implementation process, it is discussed below.
The Proposed Interim Equality Tribunal

25.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.