Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]
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19. The inclusion of this right will be consistent with the Bill of Rights in its recognition of social and economic rights. Constitutional Court judge Chaskalson in the case of Soobramoney v Minister of Health referred to these rights as a reflection of the commitment to transform the conditions of poverty and inequality that exist in our country. This commitment must be translated into a legal protection and prohibition of any form of discrimination that impairs access to these rights. 20. Further, South Africa has ratified a number of international instruments that recognise socio-economic status as a prohibited ground. Both the International Covenant on Civil and Political Rights [art 2(1)] and the International Covenant on Economic, Social and Cultural Rights [art 2(2)] list "national or social origin, property, birth and other status" as a prohibited ground. An interpretation of this provision states: "The distinguishing qualities of birth, property and social origin elate to the prohibition of discrimination on the basis of status or class. No person may be privileged or disadvantaged in the enjoyment of Covenant rights simply because they, e.g. are members of the nobility or working class." (Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary 1993) Family status and responsibility 21. Unfair discrimination on the basis of family responsibility arises most often in the case of caregivers in the family suffering inequality because of their responsibilities. The most common examples are found in the employment sector where caregivers face hardship and disadvantage because of a failure to recognise their responsibility. Yet similar discrimination occurs in other sectors. An example is membership of an association or club being limited because meeting time conflict with care-giving responsibilities. A further example is access to facilities and entertainment, there exist many instances of restaurants, libraries or accommodation having explicit restrictions against young children. Family responsibility is explicitly recognised as a prohibited ground in the Employment Equity Act. 22. Unfair Discrimination on the basis of family status, on the other hand, arises out of other family relationships and the associations or stereotypes ascribed to them. An illustrative example is a 1998 complaint raised with the Commission of Gender Equality. In this case female-headed households were refused access to housing. 23. Although both grounds are only beginning to gain recognition now, there is legislative precedent for them in other jurisdictions. The Canadian anti-discrimination legislation recognises 'family status' as a prohibited ground, while the Australian Sex Discrimination Act explicitly lists 'family responsibility' as a prohibited ground. 24. We are living with particular and disturbing forms of unfair discrimination based on all the above grounds. In seeking to address the legacies of the past we have to recognise the particular forms of discrimination that the most marginalised groups of our society suffer. 25. THUS NADEL proposes that clause (xvii) of the bill be amended as follows: ' Prohibited grounds' means one or more of the following grounds: Race, gender, sex, pregnancy, marital status, ethnic or social origin, Colour, sexual orientation, age, disability, religion, conscience, belief, Culture, language, birth, HIV/AIDS status, nationality, socio-economic status and family responsibility and status..." Provisions on Racism, Racial Discrimination and Gender Discrimination 26. We support the Bill’s special recognition of race and gender as forms of discrimination that require specific measures. The bill correctly refers to the both race and gender discrimination as the more endemic result of Apartheid. 27. However, we believe that disability discrimination similarly requires separate treatment. THUS we propose that similar interpretive guidelines be developed on disability. Further that measures for promotion and prevention be drafted and added Chapter 5. The development of examples and positive measures should be developed in consultation with representatives of disabled people. 28. As stated above, NADEL believes that the bill requires one coherent definition of discrimination. THUS we propose the deletion of the definitions found in parts A and B of Chapter 2. 29. The bill also contains provisions prohibiting gender discrimination, racism and racial discrimination. However, the prohibitions in particular raise an interpretive problem. Their relation to the general prohibition is unclear. 30. THUS we propose that the provisions on prohibitions in parts A and B be set out in interpretive guidelines as a schedule to the bill. 31. The measures to prevent and promote in parts A and B must be moved to Chapter 5 of the Bill.
32. As stated above the Constitutional Court has developed a three-stage test for discrimination. The current provisions in the bill do not comply with test. Firstly, there is the significant omission of a defence to an action brought under this act - the simple argument that the discrimination is fair. 33. Further, the provisions provide that a case of unfair discrimination can be defended by proving that the discrimination is 'reasonable and justifiable'. Yet inherent in the concept of 'unfair' is the idea that the discrimination is unjust. This creates the confusing situation where discrimination that is unjust is defended as justifiable. 34. We submit that the use of the concept of 'fairness' in conjunction with the test established by the Constitutional Court would make the bill easier to understand and use. THUS we propose that the provisions in section 43(1) and (2) be brought in line with the Constitutional test and the language and concepts it uses. Burden of Proof 35. Similarly, the concept of 'fairness' must be incorporated into clause 45. This will result in a complainant proving a prima facie case of discrimination and then the burden of proof shifting to the respondent. 36. NADEL supports the innovation of shifting the burden of proof to the respondent. This will alleviate the difficulties of proving indirect discrimination.
37. We believe that the success of this bill rests on the development of en effective enforcement mechanism and its implementation. An effective enforcement mechanism is one that can address the many forms of discrimination adequately and one that can provide redress for any victim regardless of their circumstances. 38. Nonetheless we are aware of the time and resource constraints that will limit expeditious implementation of the bill’s current enforcement mechanism. The courts currently have large case backlogs and lack the capacity to handle the extra load of equality-based litigation. It must be acknowledged that judicial officers do not have the relevant experience, understanding nor orientation to handle discrimination and equality litigation justly. The lack of commitment to human rights and equality has been demonstrated by the spate of recent rulings in rape cases that take no cognisance of the right to gender equality. 39. In this context it will take time to select suitable presiding officers for equality courts, and to provide them with relevant training and trained staff. It is our belief that some interim measures must be established to facilitate cases brought under this bill. 40. The Human Rights Commission (SAHRC) and the Commission for Gender Equality (CGE) have a complaints-handling function that has handled the majority of discrimination cases up to now. They have a developed expertise and experience in handling discrimination cases that is invaluable. Nonetheless they do not have resources to handle the spate of complaints that will arise once the bill is enacted. 41. We submit that until the equality courts are effectively implemented, the SAHRC and CGE be designated fora of first instance. There must be provision for a fast-tracked access to the High Court of cases not resolved within the Commissions, or cases that require litigation. 42. Further, we submit that there must be provision made to develop the capacity of the complaint-handling units within each Commission. This would include sufficient financial allocations from the Department of Justice and the possible secondment of staff. The resource requirements of the Commissions, resulting from this function in terms of this bill, must be assessed and addressed within one month of enactment. The responsibility for setting up this interim measure lies with the Minister of Justice and the Commissions. 43. Nonetheless, it is our belief that equality-based litigation under this bill must be mainstreamed to have the broadest and speediest impact. Thus the necessary steps to implement the equality courts must be taken within a set time frame. To this end we have outlined below proposals to the bill that can ensure this process. Equality Court 44. The guiding principles of the bill set out clearly in section 4(4) " dispute resolution must be expeditious, affordable and participative, and where appropriate, informal." This provision takes cognisance of the nature of discrimination disputes and the South African context where many victims of discrimination would not have access to formalistic and expensive dispute resolution mechanisms. 45. The provisions for the equality court in Chapter 4 however do not carry the spirit of the above principle. Clause 47(5) sets out that the provisions of the Magistrates' Courts Act, the Supreme Court Act and the Rules Board for Courts of Law Act will apply to the equality courts. The procedures in these acts are formalistic and time consuming. The bill recognises this fact and allows the minister to set more suitable procedures by regulation in clause 52(1) b and c. 46. We feel strongly that a suitable and fair dispute resolution mechanism is necessary to make the bill workable. Such a mechanism will ensure that the right to equality can be protected and that such protection will be available for all. Therefore the decision to develop a suitable mechanism must be established within the bill, it cannot be left solely to the Minister's discretion. 47. Thus in line with the guiding principle quoted above the Minister must make the relevant regulations. In particular the regulations referred to in clause 52(1)b, c and k, which regulate the procedures and rules of the equality court. Together with the implementation of clause 53(4) and (5), regulations will ensure an enforcement mechanism is established and functioning. 48. We submit that these regulations must be developed in a consultative manner and tabled in parliament. Further the rules and procedures developed should: - Emphasise an inquisitorial and informal approach. - Have flexible rules of procedure. - Limit pre-trial procedure and discourage delays and postponements. 49. Similarly, the regulations to regulate issue pertaining to assessors and equality court assistants must be developed in a consultative manner and tabled in parliament. 50. THUS, NADEL proposes that clause 52 be amended as following: (1) The Minister must, within six months of the enactment of this act and in consultation with the Human Rights Commission, the Commission for Gender Equality and other relevant role-players, make regulations relating to.... This provision will apply to clause 52(1) a to k. Clause 52(1) l to n can be combined into another general clause numbered 52(2). In terms of clause 53(4) we propose the insertion: (4) The Minister, must within six months of the enactment of this act, and ... 51. We are aware of the resource constraints that the Ministry of Justice functions under. Therefore we support the initiative to progressively establish equality courts across the country in clause 53(3). Nonetheless, we submit that the distributions of equality courts must be equitable amongst provinces and between rural and urban areas. 52. THUS NADEL proposes the following additions to clause 47: (1) c the minister must appoint a presiding officer of the equality court for two regions in each province within six months of the enactment of this act. We further propose the following amendment to clause 47(3)a: Subject to the laws governing the public service, the Director-General of the Department must, for every equality court, appoint one or more officers in the department, or must appoint... Quantum Jurisdiction 53. The bill provides for cases to be brought in both the magistrates and the high courts. This is due to the different jurisdiction of each court, in particular in terms of awarding financial remedies. We submit that the guiding principle of accessibility makes the magistrate court the most suitable forum. Applicants should not hampered in seeking redress by having to go to the high court, which is more expensive, time-consuming and possibly distant in terms of physical access. Thus we propose that magistrate courts be allowed to make rewards in access of normal jurisdiction in terms of this bill. A high court judge in chambers must confirm such rewards. Referrals 54. Clause 46(1) b provides that the minister must develop guidelines on what matters are appropriate for referral to other dispute resolution forums. These guidelines are necessary for the effective functioning of the court. We submit that these guidelines must be formulated within six months of the enactment of the bill. 55. THUS NADEL proposes the following insertion to clause 46(1) b: “In order to facilitate the channeling of appropriate matters to the courts for adjudication in terms of this Act, the Minister must, within six months of the enactment of this Act, and after consultation with the relevant role-players, issue and distribute guidelines to all State Departments and courts on the operation of this Act, setting out the categories of matters which could be dealt with more appropriately in other dispute resolution forums.” 56. The bill laudably makes provisions for the referral of disputes to a more appropriate forum in clause 46(1)a. This takes consideration of the fact that some disputes can be better negotiated between parties and the wide variety of disputes that may arise. 57. However, in order to maximise the benefits of such a referral, it will have to occur as early as possible in the trial process. The consequences would be traumatic for the parties, time-consuming and a waste of resources if such referrals occurred anytime during the process. Thus we propose that a mandatory, early pre-trial conference be held with the presiding officer. This conference should be held within four weeks of the closing of pleadings, to determine whether a case is appropriate for referral. 58. THUS NADEL proposes the following addition to clause 48: (6) For the purposes of this act the clerk of a magistrate's court must convene a mandatory pre-trial conference within four weeks of the closing of pleadings. At said conference the presiding officer must decide the appropriateness of the case for referral to another dispute resolution forum and any other matters concerning the management of the case. [Clause 48(5) accordingly becomes clause 48(7).] This provision will entail an amendment of clause 46(1)a which can be achieved deleting the phrase "at any stage during an inquiry" from the first line. Enforcement of Rights 59. Further, the NADEL feels that the Magistrates court must be adequately empowered to enforce this bill. The bill provides for the SAHRC to have locus standi in discrimination cases in clause 46(2). It is unclear why other constitutional institutions have not been included in this provision. The omission of the Commission for Gender Equality is particularly puzzling, as the Commission has a constitutional mandate to promote and protect gender equality. 60. We submit that clause 46(2) must extend locus standi to all constitutional institutions a defined by the bill. 61. Further we propose that the powers and functions granted to the SAHRC in clause 15, 51 and 54 also be granted to the CGE. To this extent we endorse the submission made by the CGE and agree that the two Commissions should share custodianship of this bill. Amicus Curiae 62. We submit that South Africa has a wealth of non-profit and non-governmental organisations that are well placed to assist applicants under this bill and to advise the courts. Thus we propose that the bill provide for the admission of amicus briefs to legal proceeding in terms of this act. 63. THUS NADEL proposes the following addition to clause 48: (5) For the purposes of this act, a presiding officer of the equality court is empowered to accept and consider the tabling of amicus briefs where appropriate. Sectors 64. As stated above, it is our belief that the sectoral approach taken by the bill has limited value. The sector provisions found in Chapter 2 parts C to L draw attention to specific forms of discrimination that occur in particular ways in specific sectors. They can play an important role as an interpreting tool for the courts and an educative tool for society. 65. However, we believe that the provisions in their current form pose several problems. We do not believe that the provisions thoroughly reflect the nuanced forms of discrimination in different sector. Further, some provisions are inconsistent with existing legislation in particular sectors. The sectors introduce different definitions, defences and tests making the bill confusing. In particular the problem arises as to how sector provisions relate to the general prohibition of unfair discrimination. 66. We believe that these problems override the value of having sectors in the bill. The need for an educative and interpretive tool can be accommodated through a different provision. We propose that the bill should include provisions for the development of sector-specific guidelines, in a consultative manner and within a specific time frame. These guidelines should a be mandatory interpretive tools for the courts. 67. THUS NADEL proposes the deletion of definition and prohibition provisions in Parts C to L of Chapter 2. We propose the following alternative provisions: (a) The Minister may issue guidelines to the interpretation of this Act by way of schedules to the Act, setting out the extent to which and the manner in which any provisions of this Act apply in a sector. (b) The guidelines referred to in section (a) must be developed in consultation with the South African Human Rights Commission, the Commission for Gender Equality and any other relevant role-players. (c) The Ministers responsible for education, health, land matters, pensions, finance, trade and industry, sport and labour must, in conjunction with other relevant Ministers, develop guidelines as set out in section a and b, within 12 months of the enactment of this Act. Further, we propose the following addition to clause 3(1): (d) any guidelines issued in terms of this act Promotion of Equality 68. NADEL applauds the inclusion of provisions placing a positive duty on the state to promote equality. The achievement of substantive equality cannot be solely achieved by a defensive mechanism and positive measures are required to undo existing forms of unfair discrimination. 69. As stated above, we believe that the sector provisions limit the value of the bill in their current form. However, they contain valuable positive measures that must be retained in the bill. 70. THUS NADEL proposes that the following clauses be incorporated into Chapter 5 under clause 51(4): Clause 15 clause 18, clause 21, clause 24, clause 27, clause 30, clause 33, clause 36, clause 39 and clause 42. 71. We believe that the promotion of equality is not the sole responsibility of the state. In particular private institutions can play a contributing role, by reviewing their policies and procedures. They can also take the initiative in developing equity plans. We submit that the bill requires a provision that acknowledges this and mandates the South African Human Rights Commission and Commission for Gender Equality to assist in these endeavours and keep a register of equity plans. 72. We also believe that there are many instances of positive measures that can apply across the board to the state and juristic persons. An example is ensuring access for disabled persons to buildings. Similarly measures for reasonable accommodation can apply across this spectrum; for example providing assistance to people who are illiterate or have poor literacy. 73. We submit that through a consultative process these measures can be identified. Thus we propose that provision be made for development of codes setting out examples of reasonable accommodation and positive measures that can be taken to promote equality. These codes can also be attached as schedules and used a interpretive and educative tools. 74. THUS NADEL proposes the following addition to clause 51: (5) The Minister must issue codes, by way of schedule to the Act, setting out examples of measures that can be taken to promote equality and to make reasonable accommodation. 75. The jurisprudence that will emerge from these equality courts can play a crucial role in educating society. Rulings will identify what particular forms of unfair discrimination are prohibited and what positive measures can be taken to develop substantive equality. Thus we propose that for an interim period all decisions of the equality court be published. Thereafter a selection can be published. Endorsements 76. NADEL is a member of the Equality Alliance. We support the submission that has been developed by the Alliance. 77. NADEL is represented on the Gender Monitoring and Advocacy Collective convened by the Commission for Gender Equality. We support the submission developed by GMAC. 78. NADEL supports the submission developed by the Community Law Centre - Gender Project. In particular, we wish to emphasise our support for the sections dealing with the employment sector. Conclusion NADEL wishes to reiterate the fundamental importance of this legislation and our commitment to its aim, objectives and principles. We are committed to strive for the promulgation of this act by the constitutional deadline. Drafted by Rikky Minyuku Project Monitor: NADEL Human Rights Research and Advocacy Project National Coalition for Gay and Lesbian Equality PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL PARLIAMENTARY HEARINGS - 22 TO 26 NOVEMBER 1999 SUBMISSION BY THE NATIONAL COALITION FOR GAY AND LESBIAN EQUALITY INTRODUCTION 1. The National Coalition for Gay and Lesbian Equality ("the NCGLE or the Coalition") is a voluntary association of more than 74 lesbian, gay, bisexual and transgender organisations in South Africa. The NCGLE was formed in December 1994.
members. Its work includes lobbying for law reform, general lobbying, litigation, advocacy, employment equity, leadership training and development.
Coalition notably on the issues of employment; the Defence Force policy; the South African Police Service policy; decriminalisation of same-sex conduct and welfare policy. 4. The Coalition lobbied successfully for the retention of sexual orientation as one of the grounds of non-discrimination in the Constitution and other legislative programmes.
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