Promotion of Equality & Prevention of Unfair Discrimination Bill [B57-99]
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However, the Civil Rights Acts of 1964 and 1991 in the USA give testimony to our support of the need for such legislation, which US laws are far more specific than any similar legislation in the United Kingdom, Europe and elsewhere. Each State has its own legislation to support the overall Federal law on the subject and, in the State of Georgia, for example, fines for the individual for serious offences can reach R70, 000 and minor offences R35, 000. In the case of South Africa, where our members reside and do business, we therefore accept the need for such legislation AMCHAM REJECTS THE NOTION THAT INNOCENCE MUST BE PROVEN AmCham is therefore in agreement with the statement made at the recent briefings to the Ad Hoc Portfolio Committee, inasmuch that achievement of equality must be the main aim of any such legislation. We note, however, that the Bill exceeds the powers of such legislation elsewhere in the world and specifically points to various areas where discrimination exists, describes or gives examples of descrimination and gives examples of what will and will not be acceptable. This is not adviseable in AmCham’s view. What is not acceptable to the American Chamber of Commerce in South Africa is the fact that Chapter 3, Section 45 (Burden of Proof), would appear to be in direct contravention of the same Constitution which this Bill is intended to complement. We suggest that this be re-worded. This section clearly indicates that at the commencement of any proposed equality court proceedings, a respondent would be presumed guilty until such time as the respondent could subsequently prove innocence. For such issues to rest upon the defendant, not the claimant, (including the difficulties of such matters as quantitative descriptions of unfairness and unreasonability), are in contravention of the norm and clearly against the spirit and the wording of the Constitution. Whilst AmCham agrees that no person in South Africa may discriminate, we cannot accept that it is the intention of this proposed legislation to exceed constitutional protection of liberties. Certainly, as far as the American Chamber of Commerce is concerned, by not challenging this matter as being in conflict of the Constitution, the alternative would be to allow a particularly bad signal to emerge as far as an equitable business-trading climate for our members is concerned. Finally, it is AmCham’ s observation that this Bill, as it is proposed, will increase the administrative burden on business and further contribute to the perception of the “hassle factor” in doing business in South Africa; the growing perception that the amount of bureaucratic “red tape” for businesses to operate is growing daily. CONSEQUENTIAL ISSUES Whilst we would support the conviction of any proven offender, the possibilities of “opportunistic” claims against business would seem inherent in terms of the current wording. We therefore call for a revision of this portion of Chapter Three, which in our view, is unfair, unreasonable and would seem to be unconstitutional as well. The already overloaded judicial structures are attempting to handle existing criminal and civil matters under extreme pressure. By this proposed law, and in addition to their present duties, the courts will be asked to act as Equality Courts as well. The “overload” situation could well worsen in our view. Obviously, where a case is brought against an employer that is frivolous, time wasting, malevolent or undertaken so to gain trading advantage, much costly litigation will be incurred in order to prove innocence against an “opportunistic” claimant. This will be because of an overriding need to protect business image, integrity and reputation in the working environment. Great quantities of valuable time, resources and funds will have to be diverted to protect against such “opportunistic” threats, simply because of the fact that all respondents will be “guilty before proven innocent”. One should bear in mind that that the threat against business to revoke a business license is, in business terms, a capital sentence, akin to a “death sentence”. Any claim or threat cannot therefore be disregarded or taken lightly, any more than the subject matter itself. BUSINESS AND SELF-REGULATORY PRACTICES It concerns the American Chamber of Commerce deeply that that the provisions of this Bill are aimed at the wider public and will attempt to overide regulations already set up within business on matters of professional ethic and morality. Bill No 57 of 1999 will therefore attempt to do what is already well covered, for example, by the Advertising Practices Standards Code, and which is strictly adhered to and much respected throughout the communications industry. In repeating our opening comments, that we feel that the proposed Bill should be more focused and narrower in its application since there is much legislation in place already which addresses aspects of the broad subject of unfair discrimination in many fields of endeavour. Wherever possible, American Chamber of Commerce would recommend that State legislation on general business issues does not get involved in such matters and leaves this to specific self-regulatory processes within the business structure. For an Equity Act, with its equity courts all over the country, to be the daily point of reference for all issues regarding racial bias in commercial and advertising communications would be absurd in our view. This is bearing in mind that we are aware that most of industry takes a particularly harsh view on racial bias in advertising, a subject which is self-defeating when it comes to sales of products. In this area, we suggest that the sphere of business and commercial communications in the advertising and marketing contexts are specifically excluded. They should, in our view, be left to the relevant industries to police as before. Alternatively, to meet any constitutional requirement which is highly debateable, a specific Bill could be drafted for commercial speech, produced in conjuction with that industry, to ensure the force of law behind their own practices. CONCLUSION In accepting the need for this legislation we call upon members of the Committee to alter the wording of the Bill in these areas, so that it would appear to be in terms of the Constitution; the same Constitution that is calling for its enactment. LUANNE GRANT (Mrs) EXECUTIVE DIRECTOR AMERICAN CHAMBER OF COMMERCE IN SOUTH AFRICA
THE BANKING COUNCIL SUBMISSION ON THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION The economy and financial life of a country depends to a large extent on the viability and soundness of its banking system. In a market-based economy, banks accept deposits, which are expected to be repaid in full, either on demand or at their due term. These deposits enable banks to play a major role in the allocation of financial resources, through intermediation between depositors of surplus funds and would be borrowers who require funds. Intermediation can only be effective if banks are able to make regular sound judgements based on objective commercial principles and criteria, about the ability of various borrowers to repay loans extended to them. In order to enhance the quality of such judgements, sound banking practice requires banks to: ·develop banking products and services for appropriate customers, markets and segments, ·set up credit scoring systems, ·develop well defined risks management systems, structures and procedures, ·develop lending criteria and appropriate and effective credit control mechanisms ·Set up information databases on their customers. The appropriate use of these and other sound banking tools and mechanisms removes bias and prejudice in the banking system and ensures that choices on services, customers and products are made solely on objective commercial principles and criteria. The banking industry in its Code of Banking Practice (effective from 3 April 2000), which has been negotiated with consumer bodies and the Departments of Finance and Trade and Industry, already commits banks to ensuring that their customers are not discriminated against on the basis of race, religion, age, pregnancy, marital status, sex, gender, sexual orientation, ethnic or social origin, disability, colour, conscience, belief, culture, language and birth. These factors will only become relevant if they have a commercial implications or in respect of special product or service offering designed for all members of a particular target market group. The Bill as is currently formulated would preclude banks from using appropriate systems and mechanisms to arrive at sound judgements on the provision of banking services and products to appropriate customers, markets and segments, based on objectives commercial principles and criteria. While we fully support that discrimination in the provision of banking services and products should be outlawed, we believe that the Bill should not remove a bank's prerogative to use its staff 's expertise and experience and other appropriate tools, to make proper choices about its customers, services and products. The Bill should therefore be amended to provide a defence for credit criteria, products and services that are based and applied solely on commercial principles and criteria. It is therefore, our submission that the "Defence to claim unfair discrimination" in Chapter 3, section 43, should be broadened to include in section 43 (2) which deals with factors to be taken to account in deciding where the Act or omission is reasonable and justifiable in the circumstances, "The application of objectives commercial principles and criteria in selling or providing goods, service and facilities in a free market economy". We believe that this amendment will do away with prejudice and discrimination, while allowing banks to use appropriate tools and mechanisms to make the right choices about their customers, services and products. Bham, M M Bham: Legal Advisor 15 NOVEMBER 1999 The principles underlying the bill and the rights, which it seeks to promote, are to be welcomed. However, I do have the following comments. 1. I note that the bill seeks to criminalise a range of conduct by persons that may be discriminatory. However no provision is made for sanctions or the type of sentence that may be imposed for such conduct. I submit that this should be contained in the body of the legislation and not in regulations as it is a substantive part of the legislation and persons must be made aware of the possible sanctions. 2. I do not think that criminalising unacceptable social conduct will lead to a reduction of such conduct, and that this is the most effective manner of outlawing such conduct. Race and racial discrimination is unfortunately a fabric of our society and will continue to be practised by those opposed to our democratic state. 3. I have a serious problem with the concept of equality courts. In the first instance our courts and judicial officers are so overburdened with serious criminal offences that it is difficult to see how they will cope with additional duties. Secondly judicial officers are not trained to deal with such issues, and will not therefore be able to adjudicate such cases fairly and competently. 4. Instead of seeking redress by way of criminal proceedings, should consideration not be given to administrative adjudication. The advantages of such adjudication are: (a) persons other than judicial officers or lawyers may be appointed to assist (b) remedies would be cheaper and speedier ( c)alternative dispute resolution procedures may be used as mediation and arbitration in labour, employment and other disputes (d) such remedies would be more accessible to the public and more user friendly.
THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL SUBMISSION BY THE BLACK SASH Introduction This submission deals with the following aspects of the Bill : 1. Guiding principles 2. “Prohibited grounds” of discrimination 3. The definition of “unfair discrimination” 4. General prohibition of discrimination 5. Prohibition of race, gender and disability discrimination 6. A defence of “fairness” 7. Discrimination in specific sectors 8. Promotional measures 9. Vicarious liability
S.4 contains a number of clauses referred to as “guiding principles”. The status of these principles is, however, unclear as in our view they could be arguably be interpreted as amounting to positive obligations. If this is the intention behind the clauses then we propose this be made clear. In such case, we would question the desirability of, in particular, s.4(2) which provides that the State and non-governmental service providers must within their available resources provide legal assistance to victims of unfair discrimination. Whilst we believe that non governmental organisations have a valuable role to play in the provision of legal advice to those who cannot afford to pay for it and should be encouraged to do so where possible we anticipate difficulties with enshrining such an obligation in statute. Many non governmental service providers may have no previous experience of providing legal assistance. Would they be expected to comply? What are “available resources”? We also anticipate difficulties in terms of potential negligent advice given by organisations in an attempt to comply with the obligation. If the intention of these clauses is to set out a general principle then we recommend the provisions be integrated into the preamble. 2. “Prohibited grounds” of discrimination 2.1 “Any other recognised ground” We are concerned that the inclusion of “any other recognised ground” in the current definition of “prohibited grounds” could potentially include any ground of differentiation. We believe this definition, which is fundamental to the ambit of the legislation, should be as clear as possible. We therefore propose the removal of the phrase “any other recognised ground”.
In contrast to the previous draft the current Bill prohibits discrimination on the grounds of HIV and AIDS status only in relation to the provision of insurance services (see 7.2). Whilst we accept that it may not be appropriate for persons suffering from AIDS to be brought within the ambit of the Bill as a whole we believe that there is an important distinction between AIDS and HIV status. We are unclear as to the reasoning behind limiting protection of persons with HIV status to the provision of insurance but we believe that it is unacceptable to discriminate against any person in any way on the grounds of HIV status. We therefore propose that HIV status should be expressly included as a prohibited ground. This proposal is supported by reference to s.6 Employment Equity Act 1998 which specifically includes “HIV status” as a prohibited ground for discrimination in the workplace. S.46(3) of the Bill states that no proceedings may be issued under the Bill in relation to unfair discrimination in the employment sector if the issues in question are regulated by the Employment Equity Act. The effect of including HIV status in the Employment Equity Act and not this Bill is that individuals would be protected from discrimination on the grounds of HIV status in the employment sector only. We submit that the inclusion of persons of HIV status in the Employment Equity Act and their exclusion from the major provisions of this Bill, including the sector on employment, is inconsistent and potentially unjust. 2.3 Family status and responsibility We believe that “family status and responsibility” be included in the list of prohibited grounds. This ground is particularly important in protecting against discrimination based on the perception of a person’s family status and, we believe, is important in the move towards elimination of prejudicial behaviour based on stereotypes. 2.4 Nationality We note that nationality has been removed from the list of prohibited grounds in the current draft of the Bill. The question of the extent to which Constitutional rights extend to non nationals is complex. Even if there is no clause in the Bill preventing unfair discrimination on the grounds of nationality it does not, in our view, automatically follow that a person will be able to discriminate legitimately against any person who is not a South African national. The right to equality as set out in the Constitution applies to “everyone” (s.9(1)). S.9(4) specifically provides that “No person may unfairly discriminate against anyone on one or more grounds including...” (our emphasis). In Balord and other v University of Bophutswana and Others 1995 (2) SA 803 it was held that the term “every person” in the Interim Constitution included both citizens and non citizens. It is arguable, if the matter were to be challenged before the courts, that the right to equality in s.9 of the Constitution would be interpreted in line with such caselaw. This is particularly so as the prohibited grounds set out in the Constitution are open ended. Furthermore, both the Constitution and the Bill are to be interpreted in accordance with international law. Article 26 of the International Convention of Civil and Political Rights, to which South Africa is a signatory, specifically includes national origin as a prohibited ground of discrimination. In Larbi Odam and Others v Member of the Executive Council for Education (North West Province) and Others, 1997 (12) BCLR 1655 (CC), the court held that citizenship was an unspecified ground of discrimination. If the courts hold that the prohibited grounds should include nationality the question is then whether the s.36 limitation can justify any form of unequal treatment. It is established jurisprudence that the s.36 limitation cannot apply to exclude a class of people from a Constitutional right on the grounds of a set of criteria such as nationality per se. There must in addition be some justifiable circumstantial and factual reason entailing a consideration of the factors set out in s.36(1)(a-e). It “involves a weighing up of competing values and ultimately an assessment made on proportionality” (S v Mkawanyane and Another 1995 (3)SA 391 (CC)). This weighing up exercise would be a matter for the courts. In a regulation limiting the right to appointment as educator to South African citizens was inconsistent with s.8(2) of the Interim Constitution (equivalent to the current s.9(3)) and had no valid justification in terms of s.33 (equivalent to the current s.36). The regulation was therefore declared invalid. The court had regard to the fact that non citizens are a minority with little political influence and that citizenship is a personal attribute over which one has relatively little control. Notwithstanding the decision of the court in Larbi, we do believe that there are limited circumstances where it is reasonable and justifiable for South African nationals to be given preferential treatment and this is supported by international law on the issue. The Human Rights Committee established under the auspices of the International Convention on Civil and Political Rights has also held that differentiation which is reasonable or objective does not amount to discrimination in terms of Article 26 of the Convention (General Comment 37 United Nations, New York 1989 paragraph 7). We therefore believe that it would be preferable to expressly include non nationals in the legislation, acknowledging their prima facie right to equal treatment but qualifying this right by the defence set out at s.43 of the current Bill. The advantage of this approach is that the factors set out in s.43 are far more clearly delineated and comprehensive than those in the general s.36 limitation and in our view leave far less to the discretion of the judiciary if challenged. 2.5 Refugee status We also propose that refugee status be included as a specific, prohibited ground. S. 27(2) Refugees Act No 130 of 1998 states that : “A refugee ... enjoys full legal protection, which includes the rights set out in Chapter 2 of the Constitution...”. The right to equality which this Bill enshrines is contained at s.9 of the Constitution which falls within chapter 2 and it follows that this right therefore extends to refugees. It is our view that the inclusion of refugees as a prohibited ground would not increase the existing rights of this group in any way, it would simply reflect their current rights and bring them formally into the framework of the legislation, including the s.43 defence. It may be argued that prohibition of discrimination on the grounds of citizenship would encompass refugees however we would argue that refugee status is a distinct category and that there may be instances of discrimination between, for example, a permanent resident and a refugee. To avoid such possibility we propose the express inclusion of refugee status. 3. Definition of “unfair discrimination” 3.1 A Single Definition We propose that the current definitions of various forms of discrimination (unfair discrimination, race discrimination, gender discrimination, disability discrimination, pregnancy discrimination, discrimination in relation to employment) be replaced by a single definition of discrimination to apply to all grounds and sectors.
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