Documents handed out: Equality Legislation for South Africa: Discussion Document 2 (26 May 1998)
SUMMARY The Promotion of Equality and Prevention of Unfair Discrimination Bill aims to give
expression to Section 9 in the Constitution which outlaws discrimination and aims to
promote equality. It outlaws unfair discrimination on one or more grounds including race,
gender, sex, pregnancy, marital status, sexual orientation, age, disability, religion,
belief, culture, language and birth. Ms Madonsela, Mr Vasset, Judge J van der Westhuizen
and Professor S Gutto who were all involved in the process of producing the Bill,
presented the briefings on the contents, background, constitutional requirements and aims
of the Bill.
MINUTES
Overview of the Bill Miss Madonsela, of the drafting team, said that according to Section 9(4) of the
Constitution, the government was required to enact national legislation "to prevent
or prohibit unfair discrimination". This had to be completed by 4 February 2000. When
the Department of Justice and Constitutional Development undertook this task, the first
question they had to answer before drafting the Bill related to what Section 9(4) actually
required : to prevent or prohibit Unfair Discrimination (unfair discrimination). Firstly,
therefore, unfair discrimination had to be defined. She said that unfair discrimination
was basically the opposite of equality and equality included the full and equal enjoyment
of all rights and freedoms according to the Constitution. She said that it was accepted
that the Constitution, through the right of equality, enabled everyone to enjoy all rights
and freedoms being those entrenched in Chapter 2 of the Constitution. She said that other
countries’ anti-discrimination statutes were looked at for guidance. Section 9(2) was
also instructive with regard to the drafting of legislation.
She said that the drafters had realised that there were inequalities in South Africa
directly linked to its past – where legislation had systematised inequality –
with social consequences that could not be removed by the stroke of a pen. It was
recognised that black people and women were at the bottom of the scale in society and
black women were the worst off. However not all discrimination was linked to the past. The
purpose of the law was to achieve equality by eliminating Unfair Discrimination
structurally entrenched through society.
International conventions such as the International Declaration of Human Rights and the
African Charter, were looked at. They had looked at what had happened in various countries
which had tried to eliminate discrimination. She said that it was clear that merely to say
that one could not discriminate was not enough. There had to be promotion of equality.
She explained that the Bill attempted to focus on the key areas in society where
discrimination took place, that is, the sectors as well as the various types of Unfair
Discrimination. It was impossible to focus on every ground and therefore those grounds and
sectors in the Bill are not exhaustive.
Content, structure and provisions of the Bill Mr Vasset, one of the drafters, noted that simple user friendly language was used in
the Bill. The drafters had tried to make it as practicable as possible. He said that the
most important forms of discrimination were highlighted. He also pointed out that the
various sectors focused on were not exhaustive.
The Preamble recognises the problems in South Africa's past with regard to discrimination
and sets the scene for this piece of legislation. He granted that it might seem too
comprehensive. Chapter 1 deals with Definitions, Objects, Interpretation, Guiding
Principles and the Application of the Act, (Clauses 1-5). Some of the definitions were
taken from international instruments related to human rights. He said that the Bill binds
the state and all persons – natural and juristic. There was a proviso with regard to
unfair discrimination in that it was not unfair discrimination to take affirmative action
measures. The Interpretation clause stated that some of the guiding principles would be
customary international law. He pointed out that the Act applied to employment
discrimination issues which are not regulated by the Employment Equity Act. In the event
of any conflict arising between the Equality Act and another law, the Act would prevail
unless the conflict was in respect of the Constitution or with an amendment to this Act.
Part A of Chapter 2 was a general prohibition of unfair discrimination. Part B focused on
race and gender discrimination. Part C to Part K of Chapter 2 focuses on specific sectors.
He said that since it was recognised that there were no real financial resources to create
new institutions, Chapter 4 stated that Magistrates’ courts and High courts would be
constituted as Equality courts – Clause(47). Clause 46 (2)a-f deals with who can in
fact institute proceedings in terms of the Act. Clause 48 has a long list of powers of the
court and orders it may make.
Chapter 5 dealt with the promotion of equality in general in Clause 51(1). The ministers
for the various sectors had to prepare and implement equity plans, the contents of which
would have a time frame for implementation. A review committee would have to be formed.
Background information on the drafting process Judge J van der Westhuizen, who coordinated the process of drawing up the bill until
his appointment as a judge, said that he did not want to cause an overflow of
documentation and therefore he would concentrate on the present draft. He nevertheless
distributed an Equality Legislation Drafting Project discussion document, dated 26 May
1998, to give the members an idea of how the process had gone. It contained some of the
initial problems and difficult issues which he said would remain difficult even after the
Bill was introduced.
The judge pointed out that it was a constitutional directive that legislation referred to
in 9(4) be passed by February 2000. He said that in all societies where there was
discrimination, legislation of this kind was needed. He said that legislation of this kind
was never easy, since defining discrimination was complex and controversial. He said that
according to statistics from the UN, more than 50 countries have legislation of this kind.
The easiest of these to understand would be Canada or Australia. He said that in Germany
they have even criminalised unfair discrimination. In our present bill only one section
has any reference to the criminal aspect – clause 6(3) which stated that if unfair
discrimination played a part in the commission of an offence, it had to be regarded as an
aggravating circumstance for purposes of sentencing.
Before the 1996 Constitution he said that there was research of unfair discrimination and
inequality. After the drafting of the Constitution, the project came into being. At the
core of the project was the Equality Legislation Drafting Unit (ELDU) which was a joint
project of the Ministry of Justice and the South African Human Rights Commission. The ELDU
saw its initial activities as:
1. Research into Discrimination
2. Consultation with a wide variety of Groups
3. Awareness
With regard to research, researchers focused on the different sectors such as Education
and Health. There were a variety of meetings to enhance awareness. They encompassed
different interest groups including people with HIV / AIDS.
The judge said that a series of discussion documents were issued to various groups
followed by the draft legislation. He said that a reference group, consisting of a number
of representatives of NGOs, Law Faculties and a representative from then Deputy
President's Office, were also involved with looking at the framework of the legislation.
There was also an International Conference held around the issues of unfair
discrimination.
When the Judge was appointed to the bench in 1998, a full time coordinator was not
appointed in his place and he was available to help in the process on a consultative
basis.
One of the issues which the ELDU had to deal with was the horizontal application of the
Bill of Rights. He said that it was clear that if it only applied in respect of the state,
then discrimination could in a sense be privatised and because of this there had to be
horizontal application to some extent. He also said however that there had to be limits to
its application since for example choosing people to come to a birthday party may very
well include discrimination against certain persons. This would however be one instance
where it would be unreasonable not to allow discrimination. Thus in various intimate
situations one had to know where to draw the line in terms of when discrimination was fair
and when it was no longer fair since absurd situations could arise if this line became
blurred.
He said that the bill would thus give effect to 9(4) of the Constitution. It would define
discrimination and provide examples of any of the types which occurred in society. It
would give content to the right to equality. It would provide legal certainty as to what
is prohibited and what is not.
The judge said that two things were happening in section 9 of the Constitution. It was
saying in 9(4), let us prevent or prohibit discrimination. In 9(2) it wanted the promotion
of equality. Strictly speaking therefore the main issue that had to be addressed was the
9(4) directive. The judge asked whether one should in fact stick to a narrow
anti-discrimination approach or whether you should in fact, as the bill has done, marry
this anti-discrimination approach with a wide promotion of equality approach. He agreed
that this issue was complicated and there was criticism of this approach. Nevertheless he
was of the opinion that without marrying the two approaches there would simply be a
minefield of litigation while there would be no focus on, in fact, getting rid of unfair
discrimination.
The Judge said that according to the Constitution and various constitutional court
decisions, discrimination was not in itself a problem. He said that the problem was unfair
discrimination. He added that even if there was unfair discrimination this could in
certain instances be justified. The Bill had defences which could be invoked (Chapter 3).
They had had some difficulty with the question of how to deal conceptually with these
defences. He was not sure whether the acts one was not in trouble for as a result of the
defences would be called discrimination but not unfair discrimination or whether it was
unfair discrimination but the limitations clause applied. He said that this determination
would be important as far as proof was concerned since 9(5) of the Constitution states
that discrimination on one of the listed grounds was unfair unless it was established that
the discrimination was fair. Thus if discrimination was established, the discriminator had
the onus to show that it was fair. With unfair discrimination he explained that it was
automatically unfair and only the limitations clause could help.
He said that in the Constitution all the grounds of discrimination were in one clause. He
said that another problem was whether to deal with all in the same way or do you say South
Africa’s problem is primarily in respect of race and gender. He said that it was not
feasible to give each ground its own chapter but specific attention was given to race and
gender. He pointed out that in other countries with constitutions, all areas of
discrimination were outlawed but specific areas were legislated on. He argued that there
must always be a general anti-discrimination provision to cover all instances of
discrimination.
With regard to enforcement there were extreme choices. He said that one could make unfair
discrimination a crime or a delict and have courts deal with it in the normal way.
Secondly tribunals could be setup but the resources were lacking. Thus it was decided to
opt to use the existing structures.
Further input Professor S Gutto of the Centre for Applied Legal Studies at the University of
Witwatersrand has been involved in the process firstly as a researcher, then as a member
of the team responsible for drafting the framework document and for introducing it to the
public and finally as part of the drafting team.
He expressed regret at the fact that the SAHRC has been misrepresented by the media, which
labeled the Commission as the drafters of the Bill thereby compromising its independence.
He stressed that it was not so.
Professor Gutto said the Bill aspires to fulfill what Section 9(4) of the Bill of Rights
in the Constitution requires. He said for one to understand the essence of the Bill
Section 9 of the Constitution has to be read in its entirety in conjunction with the
historical content.
Professor Gutto explained that the Drafting Unit had to decide whether the Bill / Act
should be applied in the sectoral places, but it was decided to expand the area of objects
of the Bill to "really show what we wanted to achieve." He mentioned that since
1994 there have been other pieces of legislation dealing with equality issues which are
based in sectors. He quoted the Employment Equity Act as an example. "It is important
to see this as an overall legislation but which does not undermine others." Further,
it has been a problem to decide whether court actions should follow a civil or a criminal
route in instances of violation of the rights. He said the civil route is the more
favourable option.
Professor Gutto said it had to be decided whether special tribunals or the existing court
structures should be used as institutions of enforcement. Due to the problem of resources
a decision was made to use what is practical. In terms of Section 180 of the Constitution
judges and magistrates will get special training so that they have the mindset needed to
preside over unfair discrimination cases. "The training will be about equipping them
with the necessary understanding of the legislation and how it fits in the promotion of
transformation and of building really new relations in society," Professor Gutto
said.
The cases would be heard in the existing magistrates’ and high courts, called
equality courts when presided over by the trained judicial officers. The training would
initially be voluntary and later made compulsory.
Questions and comments by committee members Mr R Ndou (ANC) commented that people had gone "all over the world" to look
at how the equality issue should be addressed. He said in his opinion discrimination
concerns the experiences of the people of this country. He said he wonders if the drafters
have taken into account the fact that the victims of colonialism and apartheid have a
deep-seated anger that must not be bottled up by the Bill.
Ms D Smuts (DP) said all the current Bill needs to do is give effect to Section 9 of the
Bill of Rights in the Constitution and should not deal with the entire politics of the
country. She said what has to be produced in February is a law that says people should not
be discriminated against and if they are, what happens.
Ms S Camerer (NNP) also commented that they were pushing to fulfill all aspects of the
legislation for February whereas it is only Section 9(4) of the Constiution which requires
national legislation by February. Such a course of action makes the Bill far too
complicated. She reasoned whether this is a wise course. Judge van der Westhuizen
responded that a piecemeal approach is dangerous. It will be very difficult to separate
the legislation and then say we will consider the rest later.
Ms S Camerer (NNP) complained that the Bill seldom mentions "freedom" but
mentions only equality. She asked why is the principle of freedom ignored. She asked what
would be the cost of this.
Prof. Gutto replied that on the question of cost, whether affordable or not, it would be
this Committee that will decide.
Mr R Davies (ANC) wanted to know, with regard to the inclusion of specific sectors in the
bill whether the drafters were satisfied that this was comprehensive.
The Judge responded that if a specific sector was not covered the general provisions in
the Constitution would cover them adequately.
Mr R Davies added that he was confused about the Judge’s discussion on the defences.
He was unclear as to how this applied. He said that he heard the judge say that unfair
discrimination could be reasonable and justifiable. He found this problematic.
The Judge said that the problem arose because there were too many tests in the Constiution
– firstly whether there was discrimination at all, secondly whether there was unfair
discrimination and thirdly whether the unfair discrimination could be reasonable and
justifiable. Ms Madonsela felt that Mr Davies was in fact right. She said that once the
determination was made that unfair discrimination was reasonable and justifiable, it
ceases to be unfair discrimination.
A committee member commented that in rural areas there were certain old customs relating
to women which could now be criminalised as a result of the prohibition of sexual
harassment. There was also a question about how the drafters had measured the
effectiveness of the public awareness especially in rural areas.
It was conceded that the consultation did not go very far in rural areas, but in Gauteng,
Kwazulu-Natal and Cape Town there was some consultation.
Ms N Botha (ANC) asked why in Clause 26 HIV was included as a reason for not
discriminating in granting insurance services.
Ms Madonsela said that HIV was an issue historically relevant but was a mere example of a
form of discrimination that insurances used. She pointed out that there were hundreds of
other examples such as cancer but they could not all be mentioned.
Ms Botha asked on what basis insurance companies could discriminate if it was not related
to the degree of risk. She wanted to know whether the section was included on the basis
that AIDS was an illness or on the basis that there was a higher degree of risk.
Ms Madonsela insisted that the provision was not being included from the point of view of
risk but rather it was included as one of the endemic examples of discrimination –
one was more likely to be excluded on the grounds of HIV than any other matter. The judge
added that discrimination often occurred in society as a result of negative stereotypes
and labeling and this was part of what the Bill wanted to eliminate. Mr Davies pointed out
that the issue was not the size of the insurance premiums but the actual refusal to cover
an HIV person at all which was discrimination.
An ANC committee member was very concerned about the concept of unfair discrimination in
relation to university students since she felt that with regard to skills taught and the
standard of high school education levels many students from disadvantaged backgrounds were
inevitably going to be disadvantaged when entering university. She felt that the whole
definition of unfair discrimination should be reviewed, and wanted to know how these
problems were being addressed.
Professor Gutto said that universities had to some extent addressed this problem by
introducing bridging courses where an extra year was done in order to make up for poor
schooling. This was one of the measures taken to level the playing fields and to promote
equality.
Ms Vilakazi (IFP Kwazulu Natal) referred to Clause 26 dealing with insurance companies
saying that she knew they were known to discriminate on the basis of age. She said that
they doubted your state of health and are sceptical about illnesses. She wanted to know
what steps would be taken against insurance companies which discriminated unfairly.
Mr Vaset said that Section 48(2) laid out all the orders which a court could make from (a)
–(p). He gave a few examples such as an order for damages in respect of financial
loss including future loss, impairment of dignity, pain and suffering, emotional and
psychological suffering as a result of the discrimination. Another was an order directing
that specific steps be taken to stop the unfair discrimination. Yet another was an order
that an unconditional apology be made. He said that there were numerous orders that could
be made if unfair discrimination was proved.
Mr Davies said that this had to be balanced in the sense that a person who was 85 years
old could not actually demand the same life assurance premiums as a 21 year old person.
Thus in his view discrimination in terms of the size of premiums paid would in these
circumstances not be unfair. This he said would differ from the situation where an
insurance company, for example, stated that it would not take over the counter motor
business from anyone who was "coloured" – which he explained was the policy
at an insurance company in Cape Town years back when he had worked for them. This would
clearly be unfair discrimination today.
