COSATU submission on the

Promotion of Equality and Prevention of Unfair Discrimination Bill

Presented to the Ad-hoc Committee on the Promotion of Equality and Prevention of Unfair Discrimination, 26 November 1999

 

Table of Contents

  1. Introduction

  2. Summary of Recommendations

  3. Structure of the Bill

  4. Definitions

  1. Prohibited Grounds of Discrimination
  1. Unfair Discrimination

  1. Defences to Discrimination

  2. Burden of Proof

  1. The Bill’s Approach to Sectors

  1. Overview
  2. Employment

  1. Promotion of Equality and Positive Measures

  2. Enforcement Mechanism

  3. Application of the Act

  4. Implementation

  1. Training of Judicial Officers
  2. Review of the Act
  1. Conclusion

  1. Introduction

COSATU welcomes the Promotion of Equality and the Prevention of Unfair Discrimination Bill (hereafter the ‘Bill’). This Bill will contribute towards unraveling the legacy of apartheid discrimination and inequality. It seeks to give effect to the right to equality contained in section 9 of the Constitution1. In particular, section 9(4) requires that national legislation be enacted to prevent and prohibit unfair discrimination before February 2000.

Apartheid deliberately erected barriers aimed at discriminating against historically disadvantaged groups. Therefore, dealing with discrimination requires active measures to address systemic inequality. It is not sufficient to outlaw future discrimination and leave the effects of historical discrimination intact. COSATU therefore supports the approach of the Bill to link prohibition and prevention of discrimination with promoting equality.

Any approach which seeks to limit intervention to the prohibition of discrimination and does not deal with systemic inequality, goes against the spirit of substantive equality enshrined in the Constitution. It cannot be left to market forces to determine equal opportunities, since the market perpetuates historical inequities and without active intervention, often serve to deepen these inequities. In fact the market produces the conditions for structural inequality. For this reason society needs to intervene to cushion the impact of structural inequality through the creation of a safety net, for instance a basic income grant.

The Bill is going to affect vested interests and as a result will meet with resistance. Those who seek to maintain privileges accumulated under apartheid will oppose it. Parliament should be sensitive to legitimate concerns. However, any attempt to retain the status quo should be rejected. The Bill will be an important vehicle to assist the majority of people facing racial and other forms of discrimination. It will transform institutions and behaviour by ensuring that unfair discrimination is systematically removed from South African society. The constituency we represent is looking forward to the enactment of this piece of legislation.

Notwithstanding our support for the objects2 of this legislation, we have a number of concerns that we wish to raise. As shall be demonstrated below, the Bill is riddled with flaws that may make it unworkable if it is not substantially amended. Our intervention seeks to reinforce the positive elements of the bill and to correct the shortcomings. We believe that the defects in the Bill can be corrected to ensure that it can meet any test and be usable by persons affected by discrimination. On the other hand we call on the committee to reject attempts by vested interests to derail the Bill, using its defects to mask their real agenda.

COSATU is a member of the Equality Alliance (hereafter the ‘alliance’), which is a loose coalition of NGO’s and other organisation that support the intention of the bill. We support the broad thrust of the equality alliance submission and share the concerns raised in that submission. However, this submission is limited to areas of particular concern to COSATU.

The submission will deal with the following issues:

  1. Summary of Recommendations

  1. Structure of the Bill

The Bill is not written in plain language and this makes it difficult to follow. The wording of provisions in the bill is long-winded. This defeats the principles as enshrined in section 4(1)3. Examples of this are in the definition section which include the definitions of "disability discrimination", and "unfair discrimination".

In addition there is a proliferation of definitions and concepts, which at times are inconsistently used or used in a confused fashion. Related to this is the fact that different parts of the Bill do not neatly articulate with each other and substantive issues of law are contained in definitions. For instance, it is not clear how the general definition of unfair discrimination relates to the specific definitions as provided in the sections dealing with sectors.

Recommendation

  1. Definitions

4.1 Prohibited Grounds of Discrimination

In terms of section 1(xvii) prohibited grounds of discrimination includes one or more of the following grounds of discriminatiñon: race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or any oth recognised ground". We have two broad concerns with this definition, first is the exclusion of other grounds of discrimination from the definition and secondly, the insertion of the words "recognised ground".

4.1.1 Omitted Grounds of Discrimination

The various definitions as outlined in section 1 are an attempt by the drafters to prohibit unfair discrimination in every form and in all sectors. The definition of prohibited grounds however, omits very important areas. We have noted with concern the removal from previous drafts of this Bill of the following grounds of discrimination:

  • Family responsibility;
  • National origin
  • HIV / AIDS; and
  • Socio-economic status

(a) Family responsibility

We note that some of these grounds are included in specific parts of the Bill. For example, family responsibility is included in section 10(a) of the bill where it defines gender discrimination. Why is it left out of that part of the bill that outlaws discrimination generally? It is important to note that family responsibility is included in the general list of grounds of discrimination set out in section 6 of the Employment Equity Act, 1998.

(b) National Origin

The same is true for the various grounds of discrimination referred to in the definition of racial discrimination and racism (section 7 of the Bill). Some of these grounds are not contained in the broad band of prohibited grounds, e.g. national origin. On what basis is this ground left out of the generally prohibited grounds of discrimination?

The removal of these points from the Bill is a cause for concern. To argue that these grounds are contained implicitly in the Bill is insufficient because it implies that these grounds have been downgraded.

(c) HIV / AIDS

It is important to note that sections 6 and 7 of the Employment Equity Act, 1998 specifically refer to discrimination based on a person’s HIV / AIDS status. This recognised the extreme problem facing this country when it comes to HIV / AIDS, sending an explicit message that parliament would not tolerate discrimination on this ground. It is inconsistent for this Bill to take a different stance to that of the EEA.

Those who are infected and affected by the disease suffer the cruelest form of unfair discrimination, stigmatisation and prejudice from society, which continues to frown upon them. Those who speak out in an attempt to create awareness are often victimised.
The negative effects of this disease on our economy are widely known . Therefore, positive measures to deal with this crisis are an absolute priority.

The failure to include this ground ignores the fact that South Africa is one of the countries with the highest infection rate in the world. It also ignores the social stigma associated with this infection. To argue that other grounds cover it sends a message that HIV / AIDS is not regarded as that significant or important, but merely a burden to society.

Some of the reasons advanced are based on the concerns raised by the insurance companies that the inclusion will affect their profits. However, the final decision on this very sensitive issue lies with government, which has the responsibility to serve the people, many of whom are infected with the virus. This major challenge faces government, the private sector and the community at large.

(d) Socio-economic status

Many of the provision of the bill in effect deal with the need to prohibit unfair discrimination based on socio-economic grounds, be it in the public or the private sector (see below). The removal of this ground from the prohibited grounds of unfair discrimination appears to contradict this. We therefore call for its re-inclusion in the bill.

Recommendation:

  • COSATU recommends the re-insertion of family responsibility, socio-economic status, national origin and HIV / AIDS in the prohibited grounds of discrimination.

4.1.2 Recognised Grounds of Discrimination

The definition of prohibited grounds contains a reference to the term "recognised ground". What is a recognised ground? Who determines whether a ground is a recognised ground?

Recommendation:

  • We suggest that this be replaced with the term arbitrary ground. This is the way it is expressed in item 2 of schedule 7 of the Labour Relations Act, 1995. The test for whether a matter is a ground for discrimination should not be whether it is recognised or not, but whether the basis for the differentiation is arbitrary or not.

4.2 Unfair Discrimination

The definition of unfair discrimination is very broad and difficult to follow. The language and structure of the definition is unworkable. This is made even more difficult if one tries to understand Chapter 3 of the Bill that refers to possible defences that a discriminator may invoke.

To date the courts, in particular the Constitutional Court has developed a test for unfair discrimination.5 COSATU believes that it may well be advisable to reconcile this test with the definition in the Bill to avoid confusion and to give credibility to the legal precedents that have been established.

In terms of court jurisprudence, whether or not discrimination is unfair, depends on the impact that the discrimination in question has had on the complainant, taking into account but not limited to the following factors:

It should be borne in mind when it comes to broad and fluid concepts like fairness that they are often given meaning only in the context in which the acts of discrimination occur.

  1. Defences to Discrimination

Section 43 is badly worded and is confusing. It provides for general defences against claims of direct and indirect discrimination if it can be shown that discrimination was "reasonable and justifiable in the circumstance or does not fall within the grounds of discrimination." Factors to be taken into account in deciding whether the discrimination was justified and reasonable include (a) the purpose of the discrimination; (b) the nature and extent of the discrimination including the nature and extent of the resultant disadvantage hardship."

To the lay person it may seem that the concepts unreasonable, unjust and unfair are interchangeable. To some unfair discrimination is also unreasonable and unjust and vice versa. This is not necessarily the case. It is possible to have unfair discrimination that is reasonable. Certainly, this is how the Courts will interpret this Act because in numerous places the Bill refers to unjust or unfair discrimination. (See for example the definition of unfair discrimination, section 14 and section 43). A court will ask the question why are both words used in, for example, section 14. It may decide that different things must be meant by the words unfair and unjust otherwise only one of the words would have been used.

The concept of unfairness is the one referred to in the Constitution. It envisages that discrimination may take place if the differentiation is fair. For example, making the rich pay more taxes is fair. They are discriminated against because they are privileged. The test of fairness is not exactly the same as the test of reasonableness or justness. COSATU believes that to ensure that there is no ambiguity and that the test of fairness is not ‘watered down’, consistency must be maintained. Fairness, and not reasonableness or justness, should be the only qualifier of discrimination. We are proposing drafting to give effect to these amendments, which will be forwarded to the committee in due course.

Recommendation:

The factors to determine fairness would include:

But these are not the only factors. What about the factors listed above that come from judgements of the Constitutional Court? Furthermore, these factors should not constitute an exhaustive list. They should be considered holistically and all together, i.e. no one factor can determine whether there is fairness or not.

The concept of ‘reasonable accommodation’, as referred to in section 43(3) is imperative and accords with a developmental approach.

The Bill’s unashamed defence of affirmative action as not constituting unfair discrimination is welcome. This is important in South Africa where certain groups, especially those previously advantaged by discrimination, equate affirmative action with reverse discrimination.

  1. Burden of Proof

Section 45 is extremely problematic. It provides that the victim of discrimination must establish a prima facie case of unfair discrimination, whereupon the discriminator must prove that there is either no discrimination or that the differentiated treatment is fair. It is often difficult for a victim of discrimination to establish the unfairness of the discrimination. Furthermore, what constitutes a prima facie case?

COSATU believes that this provision may be contrary to section 9(4) of the Constitution, which states that discrimination on one or more of the prohibited grounds is unfair until it is established that discrimination is fair.

Other statutes have followed the Constitution’s approach in section 9(4). When it comes to a dismissal, including dismissal for discriminatory reason, it is the employee who must prove the dismissal and the employer who must prove that it was fair. (See section 192 of the Labour Relations Act, 1995).

When it come to an infringement of an employee’s right to freedom of association, which is regulated in Chapter 2 of the Labour Relations Act, 1995 and which essentially deals with discrimination against an employee for reasons relating to her or his association with a trade union, it is the party who allege the discrimination that must prove the facts of that discrimination.

Recommendation:

  1. The Bill’s Approach to Sectors

7.1 Overview

COSATU supports the need to deal with forms of discrimination in sectors. The Bill prohibits discrimination in the following sectors: employment; education; health care; accommodation, land and property; insurance; pensions; goods, services and facilities; associations and partnerships; clubs and sport; and professions. The rationale behind the inclusion of sectors is to address sector specific forms of discrimination. The bill makes provision for including sectors other than those listed in the bill.6

As pointed out in the joint submission of the Women’s Legal Center and the Socio-Economic Rights Project: Community Law Center (UWC), there are obvious advantages for including sectors in the bill. First it provides greater clarity and certainty as to exactly what constitutes discrimination within various sectors. This is important both for interpretative purposes in courts as well as for educational purposes. Many instances of discrimination within particular sectors in South Africa are not self-evident and require clear identification. A sectoral approach also takes account of the differences and nuances in the way discrimination occurs within particular sectors.

Secondly, the inclusion of sectors is linked to the inclusion of socio-economic status or social condition as a ground of discrimination. The purpose of including a ground of this nature is to combat stereotypical assumptions and prejudices against a person on the basis that they are poor, on their education level or other socio-economic factors.

The relevant provisions of the Constitution provide that everyone has the right to access to housing, health care services, etc. When these provision are read with the right to equality in section 9 of the Constitution, it clearly mean that everyone € has access to these socio-economic ghts on the basis of equality and freedom from discrimination. Most of the sectors in the bill include socio-economic rights that are provided for in the Constitution. This is why it is difficult to understand why discrimination on socio-economic grounds is excluded from the prohibited grounds of discrimination.

The sectors seek to ensure access to the specific socio-economic rights based on equality and freedom from unfair discrimination. Legislation of this nature cannot eliminate the inherent inequalities in a market-oriented economy. It can however, have an impact on the outcomes and operations of the market. The bill should strive to prevent forms of discrimination against the poor that are based on prejudice and stereotyping. Often these stereotypes are not based on reasonable economic criteria but on perceptions and prejudice. Examples include referring to rural women as a bad credit risk who do not repay their loans or the general practice by banks of red lining black areas.

Notwithstanding our support in principle for the inclusion of sectors in the Bill, we believe that the bill does not in practice adequately address discrimination within sectors. Prevalent forms of discrimination in particular sectors are not referred to, for example language barriers in the health sector, curriculum barriers in higher education, and so forth. Most of the forms of unfair discrimination within each sector can adequately be covered by the general prohibition of discrimination.

Another area of concern is the fact that there are different concepts and terminology used in dealing with unfair discrimination within each sector. Each of these different concepts requires that different tests be applied. For instance, some sectors refer to ‘unjust exclusion’, unfair disadvantage’ and ‘unfair discrimination’. This will cause confusion as to what test should be applied in order to determine whether unfair discrimination has occurred within a particular sector. This is compounded by a lack of clarity on the relationship between sector specific definitions and the general definition of unfair discrimination

Recommendations:

7.2 Employment

We would like to say a few words on the employment sector, linked to our overall comment on sectors. The Employment Equity Act (EEA), Act 97 of 1998, by providing for the implementation of positive measures, gives effect to the Constitutional vision of substantive equality in the employment sphere. Chapter 2 of the EEA prohibits discrimination on one or more grounds and it is applicable to all employers regardless of their size.

Chapter 2 of the Employment Equity Act does not apply to members of the Defence Force, the National Intelligence Agency and the South African Secret Service. However, members of these institutions have the constitutionally entrenched right to equality. By including employment as a sector in the bill, this will cover employees falling outside of the scope of the EEA.

Secondly, the Chapter 3 of the EEA only applies to designated employers; defined as those who employ 50 and more workers, or those employers who volunteer to comply with the Act. Chapter 3 of the EEA contains provisions related to positive measures that employers should implement. As part of the positive measures employers are required to reasonably accommodate people from designated groups, in terms of section 15(2) of the EEA. The notion of ‘reasonable accommodation’ is linked to the imperative to ensure that steps are being taken to deal with discrimination and the effects of discrimination. In terms of section 43(3) of the Bill "if unfair discrimination is alleged, there may be no finding that it is reasonable and justifiable in the circumstances unless it is established that the person or group affected by the discrimination cannot be accommodated without unjustifiable hardship. It is for this reason that employment, as a sector should be dealt with in this legislation. Employers falling below the threshold of the EEA will have to take steps to eliminate discrimination and promote equality.

From this perspective the bill will supplement the EEA by requiring that those facing discrimination be accommodated. The extent of the obligation to be imposed on employers falling below the minimum threshold of the EEA require further discussion. The requirement and process to comply with the Bill’s provision regarding positive measure should be tailored to suit these employers and need not necessarily be as elaborate as the requirements of the EEA. The Bill contains the basic framework for such an approach by balancing implementation of positive measures such as reasonable accommodation with the need to avoid "unjustifiable hardship". It is important, however, that the notion of unjustifiable hardship should not be used to frustrate the bill.

Another area of concern is the lack of clarity whether applicants for a job will be covered in this Bill. Applicants are included in the definition of employee for purposes of section, 6, 7 and 8 of the EEA. The respective sections of the EEA deal with prohibition of unfair discrimination, medical testing and psychological testing and other similar assessments. Clarity on this question is important as the bill currently prohibit unfair discrimination in advertisement for jobs and selection criteria in terms of section 14.

We support section 46(3)7. This is an attempt to clarify the jurisdiction of labour dispute resolution forums such as the CCMA and that of the Equality Courts. In our understanding workers not covered by the EEA can bring cases of unfair discrimination before the Equality Courts. Further, it will limit and prevent forum shopping by clarifying the jurisdiction of the Equality Courts and the labour dispute resolution forums. However, it is important to further deal with the practical implications that will flow from this section.

First, there is a need for public education to inform people which piece of legislation they should rely on if they want to bring unfair discrimination cases. The role of the SAHRC, the CGE and Government departments is of vital importance in raising public awareness in this regard. Secondly, there is a need to tap into the experience of other institutions such as the Labour Court to assist the Equality Courts.

We further support section 15 which requires the Minister of Labour in conjunction with other Ministers to undertake an audit of all laws, policies and practices in social security policies and legislation. Further the Minister is required to report his/her findings to the South African Human Rights Commission within two years after the enactment of the bill.

In comparative terms, the provisions of this Bill regarding the prohibition of discrimination are better than the EEA. This may lead to a skewed jurisprudence where workers relying on this legislation will have a better deal relative to the EEA. The possibility of amending the EEA to put it on par with this legislation should be considered.

Recommendation:

  1. Promotion of Equality and Positive Measures

COSATU supports the promotional measures contained in each of the sectors, which provide for measures to be taken by the responsible Minister. We further support chapter 5, which is dedicated to the promotion of equality. This will ensure that substantive equality will be promoted in a programmatic manner. 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 programme to address equality issues.

  1. Enforcement Mechanism

In general we believe that enforcement mechanisms must be accessible and understandable to ordinary people. An effective enforcement mechanism is one that can address various forms of discrimination adequately and one that can provide redress for any victim regardless of their circumstance. For this reason we welcome the guiding principle, which provides in 4(4): "Dispute resolution must be expeditious, affordable and participative, and where appropriate, informal."

In terms of section 47(1)(a) every magistrate’s court and every High Court is an equality court for the area of its jurisdiction. The Minister can designate every magistrate, additional assistant magistrate and judge to be a presiding officer of the equality court in terms of section 47(1)(b). In principle COSATU supports the underlying principles for the establishment of the Equality Courts. We support the proposal to reinforce the enforcement mechanism put forward by the Women’s Legal Center and the Socio-Economic Rights Project with regard to the following:

  1. Application of the Act

Clause 5(1) of the Bill confuses the binding nature of this bill on the state and its scope of application. According to clause 5(1) "this Act binds the state". Previous drafts of the bill provided that "this Act binds the State and all persons." It is not clear what informs this shift from the previous drafts. The removal of "all persons’ from the application of the Bill could be interpreted to mean that the Act would only apply to the state and not all persons.

However, the content of the bill indicates otherwise. In sections dealing with sectors, it is clear that the bill will bind all persons other than the state.

Recommendation:

  1. Implementation

Overall COSATU supports a gradual or incremental approach to implementing the bill. Priority should be given to establishing the enforcement institutions and training of presiding officers. A gradual approach is preferred, as it will ultimately ensure a workable system.

11.1 Training of Judicial Officers

The training of judicial officers is of importance, as those who will be appointed will not have any prior experience in dealing with equality matters and in conducting court proceedings in an informal and simple manner. We therefore support the proposal that the process of training judicial officers should not delay the implementation of the Act. Therefore training should start as soon as possible after the enactment of this Act.

11.2 Review of the Act

In terms of section 54, the Minister must establish a Review Committee within five years after the commencement of this Act. The role of the Committee is to advise the Minister about the operation of the provisions of the Act and report to the Minister on the operation of this Act.

It is important for this committee to be instituted immediately upon the commencement of this Act, to ensure adequate monitoring of the operation of the Act. This will provide the Minister with an informed and more comprehensive report about the operation of this Act and whether there is a need for further amendments to this legislation.

  1. Conclusion

COSATU would like to express its gratitude to the Ad-hoc Joint Committee for providing us the opportunity to present this submission. We have indicated our support for this piece of transformative legislation, which will help unravel the legacy of apartheid discrimination. At the same time, we highlighted a number of flaws, which need to be corrected. By pointing out the flaws in the bill our goal is to reinforce the Bill. In our view this is not an insurmountable hurdle, and our proposed legal amendments will demonstrate possible ways of amending this legislation within the time constraints.

We hope that the Committee will respond positively to the proposals put forward in this submission, the equality alliance and other progressive organisations. Further we call on the committee not to be detracted from their important task by those working to derail the Bill and pledge our further support in whatever way is appropriate.

Footnotes:

    1. Section 9 of the Constitution provides as follows:

      (1) Everyone is equal before the law and has the right to equal protection and benefits of the law.
      (2) Equality includes the full and equal enjoyment of all rights and freedoms, To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.
      (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
      (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent and prohibit unfair discrimination.
      (5) Discrimination on one or more grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

    2. In terms of section 2 of the bill, the objects of the bill are:

      (a) to give effect to -

      (i) the letter and spirit of the Constitution;
      (ii) the promotion of substantive equality;
      (iii) the values of non-racialism and non-sexism contained in section 1 of the Constitution;
      (iv) equal enjoyment of all rights and freedoms by every person;
      (v) non-discrimination and human dignity contained in section 9 and 10 of the Constitution; and
      (vi) the prohibition of advocacy of hatred, based on race, ethnicity, gender or religion, that constitutes incitement to cause harm as contemplated in section 16(2)(c) of the Constitution, by amongst others -

      (aa) making provision for measures to facilitate the progressive eradication of unfair discrimination; and
      (bb) educating the public and raising public awareness on the nature and meaning of substantive equality, including measures to protect or advance persons or categories of persons disadvantaged by unfair discrimination;

      (b) to prevent, prohibit and provide for redressing of unfair discrimination based on race, gender, disability and all other recognised grounds of unfair discrimination, in line with international law, including treaty obligation that are binding on the Republic such as -

      (i) the Convention on the Elimination of All Forms of Racial Discrimination;
      (ii) the Convention on the Elimination of All Forms of Discrimination Against Women, by amongst others -

      (aa) providing for remedies for the victims of unfair discrimination and persons whose rights to equality is infringed; and
      (bb) to address and eliminate imbalances and inequalities, particularly in respect of race and gender, existing in all sphere of life as a result of present and past unfair discrimination brought about by the apartheid system.

    3. Section 4(1) provides as follows: "The principle of access to substantive justice must facilitate the interpretation and application of this Act by all persons and in all judicial and other dispute resolution forums, where necessary, special rules of procedure and criteria to facilitate participation, including special training of judicial officers, as contemplated in section 180 of the Constitution, may be implemented in order to improve the quality of justice and to give effect to the objects of this Act."

    4. Plain Language Features

      (a) Organisational Features

      The legislation is written from the point of view of the most likely reader. That means that:

      - The most important information often appears first,
      - Provisions are structured to limit the number of cross references,
      - Similar information is grouped together, and
      - If the reader is required to follow a procedure the provisions are written in the sequence of the procedure.

      (a) Language Features

      - Unless it is legally necessary, provisions are drafted in the active voice (as opposed to passive voice). Then the reader knows who is responsible for the actions;
      - Sentences in traditional legal text are notoriously long. In plain language drafting, sentences are kept reasonably short so that the reader is able to carry information from beginning of the sentence to the end;
      - There are no Latin words. The concepts, however conveyed in those words are conveyed in English.
      - Pronouns are gender neutral. Both women and men therefore feel part of the legal process. Reference to 'he' or 'she' is made only when sex is affected by a provision.

      (a) Navigational aids: Plain language texts assist readers find the information they are looking for. To assist the reader, the following are included:

      - A contents page;
      - Footnote (or side bar notes) to provide examples, summarise a cross reference or refer to different parts of the legislation which has a bearing on the provision.;
      Headers at the top of the page with the chapter name and section number and an index at the back of the legislation , which will help readers locate information on a particular topic

    5. See President of the RSA v Hugo 1997 (6) BCLR 708 (CC); Prinsloo v Van der Linde 1997 (6) BCLR 759 (CC); Harkesen v Lane 1998 (1) SA 300 (CC); National coalition for gay and Lesbian Equality v The Minister of Justice and Others 1998 (12) BCLR 1517 (CC); Larbi-Odam v MEC for Education (North West Province) 1998 (1) SA 747 (CC).

    6. See for instance subsection 3(5)(c) which provides that "any forms of unfair discrimination provided in the said grounds or sectors, must not be interpreted as a indication of exclusion of other grounds, recognised sectors or forms of discrimination."

    7. 46(3) provides that "no proceedings may be instituted in terms of or under this Act in relation to unfair discrimination in respect of issues relating to employment if the issues in question are regulated by the Employment Equity Act."

    8. In general the organisations propose that:

      - Specific referrals provision be included into the Act. For example the Act could provide that within 10 (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.
      - The enforcement of rights, particularly 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.
      - In order to make this legislation accessible, particularly to complainants from poor and vulnerable groups, it is important that the forum of first instance be accessible to them.
      - Support for 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.
      - Support for the development of new rules of procedure for the conduct of matters before the court. The rules 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.
      - A concern regarding section 4(2) of the guiding Principles in the Act which create an obligation on non-governmental service providers to provide legal and paralegal assistance within their available resources to victims of unfair discrimination. This may place an undue onerous burden on civil society organisation, compounded by the fact that it will be a legal obligation in terms of this Bill.
      - 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.

    Home | Policy | Affiliates | Publications | Site Utilities | Structures | News | Labour Links

    Comments