Impact of the Promotion of Equality and Prevention of Unfair Discrimination Act: hearings

JOINT MONOTORING COMMITTEES ON IMPROVEMENT OF THE STATUS OF YOUTH, CHILDREN AND PEOPLE WITH DISABILITIES: & ON IMPROVEMENT OF LIFE AND STATUS OF WOMEN: JOINT MONITORING COMMITTEE
19 October 2006
IMPACT OF THE PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT: HEARINGS

Joint Chairpersons: Ms M R Morutoa (ANC) and Ms W S Newhoudt-Druchen (ANC)

Documents handed out:
Impact of the Promotion of Equality and the Prevention of Unfair Discrimination Act 4, 2000
Commission on Gender Equality submission

SUMMARY
The Commission for Gender Equality addressed the Committee on the areas of the Act which CGE believed needed to be addressed. The changes related to a number of areas. Firstly it proposed a change to Section 187(2) of the Constitution. It recommended changes to the title of the Act, and suggested the preamble needed to set out the principles in better detail. It was proposed that the number of Commissioners be reduced to two full time Commissioners and the Chairperson, and changes were suggested to the criteria for appointment and the length of appointment. Section 11 should be amended to extend the powers and functions of the CGE. It should be given the power to litigate in its own name or on behalf of another person, and indemnified from costs orders for public interest litigation. The executive authority of the CGE should be defined. All grounds of unfair discrimination should be defined. CGE should have the obligation to report to Parliament annually. The grounds of discrimination were to be clarified and extended, and references to “the girl child” to be replaced by “children”. The word harassment needed definition. Further suggestions included physical protection of complainants, legal assistance to unrepresented parties, costs orders, and meeting procedures. 

Members expressed concerns about the accessibility of the Equality Courts, and the proposal to extend “girl child” protection to all children, who should be adequately protected by the Children’s Act and other legislation. It was felt that the concerns of the CGE should not lose focus away from the marginalized groups previously identified. Members queried why HIV was not one of the suggested list of grounds of discrimination.

MINUTES
Commission for Gender Equality submission
Ms Joyce Piliso-Seroke, Chairperson of the Commission for Gender Equality (CGE), briefed the Committee on the impact of the Promotion of Equality and the Prevention of Unfair Discrimination Act No 4 of 2000 (the Equality Act). She spoke of the history to the Act, and focused on the areas in which the Commission had recommended changes. These included a recommended change to the Constitution, to empower CGE to take steps to secure redress where human rights had been violated. Section 187(2) did not currently contain such a provision. It recommended a change to the name of the Equality Act as the Constitution referred to the Commission for Gender Equality, but the Equality Act referred to the Commission on Gender Equality. The preamble did not currently contain the spirit and purpose of the Act and had not made reference to the principle of independence of the Chapter 9 institutions. The definitions needed to be amended to more clearly define “member” as a Commissioner of the CGE. It was proposed that the number of Commissioners be reduced to two full time Commissioners and the Chairperson. The criteria for appointment should also be amended to state that Commissioners must have at least fifteen years experience and that at least one should have a legal background. The time periods needed to be clarified. Section 11 should be amended to extend the powers and functions, to enable it to monitor and evaluate policies and practices of all persons and entities. The CGE should also be given the power to litigate in its own name or on behalf of another person. Chapter 9 Institutions should be indemnified from all cost orders in respect of public interest litigation. The CGE Act needed to define the executive authority of the CGE as the Chairperson, to bring this in line with Treasury regulations. There was a substantial presentation on Part 4, and it was recommended that issues relating to socialization should also be included in the preamble. All grounds of unfair discrimination should be defined. Currently CGE was not obliged to report to Parliament and it was recommended that an amendment should be made to compel CGE to report on the status of gender discrimination. The grounds of discrimination were to be clarified and extended, and references to “the girl child” to be replaced by “children”. The word harassment needed definition, and the focus should be shifted from intention to discriminate to the real impact of the actions. Suggestions were included in respect of physical protection of complainants, legal assistance to unrepresented parties, and costs orders. Finally there was a need to develop meeting procedures for the Equality Review Committee.

All changes were proposed to lead to better functioning and impact of the Act, but it was noted that in addition the public must be better informed about its rights, as well as the forums in which the rights could be enforced.

Discussion
Joint Chairperson Ms Newhoudt-Druchen asked about the number of cases brought before the CGE, and the accessibility of the Equality Courts, in light of the CGE’s statement that equality still faced many barriers.

Ms Suraya Williams, Parliamentary Officer, CGE, replied that the number of cases the Courts had dealt with was very low. This was because the Courts did not refer any cases to the CGE, despite their mandate. Moreover many of the courts were not fully functional. Where they did exist, there was little to indicate that this was in fact a Court, and there was lack of procedures to access the courts. This resulted from lack of education, lack of commitment to the running of the courts and the small allocation of resources. This resulted in most personnel taking on additional work, so that instead of recognizing the Courts as their primary function these were taking a secondary role.

Dr U Roopnarain (IFP) asked why, in CGE’s proposed list of grounds of discrimination, it had left out the group affected with HIV, which in her opinion was more vulnerable to discrimination.

Ms Williams replied that HIV/AIDS was a cross cutting issue which permeated gender and a myriad of other issues such as disabilities. As such it was not taken or considered on its own.

Mr B Dhlamini (ANC) asked why in one of CGE’s recommendations it had requested a reduction of commissioners, although it seemed that there was still a lot of groundwork to be covered.

Ms Piliso-Seroke replied that CGE had not wanted to touch on some of the issues raised in previous presentation, However, the need to cut down commissioners was due to the fact that CGE realised that more money went into the salaries of the commissioners than being used to redress key issues. Moreover, after a comparative analysis with other countries that had the same institutions CGE realised that the trend was to cut down on commissioners as the years went by. Its suggestion was rather to increase secretaries and attorneys to deal with the legal issues.

Ms F Nyanda (ANC: Mpumalanga) asked whether final authority was exercised by the Chairperson alone, or by her and the Executive.

Ms Piliso-Seroke replied that the Act was silent on the matter and as a there was confusion as to who had the final authority between the CEO and the chairperson, CGE had now recommended that the executive authority of the CGE vest in the Chairperson.

Mr B Mkongi (ANC) asked for clarification on the proposal to change “girl child” in the Act to “children”.

Ms Piliso-Seroke replied that CGE was well aware of the disadvantages and the vulnerability of the girl, but they were of the mind that children should be treated equally. This decision was also informed from the workshops CGE had conducted, which had included the boy-child and men in issues of gender equality, teaching them the value of respect and dignity in respect to violence. She gave an example of the shooting that occurred at Forest Hill School, which she argued that would not have happened if education had also been sensitive to the boy-child.

Mr Mkongi remarked that changing “girl child” to “children” would result in a lot of contradictions considering the Act made several references to women, and felt there was need for consistency.

Ms Williams replied that, despite the debate, the change was informed by s28 and CGE recognised children as a vulnerable group on their own, irrespective of their gender. It was therefore decided to extend the safety net to the boy-child also.

Ms Newhoudt-Druchen was in agreement with Mr Mkongi, voicing her concerns on the marginalisation of the girl child. She gave an example of education where the boy child still had preferential treatment and felt the focus should be on the girl child.
 
Ms Piliso-Seroke replied that whilst CGE took these comments seriously the Committee must realize that gender went both ways. She added that empowering women without including men in the gender discussions left little room for improvement because what they were currently facing was a backlash of anger against women as men were feeling left out. This resulted in violence by men, in order to prove their superiority.

Mr Mkongi remarked that if the concerns were to be shifted from those previously established, CGE might as well help all the previously disadvantaged groups.

Mr A Madella (ANC) shared this opinion and argued that children’s issues would be covered in the Children’s Act and therefore the specific focus should remain on the girl child.

Ms Williams replied that there were issues of gender dynamics in the Children’s Act and moreover when this came out CGE had lobbied extensively and made submissions. The Sexual Offences Bill was another matter of concern. CGE had gauged views from all the nine provinces in order to get the view of the stakeholders as well as the general public.

The meeting was adjourned.