Women Empowerment Gender Equality Bill [B50B-2013]: briefing by Minister and Department

Meeting report

Ms Veliswa Baduza, Director General introduced Adv Joyce Maluleke who had been the special advisor since the inception of the Bill. Ms Baduza acknowledged that the Department had had several invitations from various provinces for consultations on this Bill. DWCPD had already deployed colleagues to the Free State, Western Cape and Limpopo. There would be a deployment to the Northern Cape for the first time which would take place on 6 March 2014. Deployments to the Eastern Cape and KwaZulu Natal were to follow on 7 March 2014. On 7-8 March 2014 there would be a National Women’s Consultative Forum for the purposes of consulting women further but also addressing the post 2015 Development Agenda. The Department would be in preparation for the CSW 58th Session that was taking place in New York from 10 -21 March 2014. This would clash with the Gauteng province public hearings on 8 March 2014 when the National Consultative Forum would be taking place, but the Department would ensure that a colleague would be deployed to Gauteng on 8 March 2014 as well as to the Western Cape public hearings on 13 March 2014. Ms Baduza undertook that the Department would keep in touch with the secretariat with regards to further dates for public hearings in the other provinces, deploying colleagues to assist in the public hearing process of all the provinces.

Adv Joyce Maluleke apologised for having handed out a revised presentation document as she had added the history of the Bill to the amended version. The Chairperson interjected, saying that the history of the Bill was not of interest to the Members and that the delegation was there primarily to present the Bill to the Committee.

Adv Maluleke pointed out the additions to and deletions from the Bill during the National Assembly process:

Preamble
This had remained unchanged.

Definitions
She said that 'sexual orientation' was inserted in some of the definitions owing to inputs which indicated the lesbian, gay, bisexual, transgender and intersex (LGBTI) community had not been included in the Bill. Rather than include the acronym ‘LGBTI’ the Department preferred sexual orientation because it was a term that was included in the Constitution. Clarification was requested on that matter as it was the first time the Members had engaged with the Bill hence the explanation had to be comprehensive. Adv Maluleke referred back to the insertion of the term 'sexual orientation' in the definitions of the Bill. There had been an outcry that the use of the terminology, man or woman, was discriminatory and failed to take into account the lesbian, gay, bisexual transsexual and intersex community. Yet, the acronym had not been used in any piece of legislation in the country. In view of the fact that many submissions had requested the inclusion of LGBTI in the Bill, the Department opted for the broad term 'sexual orientation' as used in the Constitution. On the Application of the Bill, there had been some changes to that clause.

Clause 2
Clause 2(1) provided that unless otherwise indicated in the Act, the Bill applied to designated public bodies and designated private bodies under clause 2(2). The latter provided that the Minister may subject to clause 2(4) and in order to achieve the progressive realisation of the Act, by Notice in the Gazette, designate public bodies and private bodies which must comply with one or more provisions of the Act. ‘Subject to subsection (4) was a new insertion which came about because a number of submissions had decried the fact that the Minister had extensive discretionary power as it was not specified who had been designated, thus criteria were necessary. Clause 2(3) provided that the Minister may from time to time, for the purpose of 2(2), designate different public bodies and private bodies which must comply with that provision. The designation was the result of the State Law Advisor’s recommendations, which pointed out the potential danger of the Bill not being implementable, were it to apply individually. Monitoring capacity was taken into consideration.

Clause 2(4) was a new addition which provided that the public and private bodies designated under 2(2) are those that employ 150 or more employees; or employ fewer than 150 employees but have a total turnover that is equal to or above the annual turnover of a small business as outlined in schedule 1 of the Act. This was borrowed from the Employment Equity Act in order to maintain consistency.

Clause 3
This clause provided that the objectives of the Bill give effect to the letter and spirit of the Constitution and facilitate compliance with the country’s commitment to international agreements. Further, it aligned those aspects of laws relating to women empowerment and the appointment and representation of women in decision making positions and structures. The Bill would provide for the implementation of gender mainstreaming and to facilitate development and implementation of plans and strategies on women empowerment and submit those plans and strategies to the Minister for consideration, evaluation and guidance. It provided for the implementation of measures to achieve the progressive realisation of a minimum of 50% representation and meaningful participation of women in decision making structures including board. It also provided public education on prohibited practices that unfairly discriminate on the grounds of gender.

Clause 4
This clause dealt with education and training and provided that designated public bodies and designated private bodies must develop and implement plans and measures to ensure access to education for all, to address the continued discriminatory practices and ensure that the education programmes equip women with the requisite knowledge skills and values to enable women to participate in the economy and all structures.

Clause 5
This clause entailed access to health care, including reproductive health and provided that designated public bodies and designated private bodies must develop and implement a model for delivering primary health care services, including reproductive health.

Clause 6
This clause comprised public education on prohibited practices; including gender based violence and provided that designated public bodies and designated private bodies must develop and implement plans and measures to educate the public on prohibited practices that unfairly discriminate on the grounds of gender, including gender based violence, in compliance with the applicable legislation and international agreements.

Clause 7
Clause 7(1) provided for equal representation and participation through the development and implementation of measures for the progressive realisation of at least 50% representation and meaningful participation of women in decision making structures. Clause 7(2) which required the progressive realisation of at least 50% representation of women in political parties was deleted. During the Portfolio Committee deliberations, the Parliamentary Legal Advisor argued that the clause was unconstitutional. The deliberations were stopped on account of the State Law Advisor and the Parliamentary counterpart’s opinion. It transpired that the opinions differed thus would delay the process. The clause was subsequently deleted.
Clause 8
This clause provided for gender mainstreaming through the implementation of gender mainstreaming and the submission of plans to the Minister with a year of coming into effect of the Act by the designated public bodies and designated private bodies.

Clause 9
This clause on measures to empower women and to eliminate discrimination, provided that despite any other law, targets on women and men in all laws and policies on empowerment shall be at least 50% women. It provided that all designated public bodies and designated private bodies must develop and implement plans and special measures to protect and advance women as a category which has been disadvantaged by unfair discrimination.
Clause 10
This clause on economic empowerment provided that despite any other law, targets on women and men in all laws and policies on economic empowerment, shall be at least 50% women. It provided that designated public bodies and designated private bodies must develop and implement plans and strategies to align their laws and policies with 10(1) within two years of the Act coming into operation.

Clause 11
This clause provided for special measures for the socio-economic development for women in rural areas.

Clause 12
Special measures for the socio-economic development for women with disabilities was provided for.

Clause 13
This clause provided for the role of the Minister to promote and coordinate the achievement of women empowerment and substantive gender equality.

Clause 14
This clause had read that the "Minister may, in consultation with the relevant Minister, provide guidance to the designated public bodies and designated private bodies to promote women empowerment and gender equality" but this had been deleted because public submissions as well as the Portfolio Committee were of the opinion that it should not give another Minister any powers. Clause 15 on "Gender Units and Accountability" was now clause 14 and it provided that every designated public body must within a period of one year from the commencement of the Act, establish a Gender Focal Point (GFP) and appoint suitable personnel at an SMS level as prescribed and resource it appropriately. The Bill had originally read a period of three years but this was changed to one year as it was felt that three years was too long. Clause 14 also provides that the Accounting Officers of the designated public bodies and designated private bodies are accountable for the mainstreaming of gender.

Clauses 15 -17
These clauses were new additions. It replaced the deleted clause 16 on enforcement which was felt not to have had any teeth by both the public and the Portfolio Committee. Clause 15 Review by the Minister  provided that the Minister must conduct a review to determine whether a designated public body or a designated private body is complying with the Act.

Clause 16(1) provided that subsequent to a review in terms of section 15, the Minister may approve a designated public body or a designated private body’s plans and measures; or make a recommendation to the designated public body of designated private body in writing. Clause 16(2) provided that the Minister must publish a report annually on the outcome of the review of designated public bodies, recognising and acknowledging the achievers and naming and shaming those who do not comply with the requirements of the Act.

In terms of failure to comply with the Act, clause 17(1)(a) governed the designated public bodies subject to the Inter-Governmental Framework Act ,which regulated the management of conflict and non-compliance in Public Service and between Ministers. Clause 17(1)(b) provided that accounting officers of the designated public bodies could face imprisonment of up to five years were it is proven that they negligently or maliciously did not comply with the Act. Clause 17(2)(a) created a statutory offence for designated private bodies and if found guilty, could be fined up to 10% of their annual turnover. Clause 17(2)(b) provided that directors and CEOs of the designated private bodies could face imprisonment of up to five years for non-compliance with the Act or if the designated private body is found to be guilty.

Clauses 18, 19, 20
These clauses dealt with a code of conduct, regulations and framework.

Discussion
The Chairperson noted that she understood why there had been vehement opposition to the Bill as it had impacted on the business sector. She asked about the monitoring of designated bodies, whether the Minister would use existing systems of monitoring bodies within the Departments. Further, she asked how the Bill was linked to other legislation meant to address women empowerment as it had been said that previous legislation had failed on that objective. What, then, was the guarantee that the Bill would be effective?

Adv Maluleke explained that existing bodies such as the Department of Labour’s Commission on Employment Equity would be utilised and the Minister would work with the Department of Labour and other Departments such as the Department of Performance Monitoring and Evaluation in the Presidency (DPME) in terms of monitoring. Negotiations to that end had already begun and the Department of Labour and the Department of Trade and Industry had made their reports accessible to the Department.

Adv Maluleke said it was suggested that the Bill duplicated Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) as well as the Employment Equity Act along with BBBEE directives. Adv Maluleke clarified that Chapter five of PEPUDA which dealt with empowerment had not been promulgated, thus the Bill could not said to duplicate what was not in existence. Moreover, the link would be seen in the elevation of all women in a situation where volumes of legislation existed but women still fell through the cracks. And in terms of the BBBEE amendments, women were no longer mentioned. The Bill was to strengthen existing empowering Acts and specifically empower women.

Mr D Worth (DA) (Free State) sought clarity on whether both private and public enterprise fell under the ambit of the Bill on turnover and employee numbers. He asked about the scope of the 50% quota imposed by the Bill, whether that applied to the Boards of companies or to the staff complement. He noted the Bill would not cost the Department more as the Department of Labour would do the monitoring, and asked for further explanation on that point.

Adv Maluleke replied that the Bill required both designated public bodies and designated private bodies to submit their plans on how they were to achieve the progressive realisation of 50% representation of women within the area of work and according to available resources. A definite time frame could not be set owing to the differences in sectors. The plan thus must also be capable of being monitored, presenting a role for parliamentary oversight in that regard as well. The 50% representation requirement was not limited to decision making roles or staff complement but also applied to broader community initiatives.

Mr G Mokgoro (ANC) (Northern Cape) required details on what the special measures in clause 12 of the Bill entailed.

The Chairperson recommended a reading of Chapter 2 of the Bill, bearing women with disabilities in mind, to clarify the content of the special measures.

The Chairperson welcomed Minister of Women, Children and People with Disabilities, Lulu Xingwana, who had just arrived and outlined the proceedings of the meeting up until that point. The department schedule for deploying department representatives to the provinces to provide technical support to Committee Members had been outlined and the Minister would be briefed by the Director General on that. Responses had been received from seven provinces and more were expected. In terms of the public hearings only two provinces were scheduled so far. All meetings would be coordinated with this Committee's schedule in mind as there was limited time in which to act.

Ms D Rantho (ANC; Eastern Cape) queried the effect the Bill would have on women based on farms.

The Minister directed Members to clause 11 which provided that "despite any other law, designated public bodies and designated private bodies must develop and implement plans and measures, to:
(a) facilitate sustainable livelihoods and decent work for women in rural areas, largely but not solely within agriculture;
(b) mainstream gender in land reform programme to ensure more land in the hands of women in rural areas, together with the skills and financial resources necessary for them to use the land productively;
(c) improve conditions for women on farms, women farm workers and women married to farm workers, to achieve a progressive realisation of security of tenure, housing and improved living conditions for women in rural areas and
(d) ensure equal representation and meaningful participation of women in traditional councils."

The Minister apologised for being late, work commitments had detained her. She was pleased to present the Bill to the NCOP on the back of the NA having passed the Bill with the Speaker having referred it to the NCOP. She reiterated the Chairperson’s observation that" it was a good Bill and a good story" that the ANC-led government could tell about the past 20 years, specifically with regard to women’s empowerment. The Department had a team prepared that was available to assist the NCOP and the provinces holding public hearings and workshops despite the fact that the Minister would not be there the following week. It was hoped that consultations would be successful and the Bill would be passed without postponement given that women in South Africa had been waiting for the enactment of such a Bill for 20 years. It was noted that in the National Assembly the Bill had largely been uncontested apart from the Democratic Alliance and Freedom Front +. The paucity of the DA’s women empowerment agenda vis a vis the protection of business interests was explored and it was concluded that women could not be marginalised as they constituted 52% of the population and were key to economic growth. The Minister thanked the Committee and offered reassurance about the Ministry and Department’s assistance throughout the legislative process.

Mr D Worth interjected to correct the statement made by the Minister regarding the DA’s women empowerment agenda. He clarified that the DA had nothing against empowerment and equality but had actually opposed the Bill on the basis of the quotas it imposed.

The Minister responded that empowerment did not discount merit but rather opened doors closed by patriarchy.

The Chairperson adjourned the meeting.