Women Empowerment and Gender Equity Bill [B50B – 2013]: Negotiating mandates

Meeting report

Chairperson’s opening remarks
Mr G Mokgoro (ANC; Northern Cape) was asked to act as interim Chairperson because the Chairperson was delayed. He welcomed Members and representatives from the department of Women, Children and People with Disabilities (DWCPD) and from the Office of the Chief State Law Advisor (OCSLA).

The negotiating mandates of the provinces were presented.

Eastern Cape
Ms A Qikani (ANC; Eastern Cape) said the province voted in favour of the Bill and mandated the Eastern Cape delegate in the National Council of Provinces (NCOP) to negotiate in favour of the adoption of the Bill, within the following parameters:

- The Bill must be referred to the National House of Traditional Leaders in accordance with Section 18(1) of the Traditional Leadership and Governance Act 41/2003
- The Minister’s powers should be limited to requesting and reviewing reports or utilising weak dispute resolution mechanisms as stated in Clause 16
- The Commission for Gender Equality had proposed that clause 8 of the Bill be amended so that the DWCPD could enlist the assistance of the office of the Auditor General to audit the relevant plans and measures

Responses to proposals
Ms Thandeka Mxenge, Deputy Director General: Corporate Management, DWCPD, said the matter of referring the Bill to the National House of Traditional Leaders would be dealt with by the State Law Advisor. With regards to the dispute resolution measures in the Bill, she said the Minister had a right to designate and request plans over and above the report. On enlisting the support of the Auditor General, the DWCPD’s view was that the audit methodology that was used by the Auditor General was different from the one envisaged in the Act. Therefore it would not be possible to request that the Auditor General audit relevant plans and measures.

Advocate Bongiwe Lufundo, State Law Advisor, Office of the Chief State Law Advisor, thought that in fact  the Parliamentary Legal Advisor would be in a better position to respond to the question of whether the Bill should be referred to the National House of Traditional Leaders.

Mr Gary Rhoda, Parliamentary Legal Advisor, Parliament, confirmed that the Bill was in fact referred to the National House of Traditional Leaders on 19 November 2013. The House was given a timeframe of 30 days in which it should provide input on the Bill. However no inputs had been received by Parliament.

Mr Rhoda said the recommendation from the Eastern Cape that Clause 16 should be amended was not clear.

Mr D Worth (DA; Free State) suggested that the DWCPD provide its responses to the Eastern Cape Province in writing.

Ms Qikani agreed that the responses to the submission must be made to the province in writing.

The Chairperson apologised for arriving late and took over from Mr Mokgoro at this point. 

Mr M de Villiers (DA; Western Cape) suggested that the responses from the DWCPD and the legal sections should be given to the Committee, and the Members would then go back and brief their provinces respectively.

The Chairperson said it was not possible for the DWCPD to give the responses in writing because there were no questions sent to the department directly. However the DWCPD could be given a deadline of about 24 hours to respond to the questions, in writing, to all the relevant provinces.

Mr Mokgoro supported that proposal.

Mr de Villiers clarified that he had not been questioning the answers, but the process. It was assumed that the DWCPD would respond to the Committee Members during these discussions but he had thought it was the responsibility of the Members to forward that information to their provinces.

The Chairperson said there was no misunderstanding. Responses would be provided to the provinces, through the Committee.

Free State
Mr D Worth said the Portfolio Committee on Public Accounts, Finance, Office of the Premier and Legislature, as designated by the Free State Legislature, voted in favour of the Bill.

Mr de Villiers said the numbering of the Bill in the submission made by Free State did not have a square around it, and wondered if the Committee could still proceed with it, despite the technicality.

Mr Rhoda said the way the numbering was presented did not make any difference to the submission.

Gauteng
The Chairperson read out the submission from the Gauteng Provincial Legislature, noting that it supported the principle and the detail of the Bill with the proposed amendments. She asked whether she should go through the whole submission or whether she should simply read out the recommendations.

Ms M Themba (ANC, Mpumalanga) asked that the Chairperson should read out the proposed amendments.

The Chairperson read out the proposed amendments from the Gauteng Provincial Legislature (see page 4 for full details).

One of the proposals made was that the definition of Lesbian Gays, Bisexuals, and Transgender Intersex (LGBTI) be included under ‘Definitions’ in Chapter 1.

Ms Mxenge responded that the Bill properly addressed lesbian women in terms of empowerment. The Bill would also cover transgender and bisexual women. In as far as gay men, or the LGBTI group were concerned, the DWCPD had already changed the definition of gender based violence to include gay men, so that the definition included acts perpetrated on the basis of sexual orientation. Therefore the definition for the LGBTI group had been properly addressed already.

Ms Lufundo elaborated and said the LGBTI group had raised concerns during the public hearings, and as a result, the definition in the Bill was amended. This definition was amended to include gender-based violence and gender-based discrimination. Gender-based violence was defined as “all acts perpetrated on women, girls, boys and men on the basis of their gender, sex, or sexual orientation”. People should not be discriminated against on the basis of their sexual orientation. The Bill was, however, primarily intended to empower women specifically and not the LGBTI group, although it did offer protection.

The Chairperson proposed that it was not necessary to deal with the remainder of the submissions set out in the Gauteng negotiating mandate, from page 4 to page 8, in this meeting but rather suggested that the DWCPD submit responses to the provincial legislature in writing.

Prince M Zulu (IFP; KwaZulu Natal) asked for clarity on the Chairperson’s statement that the DWCPD should respond to the Gauteng legislature in writing. The agreement was that the department should respond to the Committee in writing.

The Chairperson apologised for a slip of the tongue, and agreed that the DWCPD should in fact respond to the Committee in writing and not to the provincial legislature.

The Chairperson did want to raise another proposal - that Chapter 3, clause (9)(1) should insert “black women in particular” and not generalise merely “women”.

Ms Mxenge responded that the previous versions of the Bill had made reference to “black women in particular”, but that during the progression of the Bill and the discussions in the National Assembly (NA), this wording had changed. It was advised that measures should be put in place to address the adverse outcomes of apartheid, which had resulted in lack of empowerment on racial grounds. The inclusion of “black women in particular” in the Bill would therefore advance black women who were previously disadvantaged.

Mr T Makunyane (ANC, Limpopo) asked whether it would be problematic to mention “black women”.

The Chairperson said it was up to the Committee to decide whether it wanted to make any specification on racial grounds.

Adv Lufundo said that this was really a question of policy. The Bill focused on the empowerment of all women. She was not able to speak to whether the matter of race should be included in the Bill.

The Chairperson said it was necessary that Adv Lufundo provide the Committee with a legal perspective. This matter needed to be resolved.

Mr Rhoda said that legally there was no problem with mentioning “black women in particular”, but whether it should be done was something for politicians to decide, because it was a policy matter.

Mr Mokgoro said the Committee needed to take a stand from an informed point of view. He argued that the inclusion of “black women in particular” would not amount to discrimination and for that reason he supported the inclusion of the phrase.

Mr de Villiers said he feared that the inclusion of “black women in particular” would feed factional relationships among people, because it did in fact serve to exclude. The Committee needed to guard against exclusionary policies, and, given that this was a democratic society, the rights of the minority also needed to be taken into account.

Mr Makunyane said African women should not be confused with black women, as they were not the same. The proposal was therefore to include “black women in particular” however this did not necessarily specify African women. The intention of this description was to negate the effects of apartheid. He argued that the phrase did not serve to exclude, but rather to address the empowerment of women in general, but there was a need to be more specific, because not all women were victimised by apartheid.

Mr Worth agreed that the Bill served to empower women and to equalise on the basis of gender. He said he did not agree with the inclusion of the clause, because he believed the Bill should not be targeted towards any particular racial group. The majority of women in the country were black, therefore the majority would be empowered.

Ms Mxenge added that the insertion of “black women in particular” would be problematic, because the 50% target stipulated in the Bill applied to all women and not only black women.

The Chairperson said Members were advocating for the insertion of “black women in particular” because the quotas set in the Bill also applied to the private sector, and there was therefore a need to differentiate. It could not be assumed that the private sector automatically understood what women empowerment was. The definition of “black” would include all previously disadvantaged women, such as black, coloured and Indian South African women. She supported the inclusion of this phrase, but said the matter would be put to the vote.

Mr Mogkoro said that regional demographics needed to be taken into consideration with regard to the inclusion of “black women in particular”.

The Chairperson agreed that demographics should be considered.

Mr Makunyane said the empowerment of black women should be 50%. The aim of the Bill was that the target, despite any other law, would be 50%. The proposal to include “black women in particular” meant that women who were not black would not be considered under this target. He agreed with the inclusion of the phrase “black women in particular be included, but said that the clause must then be worded in such a way that women who were not black were also included.

The Chairperson agreed.

Ms Mxenge said the clause could be dealt with in two ways. She suggested that it could be made obligatory that black women would be prioritised in the targets.

Mr Makunyane read out proposed wording to the effect that: “despite any other law, targets for women, black women in particular, in all laws and policy on empowerment shall be at least 50%”.

Mr de Villiers said the Committee needed to be very careful about this wording. He said he would never support any Bill which discriminated against certain racial groups. He said the negotiating mandate was from the provinces; and Members could not change what came from their provinces and thus, to his mind, could not include this proposal in the Bill. He urged that the recommendation from Gauteng province therefore should not be included.

Mr Makunyane said the wording was very carefully chosen.

Adv Lufundo said that, from a legal perspective, the new wording could be seen as discriminating on the basis of race. However it could also be justified, based on the purpose of the Bill. However, on the practical side, implementation of the Bill with the new clause included would be a challenge.

Mr Rhoda agreed that the implementation of the Bill with the “black women in particular” wording inserted would be a challenge. However this was a policy matter and it was thus up to the Committee Members to decide whether they wanted to include the clause or not.

Ms Mxenge said the Broad Based Black Economic Empowerment (BBBEE) Codes would also have to be amended, and she cautioned that this could create loopholes, which the private sector might employ to avoid complying with the BBBEE.

Mr Worth said “previously disadvantaged women” would be a far better clause than “black women in particular”.

The Chairperson said despite employee qualifications, employment equity played a crucial role in employment. She questioned why the Members of this Committee should feel apologetic for wanting to enforce equity measures for black women? She said it was disappointing that previously disadvantaged women within the DWCPD did not advocate for the empowerment of women, and black women in particular.

Mr Mokgoro said the way that Mr Makunyane had constructed the phrasing was, to his mind, acceptable beyond reasonable doubt. The Committee should not be apologetic.

The Chairperson asked that Members put the matter to a vote.

Mr de Villiers raised a point of order, and said Members should not put representatives from the DWCPD on the spot when debating issues within the Committee.

Ms M Makgate (ANC; North West) asked whether the DWCPD and the State Law Advisor were rejecting the insertion of the phrase “black women in particular”.

The Chairperson reminded Members that Adv Lufundo said she did not have an opinion on the matter.

Ms Makgate said such a statement from the State Law Advisor was not acceptable, the Committee needed advice from a legal perspective, and asked again whether the OCSLA was accepting or rejecting the proposal.

Mr Makunyane said that what Ms Lufundo had raised was that the practical implementation of the Clause would be a challenge. His response to this was that there were still “sorority clubs” in the private business sector, where companies might have about 80% representation of white women, especially at senior level. This trend could be addressed by inserting a phrase that stipulated empowerment of “black women in particular”.

Ms Mxenge said the DWCPD supported the principle of empowering black women. There was therefore justification for including the phrase “black women in particular”, because it was primarily black women who were unemployed and disempowered. She suggested that the DWCPD be given an opportunity to have the matter addressed through proper regulation.

The Chairperson asked whether she was asking that the Committee “park” the issue for the moment, to allow the DWCPD to consult the Minister.

Ms Mxenge confirmed that she would like this.

Ms Themba agreed and reminded Members that the Committee was still considering the negotiating mandates, which meant that the DWCPD also needed to be given adequate time to apply its mind to the matters raised by the provinces.

The Chairperson agreed and said the matter would be revisited again.

At the end of the meeting, the Chairperson raised the issue again. She asked whether the DWCPD had made any decision around the inclusion of “black women in particular”.

Ms Mxenge said the DWCPD would agree to include the Clause and would just have to work with the State Law Advisor to find suitable wording.

The majority of the Committee agreed on the inclusion of the new phrase, but the Western Cape and Free State indicated that they were not in favour of its inclusion.

KwaZulu Natal
Ms N Magadla (ANC; KwaZulu Natal) said the KwaZulu Natal Provincial Legislature supported the Bill, provided that the proposed amendments and comments were considered. The Member read out the contents of Annexure A (see attached document for full details), which contained all the proposed amendments.

Adv Lufundo wanted to speak to the proposals on clause 7(1). She said that the intention of the clause was for the inclusion of women in decision-making structures. The proposal from KwaZulu Natal, which was to include, and take into account women’s constitutional rights to choose their trade, occupation or profession freely, was simply an emphasis, because the Bill in fact was not taking away these rights.

Mr Rhoda agreed with the State Law Advisor.

Ms Mxenge said that the DWCPD was not in favour of the proposed amendment.

Members from all provinces indicated that they too were not in favour of the proposed amendment, and the Chairperson summarised that this amendment was not accepted by the Committee.

Ms Magadla read out the next proposal from the KwaZulu Natal legislature that clause 4(1)(a) be deleted. This clause referred to “the pervasive discriminatory patriarchal attitudes and the lingering effects of apartheid faced by women in the education system, and ensure that women’s childbearing responsibilities were not a cause for drop out or exclusion”. She argued that the clause had a lot of political jargon.

Ms Mxenge responded that the situation on the ground was different for the girl child and the boy child, especially those girls who fell pregnant while still at school. Despite their equal responsibility in conceiving a child, the boy child was invariably able to continue at school while the girl child was not able to do so. Even though the girl child would not actually be excluded from school, the environment was such that she no longer enjoyed her theoretical access to education. The Bill was therefore more about ensuring the equal enjoyment of rights stipulated in the Constitution, despite the social situation. If the Committee removed this clause patriarchal attitudes in some communities would not be done away with.

Mr Rhoda responded with a proposal that the clause could be included in the objectives of the Act.

Ms Lufundo agreed on that point.

Ms Themba suggested that since the DWCPD and the Office of the State Law Advisor had not agreed on the best way to deal with this matter, this issue could also be “parked” for the moment to allow for a more thorough discussion.

The Chairperson agreed.

Limpopo
Mr Makunyane said the provincial legislature of Limpopo supported the Bill.

Mpumalanga
Ms Themba said the provincial legislature of Mpumalanga supported the Bill. Proposed amendments were submitted to the Committee. She read out the proposed amendments, which were as follows:
- Definitions should be included, under clause 1, for “accounting officer”, “accounting authority”, “municipal entity”, and “public entity”.

Ms Mxenge said the DWCPD had no problem with accepting the proposals for clause 1.

Adv Lufundo said the main text of the Bill made no mention of the terms “accounting authority” and “public entity”, so that there was no reason to define them. There was a reference to “accounting officer”, and she agreed that it might be useful to include a definition of this, although it was not necessary. She did not think it necessary to define “municipal entity”.

Mr Rhoda agreed with the State Law Advisor and did not support the inclusion of a definition for “accounting authority”, “municipal entity” and “accounting authority”.

Members indicated that the proposals would not be supported.

Ms Themba requested that all responses from the State Law Advisor and the DWCPD be made in writing for onward transmission to the province

The Chairperson agreed.

Northern Cape
Mr Mokgoro said the Northern Cape Provincial Legislature voted in favour of the Bill, subject to consideration of the proposed amendments. However, he pointed out that the submission did not contain any specific amendments, rather expressed concerns. The Northern Cape legislature felt that the Bill should also address the treatment of rape victims when they were reporting the case to the police, and the accountability of the South African Police Services. The Bill should further address accountability in terms of resolving a widow’s as well as a girl child’s inheritance, where no will existed, thereby strengthening other legislation on the matter.

The Chairperson said the inputs from the Northern Cape Provincial Legislature were noted. She asked that the DWCPD should write to the Committee and the information would be forwarded to the province.

North West
The negotiating mandate from the North West Provincial Legislature was read out. This province voted in favour of the Bill, and noted the concerns raised by community members.

Western Cape
Mr de Villiers said the Western Cape Provincial Legislature had neither rejected nor agreed to the Bill at this point. It had proposed amendments to clause 2, by the insertion of a new clause 2(5)(a), reading:  “A designated body may appeal to the Minister directly on the decision to designate in terms of Clause 2(3), within one month, stating reasons why the designated body should be excluded”.

Mr Rhoda said that the Parliamentary Legal Advisors did not support the amendment.

Ms Mxenge said the spirit of the Bill was that there should be a 50% representation of women in decision making structures. However some entities may not be able to find women, so the measures which they needed to put in place to ensure that meaningful participation and representation of women should also include any other supporting mechanisms for women.

The majority of the Committee indicated that they rejected the amendment to clause 2.

The meeting was adjourned.