National Assembly - 26 January 2000
WEDNESDAY, 26 JANUARY 2000
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PROCEEDINGS OF THE NATIONAL ASSEMBLY
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The House met at 14:04.
The Speaker took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.
NOTICES OF MOTION
Dr R H DAVIES: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that the EU continues to block the implementation of the agreement ratified last year and that this is linked to a small number of EU countries pressing unacceptable demands on the use of certain names for alcoholic products;
(2) believes that this impasse -
(a) threatens to undermine the spirit of co-operation that ought to
underpin the agreement;
(b) calls into question the commitment of the EU to act in good
faith in agreements with developing countries; and
(c) reflects what the London Financial Times calls the dominance of
``commercial haggling by wealthy Europeans'' over professed
concerns to promote development;
(3) calls on the EU to resolve this matter and implement the agreement speedily; and
(4) failing this, urges the Government to call for the convening of the dispute resolution mechanism provided for in the agreement. [Applause.]
The SPEAKER: Order! Hon members, your time for private meetings is over. Please, would you take your seats and allow the proceedings to go on.
Mr B G BELL: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DP:
That the House -
(1) notes that up to 1 400 fraudulent driver’s licences are being issued at the KwaMhlanga test centre every month and that, in response to reports, certain officials have now been suspended;
(2) further notes that the Moldenhauer Commission recommendations, made in 1997, have still not been implemented;
(3) expresses its disquiet that this life-threatening situation has been allowed to drag on; and
(4) calls on the Mpumalanga premier to implement the Moldenhauer Commission recommendations immediately.
Prof L B G NDABANDABA: Madam Speaker, I give notice that at the next sitting of the House I shall move on behalf of the IFP:
That the House -
(1) notes that -
(a) South Africa boasts wonderful and diverse museums and art
galleries with artefacts exceeding R6 billion in value; and
(b) such institutions have become dependent on the state for the
bulk, if not all, of their funding;
(2) recognises that a new public-private interface needs to arise; and
(3) calls on Government to initiate a system of local support through
instituting societies such as Friends of the Museum'' orFriends
of the Gallery’’.
Ms G L MAHLANGU: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that the development of the Greater Addo National Park in the Eastern Cape will make it the world’s most diverse national park when completed;
(2) further notes that the first R3 million from the World Bank is due to become available;
(3) recognises that the Greater Addo National Park is the key to reviving the depressed Eastern Cape economy by being a prime international tourist site;
(4) commends Government for its vision in developing this park into a prime tourist attraction and a possible world heritage site; and
(5) acknowledges the valuable contribution made by the World Bank and other agencies, including the International Fund for Animal Welfare and the Leslie Hill Succulent Trust, which is making this vision a reality.
[Applause.]
Adv A H GAUM: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the New NP:
That the House -
(1) takes notice of the revelation by the Institute for Race Relations that the matric pass rate has fallen from 87% in 1979 to 48% last year, a drop of 39%, and that the matric exemption rate has fallen from 38% to 13% during the same period;
(2) notes that 37 512 fewer matrics passed last year compared to those who passed in 1994, and 63 775 fewer got matric exemption;
(3) realises that this state of affairs constitutes a national crisis which will have severe consequences for the South African economy and, if not turned around without delay, will prevent South Africa from leading Africa towards a renaissance;
(4) reminds itself that, during his opening address to Parliament, President Mbeki stated that teachers should teach and managers should manage;
(5) calls on the President to ensure that immediate disciplinary action is taken against those teachers who did not teach and those managers, including principals, government officials and MECs, who did not manage during 1999 …
[Time expired.]
Nkskz A N SIGCAWU: Somlomo, apha ndenza isaziso sokuba xa iphinda ihlala le Ndlu ndiza kwenza isiphakamiso egameni le-ANC:
Sokuba le Ndlu -
(1) iqwalasele ukuba uMelisizwe oyiprojekti yolimo, eqhutywa ngamakhosikazi anabantwana abaminyaka mihlanu nangaphantsi neyathi yaqaliswa ngenkxaso-mali esuka kwiSebe leZentlalontle, iyimpumelelo enkulu. Inike ithemba nobuchule kuluntu lwaseBizana, yazisa nentlutha kwiintsana;
(2) ihlabe ikhwelo kubo bonke abantu abazimiseleyo ukuzisa inguqu nokuphelisa ubuhlwempu nendlala phakathi koluntu ukuba babone lo mzekelo ukuze baqale iiprojekti ezilolu hlobo.
[Kwaqhwatywa.] (Translation of Xhosa notice of motion follows.)
[Ms A N SIGCAWU: Madam Speaker, I give notice that on the next sitting of the House I shall move on behalf of the ANC:
That the House -
(1) notes that the Melisizwe Agricultural Project, conducted by women with children five years of age or younger, which was started with funds from the Department of Welfare and Population Development, has been a resounding success, and has given hope and provided skills to the community of Bizana and has also brought poverty relief to children; and
(2) appeal to all people who are willing to bring about change and to eradicate poverty and hunger within the community, to follow this example and start similar projects.
[Applause.]]
Ms A VAN WYK: Madam Speaker, I hereby give notice that at the next sitting of the House I shall move on behalf of the UDM:
That the House -
(1) takes note of the finding of a study by the Institute for Security Studies that the estimated annual turnover of the private security industry is R12 billion while the SAPS budget for 1999-2000 was R15,3 billion;
(2) notes that there are more than four private security guards for every uniformed member of the SAPS engaged in visible policing;
(3) notes that there are two private security guards for every SAPS employee;
(4) notes that the private security industry is expanding at annual average rate of 30%; and
(5) calls on the Minister of Safety and Security urgently to address this House on his vision for the private security industry and its role in relationship with the SAPS with regard to visible policing and the protection of people and property.
Ms L M T XINGWANA: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes the investigation on the status of women in the private sector by the Commission on Gender Equality which found that - (a) there is a large gap between men and women in the private sector with regard to earnings and status;
(b) a similar gap exists between black and white women;
(c) some companies ignore labour legislation;
(d) the number of top positions for women is small compared to that
of men, while women form a majority of the entry level labour
force; and
(e) that women are paid less than men in similar positions; and
(2) supports the initiatives of the Commission on Gender Equality to promote equality and welcomes the publication of its Working Women Manual which will inform women of their rights in the workplace.
[Applause.]
Mr M WATERS: Madam Speaker, I hereby give notice that on the next sitting day of the House I shall move on behalf of the DP:
That the House -
(1) notes -
(a) the high number of public holidays enjoyed by South Africans compared to other countries;
(b) the adverse impact that this high number of holidays has on productivity and the economy in our country; and
(c) that religious diversity in South Africa is not adequately accommodated by the current allocation of public holidays; and
(2) calls on the Government to reconsider the current public holidays with a view to reducing the number and providing for flexibility in these public holidays in order to respect our religious diversity.
[Applause.] Mr J H SLABBERT: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the IFP:
That the House -
(1) notes that -
(a) bus and taxi accidents have become a daily and an hourly hazard,
exacting a huge toll on lives and property; and
(b) the Government's declared intention to crack down on drivers
exceeding the speed limits of 100 km/h and 80 km/h, as well as
on those whose vehicles were in a poor condition, has not been
implemented with vigour and continuity; and
(2) calls on the Government to -
(a) request reports from provincial authorities on a weekly basis
regarding drivers exceeding the speed limits and those driving
vehicles which are not roadworthy; and
(b) provide Parliament with a fortnightly report to enable members
of this House to ascertain what kind of progress is being made.
Ms E GANDHI: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes that renowned sociologist and writer Comrade Fatima Meer has suffered a stroke;
(2) recognises the invaluable contribution made by Comrade Meer to the struggle for democracy and transition to a rights-based society;
(3) wishes Ms Meer a speedy recovery; and
(4) looks forward to her resumption of her work as a campaigner for human rights, justice and equality.
[Applause.]
Mnr J DURAND: Mevrou die Speaker, ek gee hiermee kennis dat ek met die volgende sitting namens die Nuwe NP sal voorstel:
Dat die Huis -
(1) die Proteaspan alle sterkte en sukses toewens in hul wedstryd teen die Engelse krieketspan op Nuweland vandag; en (Translation of Afrikaans paragraphs follows.)
[Mr J DURAND: Madam Speaker, I give notice that at the next sitting of the House I shall move on behalf of the New NP:
That the House -
(1) wishes the Protea team every success in their match against the English cricket team at Newlands today; and]
(2) expresses the wish on behalf of all South African cricket supporters that our captain, Hansie Cronjé, will lead the team to international dominance in the one-day game.
[Applause.]
Mr M N RAMODIKE: Madam Speaker, I hereby give notice that at the next sitting of the House I shall move on behalf of the UDM:
That the House -
(1) takes note of the illegal strike of Numsa members at Volkswagen South Africa’s plant in Uitenhage, Eastern Cape;
(2) further notes that this strike is the result of an internal power struggle amongst Numsa members due to a lack of transparency in the conduct of its leadership;
(3) acknowledges that the strike is having a negative impact on production at the plant and on the economy of the region in general; and
(4) calls on Cosatu to discipline its affiliates and to promote transparency and tolerance in its ranks.
Mr J J KGARIMETSA: Madam Speaker, I give notice that on the next sitting day of the House I shall move on behalf of the ANC:
That the House -
(1) notes the launch of Dial-a-Teacher yesterday by the Minister of Education, the hon Kader Asmal;
(2) further notes that this innovative project will provide support for all pupils up to matric who need assistance with schoolwork;
(3) recognises that such innovative initiatives will assist in addressing the challenges that face the education system;
(4) commends Ms Amy Kleynhans for her concept and Vodacom for sponsoring this initiative; and
(5) urges all school pupils in need of assistance to make use of this service.
[Applause.] Mr L M GREEN: Madam Speaker, I give notice that at the next sitting of the House I shall move on behalf of the ACDP:
That the House -
(1) notes with concern that -
(a) Radio Adullam, a Christian community radio station in
Mpumalanga, was informed by the IBA that its four-year broadcast
licence application had not been not accepted, only eight days
before its temporary licence expired but two months after the
IBA hearing;
(b) Radio Adullam was treated procedurally unfairly, because the
IBA failed to give timeous notice of the reasons why the
Christian radio station did not comply with the regulations,
which left them with no time to appeal;
(c) Link FM, a Christian radio station in East London, also faces
closure on 2 February 2000, because the IBA is having hearings
in the Eastern Cape on 14 February, 12 days after the expiry
date of the temporary licence of Link FM; and
(d) the IBA has failed, in the interim, to inform Link FM about its
legal status after 2 February ...
[Time expired.]
Mnr T D LEE: Mevrou die Speaker, ek gee kennis dat ek met die volgende sitting van die Nasionale Vergadering namens die DP sal voorstel:
Dat die Huis -
(1) daarvan kennis neem dat -
(a) die DP, ná besoeke aan skole dwarsoor die land, waargeneem het
dat 'n persepsie by baie skoolhoofde bestaan dat 'n moratorium
geplaas is op inspeksies by skole deur departementele amptenare;
en
(b) Sadou toegang tot skole deur departementele amptenare blokkeer
en toegang deur skoolhoofde aan klaskamers gedurende lesure
eweneens belet; en
(2) gevolglik ‘n beroep op die Minister doen om -
(a) die skole uit te ken waar besoeke deur departementele amptenare
geblokkeer word en skoolhoofde klaskamers belet word; en
(b) dringend stappe te doen om onderwysers wat hulle hieraan skuldig
maak, te dissiplineer en skoolhoofde in kennis te stel van hul
verantwoordelikhede en verpligtinge. (Translation of Afrikaans notice of motion follows.)
[Mr T D LEE: Madam Speaker, I give notice that at the next sitting of the National Assembly I shall move on behalf of the DP:
That the House -
(1) notes that -
(a) the DP, after visits to schools across the country, has observed
that a perception exists among many school principals that a
moratorium has been placed on inspections at schools by
departmental officials; and
(b) Sadtu is blocking access to schools by departmental officials
and is likewise denying school principals access to classrooms
during school hours; and
(2) accordingly appeals to the Minister to -
(a) identify the schools at which visits by departmental officials
are being blocked and school principals are being denied access
to classrooms; and
(b) take urgent steps to discipline teachers who are guilty of this
and to inform school principals of their responsibilities and
duties.]
Prince N E ZULU: Madam Speaker, I give notice that at the next sitting of the House I shall move:
That the House -
(1) notes that -
(a) organised labour must remain organised, not only in name but
also in action and purpose;
(b) organised labour must uphold its integrity without bias to
members, which will lead them to the unnecessary disruption of
business and production, thus jeopardising the job market;
(c) some components of organised labour do not allow political
instinct to override wisdom and pragmatism, as experienced in
recent weeks in the small KwaZulu-Natal town of Mandeni at
Rencken's Hyperstores; and
(d) industrial action during Christmas and New Year shopping hours
is an arbitrary violation of the rights of shoppers and tourists
in the area; and
(2) calls on all labour federations, Cosatu in particular, to instill a sense of respect for the rights of others, whether they are South Africans, foreigners, young or old.
CONGRATULATIONS TO INDIA
(Draft Resolution)
The CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, I move without notice:
That the House, noting that India is one of the largest democracies in the world, hereby resolves to congratulate India on its fiftieth anniversary as a republic and to wish India success in the coming years.
Agreed to.
CONSIDERATION OF NOMINATIONS FOR APPOINTMENT OF
PERSONS TO CENTRAL DRUG AUTHORITY
(Draft Resolution)
The MINISTER FOR WELFARE AND POPULATION DEVELOPMENT: Madam Speaker, I move the draft resolution printed in my name on the Order Paper, as follows:
That the House requests the Portfolio Committee on Welfare and Population Development to consider the nominations received by the relevant Ministry for the appointment of persons to the Central Drug Authority, and to make recommendations in relation thereto to the Minister for Welfare and Population Development in accordance with section 2(3)(b) of the Prevention and Treatment of Drug Dependency Act, 1992 (Act No 20 of 1992), the Committee, subject to the concurrence of the National Council of Provinces, to confer with the Select Committee on Social Services of the National Council of Provinces.
Agreed to.
CONSIDERATION OF REPORT OF PORTFOLIO COMMITTEE ON FINANCE - LAND TAX
Order disposed of without debate.
Report adopted.
CONSIDERATION OF EIGHTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF NINTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF TENTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF ELEVENTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF TWELFTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF THIRTEENTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF FOURTEENTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted. CONSIDERATION OF FIFTEENTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF SIXTEENTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF SEVENTEENTH REPORT OF STANDING COMMITTEE ON PUBLIC
ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF EIGHTEENTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF NINETEENTH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF TWENTIETH REPORT OF STANDING COMMITTEE ON PUBLIC ACCOUNTS
Order disposed of without debate.
Report adopted.
CONSIDERATION OF REPORT OF AD HOC JOINT COMMITTEE ON PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
Order disposed of without debate.
Report adopted.
PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
(Second Reading debate)
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Speaker, Deputy President, hon members, as the preamble to the Bill suggests, the purpose of the Bill is to prevent and prohibit unfair discrimination and harassment, to promote equality and eliminate unfair discrimination, and to prevent and prohibit hate speech. It has been brought to my attention that, unfortunately, reference is made to ``late’’ speech instead of hate speech in the preamble. This will certainly be rectified administratively.
No doubt, this is yet another legislative milestone and in some circles, indeed, this Bill is regarded in importance as only second to the Constitution. It is intended to strengthen the legal basis for further transforming our society. Numerous interesting questions have been asked, and numerous interesting comments have been made on the Bill since it was published, which indicates that many people indeed asked themselves why we need legislation of this nature.
Our past history of unfair discrimination and oppression has left its indelible mark on South African society. It requires concrete measures to ensure that human dignity, the achievement of equality, the advancement of human rights and freedoms, nonracialism and nonsexism become endemic in society. These are the values on which our new constitutional order is founded and which we are required to build on.
If anybody needs to be reminded at all, as a country and as a people we have come quite a long way from where we were. The past colonial and the apartheid orders were predicated on the notion of white supremacy. They were predicated on the silly notion that there would never be equality between blacks and whites in the churches, in the state, and may I also say, even in the graveyards. [Laughter.]
At the time of the founding of the Union in 1910 black people, who were then referred to as nonwhites and all sorts of names, had no place where they could air their views and participate in the debates taking place regarding the future of the country and their own destiny. Not even Great Britain was willing to assist them, and if again anybody has not seen this, I have read in some history books that even inceku kaThixo [a great supporter of God], the Archbishop of Canterbury, believed that it would take at least a century, from those days, for blacks in this country to reach the level of development that whites had then attained. Verwoerd, who is credited as being the architect of apartheid, is quoted as having said that a black child needs no more than a minimum of education in order to perform manual labour. The systemic inequalities, particularly in terms of race, that pervade our society today are the social consequences of the laws and policies that emanated from those orders and philosophies, and they are certainly not God-ordained orders.
In 1993, for the first time in our history, our country and its people embraced the principle of equality and entrenched it as a central value in the interim Constitution - an historic albeit rickety bridge between the old and the new constitutional dispensations. In order to ensure that the legacies of our past are eradicated, Parliament in 1996 - when approving our new Constitution and, more specifically, when dealing with the right to equality - consequently saw fit to require the passing of national legislation within three years to address this problem.
The Constitution requires this legislation in order to prevent and prohibit unfair discrimination, and to give effect and flesh to the constitutional prohibition of unfair discrimination. If indeed this has to be said, let me say it. A lot of time was expended on consultation under the stewardship of my predecessor. A whole lot of people and constituencies were consulted - satisfactorily so, may I say - before this Bill eventually came before Parliament.
I want to thank all the people who participated in that. Never before - and may I venture to suggest, never since - with the exception of the Constitution, has there been so much consultation and so much opportunity for South Africans to air their views on the issues at stake in this Bill. I thought it important to mention this because, indeed, there has been criticism on the basis that we took a long time, from 1996, to come to where we are today. I have no intention to go into the Bill in any kind of detail, because I have been made to understand that my colleagues and fellow members of the House are indeed going to do that, but I need just to touch on one or two aspects.
The first one, no doubt, is section 9 of the Constitution, which refers to the prevention and prohibition of unfair discrimination, as well as to the promotion of equality. In giving effect to the constitutional mandate, this Bill not only prohibits any form of direct or indirect, unfair discrimination against any person, but it also gives attention to the need to promote equality. I know in some quarters there is opposition to this - opposition which, of course, I cannot understand.
Allow me to reflect on some relevant provisions of our Constitution, which are more than just pointers regarding the need to promote equality. Section 9(2), for instance, reads as follows:
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.
In similar vein, section 6(2), dealing with the promotion of indigenous languages; section 25, promoting access to land on an equitable basis; section 26, dealing with housing; section 27, dealing with health care, food, water and social security; section 28, dealing with the rights of children; and section 29, dealing with education, all require the adoption of proactive measures to achieve equality in our society.
We will not get anywhere if, indeed, we merely focus our attention on formal equality in terms of and under the law. Human nature being what it is, the vast majority of our people generally will never enjoy equality in their lives unless we act proactively, and unless, of course, we pass appropriate legislation by which we are going to buttress whatever action we take. In some quarters it has been argued that the Constitution does not require this additional dimension in the legislation; that it only requires measures to prevent and prohibit unfair discrimination. I want to say that even if the Constitution did clearly only require the prevention of unfair discrimination - which, as I have said, is not the case - Government would, nevertheless, have followed the approach adopted in this Bill. It would be failing in its duty if it did not.
What is the purpose of promoting legislation which only addresses a portion of our problems? The chapter in the Bill dealing with the promotion of equality forms an integral part of the Bill and is essential. It has the full backing of the overwhelming majority of our citizenry, erstwhile victims of the previous order. There has also been unwarranted criticism that this legislation will undermine sound business practices and have a negative effect on business in general. This could not be further from the truth. The Bill does not outlaw all forms of differentiation that take place during the course of business. It takes cognisance of the fact that there are forms of differentiation which are reasonable and justifiable and which will not fall foul of this law. I urge the mischief makers who use these scare tactics to refrain from undermining this legislation, which is intended to make South Africa a better place for all.
I also have to say that I have made a personal undertaking to the hon Marthinus van Schalkwyk that we will monitor the effect of the Bill on business and the economy in general. Indeed, if it turns out that it becomes necessary to review some aspects thereof, nothing will prevent this House from doing so. The Bill is essentially targeted at the ordinary citizens of our country. We must ensure that the people who in the past were not in a position to protect themselves are treated in the manner required by the Constitution. These ordinary members of society come from all walks of life and political persuasions, and, may I say, the beneficiaries are both black and white, both male and female, both young and old. Many of them are even supporters of the opposition parties. The country needs this kind of legislation and we, as duly elected representatives of our people, are urged to give it unqualified support.
If I have created the impression that this Bill only seeks to address the legacy of colonialism and its apartheid offshoots, that is certainly not my intention. While this is indeed the main vision behind the Bill, I must, before concluding, point out that the Bill also addresses other forms of unfair discrimination as required by the Constitution. Gender and disability are, for instance, also prioritised.
I would once again like to thank the parliamentary committee which dealt with the Bill for its hard work, especially the Chairperson, Mr Mohseen Moosa. Prof Shadrack Gutto and the officials of my department also played a significant role in ensuring that this Bill indeed, in this format, would see the light of day. [Applause.]
Ms N G W BOTHA: Madam Speaker, hon members, as deputy chairperson of the ad hoc committee on the Promotion of Equality and Prevention of Unfair Discrimination Bill, I would like to begin by expressing our thanks to the people who initiated the process of developing this legislation we have before this House today, that is, the equality legislation drafting unit.
The unit’s task was to co-ordinate research, consult with various stakeholders, conduct public awareness campaigns and produce discussion documents, policy papers and the first drafting of this legislation. I would also like sincerely to thank our law advisers and the drafting team sitting over there: Mr Deon Rudman, Ms Susan Masapu, Mr Sivhaga Netshitomboni, Ms Tuli Madontsela, Mr Lawrence Bassett and Prof Shadrack Gutto. [Applause.] The team worked tirelessly and passionately, assisting the committee to complete its work and also to meet the deadline. They put all their energies and efforts into this work, sometimes with little time to sleep or rest.
Also a big thank you should go to all the people and organisations who assisted the process by presenting us with oral and written submissions. We received over 100 written submissions from NGOs, religious institutions, labour organisations, business sector organisations, academic institutions, government institutions and interest groups and individuals, and some of them are sitting over there. [Applause.] Their contributions were invaluable. Most of them worked relentlessly to get their views incorporated in the Bill.
Of course, as a committee we cannot claim to have accommodated every viewpoint. That would have been impossible, because of our divergent frames of reference. However, we believe that the choices we have made are constitutional and desirable, and the ANC supports the Bill without reservations. From the onset the DP and ACDP did not consider it necessary to incorporate a chapter dealing with the promotion of equality in this Bill. They maintained that it was not a requirement of the Constitution. The ACDP went further to say that it would challenge the constitutionality of the promotion chapter.
Our Constitution states clearly that equality includes the full and equal enjoyment of all rights and freedoms. It also states that to promote the achievement of equality, legislative measures have to be taken. It further states that no person may unfairly discriminate, directly or indirectly, against anyone and that national legislation must be enacted to prevent or prohibit unfair discrimination.
We began our deliberations arguing about the words may'' andmust’’,
all semantics. The question is, why did the DP and the ACDP not want to
include the promotion chapter? This legislation rests on two pillars. One
is the promotion of equality, and the other is the prevention of unfair
discrimination. We did not just want a narrow antidiscriminatory piece of
legislation which would only deal with the prohibition and prevention of
unfair discrimination. We also needed to look at ways of encouraging people
to try to change attitudes and behaviour in areas where unfair
discrimination is practised, whether in the private or public sphere.
South Africa, as we all know, has a history of institutionalised, unfair discrimination which is deep-seated and pervasive. Apart from the fact that we have to fulfil a constitutional obligation and meet the deadline of 4 February 2000, we know that equality is the cornerstone of our young democracy. We, therefore, need legislation to promote equality in order to achieve a peaceful, fair and democratic society, to effectively prohibit and discourage privatised apartheid and all forms of unfair discrimination, to progressively eliminate systemic inequalities and to provide legal remedies for victims of unfair discrimination. This Bill seeks to do just that.
Chapter 1 deals with definitions, objects, interpretation, guiding principles and the application of the proposed Act. The committee had earlier considered including additional grounds to the definition of prohibitive grounds. These grounds are, no doubt, regarded as important and are: HIV/Aids, socioeconomic status, nationality, family status and family responsibility. We have for very good reasons not included them, because we felt that before this could be done, there needed to be a deeper understanding of the issues involved, the impact and the consequences.
We have requested the Minister to consider the establishment of an equality review committee, which must, amongst other things, make recommendations regarding their inclusion. It may be interesting to note that the ACDP did not agree with our definition of marital status and pregnancy. In the clause which deals with the application of the proposed Act, we could also not understand why the DP and the AEB objected to this clause. One can only think of one reason, which is that they do not regard this legislation as prevailing over other legislation, although they had agreed to similar provisions in the two Bills that were discussed yesterday.
Chapter 2 deals with the prevention, prohibition and elimination of unfair discrimination, hate speech and harassment. The purpose of this chapter is to highlight unfair discrimination on the grounds of race, sex and gender, as well as hate speech, harassment and publication of unfair, discriminatory information which could reasonably be construed or understood to demonstrate a clear intention to discriminate unfairly against any person. These are, of course, outward manifestations of attitudes which undermine human dignity. Regrettably, the ACDP expressed its objection to the whole clause which deals with the prohibition of unfair discrimination on the grounds of gender. The New NP objected to the clause which prohibits hate speech and the DP to the clause which prohibits the dissemination and publication of unfair, discriminatory information.
Chapter 3 deals with the burden of proof and determination of fairness or unfairness. The ANC has argued that the most effective way to combat unfair discrimination is to switch the burden of proof. This means that once the complainant has established a prima facie case of unfair discrimination, the onus is on the respondent to prove the contrary. However, I am going to leave this to my comrades to elaborate on.
Chapter 4 deals with the enforcement mechanisms, the equality courts, their rules, procedures, powers and functions. Clause 16 provides for additional magistrates and judges to be designated by the Minister, after consultation with the Judge President or head of the administrative region, to be presiding officers in the equality courts. The DP, the New NP and the AEB have objected to the designation by the Minister, as if the Minister will arbitrarily hand-pick these presiding officers. In terms of the Constitution, the Minister must appoint an acting judge after consultation with a senior judge. Why did these parties not object to that?
Chapter 5 deals with the promotion of equality. Clause 25 places a heavier duty and responsibility on the state to promote equality. The ACDP has objected to this clause. Clause 26 places a lesser responsibility on persons operating in the public domain to promote equality. Clause 27 requires a social commitment by all persons to promote equality. Clause 28 provides for special measures to promote equality with regard to gender and race.
I just want to conclude by thanking members of the portfolio committee and political parties who have contributed and sacrificed their sleep to work into the early hours of the morning. The patience we exercised in dealing with one another and the humour we shared are appreciated.
However, we will hear today how some of the opposition parties will be voting, particularly the DP, the New NP, the AEB and the ACDP. What they will be saying in this House today will determine whether they are for or against transformation in this country. [Interjections.] Yes, but whatever they say, as our President has said: ``We are on course, and we shall not waver.’’ [Applause.]
Ms M SMUTS: Madam Speaker, honourable friends, we would dearly have liked to have been in a position in this House today to support this Bill. Its single original constitutional purpose, under section 9(4), was to create a remedy and a relief for men and women who have suffered unfair discrimination at the hands not of the state but of other persons in society.
Only this week we heard from a DP colleague how it had been necessary to overturn an entire job selection sifting process because the profile of the shortlisted candidates was simply not credible. On investigation, sure enough, it was found that any number of superb black female candidates had been excluded. That situation was remedied.
We all know that feeling. Do we not? There is almost no category of persons in South Africa that has not at some point in our history tasted the bitter injustice of condescension and exclusion. However, we are not unique in that. Other democracies, such as Britain and Australia as well as the constitutional, rights-based democracies, have long had antidiscrimination laws.
Section 9(4) requires such a law. In this case both the DP and the ANC thought it necessary in 1996 to require legislation, not only to make the right an accessible reality, but also to prevent absurd and unintended consequences. In the event, the Bill itself was one big unintended consequence. This task-team product, which the Cabinet inexplicably tabled in Parliament, included such grotesqueries as the prohibition of tokenism.
Hon members should not think that it was easy to get this nonsense out of the rewritten Bill. An SACP member had the unutterable gall to argue that the black insurance industry executives who made submissions were tokens. He seems to find it impossible to believe that black South Africans can be brilliant, and they were superb. He thinks exactly like those job selectors who sifted out the superb black women candidates.
What South Africa needs is a ``can do’’ approach. Our new cyber billionaire out there in Durbanville, Mark Shuttleworth, says that the only difference between Silicon Valley and South Africa is that we do not always believe we can do it, and he is right. Some South Africans who think that they cannot do it, believe that some other kinds of South Africans can do it even less. When they are members of the lunatic left, their approach out of this conceptual cul-de-sac is to take punitive measures against those who manage to succeed. [Interjections.]
I must say a word here about a facet of six years of ANC rule that crystallised very clearly during these hot summer months. The ANC has not yet quite come to terms with its powers and their constitutional parameters. One example was that odd idea that the state can be a requester of information from the private sphere.
However, another illustration arose under this Equality Bill, when an ANC member suggested to the press that they should allow politicians editorial space. The immortal response from Mandla Seleolane of the FXI, who was bursting with mirth, was that it must be quite unique for a government to insist on exercising civil rights against the private sector. The problem with this conceptualisation of a kind of a defenceless state, of course, is that it gives rise to overintrusive measures towards its citizens. Once one has cleared all the extraneous matter out of the way in this Bill, the one chapter that really matters is the chapter dealing with the legal tests - the Constitution’s rebuttable presumption of unfairness when discrimination, on a listed ground, has been shown to have occurred, and the determination of fairness and unfairness that follows.
We have all put a lot of argument and work into this. We were able to support the final measure with two objections. The final product closely followed the stages of enquiry which the Constitutional Court has developed to date. Our objections, however, are serious. They are against the relative weakness of two provisions, which the lunatic left presumably thinks it can use for redistribution of some description.
Prof Asmal should note that there is absolutely no reason why we should not have had a strong and unambiguous clause stating that differentiation on cold actuarial or statistical grounds, or even just objective economic grounds, does not constitute unfair discrimination. The insurance industry cannot deliver redistribution. It will crash. A duty to accommodate disadvantage, likewise, will not always be possible or appropriate, yet our qualification ``where appropriate’’, which was at one stage accepted, was later dropped, just as a clear and sane differentiation clause, which was first accepted, was thrown out under tripartite-alliance strain.
This is where Penuell’s poodles come into the picture. Any normal presiding officer would give these factors and criteria the apposite weight in applying his or her mind. However, what happens if a new school of presiding officers, trained to a specific interpretation and designated by the hon the Minister for Justice and Constitutional Development, is on the bench?
The CHIEF WHIP OF THE MAJORITY PARTY: Madam Speaker, on a point of order: Is it parliamentary for a member of this House to refer to an hon Cabinet Minister as Penuell? Could you please rule on that.
Ms M SMUTS: I will be happy to withdraw, Madam Speaker. I withdraw. The Minister’s powers of designation of High Court judges is in clear breach of the Constitution. We cannot vote for a Bill which undermines the Constitution, most especially not when it attacks the constitutional order at its foundation.
The whole constitutional order rests on the independence of the judiciary, which interprets and protects our rights against the government of the day. We cannot let the Government designate classes of judges for classes of cases. No, requiring the hon Minister to consult the Judges President before he designates is not good enough. It is no good. We are losing Judges President left, right and centre, quite apart from the inadequacy of this measure. Incidentally, the DP did not say ``in consultation’’ would suffice. Another party said so.
It is, if I may say so, a tragedy that Parliament as a whole - which also stands between the executive and the judiciary - did not throw this provision out. This is so much more the case when a clear agenda emerges from the drafters. The hon the Minister truly owes us a direct answer on his position and the positions taken by departmental officials and drafters during deliberations. It became quite clear that the Bill intended to challenge the courts’ interpretation of the Constitution’s equality section. We heard it in so many words, in writing, from Prof Gutto, who recanted, but not before he had proved true every single word of warning that I issued about attempts to defy the Constitutional Court’s authority. However …
Prof B TUROK: Madam Speaker, on a point of order: Is it in order for a member to attack an adviser of Government who is not able to reply? Is that in order?
The SPEAKER: Order! In Parliament, that is not unparliamentary.
Ms M SMUTS: Thank you, Madam Speaker. However, an official of the Minister’s very department made various statements which I intend to send to the Minister, if I may, about, inter alia, the Minister’s policy directives on the training of judges to achieve a certain ``attitude’’. Now we need to know from the Minister whether these attitudes are also the attitudes of the hon the Minister, and even if they are not, how he proposes to deal with his officials. It is little wonder that the Constitutional Court itself has proposed that appeals under this law may lie to themselves. They must be as worried as we are at the intentions behind this law. These have been neutralised to a great degree, but we do not underestimate the damage that this department could do if it is agenda- driven.
The Bill has been made safe in many respects, but in others it is only less worse, including the making-it-up-as-you-go-along promotional chapter. On judges, it is flatly unconstitutional and we regret that we have to oppose it. [Applause.]
Prof L B G NDABANDABA: Madam Speaker, I stand here not to bury the Bill but to praise it. [Applause.]
I-IFP iwushayela ihlombe lo mthetho omusha wokuthi sonke siyalingana futhi namalungelo ethu ayafana. Sigezeka igilo ngalokho. Thina bantu abampisholo sesakhishwa kakhulu inyumbazane kuleli zwe lethu. Lo mthetho uthi sekwanele. Kusukela namhlanje umuntu ohlukumeza omunye noma yingayiphi indlela, uzowotha ubomvu. Labo abangakakuvumi ukuthi kuyalinganwa kuleli zwe kufanele baseale sebeyivuma.
Sicela ukuthi lo mthetho usakazwe amagumbi omane ezwe lonke lakithi ukuze waziwe yibo bonke abantu kusukela ezinganeni kuya kogogo nomkhulu. (Translation of Zulu paragraphs follows.)
[The IFP applauds the new Bill which says that we are all equal, meaning we all have equal rights. We are very pleased about it. We, the black people, have been discriminated against for a long time. However, this Bill says enough is enough. From now on a person who violates the rights of the next person will suffer the consequences. Those who still oppose racial equality in this country should now give up.
We would like to see this Bill being disseminated all over the country so that people of all ages will know of its existence.]
The IFP supports the Promotion of Equality and Prevention of Unfair Discrimination Bill which is undoubtedly highly meritorious. Its noble objectives are beyond reproach. These are, among others, to give effect to the letter and spirit of the Constitution, particularly the founding values of the achievement of equality and human dignity; to prevent unfair discrimination and provide for redress; to provide for the promotion of equality; and to provide for a framework for educating the public about the nature and extent of unfair discrimination.
The Bill gives special rules of procedure and the balancing of deterrent measures to fight unfair discrimination and hate speech. This is applauded. The establishment of equality courts, in the view of the IFP, is a great achievement in the history of our country. Regarding the application of the legislation, the Bill binds the state and all persons. Nobody, therefore, is exonerated from promoting equality and declaring war against unfair discrimination.
In essence then, the Bill’s intention is to consolidate democracy in our country by eradicating social, economic and educational inequalities which were generated in our history by colonialism and apartheid. The IFP is convinced that a Bill of this nature is long overdue in our country. The Bill emphasises that the problem our country is facing at present is that, although the Constitution guarantees equality, systemic inequalities and unfair discrimination still remain deeply embedded in the South African society.
Blacks in this country were denied the franchise for decades because of their colour. Even liberals failed to make a clause similar to what is expressed in the Bill. In terms of this Bill, we no longer have the so- called exempted natives or a qualified franchise for blacks, but now we have equality in the true sense of the word.
Although the IFP voted for the Bill and still votes for the Bill, the IFP did not support the clause outlawing patriarchy as one of the prohibited grounds. The IFP is of the view that it is not correct for the partriarchal system to be listed on the same level as apartheid as a mother of all forms of discrimination. Patriarchy, in our view, is a cultural phenomenon, the purpose of which is to maintain order and social control in society. Its purpose is not to discriminate against women or to suppress any section of society. The IFP therefore voted against this particular clause but will votes for the Bill.
In its first draft the Bill did not highlight the elderly, the aged. The IFP successfully lobbied for the inclusion of senior citizens. The new definition in the clause where age is defined is a big plus. We congratulate the committee for including the aged. The IFP, therefore, applauds the fact that the aged are now specifically highlighted in the Bill. This augurs well for the future protection of the senior citizens who occasionally get abused and harassed.
It is exciting to the IFP that the committee finally realised that there is indeed a need to address specific forms of unfair discrimination against the elderly. To this end, the committee has recommended that specific forms of unfair discrimination against the elderly should be revisited, hopefully, by the Minister for Welfare and Population Development in future.
Highlighting the elderly as a category needing special protection is not only the brainchild of the IFP, but it was confirmed by the UN Declaration of the Rights of the Elderly, No 46 of 1991. This declaration of the UN approved some of the following principles pertaining to the elderly: Independence, participation, care, self-fulfilment and dignity. By highlighting the elderly, the Bill is conveying a strong message to the public that the aged are valuable and should be treated in that way.
Equality is about equal access to available opportunities. It is not, I submit, about de facto equality or equality in reality. It is for this reason that the equality may not be understood by traditionalists in the same manner as by westernised people. This state of affairs may result in a conflict of some kind, especially in traditional areas. Therefore it may have the practical effect of interfering with current traditional and religious practices.
The definition of harassment is also a little problematic. It is somehow too broad and could effectively apply to any lack of good manners, humour or proper human considerations. Then, of course, viewing partriarchy, as I have said, as a prohibited ground might have deleterious consequences for social organisation and might weaken social control and affect order and discipline adversely in families and society as a whole.
We are all culture and religion bound, more or less, and legislation on aspects of culture, like patriarchy, is, in the IFP’s view, an overreach of criminal sanctions where they interfere with culture. There is no denying that the proper business of legislation is the prohibition of unfair discrimination and the promotion of equality. This noble exercise, however, must not be so overrated that it affects cultural and religious beliefs.
The Equality Bill confirms the philosophy of the two eminent leaders in this country - the IFP’s leader’s idea of the revolution of goodwill, and the hon the President’s view of the African renaissance and the African century. Our laws should therefore protect those aspects of the culture which make for order in the society. Equality is about goodwill.
Kuyasithokozisa thina kwi-IFP ukuthi samukeliwe isicelo sethu sokuthi ogogo nomkhulu bafakwe esivivaneni salabo okufanele bangacindezelwa noma babandlululwe. Kukaningi sizwa ukuthi abantu abadala bayahlukunyezwa futhi bayahlupheka. Siyethemba ukuthi lo Mthetho uzokuqeda lokho, yingakho-ke sime ngezinyawo kwi-IFP ukuthi ogogo nabo bangene kulo Mthetho. (Translation of Zulu paragraph follows.)
[We in the IFP are happy because our request that grandmothers and grandfathers should not be oppressed or discriminated against has been granted. Most of the time we hear about the abuse and the hardship experienced by elderly people. We hope that this Bill will abolish that. That is why in the IFP we say that grandmothers and grandfathers should be given consideration in this Bill.]
We sincerely hope that the Bill will be useful in making all the sectors of the South African society understand the meaning of the key words in the Bill. Meaning exists prior to testing, and is not a result thereof. How can one test something if one does not understand it first? Clearly, the Bill will impinge upon the traditional norms and social attitudes of, especially, certain sections of the black community. This raises the question whether the law will bring about changes in social attitudes, especially those which have been in existence for centuries. While it is easy to deal with outward conduct, it is more difficult for the law to deal with deep-seated attitudes and values. What has to be taken into account is how to make the Equality Bill effective.
To conclude, there is no doubt that the Equality Bill serves a good and important purpose. Two things that characterised the previous dispensation in this country were inequality and discrimination. The removal thereof is clearly demonstrated by the Equality Bill, which enables South Africa to move from the old to the new. People tend to be like computers. They act and react according to the programming that has taken place over the years, especially during childhood, when a person is impressionable.
In order to change that, one must be engaged in a process of deprogramming and reprogramming according to new values and laws. That is why, in order to be effective, the Bill must be accompanied by a massive educational programme. Strategies must be devised which will not simply emphasise punitive aspects of the legislation, but rather promote some incentives for the change of attitudes, and emphasise that change is desirable and is in the national interest.
Such an exercise will obviously take time, but it is essential. Legislation cannot compel people to adopt a particular course of conduct. It can merely persuade them to do so. There is no doubt that this law is important, but it can be rendered dysfunctional if it is in conflict with social attitudes and values. Legislation cannot, therefore, do everything if people feel that it is unjust and unreasonable.
The foregoing concerns do not detract from the IFP’s enthusiasm and support for the Bill. May the Bill stand the test of time, and not merely become a law on paper. [Applause.]
Mr L ZITA: Madam Speaker, our Constitution commits this House to drafting legislation which could prevent or prohibit unfair discrimination. The Bill before us will strengthen our democracy as espoused in the Constitution and will translate it into a reality based on the principle of equality.
It is an important milestone in our journey to realise this idea. Discriminatory practices are not merely the result of racial and other social attitudes, but a necessary adjunct of the capitalist system built on the back of colonial conquest. That is why the Equality Bill embodies measures both for individual and social interest.
It prohibits discrimination on the grounds of race, gender, disability, pregnancy, ethnic or social origin, colour, sexual orientation, age, religion, conscience, belief, culture, language and birth. Furthermore, to make this legislation accessible to the majority of the people, the Bill includes a schedule that lists the various forms of discrimination in our various social, cultural and economic settings. This is to help a Mokoena on the East Rand or a Tshave in the Eastern Cape to understand how they, in their specific work situations, are discriminated against.
It helps them to identify the specific form of the discrimination against them and on that basis approach the nearest magistrate’s court to lay charges. All magistrate’s courts have the jurisdiction to address all cases that deal with unfair discrimination. A complainant need only establish a prima facie case of unfair discrimination, and the burden of proof will shift to the respondent.
Because those who suffer from unfair discrimination are the weaker and more vulnerable sections of our society, we are challenging, through this Bill, those who are powerful to be responsible in discharging their power. Because unfair discrimination is an expression of the nature of the socioeconomic system, legal cases alone will not be enough.
This Bill commits every person and every social institution, both public and private, to the promotion of equality. Businesses must develop equality plans with clear targets and timeframes. This is particularly valuable to workers who are not covered by the Employment Equity Act. It ensures that change continues to connect with all working people and confers on them a minimum flow of rights.
The state also has a responsibility to promote an awareness of fundamental human rights, which is the precondition for the creation of a climate of understanding, mutual respect and equality. The Bill pays particular attention to race, gender and disability. This focus on race is necessitated by the prevalence of race in our history.
To the extent that it challenges every fabric of our social organism, the Bill is a fundamental contribution to the resolution of the national question. The Bill compels all institutions and all social settings to promote the cause for positive transformation of gender relations. Similarly, the profiling of disability discrimination is designed to integrate all of us into the full experience and enjoyment of our common humanity, with no exceptions and no exemptions.
Some of us here will oppose this Bill. Those who have a history of generating and perpetuating a society that is based on racial supremacy and the domination of capital over everything will oppose this Bill. They are the historic and current perpetrators of unfair discrimination. They claim that this Bill sacrifices individual freedom at the altar of social engineering. Let me remind them of the ANC’s unquestionable commitment to freedom, freedom from hunger, pain, want and ignorance.
For us freedom means freedom from the scourge of Aids, from the grip of crime and the burden of illiteracy. Freedom without responsibility is nihilism, and because of our history some of us, like the DP and the New NP, have a greater responsibility to the victims of our past. Some of us, like the hon Tony Leon and his fellow Raiders of the Lost Ark, should be more sympathetic to the plight of the poor. Some of us, like everyone who is opposed to this historical Bill, particularly the DP, should be more compassionate about the establishment of a rights-based society.
Unfortunately, some of us who are sitting on the left-hand side of this House simply do not care enough to move beyond the abundant lip-service they pay to democracy. To us in the ANC this law represents a creative interplay of freedom and solidarity. It is a freedom that cares. In pursuing this path, we are not unrealistic utopians pursuing an unworkable utopia. This Bill indicates the ANC’s commitment to dealing with and understanding the challenges of fundamental change.
Contrary to those who oppose us, we see no contradiction between social justice and development. Progressive reforms do not spell doom for entrepreneurship. They only recompose the context within which the entrepreneurship takes place. The extension of trade union rights to black workers in the 1970s led to a predictability in labour relations, and reinforced the integrative and inclusive capacities of the economy and society.
This Bill lays the foundation for a new social consensus. Through it we will be enjoying freedom with solidarity. Through this Bill we are saying to those who still suffer from the ills of unfair discrimination after six years of democracy that this Government continues to fight for their right to be free from those demeaning experiences.
This Bill is their weapon. They must use it to continue to struggle against racism, sexism, homophobia and patriarchy. They must use it to increase awareness and sensitivity to the pain that is constantly experienced by many. They must use it, so that as a nation we should continue on the long march away from all forms of bigotry.
In passing this Bill, we will, indeed, be concretising the challenge of the 21st century, which should be, in the words of the ANC president, Mr Thabo Mbeki, ``the century for the resolution of the problem of the colour- line’’. There is no other nation more qualified than us to lead in this venture. [Applause.]
Mrs S M CAMERER: Madam Speaker, legislation required by our Constitution to outlaw unfair discrimination in our society on the grounds listed in the Constitution is something that the New NP should go out of its way to support, not only because of where we came from, but also because we fully support section 9 as it stands in the Constitution, and we will be supporting this Bill today. [Applause.]
There are a lot of positive elements in the Bill and the New NP believes that it is symbolically important as well. And we want to say to the ANC that it will assist many of our own supporters to get justice; particularly women, the disabled and the previously disadvantaged.
However, the decision to support the Bill was not taken lightly, and we have thought long and hard about our decision because we believe that there are problems with the Bill; in particular, firstly, the refusal to take on board the legitimate concerns of the business community, particularly the insurance industry; and, secondly, the justice Minister’s final discretion to pick and choose judges and magistrates to sit in the equality courts, and we warn that they will inevitably be devalued as ``Penuell’s poodles’’.
The horizontal application of rights is a tricky area of our law and our courts have warned that a minimalist approach would be preferable, allowing the law to have room to develop. The original task team appointed by the justice Minister to tackle this drafting project over the past three years unfortunately did not heed this good advice, but went totally overboard, not only in dealing with the constitutional imperative in clause 9(4) of the Constitution, but also unnecessarily loading the Bill with the complicated promotion of equality provisions to which no constitutional deadline requiring their enactment actually applies.
The result tabled in Parliament was bulky, overambitious, overcomplex, unrealistic and contradictory - a real camel of a Bill which would have been almost impossible to interpret, according to most of the legal fraternity. But after two months of intensive work, a full spectrum of hearings and exhaustive debates, reality has taken hold, particularly in ANC ranks, and a much better product is now on the table, also due in no small measure to the efforts of opposition parties.
This Bill is somewhat more modest in its goals. It sticks to the grounds listed in the Constitution as grounds for unfair discrimination. It has only one definition of discrimination, whereas the original offering contained several conflicting ones. The defences to a complaint of unfair discrimination have been strengthened and made clearer and more reasonable, although there is a lot of room for improvement, as I will indicate.
Also the original bombastic provisions in the promotion-of-equality section of the Bill have been substantially and realistically trimmed to reflect a wish list illustrating the sort of equality the ANC would like to see. Most South Africans would probably also like to see it, but the difference is that while most citizens believe the state should bear the burden of providing, for example, equal health services and educational facilities, there was originally a clumsy attempt, through this Bill, to offload the burden onto the private sector. This has fortunately been abandoned. And so, while vague and undefined responsibilities are placed on all persons to promote equality, there are few consequences associated with failure to act, except for those who operate in the public sphere.
The biggest improvement in the Bill was to remove the five new so-called ``prohibited grounds’’ of discrimination from the definition, namely HIV/Aids status, socioeconomic status, family responsibility, family status and nationality. These grounds are not constitutionally required in the legislation, are ill-defined and their inclusion could have had far- reaching and unforeseen consequences. They have now wisely been referred to an Equality Review Committee created by the Bill for reassessment before possible inclusion within a period of a year.
So far so good. However, there are still some deeply worrying aspects of the Bill. The two strongest objections the New NP wishes to register against the Bill are the following: Firstly, the defences available to those against whom a prima facie case of unfair discrimination has been made out are not appropriate in some cases and not strong enough in others. The most obvious case in point is the insurance industry, which yesterday warned in a last-ditch attempt to get the ANC to see reason that it would be impossible to do proper insurance underwriting should the Bill be passed in its present format.
The reason for this is that differentiation is in the nature of insurance. For instance, it is well known that young males present a higher risk than young females or older males, so their premiums are loaded - discrimination! The way the defence clause is worded now, it would be insufficient for the insurer to prove that such differentiation is reasonable and justifiable, or that the differentiation is legitimate based on objective criteria. The insurer would also have to prove its case in terms of a dozen or so other factors that, according to this legislation, a court must take into account in assessing fairness or unfairness.
The way insurance operates at the moment could be severely disrupted by this Bill. No standard insurance form currently in use could be used in the future, according to the insurance industry’s lawyers, which include very eminent counsel, and I think they must be heard. At the hearings on this Bill, the insurance industry warned of the consequences if the section was not redrafted or if a specific exemption was not included for the insurance industry as in both New Zealand and Canada, which have similar legislation.
After the hearings the opposition parties took up the call. The New NP asked for a simple adjustment to the Bill which would address the insurance industry’s problem and would do no harm to the cause of equality or the outlawing of discrimination. So we appeal to the Minister to have another look at this aspect. There is precedent for this sort of reassessment on good grounds, for example in the case of the labour legislation, which was reassessed in order to promote business confidence. We believe that without such adjustments this Bill, which also applies to all employers and employees who escaped the tentacles of the Employment Equity Act, is possibly excessively burdensome to business as a whole and we desperately need investment and job creation. If our economic growth does not reach Trevor Manuel’s target of 4,5%, he can lay some of the blame on this restrictive legislation and other restrictive legislation in the labour field. The second main problem we have with the Bill is the creation of the elite team of presiding officers in both the High Court and the magistrate’s court, which would be designated by the justice Minister as having the training, capacity and suitability in the equality field. The New NP has a problem with this ministerial intervention. Judges are appointed, for all intents and purposes, by the Judicial Service Commission. Thereafter, Judges President allocate specific work to judges, for example commercial cases, divorce matters and so on. In the case of equality courts, after consulting the Judge President in question, the Minister may interpose his own political choice of judges or in the case of the lower courts, magistrates, to handle equality matters. We believe there is also no doubt that the ANC’s long-mooted ambition to whittle away the independence of the Bench and put ANC-friendly judges on it is being given some substance in this Bill. [Interjections.]
We believe that this is not desirable and we would ask for a reassessment. We believe that the matter could be addressed if instead of after consultation, the Minister makes his appointments in consultation with the Judges President. We believe that would be appropriate in this case, and we would appeal to the Minister to reassess this.
Other problems - which are minor compared with the two major problems we
have - include the definition of equality, which still includes the meaning
equality of outcomes''. What this may mean is anything but clear, but no
doubt some cadres in the ANC believe that it meanspass one, pass all’’.
Several of the grounds for discrimination listed in the Constitution and this Bill have been defined in a rather ad hoc and misdirected manner, sometimes taken to extremes. One could take pregnancy for example. Contrary to the axiom that one cannot be a little bit pregnant, it includes any condition related to pregnancy, intended pregnancy, potential pregnancy or termination of pregnancy, and possibly these definitions need to be looked at again.
It does get worse when the extra grounds not in the Constitution and no longer included under the prohibited grounds are defined. Although these grounds are out, definitions have been included in the Bill to guide the Equality Review Committee. Because their inclusion was a last-minute affair, the definitions are, at best, ill thought-out, and, at worst, downright peculiar, so that ``nationality’’, for example, is defined as including practices associated with xenophobia. They do not hang together. I would appeal to the Minister to look at that aspect as well, but these are minor amendments. We support the Bill. [Applause.]
Dr R H DAVIES: Thank you, Madam Speaker. This afternoon we are debating a major piece of transformatory legislation. This Bill, when it is enacted, will stand second only to the Constitution as a mechanism for preventing discrimination and promoting equality.
It was a great personal privilege to serve on the ad hoc committee that produced this Bill. I would like to add my voice to those who have expressed appreciation to the chair and the co-chair, to Prof Gutto and to the team from the department. The Bill provides a mechanism of redress for the historically and currently disadvantaged people that will be accessible and fair to the ordinary person who does not have the resources and who is suffering the effects of discrimination and inequality.
The DP and one or two of the other smaller opposition parties have indicated that they will vote against this Bill. The hon Dene Smuts gave a number of reasons in her speech. I will take up some of them in the course of my speech. The main reason for that, she said, was that the DP objects to clause 16(1)(b) of the Bill, which empowers the Minister to designate magistrates and judges as presiding officers in equality courts. I want to say that the ANC sincerely does not believe that the clause referred to is either unconstitutional or an unwarranted interference in the judiciary.
The Bill does not provide for the Minister to appoint judges or magistrates. It provides an administrative mechanism for the Minister to deploy judges and magistrates who are appointed through the mechanisms provided in the Constitution to carry out particular tasks. The Minister, moreover, has to do this after consultation with the appropriate bodies designated by the Constitution to appoint judges and magistrates. We do not believe this to be unconstitutional. None of the law advisers expressed any such view in the committee, and we do not agree with that view.
But even if, just for argument’s sake, we were to concede that the hon Dene Smuts has a point, would this justify voting against the Bill? I want to say decisively, no. This is one of those occasions when I think even some in the opposition have recognised that. Another such occasion was the passage of the Constitution where fundamental principles were also at stake. This is the type of Bill where the principles are so important that a decision has to be taken on the balance of the overall content and on the principles it is trying to promote, not on technicalities. This has been recognised in editorials in Business Day and The Citizen, of all places, in the past few days. The Citizen, a newspaper not noted for its track record on equality, said:
It would be sending out a powerful message if our country’s main political parties were seen to stand united in the promotion of equality and the eradication of discrimination.
If certain of the opposition parties are not able to rise to the challenge, in fact to fall behind The Citizen, they should understand that they will not be able to hide behind legal technicalities. They will have to bear the full consequences of being seen to have done what they are in fact doing, which is voting against equality. [Interjections.]
They can jeer as they did earlier on, when that point was made. But a reality which I think the House needs to recognise it that the DP voted against the definition of ``equality’’ in the Bill. To understand the basis of this, I would suggest that the hon members look again at the remarks of the President at the closing of the debate on his speech at the opening of this second democratic Parliament.
I am sure hon members will remember the speech. It was the one where he traced the philosophical origins of DP positions in 19th century liberalism, and concluded: ``Whether they know it or not, the DP are our home-grown Tories.’’ The point I want to make is that conservative liberalism - or is it liberal conservatism - has long defended a concept of equality that is limited largely to formal equality of citizens before the law, and largely to vertical relations between the state and citizens. As we know from the experiences of many countries across the world, those that have propounded a concept of equality limited in these ways have often simultaneously defended vast inequalities in terms of access to real opportunities and in outcomes.
In the committee deliberations the DP showed time and again that it had real problems in moving beyond formal and vertical equality. [Interjections.] I wish to tell Ms Smuts that it could not object frontally, because the Constitution itself envisages de facto equality and the Bill of Rights also applies horizontally. But the DP was constantly advocating a minimalist approach in this regard, and I think that needs to be put on record.
We in the ANC have unashamedly and unabashedly said in and through this Bill that the equality we seek to promote is not just formal, de jure equality, but also de facto equality in reality, including equality in terms of outcomes. What we are saying is that the barriers to equal opportunity, particularly but not only to people who were disadvantaged by colonialism, apartheid and patriarchy, must be removed in practice and this must also be reflected in the reality of the outcomes.
I want to draw the attention of Ms Smuts and Mrs Camerer to a fundamental point in this regard. It is now acknowledged, even by institutions like the World Bank, that societies with greater equality tend to be more successful economically than those with high incidences of inequality. The 1999-2000 World Bank World Development Report identifies equality as one of a range of outcomes - their words, not mine - which, it says, development must pursue. I do not believe that I need to remind the House that apartheid, colonialism and partriarchy have left South Africa one of the most unequal societies in the world, whether measured by the Genie coefficient or any other way.
That being the case, one of the critical issues that the committee had to grapple with was how to deal with differentiation inherent in much commercial activity, and how to distinguish reasonable and justifiable differentiation from discrimination and unfair discrimination. Commercial interest groups, particularly from the insurance sector, argued vigorously that their businesses depended on being able to differentiate between different categories of people on objective grounds.
This concern, I believe, is accommodated in clause 14(2)(c) of the Bill, where it is specifically stated that it is a defence to a prima facie case of unfair discrimination to show that the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria intrinsic to the activity concerned. I personally believe that we have accommodated the concerns. It is clearly not the intention of this Bill to prevent insurance companies from deciding that 50 year olds that smoke are a higher risk for life insurance than 25 year olds who do not, or that young men - if the claims records show that they have the worst record in terms of motor insurance - should not pay higher premiums than others who have a better claims record.
What we did not agree to do was to exempt upfront all differentiation based on actuarial or other commercial characterisations. I want to explain the reasons for this. Firstly, to have done so would have required complainants to establish in the prima facie case that they need to present that the discrimination that they are complaining of was not differentiation. In a word, it might have required the complainant to have the actuarial tables and to have shown that the discrimination was not this kind of differentiation. It would have raised the barriers for the complainant too high and undermined the fundamental principle of making justice accessible to the poor and ordinary victims of discrimination.
Secondly, we had to take into account the fact that commercial principles, even if based on objective criteria, do not exist in isolation from the social context. Differentiation, even on objective commercial criteria, can, depending on the circumstances, involve unfair discrimination. I want to give an example. I worked some years back, in the 1970s, for an insurance company in South Africa. It routinely used to refuse to provide people of colour with motor insurance. When I raised the matter, I was told that this was basically a commercial decision based on underwriting experience that the claims record was unacceptable. I am not sure if they were correct and, in fact, in a particular case, they used to get the same business through the backdoor through an agency.
The point is that commercial decisions can involve discrimination, and we have to test those out. A line will have to be drawn between what is acceptable differentiation, what is discrimination, and what is unfair discrimination. But that line will have to be drawn in part through jurisprudence. It may be inconvenient to some of the powerful interests, but I would argue that it is a necessary process in the broader interest of the objective of ending discrimination and promoting equality, which is, I argue, even in the economic interest of this country.
I am satisfied that we have produced a Bill that will stand the test of time and take our country forward. It is a great honour for me to express my full support for this Bill. [Applause.]
Rev K R J MESHOE: Madam Speaker, firstly, I want to thank Adv Madasa who ably represented the ACDP in the committee stages which this Bill had to go through. He put in many hours in the process of trying to bring sanity to those who were rushing the passage of a Bill that is going to stir up a lot of trouble. Secondly, I want to make it very clear that the ACDP is opposed to discrimination and inequality on the basis of race, colour, sex or creed.
The Promotion of Equality and Prevention of Unfair Discrimination Bill is going to directly affect a number of rights enshrined in the Bill of Rights such as the right to freedom of belief, freedom of religion, freedom of association, freedom of speech and freedom of conscience. The ACDP regards this Bill as one of the worst and most far-reaching interventions by this Government in the regulation of private life, as it aims to entrench values and belief systems that are detrimental to the family.
We find clause 10(1) that refers to ``prohibited grounds’’, which include religion, problematic, as it is going to undermine at least the right to freedom of speech and the right to freedom of belief enshrined in the Bill of Rights. This clause has the potential of creating havoc and tensions between different religious groups that never existed before in this country.
For example, Christians who believe in the Bible believe the words of Jesus Christ recorded in John 14:6 where He says: ``I am the Way, the Truth and the Life: No one comes to the Father but by me.’’ Can this section be used to allege that Christians quoting John 14:6 are communicating words that are discriminating against other religions or not? What about their belief that what Jesus Christ said was the truth?
What will happen if a person of another religion complains that to hear that Jesus Christ is the only way to God is hurtful to them, and is discriminating against their religion? What will the Government or the courts do about it? Will they ban the Scriptures? If that is a possibility, then the ANC must be seriously warned about the grave consequences that will follow. That will be the beginning of the end of their popularity.
In case somebody in this House does not know, let me mention the fact that, over the years, there have been governments, especially communist governments, who tried to ban the message of Christ, and they failed dismally. All those communists who tried it, have died, and yet Jesus Christ is still alive, and He will be alive forevermore. [Interjections.]
Mr N J GOGOTYA: Madam Speaker, will the hon Rev Meshoe be prepared to take a Christian question? Since he has mentioned the Bible, I think we need to dwell on that.
Rev K R J MESHOE: Madam Speaker, I will take a question when I have finished my speech. Would the hon member please sit down.
Is reference to homosexuality, sodomy and lesbianism, as an abomination before God going to be classified as hate speech because of this Bill or not? Will the calling of sinners to repentance be labelled as hurtful according to clause 10(1)(a)? Are churches going to be forced to marry homosexuals because of the impending law? If that be the case, then we are ready for them, and it is the ANC that will pay the ultimate price for it.
By giving extensive rights to homosexual partners that are far above those for other citizens, this Bill contradicts the call by President Thabo Mbeki who recently, when speaking at an Ethiopian Church, said that he calls upon all church leaders to promote morality in the country. However, this Bill seeks to legislate immorality and to destroy Christian and other religious family values once and for all. If the President’s call is sincere, which we think it is, we call on the President not to sign this Bill, unless the offending immoral clauses are removed.
Our party maintains its stand that homosexuality is a chosen lifestyle that does not deserve any more protection than it already enjoys. The ACDP regrets the stand taken by the SA Council of Churches and the SA Jewish Board of Deputies to support a broadened definition of family that includes people of the same sex. They have bowed to the demands of these groups who have been lobbying and advocating that the concept of family in South Africa’s laws should include homosexuals and sodomites in relationships.
We also find Chapter 3 on the burden of proof very problematic, because this is going to make the burden of proof very light on the complainant but very heavy on the respondent. This chapter is going to encourage troublemakers to make silly allegations against people that they do not like, without the need to substantiate their allegations. The accused are going to be guilty until proved innocent, while murderers and rapists are protected by this Government as innocent until proved guilty.
All of us that are against discrimination know that what is needed is a change of heart, education, skills, training, giving people a helping hand, defending the poor and the disadvantaged, improving the life circumstances in the country as a whole with better housing, better lighting, better transport, better standards of health and more job opportunities to make all this possible. [Applause.] [Time expired.]
Ms F B MARSHOFF: Madam Speaker, I am surprised that Rev Meshoe has the guts to stand at this podium today and speak on the Bill, whereas he has never even attended any of the public hearings and never attended any committee meetings. Perhaps we should ask ourselves whether he is still discriminating even against members within his own party. Does Adv Madasa not have enough skill to come to present his party’s case here? [Interjections.] [Applause.]
This is a historic piece of legislation … [Interjections.] Keep quiet! The elimination of discrimination and oppression is not only a constitutional imperative on us, but we also have a moral obligation towards specific groups of vulnerable people within society to facilitate the promotion of equality and the prevention of unfair discrimination.
As parliamentarians, we have to speak up for those who cannot speak for themselves and promote their positions in society. It is towards this end that we have included clause 34 in this Bill. The directive on HIV/Aids ensures that we make specific recommendations to the Minister for Justice and Constitutional Development to look at the inclusion of HIV/Aids, nationality, socioeconomic status and family responsibility and status, in the prohibitive clauses, as defined in clause 1 of the Bill. During the public hearings, we came to realise that these five additional grounds needed to be given special emphasis, because of the impact that clause 34 has on society and its close links to systemic disadvantage and discrimination in the South African society.
As a party that represents the most disadvantaged and oppressed people, those who were the most disadvantaged by apartheid and all the evils associated with it, we understand that in some respects there are more subtle and complex forms of discrimination and oppression, other than those listed in the Constitution under the prohibited grounds. Those are the five that I mentioned earlier on.
People that are affected on these grounds, which are HIV/Aids, socioeconomic status, nationality, family responsibility and family status, face a lack of access to information, ignorance of the law and of their rights, and a lack of access to crucial services within society. Because of this lack of services and resources, they are forced to resort to social withdrawal, living in secrecy and living a life of denial to protect themselves. The dynamics involved with regard to HIV/Aids and socioeconomic and family status place an even greater burden on those who are already disadvantaged. This is even more so when one considers that there is no so-called community of people living with HIV/Aids as a cohesive group. Instead, people living with HIV/Aids are generally fragmented, voiceless and justifiably often afraid of publicly disclosing their HIV status. As such, the protection of their rights and dignity often has to be determined on a case-by-case basis.
It is for these reasons that the state has to take extra measures to protect these people, because it is often very difficult for people living with HIV/Aids to prove effectively that they are being discriminated against. What we have to realise is that HIV/Aids is intrinsically linked to race and gender discrimination in our society. What makes black women, in particular, more vulnerable to HIV infection is their gender, race and socioeconomic position in society. It is for these reasons … [Interjections.] That member should keep quiet. He does not know what he is talking about. It is for these reasons that we as legislators and as the mouthpiece of the most disadvantaged and oppressed sectors of society must ensure that special measures are taken to include those grounds under the listed prohibited grounds. We implore the Minister to give special consideration to these recommendations.
The state must ensure that positive steps are taken to protect people living with HIV/Aids from unfair discrimination. It must also ensure that the remedy that it provides is both effective and accessible. This Bill is written for ordinary people. We must make it as easy as possible for them to access justice in a fair and open democracy.
By taking the position that we have taken as the ANC in Chapter 7, clause 34, we want to ensure that these additional grounds fundamentally affirm the right to equality of these categories of people and provide substantial leverage for them to interact as valued members of society. To this end, we have also established an equality review committee with a specific brief to investigate and to make recommendations to the Minister with regard to the inclusion of these grounds in the definition of prohibited grounds, and we also attached specific timeframes to ensure that these issues will be given the necessary attention because of the importance we attach to these matters. But, in the meantime, nothing will preclude any court of law from making a ruling that any of these grounds are to be included as one or more grounds listed under the definitions of prohibited grounds.
A specific recommendation was for two members of Parliament, one from each House, to serve on this committee. This is to protect and promote the rights of these vulnerable groups as set out in the Bill. Although we have taken this position, we have seen many progressive judgments with regard to people living with HIV/Aids. These include the famous Johnson case and others. In many respects, South African legislation is way ahead of its international counterparts.
When we make laws, we have to take into account the international treaties by which we are bound. To such effect, in 1998, both the United Nations and the Joint High Commission for Human Rights produced international guidelines on HIV/Aids and human rights. Guideline 5, for example, calls for the enactment of antidiscrimination laws to protect people living with HIV/Aids from discrimination both in the public and private sectors and to provide for speedy and effective administrative and civil remedies when such laws are breached. As a country, we are obliged to enact legislation that will give effect to these guidelines.
The opposition parties were also opposed to some of the definitions within this Bill. One of the definitions they were opposed to was the definition of family status as it stands in the Bill. They argued that the definition is too broad. But we in the ANC argued that we know where our roots are and that we will not shy away from our responsibilities. We are Africans with a proud tradition of extended families. Although we do not have a problem with nuclear families, we do not solely subscribe to them. With the Aids epidemic, we have an even greater responsibility to take care of our orphans and family members. As such, we as the ANC wholeheartedly support this Bill. [Time expired.] [Applause.]
Dr P W A MULDER: Madam Speaker, equality and dignity are democratic values that form the cornerstones of the South African Constitution. The FF supports these values and will fight at every forum for them. The question is often asked how it is possible that the FF can fight for equality and self-determination at the same time, that the FF can fight for equality and minority rights at the same time. Are these values not opposing one another?
As ek na die internasionale debat oor selfbeskikking en minderheidsregte kyk, soos dit tans in Europa, Oos-Timor en Ethiopië gevoer word - agb lede kan gerus ook hierna gaan kyk - is dit duidelik dat dit juis is omdat groepe gelyk behandel wil word dat hulle hul op selfbeskikking en minderheidsregte beroep. Selfbeskikking en minderheidsregte is die moderne internasionale antwoord om gelykheid te verseker en om diskriminasie teen groepe te beveg. Vanweë Suid-Afrika se politieke geskiedenis word die dom vraag baie keer gevra, meestal deur die Suid-Afrikaanse media, of gelykheid en selfbeskikking dan nie teenoor mekaar staan nie. Natuurlik nie!
Ek moet byvoeg, verskeie gesprekke, veral onder Afrikaners en Afrikaanssprekendes, is tans aan die gang oor diskriminasie teen Afrikaners en die miskenning van Afrikaans. Ek wil van hierdie geleentheid gebruik maak om namens die VF aan Afrikaners te sê dat enigeen wat vir Afrikaans en die Afrikaner wil argumenteer en wil veg, sal moet seker maak dat hy sy argumente nie op ongelykhede of op diskriminasie teen ander baseer nie. Sulke argumente hou nie water nie.
Teen hierdie agtergrond sou die VF graag hierdie wetsontwerp wil steun, maar die wyse waarop dit geskryf is, maak dit ongelukkig nie so eenvoudig nie. Ek was ‘n lid van die sogenaamde ou Parlement voor 1994, en ek is nou lid van die sogenaamde nuwe Parlement ná 1994. Dan word ek dikwels die vraag gevra wat ek moeilik vind in die nuwe Parlement. Een van die goed wat vir my baie moeilik is, is om te sien hoe die regering van die dag foute herhaal wat deur die vorige regering gemaak is. Ek kan vir agb lede voorbeelde uit die verlede noem.
In hierdie wetsontwerp oor gelykheid is daar talle sulke foute. In Suid- Afrika het ons te doen met ‘n verskeidenheid kulture, tale, rasse ensovoorts. ‘n Mens het dus hier te doen met gelykheid en verskeidenheid. Die ou NP-regering het hierdie verskeidenheid as uitgangspunt geneem en sy beleid daarop gebou. Die kritiek van die ANC en die wêreld teen apartheid was onder meer dat die NP op elke lewensterrein aan mense wou voorskryf wat mag en wat nie mag nie. Die ou NP-regering het aan sportliggame voorgeskryf wat mag en wat mag nie; die ou NP het aan kerke voorgeskryf wat mag en wat mag nie, en so kan ek voortgaan. Dit is nie die staat se taak om in te meng en aan elke samelewingskring te wil voorskryf nie. ‘n Goeie regering maak min wette en laat solidariteit in eie kringe in die samelewing toe.
Ek het gesê in Suid-Afrika het ons te doen met gelykheid en verskeidenheid. Die ANC neem nou weer gelykheid as enigste uitgangspunt. Hierdie wetsontwerp maak presies dieselfde fout as wat die ou NP-regering met apartheid gemaak het. Dit wil aan elke samelewingskring voorskryf hoe hy moet optree. Kom ek gee vir agb lede ‘n voorbeeld, naamlik klousule 8.
Klousule 8 bedoel dit baie goed as na maatreëls gesoek word om diskriminasie teen vroue stop te sit, maar dan gaan die klousule egter so ver om in klousule 8(d) na onder meer godsdienstige praktyke te verwys. Besef die Regering watter bynes hier oopgesteek word? Deur hierdie wetgewing gaan die staat op indirekte wyse aan kerke voorskryf. As vroue in die Joodse sinagoge bo en mans onder sit, gaan die staat dit nou regmaak. Of ek daarmee saamstem of nie, is nie ter sake nie. My vrou sit langs my in die kerk as ons kerk toe gaan.
Feit is, dit is, soos in die ou dae, ‘n poging om voor te skryf. As ‘n kerk byvoorbeeld weier om ‘n homoseksuele persoon as predikant toe te laat bots dit met hierdie wetgewing. Kan die staat kerke so teen hulle eie leer in dwing? Besef ons al die implikasies hiervan?
Ek voorsien baie hofsake wat uit hierdie wetgewing gaan voortspruit as gevolg van maatreëls wat nie deurdink is nie. In elkeen van hierdie sake gaan ons sit met artikels wat in botsing kom met die Grondwet. Artikel 15 van die Grondwet verseker byvoorbeeld godsdiensvryheid, met alles wat dit behels. Artikel 18 van die Grondwet verseker vryheid van assosiasie, met alles wat dit behels. Hierdie wetsontwerp tas dit ook aan.
Om dit nog erger te maak, kom klousule 14, en word die hele regstellende optrede-kwessie, met sy diskriminasie op rassegrondslag, van die bepalings in die wetsontwerp uitgesluit. Dit beteken die wetsontwerp oor gelykheid is reeds ongelyk deur eintlik net na die een kant toe te sny en nie na albei kante toe nie.
Die VF steun gelykheid en die bevegting van diskriminasie. Ons steun die klousules wat dit sinvol doen. Ongelukkig is hier ook talle klousules waarvan ek in my beperkte tyd slegs enkeles kon noem wat vir ons nie aanvaarbaar is nie. Omdat ons nie klousule vir klousule sal stem nie, sal die VF teen die wetsontwerp stem. (Translation of Afrikaans paragraphs follows.)
[When I look at the international debate on self-determination and minority rights, as it is currently taking place in Europe, East Timor and Ethiopia
- hon members are welcome to look at this as well - it is clear that it is precisely because groups want to be treated equally that they are calling for self-determination and minority rights. Self-determination and minority rights represent the modern international solution to ensuring equality and combating discrimination against groups. As a result of South Africa’s political history the silly question is often asked, mostly by the South African media, whether equality and self-determination are not diametrically opposed to one another. Of course not!
I must add that various debates are currently under way, particularly among Afrikaners and Afrikaans speakers, regarding discrimination against Afrikaners and the disregarding of Afrikaans. I want to take this opportunity on behalf of the FF to say to Afrikaners that anyone who wants to argue and fight for Afrikaans and Afrikaners will have to ensure that his arguments are not based on unequalities or on discrimination against others. Such arguments do not hold water.
Against this background the FF would like to support this Bill, but the manner in which it has been written unfortunately makes things more complicated. I was a member of the so-called old Parliament prior to 1994, and I am now a member of the so-called new Parliament after 1994. I am therefore often asked the question what I find difficult in the new Parliament. One of the things which is very difficult for me is to see how the Government of the day is repeating mistakes made by the previous government. I can mention examples from the past for hon members.
There are numerous such mistakes in this Bill on equality. In South Africa we have a variety of cultures, languages, races, etc. One is therefore dealing here with equality and diversity. The old NP government took this diversity as a point of departure and built its policy on it. The criticism of the ANC and the world against apartheid was, inter alia, that the NP wanted to prescribe to people in every sphere of life what was permissible and what was not permissible. The old NP government prescribed to sporting bodies what was permissible and what was not permissible; the old NP prescribed to churches what was permissible and what was not permissible, and I could continue in this vein. It is not the task of the state to interfere and to want to prescribe to each sphere of society. A good government makes few laws and allows solidarity in each sphere of society.
I have said that in South Africa we are dealing with equality and diversity. The ANC is now taking equality as the only point of departure. This Bill makes precisely the same mistake as that made by the old NP government with apartheid. It wants to prescribe to each sphere of society how it should behave. Allow me to give hon members an example, namely clause 8.
Clause 8 has very good intentions if one is looking for measures to eradicate discrimination against women, but then the clause goes so far as to refer, inter alia, to religious practices in clause 8(d). Does the Government realise what a can of worms is being opened here? Through this legislation the state is going to prescribe to churches in an indirect way. If, in Jewish synagogues, women sit upstairs and men sit downstairs, the state is now going to rectify that. Whether or not I agree with that is not at issue. When we go to church my wife sits next to me.
The fact is that this is, as in the old days, an attempt to prescribe. For example, if a church refuses to allow a homosexual person to be a minister, that is in conflict with this legislation. Can the state force churches to go against their own teaching? Do we realise all the implications of this?
I can foresee many court cases which are going to arise from this legislation as a result of measures which have not been carefully thought out. In each of these cases we are going to encounter sections which are in conflict with the Constitution. For example, section 15 of the Constitution ensures freedom of religion, with everything that that entails. Section 18 of the Constitution ensures freedom of association, with everything that that entails. This Bill also tampers with that.
To make matters even worse, in clause 14 the entire affirmative action issue, with its discrimination on the basis of race, is excluded from the provisions in the Bill. This means that the Bill on equality is already unequal in actually only applying to one side and not to both.
The FF supports equality and the combating of discrimination. We support the clauses that do this meaningfully. Unfortunately, there are also numerous clauses of which I could only mention a few in the limited time at my disposal, which are not acceptable to us. Because we will not be voting clause by clause the FF will vote against the Bill.]
The DEPUTY SPEAKER: The hon Mr Moonsamy will make his maiden speech. [Applause.]
Mr K MOONSAMY: Madam Speaker, Comrade Deputy President, hon Ministers, hon members, the Promotion of Equality and Prevention of Unfair Discrimination Bill is yet another important milestone in the reconstruction of our society.
It puts us firmly on the road to justice and true equity. The strategic objective of our national liberation struggle was the creation of a united, nonracial, nonsexist and democratic society. This, in a sense, meant the overcoming of a social system which dehumanised the black majority, and replacing it with a social system that would restore our human dignity.
Our dehumanisation lasted for more than three centuries and was based on the superficial difference of the pigmentation of the human skin. It was reinforced over a period of 46 years by further division of the human race in South Africa through ethnic fragmentation by using the coercive powers of the apartheid state in collusion with capital.
The apartheid state used the law to discriminate unfairly against black South Africans and created new customs, traditions and morals. The abnormal became the new norm. What was lawful, customary, traditional and moral became an injustice. What was unlawful, uncustomary, nontraditional and immoral, became justice. Banks, building societies, insurance companies, pension and provident funds, universities, real estate companies, law societies, sports and recreation associations, businesses, the media and religious institutions, eagerly participated in these discriminative practices against the voiceless and voteless majority.
The historical challenge which faces us is that of giving honest and creative continuity to the process of restoring the human dignity of our people which began on 27 April 1994. Our challenge is to eliminate completely the system of unequal social relations created by colonialism and apartheid, and replace it with a social system which will ensure equality among the racial, ethnic, language, cultural and religious communities and equality between women and men. It means the building of a united nation of free individuals with the right to associate with whomsoever they wish on the basis of equality.
Critical to the ANC is not only the affirmation of equality, but also ensuring that it is lived in practice by all South Africans and finds conscious expression in all the policies, programmes and activities of the nation. Concerted efforts will have to be made to educate citizens to change their attitudes and practices regarding the roles of women and men, the disabled, the aged and so forth.
This is what this Bill will seek to achieve. It will actively promote equality in all spheres of life. This Bill stands on the 27 pillars of our Bill of Rights as enshrined in Chapter 2 of our Constitution, Act 108 of
- Although our Constitution guarantees equality and prohibits unfair discrimination, it does not set out the legal mechanisms for the enforcement of our Bill of Rights. It is too general and unspecified to provide practical remedies for the day-to-day problems of discrimination and inequality. What is more, the practical manifestations of discrimination and inequality often occur in the private sphere where our Constitution does not reach easily. This necessitates the creation of an instrument for redress that is more specific, more direct and more rapid than the workings of the Constitution.
This Bill, which we are currently debating, sets out the mechanisms for redress, identifies the prohibitive grounds of unfair discrimination, promotes equality and contains schedules of unfair practices in certain important sectors.
As the ANC, we have not tried to steamroll this Bill into an Act of Parliament. On the contrary, we have displayed great sensitivity to some of the fears that arose from certain sectors of society. We have addressed these fears through dialogue, discourse and frank discussion. We humbly ask for reciprocal sensitivity to the majority view we embody. The principle of a nonracial, nonsexist, democratic South Africa which we struggled for as the ANC and its allies has been achieved with great suffering and agony to human lives. We cannot trivialise this great and epic struggle for human rights on the basis of any narrow sectoral or sectarian interests. What makes this unique Bill particularly significant in this new century is that its proponents emerged from almost 350 years of oppression, inequality and unfair discrimination, and still had the grace, strength and sensitivity to transcend the inhuman conditions of existence.
This Bill is in keeping with international law, which outlaws discriminatory practices, especially discrimination on the basis of race. No aspect of international human rights has been given greater attention than that which was focused on discrimination. The emphasis placed on eradicating discrimination is evident in the fact that all the major international human rights instruments proscribe it in an article of general application. This great concern regarding discrimination has led to numerous international human rights declarations outlawing the dissemination of hate speech, such as article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, which declares racial hate speech a punishable offence.
Before I conclude, I would just like to refer to a discussion that was held
in the ad hoc committee when we were debating this Bill. I referred to the
term colonialism''. The DP was strenuously opposed to the term being used
in the preamble of the Bill. It was followed by a member of the New NP, who
unfortunately has left the House. She told us that she had referred to the
Oxford dictionary and could not find the wordcolonialism’’. Of course,
we cannot expect the DP, the New NP and those parties which supported the
apartheid colonial system to understand and know what colonialism means.
[Interjections.]
Ms M SMUTS: My broer, ek is ‘n mede-republikein. [My brother, I am a fellow republican.]
Mr K MOONSAMY: May we say that it is only those who suffered under colonialism - those who know what oppression is - who will understand the word and its meaning. [Interjections.] May I also say that colonialism simply means robbery, plunder and naked oppression. [Interjections.]
In conclusion, we are proud to state that this Bill is a matter of principle, not only to us, but also to the vast majority of democratic forces in our country. It is an expression of our humane values and our lofty aims and objectives, as enshrined in our democratic Constitution. [Applause.]
Mr I S MFUNDISI: Madam Speaker, hon members, the concept of distributive justice, which means that there may be no distinction among persons upon unreasonable grounds, was developed by the philosopher Aristotle. With this in mind, mere differentiation between persons is not outlawed unless such differentiation or distinction amounts to unfair discrimination.
If I give Christmas presents to my friends I am not breaching anybody’s rights, because it cannot be said that anyone has a right to receive Christmas presents from me. But if the discrimination has the effect of depriving some people of facilities that should normally be available to anyone, it has to be taken into account that their right to equal facilities with others should be recognised and protected by the law. This Bill attempts to address just that.
The promotion of equality is of particular importance in South Africa, where the previous constitutional system rested upon the foundation of discrimination based upon race. This racial discrimination permeated through our society to the extent that it masked other forms of discrimination, especially that against women. In a similar vein it is hoped that once this Bill becomes law, it will address some benign discrimination which is meted out against those perceived not to have struggle credentials. Facilities belong to all South Africans and it is improper if an impression is created that they can be treated like the Christmas presents referred to above.
In the spirit of live and let live, the enactment of this Bill will ensure that all South Africans are being loved, served, respected and tolerated. This Bill attempts to give effect to section 9 of the Constitution of the Republic of South Africa which sets out that redress for unfair discrimination has to be provided and that for this country to fulfil its role properly in the community of nations, an Act has to be put in place to facilitate its compliance with international treaty obligations, particularly those arising from the Convention on the Elimination of all Forms of Racial Discrimination.
People with respect for human dignity and love for their neighbours will not hesitate to support this Bill, as does the UCDP. Section 9(3) of the Constitution of the Republic of South Africa sets out grounds on which no one should be discriminated against, and the UCDP stands foursquare behind this section. As it is a constitutional prescription and we respect the sanctity of the Constitution, we are not prepared to trivialise any of those grounds. The use of the word ``including’’ in listing the grounds indicates that the list is not exhaustive. Some other grounds may still be added. Hence the task has been given to the Equality Review Committee to consider which other grounds may still be added.
It would be highly appreciated, however, if in executing the Bill, and when it becomes law, due consideration were also given to section 15 of the Constitution, which deals with freedom of religion, belief and opinion. We hope that the state will not prescribe to religions how to go about their affairs. Similarly, worshippers should come to learn and appreciate what the supreme law of this country says pertaining to religion, equality and discrimination.
The Bill had some prohibitive grounds which had even the majority party breaking intermittently to iron out contentious issues regarding them. Those grounds have fortunately since been dropped. This is an indication that, as much as the Bill will get the nod from some quarters, much still has to be done in that regard. On that note, I want to invite everyone in this House to join me as we go to the graveyard to bury unfair discrimination and come back singing praises to equality. [Applause.]
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Speaker, colleagues and comrades, today is yet another important milestone in our crusade to restore dignity to our people. Tabling this Bill provides us with the mechanism that will undo the harsh and cruel effects of systematic social engineering and political humiliation that are so characteristic of our sad past.
In the continued struggle for social justice, every mechanism of the state should be used to empower, uplift and restore. We are thus committed to eradicating the inequality and discrimination that any person may continue to suffer in her or his daily life. We need to give substance to this quest for equality. Indeed, the Constitution has charged us, as lawmakers, with the responsibility of promoting the achievement of equality through legislative and other measures.
The mere acquisition of rights does not achieve the standard of freedom we all yearn for. Unless these rights are given form and substance, they will remain idle aspirations. Today’s legislation will enable us, as a community, to translate our hopes and dreams of justice and fairness into a tangible reality.
The equality legislation that lies before us marks a major leap forward. On the foundation of the constitutional right to equality, we have now constructed a framework of rules to energise the assignment that we have set for ourselves, that is to give substantive effect to the rights-based, people-oriented community we want to be. The legislation exhorts all South Africans to regard as a moral obligation the pursuit of equality and the limitation of social inequality.
The final Bill that lies before us is wide in scope and vision and will have profound implications across all sectors of society. Its effect will ripple across education, health care and land and property practices such as redlining by banks. It will ensure that disabled persons are treated with dignity and justice in the labour market. Barring women from clubs or refusing accommodation to people based on the colour of their skin will now become the subject of close scrutiny by the law.
It is regrettable that this Government’s efforts to eradicate structural and substantive inequality have fallen victim to the vagaries of cheap political point-scoring. The very heart of the liberation struggle in South Africa is embodied in the campaign for equality. Equality is equality, and nothing else is or will be acceptable to us. Certainly, none of the self- important and self-righteous posturing so evident in the DP benches today will deter us from acknowledging the magnitude and invidious impact of past imbalances, and from seeking to remedy those anomalies through a programme of effective sociopolitical transformation.
The Bill recognises that there can be no social justice without substantive equality. At the beginning of my address, I referred to a crusade. The eradication of inequality is an ongoing crusade and the realisation of actual, substantive equality is the objective of that crusade. The central theme of equality is our intrinsic right to have our dignity respected and protected, regardless of the make-up of our individual profiles. The Promotion of Equality and Prevention of Unfair Discrimination Bill satisfies our mission in the pursuit of a long cherished goal. It gives substance to the mother right, and as lawmakers we owe it to all our compatriots who fought for justice and freedom in this country.
I would like to take this opportunity to thank Mohseen Moosa, the chairperson, the committee, Prof Gutto and the department’s officials, who all made a significant contribution to the timeous tabling of this very important piece of legislation. I am proud to say that I support this legislation. [Applause.]
Dr S E PHEKO: Madam Speaker, the Pan African Congress of Azania is against all forms of discrimination. The PAC fully supports the UN Convention on the Elimination of All Forms of Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women.
The Promotion of Equality and Prevention of Unfair Discrimination Bill has positive things. It is largely based on section 9(1) and (2) of the Constitution. The PAC will vote for it, but this Bill is being contaminated by some negative things in it which do not contribute to its immediate purpose. Some elements of this Bill reflect eurocentric arrogance. They show no respect for African values. The language used is a mirror of self- appointed experts sitting in judgment on African culture and dictating to it as to what is right and what is wrong.
One example is the use of the term female genital mutilation''. The term
female genital mutilation’’ has been debated in the African women’s
movement as incorrect, foreign terminology. Its authors do not recognise
nor understand the significant rites of passage in a traditional African
society. It is strange that when males go through this procedure, it is
called circumcision, but when women go through it, it is called genital
mutilation. What does genital mutilation mean in South Africa? To what
extent does it contribute to female deaths?
To continue legislating in this Parliament in this lopsided fashion demonstrates that some African representatives of this nation are still torn apart by their colonial past. They are propelled into a universe fashioned from outside. They are dumbfounded by a cultural invasion that marginalises us. They are at a loss and are becoming the deformed reflection of the image of others.
The primary objective of the liberation struggle was land repossession by the dispossessed; the eradication of poverty, homelessness, unemployment and lack of education, and the elimination of inferior health care, of which 77% of our people are still victims. This chief objective is now clouded by decadent values which will soon enable men to marry other men, to have sex with one another and have the right to adopt children, while they avoid procreating children in a natural way and in accordance with civilised African values. African culture frowns on homosexuality. If this is an African Parliament, it ought to be sensitive to the feelings of the majority of the population of this country. In this context homosexuality is also an affront to African traditional religion, Christianity, Islam and other religions.
This Bill has aspects which are turning this country into a dustbin of the decaying values of the West, while our people wallow in the quagmire of poverty and mikhukhus [shacks]. We must stop making our country the guinea pig of the world. All kinds of experiments are performed to our disadvantage. Our priority must be legislation which helps to emancipate the majority of this country from economic servitude, poverty, landlessness, ignorance, high child mortality and short life expectancy. One of the weaknesses of this Bill is that it has not provided for the rural population. They do not enjoy all the rights which urban citizens enjoy. Their schools, their hospitals, their roads and their standard of living are inferior.
I must also point out that only those who have been victims of the mutilation of African history and the manipulation of international law can put patriarchy on the same pedestal as the barbaric systems of colonialism and apartheid. The latter was declared a crime against humanity by the UN, while colonialism has had its genocidal effects from which the African majority has to this day not recovered, especially psychologically. [Time expired.] [Applause.]
Mme N M TSHEOLE: Bagaetsho dumelang, sawubona, molweni, avuxeni, masiari! Gompieno ke ema fa pele ga lona ka maikutlo a a tobekaneng, a a tlhakatlhakaneng bogolothatha jang ka gore ke bua fa morago ga Rre Pheko, yo o buileng ka dilo tse di nkamang maikutlo, dilo tsa setso. Maikutlo a me a tobekane, ka ntlha ya gore go lebana le molao o, go nkgopotsa matlhotlhapelo a kwa morago, a kgatelelo, a tshotlo. Maikutlo a mangwe a ke nang le ona a monate. A mpha tsholofelo ya bokamoso jo bontle, ka gonne molao o re buang ka ona, o tlile go baakanya tobekano ya bogologolo.
Mafoko a a latelang ke a Sandra Laing, mme a ne a tlhagile mo kgatisong ya Sunday Times ya sontaga e fetileng. Ene a re - ke a nopola:
The teachers knew about the teasing and the taunting, but did nothing to stop it. I went to complain to Mr Van Tonder, but he just laughed and told me to stay out of their way. I had no choice but to fight back.
Mafoko a, a botlhoko. A re takela setshwantsho sa mosetsanyana yo o sotlegileng, yo o furaletsweng ke batsadi ba gagwe le barutabana ba gagwe. Naga ya gabo e mo furaletse, mme bana ba bangwe kwa sekolong ba a mosotla. Fa a ya kwa morutabaneng wa gagwe go ya go ngongorega, o tewa gotwe: ``Tswaya mo tseleng ya batho ba’’. Ka mantswe a mangwe, Sandra Laing o ne a na le molato.
Sandra Laing o bua kgang ya bophelo ba gagwe. O rile a na dingwaga tse di le lesome, a arologangwa le batsadi ba gagwe ka gonne letlalo la gagwe le ne le bontsa bontshonyana. Batsadi ba ga Sandra e ne e le makgowa. One a kobiwa kwa sekolong ka gonne a na le mmala o montshonyana, mme gotwe o ne a sa tshwanela go tsena sekolo le makgowa, etswa batsadi ba gagwe e le makgowa. Ngwana yo, o ne a sotliwa kwa sekolong, mme fa a begela barutabana ba gagwe, ba ne ba re a tswe mo tseleng ya bona. O a ngongorega, o a lela, o furaletswe ke bao ba neng ba tshwanetse go mo sireletsa. A re o ne a salelwa ke go itwela. Mafoko a a botlhoko.
Se re ka ipotsang sona ke gore, jaaka Sandra a tlhageletse mo lokwalodikgannyeng la Sontaga, go tlile jang gore e seke yanna seganana? Sa bobedi ke gore, re itse jang gore le gompieno jaana batho ba ba tshwanang le Sandra ba santse ba le teng golo gongwe mo sekhutlwaneng sa naga ya bo rona? Sa boraro, potso e re tshwanetseng go ipotsa yona ke gore, fa ele gore re santse re na le barutabana ba ba tshwanang le bo Rre Van Tonder, baša ba rona ba tlile go fetoga eng? Sa bofelo, gona fa bašwa ba rona ba tlhokofadiwa ke barutabana ba bona, bokamoso ba naga ya bo rona, bo tlile gonna le bagolo ba bantseng jang? Jaaka ba utlwisitswe botlhoko, a e tla tsoga e nna batsadi, ba aga naga ya bo rona. Dikarabo di na le lona, bagaetsho.
Molao o o tshwanang le o, fa o kabo o se teng, gona bokamoso ba naga e ne etlile gonna eng? Ke ka fao ke reng molao o, o a intumedisa le fa o nkgopotsa matlhotlhapelo. Go na le dithutho tse di rileng, tse re di bonang mo kgannyeng e ya ga Sandra. Sa ntlha ke gore tlhopololo ya semorafe e iphitlhile. Batho ba bangwe ba na le go e tsaya jaaka matshamekwane, o kare ke bana ba rumulana fela, etswe lebadi la tlhopololo le sa fole. Sa bobedi ke gore batlhopolodi ba na le go itiketsa ba re nnya, re ne re tshameka fela. Molao o, o thibela seo. Motlhopolodi tshwanetse go kgotsofatsa baatlhodi gore o ne o sa tlhopolole ka seo oneng o se dira. Ke mang mo gare ga rona yo o ka ganetsang kgang e? Ga ateng, mme ke a leboga, bagaetsho. Thuto e nngwe e re e bonang ke gore tlhopolololo ga e lebelele fela merafe e e fapaneng. Batho ba tlhopololana mme ba ntse ba phela mmogo. Makgowa ke a, a tlhopolotse ngwana wa lekgowa, wa bo bona. Ke batla go le raya ke re naga ya ga bo rona e ne e senyegile. Ke inayakanya le mafoko a Onaolope Soleye, mo bukeng e e bidiwang Beyond Freedom: Letters to Olusegon Obasanjo - yo e leng Mopresidente wa Nigeria. Ene a re:
Any country will have problems - social, economic and political. If problems are not quickly tackled, they result in a crisis which, if not managed properly, leads to commotion which, if ignored or mishandled, results in a disaster which could also lead to schism, disintegration or even death. Some wonder if a nation can die. I believe so, but not necessarily in the sense of physical death of a human being, but in the sense of a failure of the nation to provide opportunity for its citizens and to protect the citizens.
Ke mang yo a ka ganetsang gore Aforika Borwa pele ga ditlhopho tsa 1994 e ne e le mo moemong a a tlhaloswang fa? Ditlhopho tsa tsa 1994 di batlile di tla thari. Di fitlhetse naga ya rona e le gaufi le go swa. E ne e idibetsi. Melao e e tlileng morago ga ditlhopho e lekile go tsosa setopo se seneng se idibetse. Setopo se thantse, naga ya rona e thantse, fela ga e ise e nne le letswalo. Matswalo a naga ya rona a sule. Molao o, o lebantshitse go tsosolotsa letswalo la batho ba naga ya bo rona. A re na le matswalo? A gona fa go sena molao o o ntseng jaana, re ka kgona go tshwara batho ba bo rona jaaka re batla go tshwarwa?
Re lemoga gore le fa melao e mentsi e e tlisang phetogo e setse e ntshitswe, go santse go na le ditiro tse dintsi tse di tlhopololang batho. Ga se fela ka bosemorafe. Ke boela kwa setsong sa rona. Ke itse gore fa ke tsena mo setsong sa bo rona, ke tsena mo ntlheng e e masisi, e mongwe le mongwe a buang ka yona jaaka Rre Pheko a ne a bua. Fa re bua ka go tsosolotsa letswalo, re tsena mo boloteng ba setso sa rona, bo bo neng ba tlhalosiwa ke Mopresidente wa rona wa maloba fa a ne a bua ka ``reconstruction of the soul’’, mo ngwageng e e fetilengo.
Re fitlhela e le gore tlhopololo e tlhagelela mo maphelong a rona ka go iphitlha. Molao o, o e tlhomola jaaka mmutlwa, o e tomola ka medi ya yona. Jaanong ke batla go bontsa boifitlha ba tlhopolola. Ke tlile go bitsa so le so. Yo o ronkgegang, o tla ipona.
Re itse gore re ne ra ntsha melao e e neng e lebeletse tlhopololo ya bong, e e tlhopololang basadi, jaaka Gender Commission Act, Family Violence Act le Choice on Termination of Pregnancy Act. Le fa go ntse jalo, basadi ba santse ba gatelelwa mo nageng e ya rona: ba gatelelwa ke setso.
Rre Pheko o tla intshwarela. O fa kae? Ke tlile go mmotsa potsa e e ronkgang. Ga a kake a bua ka bojale kgotsa bogwera jwa basadi. Ga ke itse gore a o kile a bona mosadi yo o tswang bojale gore o jang. Ga a kake a ganetsa rona basadi gore go diriwa eng kwa bojale. Ga go ye banna kwa bojale, go ya basadi, mme ke bona ba dirang basadi. Ga ke itse gore a monna a ka ema, mme a bua ka bogwera ba basadi, mme a sa itse gore go diriwa eng kwa sekolong seo. [Nako e fedile.] [Legofi.] (Translation of Tswana speech follows.)
[Ms N M TSHEOLE: Madam Speaker and countrymen, dumelang, sawubona, molweni, avuxeni, masiari! [greetings!] Today I stand before hon members with mixed emotions, more especially because I speak after Mr Pheko, who spoke about matters that are close to my heart - matters of tradition. My emotions are all mixed up because, on the one hand, dealing with this Bill reminds me of the pain of the past, of the days of oppression and abuse, and on the other hand, it fills me with joy. It gives me hope for the future, because the Bill is going to set right the wrongs of the past.
The following words were said by Sandra Laing in last week’s Sunday Times, and I quote:
The teachers knew about the teasing and the taunting, but did nothing to stop it. I went to complain to Mr Van Tonder, but he just laughed and told me to stay out of their way. I had no choice but to fight back.
These are very painful words. They paint a picture of a very sad girl who is abandoned by both her parents and teachers. Our country has turned its back on her and the other children in school are hurting her feelings. When she goes to her teacher to complain, she is told: ``Stay out of their way’’. In other words, Sandra Laing was, by implication, at fault.
Sandra Laing is telling us the story of her life. When she was ten years old, she was separated from her parents, as her skin was a shade darker than theirs. Sandra Laing’s parents were white. She was chased away from her school because of her dark skin, and was told that she could not go to the same school as whites, even though her parents were white. This child was harassed at school, and when she tried to complain to her teachers she was told to stay out of her tormentors’ way. She was upset and crying, and was abandoned by those who were supposed to protect her. She says that she was left with no option but to fight back. These are sad words.
What we should ask ourselves after seeing Sandra’s story in the newspaper is why she did not turn into a wayward child. Secondly, how do we know whether somewhere in some obscure corner of our country there are still people like Sandra? Thirdly, a question we should ask ourselves is, if we still have teachers like Mr Van Tonder, what will our youth turn into? Lastly, if our youth are being hurt by their own teachers, what kind of adults will they become? Tomorrow they themselves will be parents who are supposed to build our country. Hon members have answers to those questions.
If we did not have a law like this, what would the future of our country be like? That is why I say that this Bill makes me happy, even though it reminds me of our sad past. There are certain lessons that can be learned from Sandra’s story. The first one is that racial discrimination is subtle. Some people tend to take it as a joke, saying that something like this is just children teasing each other, but the wound of racism does not heal. Secondly, those who discriminate often hide behind the excuse that they were just playing and should not be taken seriously. This Bill is going to stop that. The defendant has to satisfy the judge that he or she was not discriminating in whatever he or she was doing. Who among us can argue with that? No one, thank you very much! The other lesson that can be learned is that racism does not just occur among the different races. People who live together tend to discriminate against each other. We have just heard how whites discriminated against another white person’s child - their own child.
I want to tell hon members that our country was in a mess. I agree with the words of Onaolope Soleye in a book called Beyond Freedom: Letters to Olusegon Obasanjo, about the President of Nigeria. He says, and I quote:
Any country will have problems - social, economic and political. If problems are not quickly tackled, they result in a crisis which, if not managed properly, leads to commotion which, if ignored or mishandled, results in a disaster which could lead to schism, disintegration or even death. Some wonder if a nation can die. I believe so, but not necessarily in the sense of physical death of a human being, but in the sense of a failure of the nation to provide opportunities for its citizens and to protect the citizens.
Who can deny that before 1994 South Africa was in a state similar to the one being described here? The 1994 elections nearly came too late. They found our country on the brink of death. It was in a coma. The laws that were introduced after the elections were an effort to revive the corpse. The corpse is now conscious. Our country has regained consciousness, but it still does not have a conscience. Our country’s conscience is dead. This Bill is aimed at reviving our country’s conscience. Do we as people have a conscience? If a law like this is not enacted, would we treat our fellow citizens the way we want to be treated?
I have realised that although many laws that bring about change have been passed, there are many instances where people are still being discriminated against. This is not just about race. Let us revisit the issue of our culture. I know that when I talk about our culture, I am touching on a very sensitive subject which everybody is talking about, as Mr Pheko has just demonstrated. When we talk about reviving our conscience, we are getting into the realm of our culture, something which was touched upon by our former President when he spoke about the ``reconstruction of the soul’’.
We find that racism touches our lives in a subtle way. This Bill will uproot it the way we remove thorns from our flesh. I want to show hon members just how subtle racism can be. I am going to call a spade a spade, and I will not spare anybody’s feelings. We all know that we passed laws aimed at ending sexual discrimination or discrimination against women, for example the Gender Commission Act, the Family Violence Act and the Choice on Termination of Pregnancy Act. However, women are still being discriminated against in our country; they are still culturally repressed.
Mr Pheko will forgive me - where is he? I am going to ask him a question which might hurt him. He cannot talk about the women’s initiation ceremony. Has he ever seen a woman who has just returned from that ceremony? He cannot argue with us about the goings-on at those initiation ceremonies, as only women are allowed to go there. I cannot understand how a man can stand here and talk about women’s initiation ceremonies, when he does not know what happens at that school. [Time expired.] [Applause.]]
Dr A I VAN NIEKERK: Madam Speaker, at the outset I would like to thank the UDM for allotting their time-slot in this debate to the FA. The views of the UDM and that of the FA are not in conflict and, despite some reservations, we will support the Bill.
The efforts of past governments to deal with the variety of cultures and race groupings in South Africa had many unintended but dire consequences for our country. Statutory race discrimination distorted the South African society and failed to promote the peaceful co-existence of our people. It inflicted immense harm on the majority of South Africans, and increased the tension between the race groupings within our country.
Die oorsprong of rede vir die wetgewing om regstelling te bewerkstellig kom dus uit die geskiedenis. Dit dateer nie net uit die apartheidsgeskiedenis nie, maar kom ook uit die koloniale geskiedenis van Afrika se verlede. Dié verskynsel van diskriminasie, benadeling, teistering, vernedering en uitbuiting is nie beperk tot ons land alleen nie. Dit is ongelukkig ‘n wêreldwye negatiewe eienskap van die mens en van groepe. Vandaar dan ook pogings en wette in ander lande om dit teen te werk en te voorkom en selfs regstellende stappe te doen soos ook nou in Suid-Afrika.
Die vraag wat ons onsself moet afvra, is: Hoe stel ons die vele verkeerde dinge van gister reg sonder om weer maar net na die ander uiterste oor te hel en omgekeerde diskriminasie aan die orde van die dag te stel?
Regstellende optrede, verkeerd aangewend, kan net soveel skade aan ons gemeenskap aanrig as die verlede se rasgebaseerde wetgewing wat alles statutêr wou reël. Dit is veral waar as verskillende kulture in ‘n brose verhouding tot mekaar moet saamleef en voorskriftelike maatreëls die daaglikse lewe moet reël en die reëls nie prakties aanvaarbaar is nie. Die toepassing van regstellende optrede, verkeerd gehanteer, behels ‘n sterk element van benadeling van vorige sogenaamde voordeeltrekkers, wat op sy beurt weer ‘n negatiewe gevolg vir ons samelewing kan inhou.
Mense kan vertroue in hulle toekoms in Suid-Afrika verloor, en die emigrasie van bekwame mense uit Suid-Afrika is dan die gevolg. Dit kan die negatiewe aspekte van ongelykheid van die een mens of groep na ‘n ander verskuif, en so die probleem van Suid-Afrika vererger en nie oplos nie.
Regstellende optrede kan ook ontaard in gesofistikeerde wraak wat deur wetgewing ondersteun word. Dit moet ten alle koste voorkom word as ons in vrede en voorspoed in hierdie land met mekaar wil saamleef. Die een of ander tyd moet hierdie vorm van regstellende diskriminasie ook gestaak word. Ongelukkig word hierdie aspek nie in die wetsontwerp gehanteer nie.
Die vraag of hierdie wetsontwerp staanplek in ons regstelsel het, is ook nie ter sprake nie. Dit word deur ons demokratiese Grondwet voorgeskryf. Die onderhandelaars van Suid-Afrika se demokratiese Grondwet het ‘n fyn aanvoeling vir hierdie probleem gehad. Vandaar die versigtige hantering van die kwessie van diskriminasie en regstellende optrede, en die bevordering van gelykheid in die Grondwet.
Enersyds is die probleem deels ondervang in die handves van regte wat deel van die Grondwet uitmaak. Dit gee sterk rigting aan die regte van die individu, veral ten opsigte van gelykheid. Andersyds is in artikel 9(4) van die Grondwet ‘n verbod geplaas op onregverdige diskriminasie teen enige persoon op grond van ‘n lys van ongeveer 18 kriteria soos ras, geslag, kleur, ouderdom en geloof.
Die artikel gaan egter verder as die verbod en vereis dat wetgewing deur die Parlement gevoer moet word om onregverdige diskriminasie te voorkom, en te verbied dat wat sleg was in die verlede na die hede en die toekoms toe oorgedra word. (Translation of Afrikaans paragraphs follows.)
[The origin of or reason for the legislation to bring about rectification can therefore be traced back to the past. It dates not only from the apartheid era, but also from the colonial history of Africa’s past.
This phenomenon of discrimination, prejudice, harassment, humiliation and exploitation is not limited to our country alone. Unfortunately it is a world-wide negative characteristic of human beings and of groups of people. Hence also the endeavours and legislation in other countries to counteract and prevent it and even to take affirmative steps such as those presently being taken in South Africa.
The question which we must ask ourselves is: How do we rectify the many wrongs of the past without once again going to the other extreme and making reverse discrimination the order of the day?
Affirmative action, wrongly applied, can cause as much damage to our community as the racially based legislation of the past, in accordance with which everything was statutorily regulated. This is especially true in cases where different cultures have to live together in a tenuous relationship with each other, and their daily life is regulated by prescriptive measures which are not practicable. The application of affirmative action, if wrongly handled, entails a strong element of prejudice against the so-called advantaged groups of the past, and this, in turn, can have a detrimental effect on our society.
People can lose confidence in their future in South Africa, resulting in the emigration of competent people from South Africa. This can cause a shift of the negative aspects of inequality from one person or group to another, thus aggravating instead of solving South Africa’s problem.
Affirmative action can also degenerate into sophisticated vengeance supported by legislation. This must be prevented at all costs if we want to live together in this country in peace and prosperity. At some or other stage we shall also have to put a stop to this form of affirmative discrimination. Unfortunately this aspect is not dealt with in the Bill.
The question as to whether this Bill belongs in our judicial system, is not at issue either. This is stipulated in our democratic Constitution. The negotiators of South Africa’s democratic Constitution were very much aware of this problem. Hence the cautious handling of the question of discrimination and affirmative action, and the promotion of equality in the Constitution.
On the one hand the problem is partly resolved in the Bill of Rights which forms part of the Constitution. This emphasises the rights of the individual, especially in respect of equality. On the other hand section 9(4) of the Constitution prohibits unfair discrimination against any person on the grounds of a list of approximately 18 criteria such as race, gender, colour, age and religion.
However, the section contains more than this prohibition and requires that legislation be piloted through Parliament to prevent unfair discrimination, and to prevent the wrongs of the past from being carried forward into the present and the future.]
I would like to draw the attention of members of the House to the wording used in the Constitution to prescribe this Bill, namely, ``to eliminate unfair discrimination and to promote the achievement of equality.’’ The aim, therefore, of the Constitution is to create a process through which unfair discrimination can be prevented and equality promoted.
To effectively achieve what the writers of this Constitution intended entails a change of heart, mind and attitude of all in South Africa. If this Bill before us should fail to promote such a change of heart, the objective of the Constitution, to rid South Africa of discrimination and inequality, will not be attained, and then the wrongs of the past will live in the minds of our people and increase the racial tension in our country.
A change of heart and attitude will not be achieved overnight. It will take at least a generation or even more, if we look at the results in other countries, to really rid our minds and thoughts of the ways of the past. Although this legislation tries to achieve such a process or change, too much emphasis is placed on the prohibitive rather than on the promotion of the change of mind.
The FA and the UDM fully support the Constitution and the elimination of discrimination and the promotion of equality. When we question the effectiveness of the Bill, it does not mean that we disagree with the aim and the objective of the Bill. It is a question of the ability of the Bill to achieve what it essentially sets out to do. In this regard, we have some serious reservations. The prevalence of this Bill over other Acts will create additional problems, especially for industries governed by their own Acts.
The responsibility of a respondent in a court case to prove his innocence is a deviation from standard law practice and is not an ideal solution. Furthermore, the role of equality courts and the involvement of the Minister in designating presiding officers to courts are also questionable. The costs involved to apply this Bill could eventually erode the whole effectiveness and destroy the purpose of this Bill. The intrusion of the state in the affairs of the church is also not acceptable.
‘n Verdere aspek van die wetsontwerp is die vraag of dit sal bydra tot beter omstandighede en om gelykhede tussen mense in Suid-Afrika te bevorder. Een van die grootste uitdagings waarmee die Suid-Afrikaanse Regering worstel, is die bekamping van armoede. Die probleem sal nie opgelos word met woorde of wette wat bloot net armoede verdoem nie. Dit sal alleenlik opgelos word deur daadwerklike aksies en die werking van die vrye ekonomie wat werkgeleenthede moet skep vir die arbeidsmag in Suid-Afrika.
Slaag ons in Suid-Afrika daarin om genoeg werk te skep, sal ‘n groot deel van ons probleme en ongelykhede tussen mense in die land vanself opgelos word en stelselmatig verdwyn. Met genoeg werkgeleenthede beskikbaar, sal nie net die een groep nie, maar almal in Suid-Afrika bevoordeel kan word.
Die groot probleem wat ons het, is om armoede te bekamp, maar dit sal nodig wees om dan nie meer soveel voorkeur te gee net aan sekere Suid-Afrikaners nie. Die sogenaamde ``vorige benadeeldes’’ en ander bekwames wat geïgnoreer word en eenkant geskuif word, sal dan almal in die arbeidsmark gehuisves kan word. In watter mate hierdie wetsontwerp dus bevorderlik sal wees vir die Suid-Afrikaanse ekonomie om ‘n klimaat te skep om beleggings te lok wat werkgeleenthede daar kan stel, sal die toekoms ons nog moet leer.
My aanvoeling hieroor is dat entrepreneurs fyn op alle fasette gaan let, en veral die invloei van buitelandse kapitaal in Suid-Afrika sal as gevolg van hierdie wetgewing moontlik benadeel word in dié opsig dat beleggings eerder gemaak sal word in lande wat nie sulke lomp wetgewing het nie.
Dit is met gemengde gevoelens dat die FA en die UDM die wetgewing beoordeel. Enersyds is ons ten gunste van die doel van die wet om diskriminasie, belediging en benadeling te voorkom en gelykhede te bewerkstellig, maar andersyds bevraagteken ons die doeltreffendheid van die bewoording en metode om die doel te bereik. Alhoewel baie van die oorspronklike bewoording en benaderings reg geskaaf is, en selfs herformuleer is, lui dit lompe wetgewing in wat inmeng op terreine waar dit nie behoort in te meng nie en wat dus na ons mening nie volkome in sy doel sal slaag nie. Ons voorsien dat die wetsontwerp gou in die toekoms hersien sal moet word om dit doeltreffend te laat funksioneer.
Om hierdie redes sal die FA en die UDM nie die wetsontwerp teenstaan nie en dit steun. [Applous.] (Translation of Afrikaans paragraphs follows.)
[A further aspect of the Bill is the question whether it will contribute to better conditions and to the promotion of equality amongst people in South Africa. One of the biggest challenges facing the South African Government is the combating of poverty. The problem will not be solved by words or Acts which merely condemn poverty. It will only be solved by decisive action and the operation of the free economy by means of which job opportunities must be created for the labour force in South Africa.
If we succeed in creating enough job opportunities in South Africa, a large number of our problems and inequalities amongst people in the country will be solved automatically and will systematically disappear. If enough job opportunities are available not only the one group, but everyone in South Africa, will be able to reap the benefit.
The big problem with which we have to contend is the combating of poverty, but it will then be necessary for us not to give so much priority to certain South Africans only. It will then be possible to accommodate both the so-called ``previously disadvantaged’’ and other competent people who are ignored and sidelined in the labour market. Time will tell to what extent this Bill will be conducive to the creation of a climate in the South African economy which will attract investments to enable the creation of job opportunities.
In this regard I am of the opinion that entrepreneurs are going to keep a watchful eye on all facets, and especially the influx of foreign capital into South Africa could possibly be detrimentally affected by this legislation in the sense that investments will rather be made in countries which do not have such unwieldy legislation.
It is with mixed feelings that the FA and the UDM evaluate the legislation. On the one hand, we are in favour of the objective of the Act to prevent discrimination, insult and prejudice and to bring about equality, but on the other hand we question the efficiency of the wording and the method by which this goal is to be achieved. Although a great deal of the original wording and approach has been rectified, and even reformulated, this introduces unwieldy legislation which interferes in fields where no interference should take place and by which, in our opinion, its goal will not be fully achieved. We foresee that the Bill will have to be amended in the near future in order that it may function efficiently.
For these reasons the FA and the UDM will not oppose the Bill, but will support it. [Applause.]]
The DEPUTY SPEAKER: Order! The hon Pieterse is going to make his maiden speech. [Applause.]
Mr R D PIETERSE: Madam Speaker, hon Deputy President, hon members, it was an absolute honour and privilege for me to be elected by the ANC to serve on this committee, a committee that deals with legislation that so profoundly affects the lives of so many of our people, legislation that touches the very soul of our society. The most basic rights, freedoms and deeply felt sentiments and sensitivities are touched by this legislation. I, like most members on this side of the House, grew up in an oppressive environment, in a country which treated the majority of its citizens at best as criminals and at worst as less than human. We grew up with the harsh realities of white privileges and the dehumanisation and humiliation of black people as an everyday reality. We were victims in more ways than one.
Paradoxically we became oppressors ourselves, oppressors of women in our homes, of gay people in society, of the rural and the aged. We were acutely aware of the injustices of apartheid, particularly the huge gap between the rich and the poor, the rich being very white and the poor being black.
In our struggle for racial equality we often forget about other forms of discrimination and equalities that need to be addressed as well. But the liberation struggle led by the ANC was always a struggle for total liberation through equalities and real justice. These principles are enshrined in our Freedom Charter. A hard-won victory in 1994 ensured that these principles were given formal expression in the Constitution of the country, but the reality is that the legacy of centuries of oppression, exploitation and injustice is not easy to overcome.
Racism, sexism, xenophobia, homophobia and all forms of irrational prejudices remain deeply embedded in our society. The victims are the poor, who are mainly black; the vulnerable, including women, children and the elderly; and the less fortunate in our society who are disabled and have contracted diseases, not by choice. Those already disadvantaged through disability, illness, Aids and illiteracy and those in rural areas are dealt a double blow through unfair discrimination and inequality of treatment. Like many of us, I grew up with many prejudices. I was liberated by my involvement in Cosatu and the ANC.
Teen hierdie agtergrond het die mense van Suid-Afrika vir ons ‘n oorweldigende mandaat gegee, naamlik ``bou vir ons ‘n beter lewe’’. Hulle het ‘n mandaat gegee waarin hulle sê dat hulle, die mense van Suid-Afrika, verstaan dat die skade wat deur apartheid aangerig is onder die bevel van die gewese NP en sy ondersteuners, sal tyd neem om reggestel te word. Dieselfde mense herinner ons dat daar benewens die apartheidsregering ook ‘n ander grootmondparty was wat so af en toe sulke protesterende klankies gemaak het, terwyl hulle steeds die voordele van apartheid gevat en geniet het. (Translation of Afrikaans paragraph follows.)
[It is against this background that the people of South Africa gave us an overwhelming mandate, namely to ``build a better life for us’’. They gave a mandate in which they stated that they, the people of South Africa, understand that the damage which was done by apartheid under the command of the former NP and its supporters will take time to be rectified. The same people are reminding us that apart from the apartheid government there was also another loud-mouthed party which now and then protested half-heartedly while they continued to take and enjoy the benefits of apartheid.]
Today they all sit here, holier than thou, and even want to claim that they never knew about or participated in apartheid. Having said that, our people are saying that there are areas or issues that can be addressed right now.
In die komitee het die ware karakter van partye na vore getree. Die regse
party hier aan my linkerkant het hul uiterste probeer om lewe te gee aan
hul slagspreuk van fight back'', maar tevergeefs. Die publiek en die
media het natuurlik die kans gehad om die ware kleur van die opposisie te
sien, naamlikslaan terug teen transformasie, slaan terug teen gelyke
regte, slaan terug teen hulp aan senior burgers, slaan terug teen gays en
lesbiërs, slaan terug teen die armstes van die armes - slaan terug, slaan
terug’’. [Tussenwerpsels.]
Net hier verder af kry ons die kampioen van die skynheiliges, die ACDP, wat glo dat net hulle die Bybel ken en kan vertolk. Hulle sê rondborstig dat almal gelyk moet wees onder die wet en dat God ons na sy beeld geskape het, en dit is korrek, maar terselfdertyd glo hulle dat net hulle die reg het om te besluit wie aanvaarbaar is en wie nie. [Tussenwerpsels.] Hulle sê hulle steun nie die onderhawige wetsontwerp nie, want dit gee dieselfde regte aan gays en lesbiërs. Ek wonder wat die werklike rede is waarom hulle so hard teen gays en lesbiërs baklei. [Tussenwerpsels.] ``Jy wat nie sondig nie, gooi die eerste klip.’’ ‘n Oom het eendag aan my gesê die Bybel is ‘n gevaarlike boek in die hande van ‘n idioot. Die gays en lesbiërs se Suid- Afrikanerskap sal beskerm word, net soos dié van elke ander Suid-Afrikaner. (Translation of Afrikaans paragraphs follows.)
[The true character of these parties came to the fore in the committee. The
right-wing party here to my left tried their utmost to give life to their
slogan of fight back'', but to no avail. The public and the media
naturally had the chance to see the true colours of the opposition, namely
fight back against transformation, fight back against equal rights, fight
back against help to senior citizens, fight back against gays and lesbians,
fight back against the poorest of the poor - fight back, fight back’’.
[Interjections.]
Further down the row we find the champion of the hypocrites, the ACDP, who believe that only they know and can interpret the Bible. They frankly say that everyone has to be equal under the law and that God created us in his image, and that is correct, but at the same time they believe that only they have the right to decide who is acceptable and who is not. [Interjections.] They say that they are not supporting the Bill in question, because it gives the same rights to gays and lesbians. I wonder what the real reason is why they are fighting so hard against gays and lesbians. [Interjections.] ``Let he who is without sin, cast the first stone.’’ An elderly gentleman one day told me that the Bible is a dangerous book in the hands of an idiot. The South Africanhood of gays and lesbians will be protected, just like that of every other South African.]
This Bill is about hope - hope for all people for a better life, hope for the people in every corner of this country and hope that the fight for a better life will continue. We owe this Bill to the people of South Africa. We owe this Bill to all Africans. All of us need to promote the contents of this Bill.
Ek wil afsluit deur te sê dat elkeen wat teen hierdie wetgewing stem, stem teen transformasie, regstelling, gelyke regte vir vroue, gelyke regte vir gestremde mense, rasseharmonie, die verbetering van die lot van die armstes van die armes, die verbetering van die lot van senior burgers en teen die werkers. Hulle stem vir haatspraak. (Translation of Afrikaans paragraph follows.)
[I want to conclude by saying that everyone who opposes this legislation, opposes transformation, rectification, equal rights for women, equal rights for the disabled, racial harmony, the improvement of the lot of the poorest of the poor, the improvement of the lot of senior citizens, and the workers. They are voting for hate speech.]
These parties will go on to the very same people and insult them by asking them to vote for them during the upcoming local government elections. [Interjections.] One can fool the people once, but not every time.
The overwhelming mandate that we received from the people is our instruction. They want us to continue to build a better life for all. The people of the Karoo, Guguletu, Ravensmead, Bongolethu down in the Karoo, Oudtshoorn, Bellville South and Uniondale, and all South Africans, want us to continue. President Thabo Mbeki says that we are on course. Indeed we are. This Bill is our witness. [Applause.]
Miss S RAJBALLY: Madam Speaker, hon Ministers and hon members, at last after many years of unfair discrimination by the past system, a Bill on fairness has been introduced.
Ibuyile! [It is ours!]
HON MEMBERS: I-Afrika! [Africa!] Miss S RAJBALLY: Ibuyile! [It is ours!]
HON MEMBERS: I-Afrika! [Africa!]
The clear purpose of the Promotion of Equality and Prevention of Unfair Discrimination Bill is to protect the fundamental rights of every person, without exception. The composite concept of discrimination can be characterised as follows: a difference in treatment which is based upon certain prohibited grounds and has a certain purpose or effect in selected fields. The promotion of equality and prevention of unfair discrimination prioritises protective action in favour of the vulnerable and disadvantaged groups in the society.
The Bill has captured the necessary elements that determine the future of South Africa. These important elements are: prevention; prohibition and elimination of unfair discrimination; hate speech and harassment; burden of proof and determination of fairness or unfairness; the establishment of equality courts; promotion of equality; and the establishment of equality review committees. This confirms the realisation that basic human rights cannot be achieved merely through economic growth, but rather that direct legitimate action should be exercised to ensure an equivalent enjoyment of rights irrespective of one’s race, gender, sexual orientation, age, health, culture and economic status.
South African women can now embrace themselves, because clause 8 of the Promotion of Equality and Prevention of Unfair Discrimination Bill highlights the prohibition of all forms of gender discrimination. Particular focus has been directed on gender-based violence, the system of preventing women from inheriting family property, access to land rights, finance and other resources, female genital mutilation and traditional customary or religious practices that violate the dignity of females and undermine equality between men and women. By prohibiting discrimination on the grounds of pregnancy, limiting women’s access to social service, contractual opportunities and sexual divisions of labour, the Bill gives us the opportunity to protect and restore our dignity.
In order to gain the ultimate benefit from the implementation of the Promotion of Equality and Prevention of Unfair Discrimination Bill, we will have to transcend the formal approach to equality and gain correct insight in the daily life obstacles that stifle progress to equality. Certain aspects of discrimination which relate to social attitudes cannot be eliminated merely through the enforcement of relevant legislation, and other methods must be exercised on a continuous basis, particularly education, social programmes through government organisations, the media and NGOs. In essence actions in favour of real equality of opportunity mean a call for extensive measures in the whole field of economic, social and cultural rights via education, vocational training, social promotion and protection. The MF supports the Bill. [Applause.]
Mr C AUCAMP: Madam Speaker in the first instance, I want to express my gratitude for the privilege of being part of the ad hoc committee that deliberated this Bill. I can really say that although we were and still are quite opposed to each other on fundamental issues of this Bill, we have somehow or other developed a sort of a team spirit, knowing where we all stand, with perhaps a little bit more understanding of our different viewpoints.
A hard ANC member once even called me Comrade Aucamp, something about which my constituency will most certainly not be very happy. [Laughter.] I also want to express my appreciation for the way in which the chairperson, Mohseen Moosa, chaired the proceedings. I can honestly state that whenever he discriminated against we opposition parties, the discrimination was fair and justifiable. [Laughter.]
The product we have in our hands today is much better than that with which we started two months ago. The redraft of 10 January was more than 100 pages, and has been refined to 39 pages of the final product, with a lot of the social engineering being deleted.
Ons het so aan die ``Bill’’ gesny, dit het amper ‘n os geword. [Gelag.] [We removed so many extraneous bits of the Bill that it almost ended up an ox. [Laughter.]]
My appreciation for the following: firstly, that the committee did not fall into the trap of adding five more prohibited grounds to the list stated in section 9 of the Constitution; secondly, that some recognition is given to reasonable differentiation according to objectively determinable criteria; thirdly, that a much more modest approach was taken with regard to possible discriminatory practices in the various sectors of community, describing them as practices that are or may be discriminatory as per separate schedule of the Bill; and fourthly, the growing acknowledgement that equality courts should not have punitive powers like those of criminal courts.
On the whole, we have an end product with much less detrimental and damaging effects on a normal, free and open society. However, there still are the following flaws in this Bill, making it impossible for the AEB to support it. I will only stipulate our objections without elaborating on them, owing to a lack of time.
Ons probleme met die wetsontwerp is eerstens die oormatige klem, veral in
die voorwoord, op ongelykhede van die verlede; tweedens, ‘n verabsolutering
van die gelyheidsideaal asof dit bereik kan word; derdens, die
ongekwalifiseerde uitsluiting van regstellende optrede sonder ‘n sunset''-
klousule - moet ons nou aanvaar dat omgekeerde diskriminasie van persketyd
tot ewigheid met ons sal wees?; vierdens, die feit dat die
differensiasieklousule verskuif en gedegradeer is tot 'n blotedefence’’.
Differensiasie is nie diskriminasie nie, punt. Nou kom hierdie wetsontwerp
eintlik en sê: ``Kyk, hierdie perd is ‘n koei’’, en nou moet die verweerder
in die hof gaan bewys die perd is nie ‘n slegte koei nie.
Vyfdens is ons ongelukkig met die ongekwalifiseerde oorwig van hierdie
wetsontwerp bo alle ander terwyl die Grondwet dit nie vereis nie. In die
sesde plek laat dit onnodige ingryping en oortreding toe op die terrein van
ander samelewingsverbande, veral die kerk. In die sewende plek is daar ‘n
gebrek aan verrekening van die diversiteit van Suid-Afrika; vandaar ook
geen verwysing na die te stigte artikel 185-kommissie wat hierin ‘n rol kan
speel nie.
In die agtste plek plaas die wetsontwerp ‘n onbillike bewyslas op die verweerder, selfs oor die feitelikhede van die saak. In die negende plek het ons ‘n probleem met die feit dat die Minister magistrate en gelykheidshowe aanstel slegs ná konsultasie. (Translation of Afrikaans paragraphs follows.)
[Our concerns with regard to the Bill are, firstly, the exaggerated
emphasis on the inequalities of the past, especially in the preamble;
secondly, absolutisation of the ideal of equality as if this is attainable;
thirdly, the unqualified exclusion of affirmative action without a sunset
clause - must we now accept that reverse discrimination will be with us
from here to eternity? - and, fourthly, the fact that the differentiation
clause has been moved and reduced to a mere defence''. Differentiation is
not discrimination, period. Now we have a Bill which, in fact, says:
Actually, this horse is a cow’’, and the defendant now has to prove in
court that the horse is not a bad cow.
In the fifth place, we are unhappy about the unqualified manner in which this Bill supersedes all others, when the Constitution does not require it. In the sixth place, it allows for unnecessary intervention and infringement in respect of other spheres of society, particularly the church. In the seventh place, the diversity of South Africa is not being taken into account; hence no reference is made to the commission which is to be established in terms of section 185 and which could play a role in this regard.
In the eighth place, the Bill places an unfair burden of proof on the defendant, even with respect to the facts of the case. In the ninth place, we are concerned about the fact that the Minister appoints magistrates and establishes equality courts only after consultation.]
Whether it be Penuell’s poodles or perhaps Sheila’s chihuahuas, it does not matter! [Laughter.] Ons tiende beswaar is teen die strafregtelike bevoegdhede van gelykheidshowe, byvoorbeeld skadevergoeding as boete aan ‘n instansie. In die elfde plek word diskriminasie as ‘n verswarende omstandigheid in kriminele sake beskou. Moet ‘n misdadiger voortaan veiligheidshalwe ‘n ekstra persoon van ‘n ander ras of geslag op sy slagofferlys plaas ten einde hierdie verswaringsklousule te ontsnap?
In die twaalfde plek word die reg tot vrye assosiasie in die gedeeltes oor
associations and partnerships'' enclubs and sport’’ aangetas. In die
dertiende plek is ons ontevrede met die sekulêre definisie van
huwelikstaat, wat insluit ‘n verhouding met iemand van dieselfde of
teenoorgestelde geslag. In die veertiende plek kan die definiëring van
culture'' enbelief’’ as verbode gronde indruis teen artikel 30 van die
Grondwet indien dit verkeerd toegepas word. Daar is geen beskermende
klousule in dié verband in die wetsontwerp opgeneem nie. (Translation of
Afrikaans paragraphs follows.)
[Our tenth objection relates to the powers of equality courts in terms of criminal law; for example, damages to an institution as a punitive measure. In the eleventh place, discrimination is regarded as an aggravating circumstance in criminal cases. Must a criminal, for safety’s sake, henceforth place an extra person of another race or sex on his hit list in order to escape this aggravation clause?
In the twelfth place, the sections on associations and partnerships'' and
clubs and sport’’ infringe on the right to freedom of association. In the
thirteenth place, we are not satisfied with the secular definition of
marital status, which includes relationships with persons of the same sex
or the opposite sex. In the fourteenth place, defining culture'' and
belief’’ as prohibited grounds may be in conflict with section 30 of the
Constitution, if applied wrongly. In this regard, no protective clause has
been included in the Bill.]
Nevertheless, the AEB is committed to upholding the basic values of equality and nondiscrimination as enshrined in the Constitution. This can best be effected when the rich diversity of our peoples and the rights of minorities are respected and acknowledged, also in legislation of this nature.
Ons wil nie die kind met die badwater uitgooi nie, maar in die geval van hierdie wetsontwerp is die badwater ongelukkig nog te veel. [We do not wish to throw out the baby with the bathwater, but in the case of this Bill, unfortunately, there is still too much bathwater.]
Mr S P GROVÉ: Madam Speaker, in the light of the very radical views that we have been exposed to over the past hour or so, I think it is necessary to put some of the issues and differences of opinion surrounding this piece of legislation into some kind of perspective.
This Bill is as much about the prevention of unfair discrimination as it is about the promotion of equality. By this time we all know that. From an ANC point of view that means that we acknowledge that we live in a very unequal society which, by way of mostly systemic practices, discriminates largely against the more vulnerable sections of our society.
Secondly, it means that we acknowledge that as a society we do not treat people whom we perceive to be different from us the same as we treat others. We profess ourselves to be a rainbow nation, but we tend to be a little wary of the other colours and nuances of the rainbow. For example, we do not readily accept or respect people of other religions, perhaps because we teach in our own religions that people who do not subscribe to our beliefs are on their way to some kind of indescribably bad place anyway.
We do not like people who are gay, mostly because we do not like the way they have sex, or because we think it is wrong. We therefore push them out onto the fringes of society where we do not have to worry or care about their dignity. Is that really what the PAC wants us to do? [Interjections.]
We do not like, and are afraid of, people who have Aids, because we subconsciously think that they did something wrong, that it is an illness of shame, or that they will infect us. We shove them out of schools, churches, societies, friendships, businesses and living areas, and deny them access to financial services like insurance and credit.
I relate these issues, because the ANC wants to transform this society into one that has respect for the dignity of people whom we perceive to be different. However, we also want to give the people against whom we discriminate a very real right and the means to redress these discriminations and denials of their dignity.
The rights and freedoms created in the Constitution, to put it in a nonlegalistic way, do not exist in a vacuum. They are limited by what is fair, reasonable and justifiable in an open and democratic society. Therefore no social, religious, cultural, business or other activity can exist in a vacuum, in the sense that it can make its own rules in such a way that it negates the dignity of other people.
The prime pursuit of business, surely, is to make a profit. However, it is equal to other rights, and this right also does not exist in a vacuum, and is subject to norms laid down in the Constitution and in this legislation. If one sells a service to the public for profit, then surely one cannot be heard to say that one has a right to choose to whom one wants to extend one’s services, unless one can show that it is reasonable and justifiable to exclude certain people according to criteria that are objectively determinable.
Should a bank, for instance, decide to close some of its branches - some of the big banks have done so recently - and deny some people access to banking facilities, would it be fair for that bank to judge a credit application by a person on his or her track record regarding fast repayment of loans, or on how he or she managed his or her bank account in the past, when the bank has denied him or her such a record by denying the service? I suspect not.
It also needs to be said that in other jurisdictions, Canada for instance, the courts have found that it is fair to impose a burden on society in order to achieve equality or equal access to services or opportunities. Canada, for instance, recognises the doctrine of - if I am right, this is what they call it - undue hardship when assessing the duty of society to accommodate other people.
It is therefore a pity that the business community chose to approach this
legislation in the way it did. Instead of constructively engaging in these
issues with the committee, it chose to bombard us on two separate occasions
with predictions of doom and gloom. They came in high-powered delegations
with heavyweight lawyers who all proclaimed to support the principle of the
Bill, but who told us, and I quote: This will be a disaster for the
economy.''You will cause untold harm.’’ You will destroy jobs.''The
economy will collapse.’’
They added phrases in similar vein. This is in stark contrast to certain
NGOs, which also employed legal counsel, which actively engaged with the
committee throughout the whole process, although they also did not always
agree with us. There were lawyers in private practice, senior advocates and
other professionals who gave us their time and advice and shared their
thoughts. Without them, this legislation would not have been what it is
now, and I wish to extend our heartfelt gratitude.
I also want to address, briefly, the enforcement mechanism in this Bill. As a point of departure, the Bill provides that no person or the state may discriminate against another person. A complainant may simply go to court and then prove that he or she has been discriminated against on one of the grounds set out in the Bill, which are the same as those in the Constitution.
Once the complainant has done that, the discrimination is deemed to be unfair and the defendant has to prove that it was fair. In simple terms, that means the complainant must only prove discrimination on one of the grounds, and the defendant has to prove that is was fair. This makes the process a lot easier for the complainant who is, more often than not, at a disadvantage towards the defendant. How fairness is proved is a much more complex process.
Firstly, the context in which the act took place has to be considered. Secondly, the Bill provides for certain factors to be taken into account to determine fairness and unfairness. Thirdly, the question of whether it was reasonable and justifiable differentiation has to be considered.
These three criteria have to be considered jointly and it is important to note that this is not a staged test. The court has to weigh these criteria together to come to a conclusion that the discrimination was, in fact, fair. If, on a balance of probabilities the court cannot come to such a conclusion, the unfairness stands and the complainant wins the case.
Lastly, I wish to address the issue of disability which enjoys a high degree of prominence in this Bill. We have deliberately decided to elevate disability to the same status as race and gender regarding the prohibited grounds of discrimination, as well as in the promotion of the equality clauses. It is a fact that people feel uncomfortable around people who are disabled, especially around those who are blind or cannot speak like us or who cannot speak at all, and even more so around those with obvious physical deformities. I imagine that, because one does not know how to communicate with them, or know whether one is supposed to help or assist them in some or other way, one feels uncomfortable and therefore people either avoid or ignore them.
This discomfort leads to practices that do not respect the dignity of disabled people and total ignorance of what their needs are, and the end result is that we isolate them from society. A compounding factor is that able-bodied people are forever taking decisions of behalf of disabled people, make decisions on how to solve their problems and decide what is accessible and what not. Most of the time they are wrong.
I want to use this Parliament as an example of what should not happen, and I trust that my colleagues will understand and forgive me for making it public knowledge. When I became a member of Parliament in 1994, there were no facilities whatsoever for disabled people. Despite ample warning beforehand, nothing was done to accommodate disabled people. I had to wait three months for the simplest of toilet facilities, namely a washbasin where I could reach the basin, wash my hands, reach the soap and the towels. It took this institution nearly a year to provide only one toilet in the whole complex that was both accessible and private.
To this day this building remains inaccessible after hours because we simply cannot get to the door. The telephone in the basement parking area from which one is supposed to call for help, is not within reach from a wheelchair and the door is too narrow to get through. The Marks Building has only one accessible entrance guarded by a door that is always locked, an intercom that seldom works, is seldom answered and staff that disappear after hours. The disabled member of Parliament from the DP who has an office in that building has no toilet on the floor where his office is and the only accessible toilet in the building is not private.
Committee meetings are still, after six years, regularly scheduled in committee rooms which are not accessible. Nothing whatsoever has been done to make inaccessible committee rooms more wheelchair-friendly, except to provide ramps which are themselves inaccessible. Some doors giving access to the building have closing mechanisms with springs set so stiff that one cannot open them if one is alone.
To be fair, however, the situation has vastly improved since 1994. Surely this institution does not set an example for the rest of society. If this is the position here, what about office buildings, shopping centres, garages and other buildings which we all regularly visit in our day-to-day activities? The building regulations promulgated around, I think, 1982 to facilitate access to buildings, are ignored by property developers and nobody bothers enforcing them. If this is the position l … [Time expired.] [Applause.]
Mr M A MANGENA: Hon Chairperson, hon members, in a society like ours, where equality, human dignity and a democratic order are enshrined in the Constitution but where, in practice, inequality is still widespread and manifest, where discrimination on the basis of race, colour and other grounds is still commonplace, where people are denied opportunities, promotion and facilities such as toilets and hostel accommodation in schools, where racially motivated violence still occurs, it is indeed necessary to have this type of legislation. It is essential that people have recourse to the law if their constitutionally guaranteed rights and human dignity are attacked.
The Promotion of Equality and Prevention of Unfair Discrimination Bill is comprehensive in its provisions, but it should be declared that it is not the intention of this Parliament to create a regimented society where every twitch in human interaction is regulated by a web of laws. It is also not the intention to make people love one another and to legislate against attitudes. This legislation is meant to fight those situations where attitudes and the hatred of bigots translate into unfair discrimination against people on the basis of specified prohibited grounds, and result in certain disadvantages and suffering on the part of the victims of such unfair discrimination.
It is conceivable that a lot of cases of unfair discrimination would be difficult to prove in a court of law. Those who discriminate against others might often manufacture defences that would be difficult to counter, but that cannot detract from the seriousness of this Parliament to outlaw unfair discrimination in our country.
Perhaps the state and our society in general should put greater emphasis on Chapter 5 of this Bill, which seeks to promote equality. We might reap better rewards by teaching rather than by punishing. An inculcation of the values of tolerance, mutual understanding, respect and broadmindedness among our people should give us a better society than one in which one lives with a series of court cases. Azapo will support this Bill. [Applause.]
Mrs M A A NJOBE: Chairperson, it is true that there was no black person in South Africa who managed to escape the effects of apartheid injustice. Even those who managed to escape poverty faced the humiliation of racial discrimination and inequality in the way they were treated. However, the poorest among us, those who depended on access to land and other natural resources, bore the brunt of the injustices of apartheid. One of apartheid’s most evil acts was the systemic robbing of the indigenous people of their land. This left millions of people dependent on urban employment or on remittances from those with jobs in the cities.
Today we are faced with the legacy of massive inequalities across racial barriers, but with the worst levels of poverty located in the rural areas, particularly the former Bantustans. Despite the hard efforts of our democratic Government to improve the lives of rural people by way of legislation, based on equal rights for all, and through various Government programmes, discrimination remains an everyday, living reality.
Humiliation and abuse of farmworkers and their dependants is rife. Cases of physical brutality meted out to farmworkers have been reported in the media. Arbitrary evictions based on one or more of the prohibited grounds still occur, and this happens despite legislation to the contrary.
We have seen a case of a deceased relative of a farmworker evicted from a farm. Thanks to protests from the farmworkers, the deceased is now buried outside the drive at the entrance to the farm. This must be a mental torture to the farmer every time he enters his gate. Such are the sad realities of the consequences of discrimination and inequalities existing in our country.
Time and again NGOs and CBOs, as well as some of our constituency offices located in the rural towns, have to handle numerous cases of unfair discrimination. Yet many such cases pass unnoticed, either because the victims are unaware of their rights or because the law-enforcement mechanisms do little or nothing about them.
Colonialism and apartheid policies denied rural people access to resources, to education and to economic opportunities, resulting in the unacceptable levels of discrimination and inequalities. This legislation aims to address that. Therefore it was quite disturbing that during the ad hoc committee’s deliberation on this Bill, the DP clearly showed a lack of sensitivity and commitment to transformation when its members were reluctant to admit that colonialism brought about discrimination and inequality to the people of this country. And in its avoidance of accepting facts, the New NP almost fell short of defending apartheid once again, despite the fact that the party has publicly admitted that apartheid was a mistake. However, I must say that it is good that they have seen sense and now support this Bill. We congratulate them.
Our struggle was about equality. This legislation aims to progressively redress the effects of colonialism and apartheid. It seeks to bring justice closer to all South Africans. With the emphasis placed on the prevention and prohibition of unfair discrimination on the grounds of race, gender and disability in clauses 7, 8 and 9 respectively, the rural poor - who also happen to be black and largely female - will also benefit. So the PAC is wrong in saying that the Bill does not address the needs and concerns of the rural poor. I have some more examples for the Azanians.
The location of equality courts in every magistrate’s court will ensure the accessibility of these enforcement mechanisms to the rural poor. While the legislation provides for cases of unfair discrimination to be heard in these equality courts, it also allows for cases, where appropriate, to be referred to an alternative forum.
In referring a case to an alternative forum certain circumstances, including physical accessibility of such a forum, must be taken into consideration. Such considerations will facilitate access to justice. In addition, the legislation requires that the courts or the alternative forums deal with cases expeditiously.
The state and constitutional structures should, as far as possible, assist complainants who need to institute proceedings in equality courts. All these provisions, and many others stated in the Bill, will enable the rural poor to exercise their rights in the same way as any other citizen of this country.
The discrimination and inequalities experienced by the rural poor communities are not much different from those experienced by the elderly. This group is vulnerable. They are harassed, suffer prejudice and are discriminated against as though they were disposable. The majority of them are poor. Discrimination against the elderly results in harm, both physically and emotionally, exploitation and financial loss, neglect, abuse and loss of respect and dignity. Yet the Constitution protects this category of people, as discrimination on the grounds of age is listed as one of the prohibited grounds.
In the schedule attached to this legislation, refusing to provide reasonable health services to the elderly or failing to reasonably accommodate the special needs of the elderly are listed as examples of unfair practices and are, therefore, subject to prohibition.
If this legislation is implemented to the letter, it will put the last nail in the apartheid coffin. It will have a positive impact on all people, including the rural poor and the elderly. All state departments are expected to enact the relevant provisions of this legislation and, among other things, develop programmes that will promote equality of all South Africans in all spheres of life. Programmes such as awareness of fundamental rights, including ways of accessing this legislation, must reach the rural poor and the elderly.
It is correct that this legislation enjoins all persons, and that includes all members of Parliament, the NGOs, the CBOs and traditional institutions, to promote equality in their public activities. We are all charged with this responsibility. These structures interact and are in constant contact with rural communities and the elderly.
One of the many possible regulations proposed is the translation of the Act into official languages and its distribution within two years from its commencement. This, together with the use of other media, especially the radio, that will be used to popularise the Act, will enhance accessibility, thus empowering the rural poor and the elderly to exercise their right to equality. The ANC supports this Bill, and it urges all other parties to do the same. [Applause.]
Ms N B SIGABI: Hon Chair, hon members …
An HON MEMBER: Ubuya nini ngapha? [When are you coming back to this side?]
Ms N B SIGABI: Ndiboneleleni ngento engcono, ndiya kubuya. [Offer me something better and I will come back.] What could be more satisfying than to pass a Bill which is titled ``The Promotion of Equality and Prevention of Unfair Discrimination Bill’’! If this Bill were everything that the title suggests, there would be no need for any debate to take place today. A unanimous chorus of support could have arisen in this House. But things are not always what they seem, and this is one example of that. It takes rigorous commitment to the true cause of equality not to be misled by the superficial nature of things.
Section 9(4) of the Constitution prohibits horizontal unfair discrimination between persons and requires national legislation to give effect to the provision. We see this Bill as trying to reinvent the wheel to encompass a broad conception of equality, giving effect to the entire section 9 as if no implementation of equality before this law or no affirmative action had occurred since 1994. [Interjections.] All that was needed was simply to set the legal test and the enforcement mechanism. [Interjections.] This it has done. What we question is the ambiguity of the test. [Interjections.]
The CHAIRPERSON OF COMMITTEES: Order! Order!
Ms N B SIGABI: Ewe mhlekazi, ngesiXhosa sithi, iinkomo ziqhube zingene ebuhlanti size kukwazi ukuzibala. [In Xhosa we say, drive the cattle to the kraal so that we can count them.]
HON MEMBERS: Ezikabani iinkomo? [Whose cattle?]
Ms N B SIGABI: Ezethu. [Uwele-wele.] [Ours. [Interjections.]]
The CHAIRPERSON OF COMMITTEES: Order! Order! Hon members, you are making a noise.
Ms N B SIGABI: The horizontal application of the principle of prohibition of discrimination is acceptable, ensuring that people do not slip back to the old prejudices which are now prohibited by the Constitution. But instead of sticking to the clear-cut instruction of the Constitution, the drafters set out to draft a Bill named after and aimed at the promotion of equality as set out in Chapter 5, which makes a mockery of the serious intent of the Bill.
It is already the duty of the state to promote equality. Is the ANC telling us that it has done nothing since 1994? [Interjections.] According to the Bill, all persons, not only the state, are purported to have a duty and responsibility to promote equality. Whilst this sounds like a laudable idea, consider where this takes us. I will bring it closer to home. The smallest spaza shop owner, who probably struggles to make a survival profit, must wonder whether she or he is expected to comply with this moral injunction. It is not necessary to explain that this provision has no legal force. [Interjections.]
Clause 27 brings a broad spectrum approach that allows no escape for the very vulnerable people the ANC talks about and purports to want to protect. We have clearly seen the effect that perceptions about employment legislation have had on job retention and creation. We should be very careful before we introduce uncertainty into the small business sector falling outside labour law.
There are some good things in the Bill. Disability is now treated on the same level as race and gender. It is interesting to note the exasperation expressed by some disabled members of Parliament at the limited equality of access which they enjoy in Parliament, at the very heart of the institution which should be the first to set an example for the real levelling of the playing field. As the saying goes: Talk is cheap; money buys the whiskey.
It is unfortunate that some members of Parliament are so well-read that their minds are no longer penetrable by any political thought other than Marxism, to a point where innovative and critical analysis is absent, hence this obsession with centralising power to the Government, as proved by the insistence of the ANC on giving the Minister the right to designate equality court magistrates and judges.
Clause 29 of the Bill refers to a schedule of practices appended to the proposed Act which may or may not be unfair. Clearly legislators cannot expect courts to act in a predictable manner if they themselves cannot clearly set out examples of practices about which there cannot be any doubt as to their unfairness. It will not be unexpected if a designated and hand- picked magistrate or judge gives the interpretation which he presumes is expected of him to justify his designation. [Time expired.] [Applause.]
Prof B TUROK: Hon chair, I would like to try to set out the philosophical approach of the ANC to this Bill. I do so because it is a very profound Bill, to be interpreted not by bits and pieces as the last speaker did, but in the broad trajectory of philosophical thought that has governed a great deal of the work of the ANC.
Let me say that this Bill fulfils long-held ideals in the ANC. I imagine there are very few, probably no, members on this side of the House who, when asked 10, 20 or 30 years ago what their main objective was, would not have said: ``I would like to stand up in Parliament and pass a law to promote equality and outlaw discrimination.’’ And so here we are at that moment in history when we have achieved, and we are achieving, one of the major objectives of the ANC in philosophical terms. The ANC is often labelled as being influenced by socialist ideals. That is true. It is true that the ANC has been influenced by socialist ideals in a big way. But the ANC has also been influenced by liberal and social democratic ideals. Social democratic thought such as that which influenced many movements in Europe has also influenced the ANC. Let us take the notion of equality. Who has not been influenced by the French Revolution: Liberty, equality, fraternity? Even more, British social democracy, with all its defects and injustices, has played a great part in influencing the ANC.
Unfortunately, the DP in its present form often speaks in social democratic terms. They refer to constitutionality and so many of the objectives which can be identified with social democracy in Europe. But we have to ask: Is the DP - and I would like to ask this - a social democratic party, or is it a Tory party? [Interjections.] I would say that the leadership of Tony Leon is marked by a lack of vision, opportunism and pragmatism. I ask him: Where are your great libertarian principles? Where is the vision that some of you expressed in times past?
Let us look at the arguments advanced by Dene Smuts. What does she talk about? She talks about the lunatic left, she slanders the officials and advisers who helped to draft this Bill, she says the department is agenda- driven. Let us plead guilty. Our department and our Minister are agenda- driven. There is no question about that. They are driven by the philosophical principle of equality, and we are very proud of that. [Applause.]
I think the real reason for the DP’s vote against the Bill lies in clause
- Clause 27 is titled
Social commitment by all persons to promote equality''.Persons’’ includes political parties. It says that all persons must promote equality in their public activities. We are going to monitor the DP in terms of this Bill as to whether they are going to follow the precepts of this Bill in their public activities, because they are a public organisation. Therefore they are now on warning that we are going to monitor the principles, the policies and the activities of the DP. [Interjections.]
I want to say to the previous speaker, in reference to spaza shops and all that, that this was the kind of intervention that we had all the time in the committee. I would say that Dene Smuts is the spaza shop spokesperson for the DP. [Laughter.] [Applause.]
I now return to the philosophical element. Will hon members be quiet please! In 1931 … Chairperson, please control this rabble here. [Interjections.] In 1931 an outstanding social philosopher of Britain, R H Tawney …
The CHAIRPERSON OF COMMITTEES: Order! Hon members, I think that when a member is on the podium it is to be heard. We are heckling in such a manner that we do not give our members time to be heard by this House. It is a very big disgrace. Could we please behave ourselves? Continue, hon member.
Prof B TUROK: The problem is that when one turns to philosophy they degenerate. R H Tawney, a philosopher of Britain, wrote a book called Equality. It has had an extraordinary impact and is relevant even today. In his book on equality, he was fighting for the idea that the class-ridden system in Britain should be changed into a welfare state where egalitarian principles should apply right across the board - in all the relations in society, in the socioeconomic structures and in the system which existed in Britain. He condemned the feudal legacy of Britain, the industrial capitalism that introduced the kinds of conditions that Dickens wrote about. Tawney was inspired by the notion of equality and he called upon the society in Britain to follow that objective.
Now, we in South Africa and in the ANC have absorbed some of these ideas - these egalitarian ideas. However, we are not following - in case the PAC is going to accuse me of following Eurocentrism - British liberalism as a whole, because our experience is governed by the experience with colonialism. Colonialism had an effect on South Africa which was different to the experiences of a country like Britain and of Europe as a whole. It has modified, it has structured our social relations in a way which created patterns of inequality, systems of inequality which remain with us today. We live in the shadow of colonialism.
Therefore, colleagues, we listen to Tawney, who said:
Every generation regards as natural the institutions to which it is accustomed. Every society regards as natural the institutions to which it is accustomed.
People on that side of the House are accustomed to colonial relations between people. [Interjections.] People on this side of the House are saying that those institutions must be changed. We want to eradicate them. That is what this Bill is about. We want to eradicate the patterns and structures of inequality which affect South Africa at all levels of our system. That is why we have this Bill.
I want to refer briefly to the ACDP. This is now the party of religious fundamentalism in this House. [Interjections.] It is the loony right of this Parliament. What they have to say has no relevance to the agenda before this Parliament and, indeed, it is a total distraction. They have the cheek to ask: Will the ANC ban the Scriptures? Now I ask anyone in this House: Is that a reasonable question to ask in the light of the legislation before us? [Interjections.] They say that this Bill legislates immorality. What kind of a world does the ACDP live in? They certainly do not belong in this House, they do not belong to this transition and we do not want to hear from them at all. [Laughter.] [Applause.]
This Bill proclaims the highest morality of society. It interprets the Scriptures in a way which does not deny the liberation of our people. We ask them to support the Bill. We ask them to identify themselves with its principles. We are grateful to the NP. [Interjections.] No, I am not taking any question. Sit down! [Laughter.]
Ms C DUDLEY: Chairperson, on a point of order … [Interjections.]
The CHAIRPERSON OF COMMITTEES: Order, hon members!
Ms C DUDLEY: Chairperson, on a point of order: I just need to know if it is parliamentary for a person to say that we are not relevant to this Parliament when … [Interjections.]
The CHAIRPERSON OF COMMITTEES: Order!
Ms C DUDLEY: … we were voted into this position.
The CHAIRPERSON OF COMMITTEES: Order! It is not unparliamentary. Take your seat, hon member. [Laughter.]
Prof B TUROK: The loony right has spoken again. [Laughter.] I ask hon members to follow the lead of Business Day. Yesterday, in an editorial they had something important to say to us. They said:
Overall, though, the Bill deserves support. It is overambitious in parts, and promises an uncomfortable period of bedding down. But its principles are appropriate for a society emerging from decades of institutionalised racism and inequality.
I think they have got it right. Whatever the flaws in the Bill may be - and maybe there are some - we will correct them. But we ask the House to support the principles which are appropriate, I repeat, for a society emerging from decades of institutionalised racism and inequality, and that has been my case in this speech. [Applause.]
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, I was personally touched by the graphic description hon member Grové gave to this House on the problems faced by the disabled in this institution. But I was even more touched by a note that was passed on to me during the debate by a member of the public who was sitting in the audience up here, which I beg members indulgence to read to the House. It says:
Hon Minister, this Bill must and should cover insurance companies. My husband and I almost could not qualify for life policies, all because we were deaf. Fortunately, we had a good consultant who could argue for us, but what about the vast majority of deaf and disabled people who cannot qualify for whatever reason, and do not have anyone to argue or fight for them.
I will not give hon members the names, but I can tell the House that in racial terms they are white. [Applause.]
Secondly, it has been suggested that the provisions of clause 13(2) of the Bill impose a reverse onus. They do not. What we did, in case those who say this do not know, is the following: We uplifted the neat provisions of section 9(5) of the Constitution and then elaborated them in the Bill. That is all we did.
Section 9(5) of the Constitution says that once a prima facie case of unfair discrimination has been made, the onus shifts to the defendant. That is a constitutional matter. We have committed no cardinal sin whatsoever by uplifting it.
I think it is once again unavoidable to respond to the hon Madam'' Dene
Smuts. As I sat and listened to her, I began to conclude that the creators
of the charactersMadam and Eve’’ would find their work easier today,
because she actually exhibited the fears Madam felt as Eve demanded
equality. [Laughter.]
She also reminded me of my long-deceased mother who said: Even though it is now fashionable for men to go into labour wards to witness the birth of their babies, men still can never feel and experience labour pains. When Dene Smuts said she too was excluded, I said to myself: Oh my, this is a revision of our history. And I was offended. But then, I felt that I had to agree with her. She was indeed excluded from quite a number of experiences by apartheid. [Interjections.] It is true, is it not, that the hon Dene Smuts, among others, by virtue of some of the most illogical things like whiteness, was actually protected and excluded therefore from oppression, from pass laws, from starvation, from life in the shacks, from life in the townships, from Bantu Education, from the impact of the Group Areas Act and forced removals. [Interjections.] She was also prevented from enjoying sex across the colour bar by the Immorality Act. [Laughter.] The hon member is right. [Applause.]
Ms M SMUTS: Chairperson, will the hon the Minister take a serious question?
The MINISTER: No, I will not take any question. The hon member is wasting her time and mine.
Ms M SMUTS: Is the hon Minister aware that I was in the party that opposed those laws?
The MINISTER: I will honestly not take a question. [Interjections.]
The CHAIRPERSON OF COMMITTEES: Order! Hon member, he will not take a question.
The MINISTER: In case the hon Smuts wants to dispute that, I want to tell
her that it was immoral under the Immorality Act for blacks and whites to
join each other in bed and embrace. [Interjections.] She was excluded from
that. Therefore, indeed in that sense, and only to that extent, is Dene
Smuts a fellow erstwhile victim of apartheid, but no further.
I also want to say: Those who say that judges are going to become Penuell’s
poodles are wrong. According to section 175(2) of the Constitution, the
Minister responsible for justice has more power than is envisaged here. He
has the power to appoint acting judges after consultation with the Judge
President, but I am just paraphrasing it. This Bill merely says
designate''and notappoint’’.
I want to thank the hon member Prof Ndabandaba from the IFP for reminding us about the qualified franchise. Her political forebears, until recently, were preaching qualified franchise for blacks, solely because blacks were blacks in biological terms. There was no basis in morality or in logic at all. [Interjections.] Did they have a better reason? [Interjections.] No, they did not. It was actually a qualified franchise for blacks. That is true. [Interjections.]
Hon member Sheila Camerer says that we should have confined ourselves to what is mentioned in section 9(4) of the Constitution. I am wondering whether, indeed, she is not suggesting that it might be worth our while just to postpone implementing section 9(2) of the Constitution, if only for a little while, so that the beneficiaries of the fruits of inequality can enjoy themselves. [Laughter.]
If we passed an Act of this nature and yet did not do anything by way of promotion of equality under the law in this country, we would be failing in our duty as duly elected representatives of our people. So we cannot postpone it for another second. We shall pass it after my response. [Laughter.]
To Rev Meshoe, I can only say that the day the preachers of such crass sacrilegious nonsense enter the kingdom of God, a big camel will go through the eye of the needle. [Laughter.] [Applause.]
Lastly, I am happy that I do not live in the world of never-never called Azania, where if our limbs are not chopped off and our private parts or necks cut off, then our daughters - beautiful little girls, my God - are actually going to be genitally mutilated. [Laughter.] [Applause.]
Debate concluded.
Question put: That the Bill be read a second time. Division demanded.
The House divided.
AYES - 291: Abrahams, L A; Abrahams, T; Abram, S; Ainslie, A R; Arendse, J D; Asmal, A K; Bakker, D M; Balfour, B M N; Baloi, G E; Baloyi, M R; Baloyi, S F; Bekker, H J; Belot, S T; Benjamin, J; Beukman, F; Bhengu, F; Bhengu, G B; Biyela, B P; Bloem, D V; Booi, M S; Botha, N G W; Buthelezi, M G; Buthelezi, M N; Camerer, S M; Capa, R Z N; Carrim, Y I; Cassim, M F; Chalmers, J; Chauke, H P; Chiba, L; Chikane, M M; Chohan-Kota, F I; Cindi, N V; Coetzee-Kasper, M P; Cwele, S C; Davies, R H; De Beer, S J; De Lange, J H; Diale, L N; Didiza, A T; Doidge, G Q M; Douglas, B M; Dowry, J J; Duma, N M; Durand, J; Du Toit, D C; Dyani, M M Z; Fankomo, F C; Feinstein, A J; Ferreira, E T; Fihla, N B; Fraser-Moleketi, G J; Frolick, C T; Gandhi, E; Gaum, A H; Gcina, C I; Gerber, P-J A; Gigaba, K M N; Gillwald, C E; Gininda, M S; Gogotya, N J; Gomomo, P J; Goniwe, T M; Goosen, A D; Greyling, C H F; Grove, S; Gumede, D M; Hajaig, F; Hanekom, D A; Hangana, N E; Hendrickse, P A C; Hlangwana, N L; Hlengwa, M W; Hogan, B A; Holomisa, S P; Jassat, E E; Jeffery, J H; Joemat, R R; Jordan, Z P; Kalako, M U; Kannemeyer, B W; Kasienyane, O R; Kasrils, R; Kekana, N N; Kgarimetsa, J J; Kgauwe, Q J; Kgwele, L M; Khoza, T S; Kota, Z A; Kotwal, Z; Landers, L T; Leeuw, S J; Lekgoro, M K; Lekgoro, M M S; Lishivha, T E; Lobe, M C; Lockey, D; Louw, J T; Louw, S K; Lyle, A G; Mabandla, B S; Mabeta, M E; Mabudafhasi, T R; Maduna, P M; Magwanishe, G B; Mahlangu, G L; Mahomed, F; Maimane, D S; Maine, M S; Makasi, X C; Makunyane, T L; Makwetla, S P; Malebana, H F; Maloney, L; Maluleke- Hlaneki, C J; Malumise, M M; Mangena, M A; Manie, M S; Maphalala, M A; Mapisa-Nquakula, N N; Mars, I; Marshoff, F B; Martins, B A D; Masala, M M; Maserumule, F T; Mashimbye, J N; Masithela, N H; Masutha, M T; Mathebe, P M; Matsepe-Casaburri, I F; Maunye, M M; Mayatula, S M; Maziya, A M; Mbadi, L M; Mbete, B; Mbongo, P F; Mbulawa, B G; Mbuyazi, L R; Mdladlana, M M S; Mfundisi, I S; Mgidi, J S; Middleton, N S; Mkhatshwa, S; Mkhize, B R; Mlambo-Ngcuka, P G; Mnandi, P N; Mndende, O N; Mngomezulu, G P; Modise, T R; Modisenyane, L J; Moeketse, K M; Mofokeng, T R; Mohai, S J; Mohamed, I J; Mokaba, P R; Mokoena, D A; Molebatsi, M A; Molewa, B G; Moloto, K A; Mongwaketse, S J; Montsitsi, S D; Moonsamy, K; Morkel, C M; Morobi, D M; Morwamoche, K W; Moss, M I; Mothoagae, P K; Motubatse, S D; Mpahlwa, M; Mpehle, M; Mshudulu, S A; Mthembi-Mahanyele, S D; Mthembu, B; Mtirara, N Z; Mtsweni, N S; Mutsila, I; Mzimela, S E; Mzizi, M A; Mzondeki, M J G; Nair, B; Nash, J H; Ncinane, I Z; Ncube, B; Ndabandaba, L B G; Ndlovu, V B; Ndou, R S; Nel, A C; Nel, A H; Nene, N M; Newhoudt-Druchen, W S; Ngcengwane, N D; Ngculu, J L V; Ngubane, B S; Ngubeni, J M; Ngwane, L B; Ngwenya, M L; Nhlanhla, J M; Nhleko, N P; Nhlengethwa, D G; Niemann, J J; Njobe, M A A; Nkomo, A S; Nkosi, D M; Nqakula, C; Nqodi, S B; Ntshangase, I B; Ntuli, B M; Ntuli, M B; Ntuli, S B; Nzimande, B M; Nzimande, L P M; Odendaal, W A; Olckers, M E; Olifant, D A A; Omar, A M; Phala, M J; Phantsi, N E; Pheko, S E; Pieterse, R D; Pretorius, I J; Rabie, P J; Rabinowitz, R; Radebe, B A; Rajbally, S; Ramakaba-Lesiea, M M; Ramgobin, M; Ramodike, M N; Ramotsamai, C M P; Rasmeni, S M; Rhoda, R T; Ripinga, S S; Routledge, N C; Saloojee, E; Schoeman, E A; Schoeman, R S; Scott, M I; Seaton, S A; Sekgobela, P S; September, C C; September, R K; Serote, M W; Shilubana, T P; Shope, N R; Sigcau, S N; Sigcawu, A N; Sigwela, E M; Sikakane, M R; Simmons, S; Sithole, D J; Skhosana, W M; Skosana, M B; Skweyiya, Z S T; Slabbert, J H; Smit, H A; Smith, P F; Smith, V G; Solo, B M; Solomon, G; Sonjica, B P; Sosibo, J E; Sotyu, M M; Thabethe, E; Tinto, B; Tolo, L J; Tshabalala- Msimang, M E; Tsheole, N M; Tshivhase, T J; Tshwete, S V; Turok, B; Vadi, I; Van den Heever, R P Z; Van der Merwe, A S; Van der Merwe, S C; Van Deventer, F J; Van Niekerk, A I; Van Schalkwyk, M C J; Van Wyk, A (Anna); Van Wyk, A (Annelizé); Van Wyk, J F; Van Wyk, N; Verwoerd, M; Vilakazi, B H; Vilakazi, M I; Woods, G G; Xingwana, L M T; Yengeni, T S; Zita, L; Zondi, K M; Zondo, R P; Zulu, N E; Zuma, J G.
NOES - 40: Andrew, K M; Aucamp, C; Bell, B G; Borman, G M; Botha, A J; Bruce, N S; Clelland, N J; Da Camara, M L; Davidson, I O; Delport, J T; De Vos, P J; Dudley, C; Eglin, C W; Ellis, M J; Farrow, S B; Gibson, D H M; Gore, V C; Green, L M; Grobler, G A J; Heine, R J; Kalyan, S V; Lee, T D; Madasa, Z L; Maluleke, D K; McIntosh, G B D; Meshoe, K R J; Mulder, C P; Mulder, P W A; Ntuli, R S; Opperman, S E; Pillay, S; Schmidt, H C; Semple, J A; Sigabi, N B; Smuts, M; Southgate, R M; Swart, S N; Taljaard, R; Viljoen, C L; Waters, M.
Question accordingly agreed to.
Bill read a second time.
TICKETS FOR MAYOR OF CAPE TOWN'S DINNER The CHAIRPERSON OF COMMITTEES: Order! Hon members, there is one announcement that I have been requested to make. The Mayor of Cape Town, Nomaindia Mfeketo, will be hosting a dinner for members of Parliament and their spouses and the diplomatic corps on 3 February 2000. Members can collect their tickets from V12 from tomorrow morning, 27 January 2000, to attend the dinner.
The House adjourned at 17:48. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
TABLINGS:
National Assembly and National Council of Provinces:
Papers:
- The Minister for Welfare and Population Development:
Report of the Department of Welfare for 1998-99 [RP 179-99].