Date: 24/06/2004
Source: Department of Justice and Constitutional Development
Title: J de Lange: National Equality Indaba
OPENING ADDRESS BY ADVOCATE JOHNNY DE LANGE, MP, DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT, AT THE NATIONAL EQUALITY INDABA, Johannesburg, 24 June 2004
Programme Director, Mr Jody Kollapen
Distinguished Guests
Ladies and Gentlemen
It gives me great pleasure, and it is indeed an honour for me to have been requested to participate at this important indaba on equality, in the stead of my Minister Ms Brigitte Mabandla, MP. I would also like to convey Minister Mabandla's regret at not being able to be with you today, as she is abroad.
As you would all know, both the Minister and I are new to this portfolio. I would have liked to have given an input that would be able to highlight all the matters that require addressing around equality issues and map out a proposed departmental strategic vision for obtaining them. However, I restrain my input merely to an exposition of legislative and administrative measures that the Department has embarked on, or is embarking on to realise the right to equality in our country.
Perhaps then, in the circumstances, it is proper that this Indaba takes the lead in identifying these issues, make recommendations and provide further strategic impetus to the process.
INTRODUCTION
My input will therefore focus on where we come from and what has been achieved in the last ten years. It is important that this event should take place as we celebrate our 10th year of democracy. As we celebrate this milestone in our young democracy, it is appropriate that we look back, not only at our achievements in addressing the legacy of inequality, but also our shortcomings in the last decade. This introspection is vital if we are to successfully nurture our young democracy.
Our country was deeply divided because of racial oppression and our society is marked by strong patterns of inequality. The challenge for the new democratic dispensation is to ensure that it not only addresses the obvious inequalities along racial lines, but also effectively deals with the not so obvious or often talked about inequality, characterised along lines of gender and disability.
When we drafted our Constitution we wanted to ensure that our society is rooted in equality and the preservation of human dignity. South Africa is now one sovereign, democratic state founded on, amongst others, the values of human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism and non-sexism. The Constitution thus prohibits unfair discrimination in all its forms and in all facets of our society. It provides a framework for the people's contract.
If we accept that the right to equality as entrenched in section 9 of the Constitution is the remedy for systemic patterns of social and economic inequalities of the past, then Government has the responsibility of ensuring that every citizen of this country is in a position to exercise this right. In this context the Constitution provides a rights-based environment within which implementation must take place. We must therefore, as a collective, ensure that the right to equality does not lose its significance.
RIGHT TO EQUALITY
Section 9(1) of the Constitution captures the traditional exposition of the right to equality, namely "Everyone is equal before the law and has the right to equal protection and benefit of the law." However, significantly Section 9(2) then elaborates far beyond the usual rights clauses by adding: "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."
Clearly, the founding drafters of these provisions recognised that the entire social formation in South Africa had been corrupted by privileges based on race and gender discrimination and special measures had to be introduced in order to dismantle the inherited racial order. This fundamental shift in thinking in relation to equality clauses is best captured by President Mbeki in an address to Parliament last year, when he said: "The wording of the 1993 Constitution was even more vocal in its injunction that equality before the law and equal protection of the law should be strengthened by full recognition of the plight of the disadvantaged people, and that measures or steps be taken to achieve the adequate protection and advancement of these people."
Given the history of apartheid and its legacy, it was inevitable, in order to ensure the full and equal enjoyment of all rights and freedoms enshrined in our Constitution, that government should introduce positive measures such as affirmative action. Otherwise, an absolute form of equality, in the classical sense of the word, which does not distinguish between the historically privileged and disadvantaged would amount to entrenching the existing inequalities.
Until we have fully addressed the racist legacy of inequality, which continues to characterise our society and ensure that everyone has a full and equal enjoyment of all rights, and freedoms that constitute equality, we cannot do away with these affirming measures. The duration of the government's affirmative action programmes is therefore directly dependent on the pace and success of our efforts to eradicate the legacy of inequality. The Constitutional Court has already started shaping our jurisprudence regarding the right to equality in this direction. For example, in the case of Pretoria City Council v Walker the Court held that an analysis of the right to equality "cannot be undertaken in a vacuum but should be based both on the wording of the section and in the constitutional and historical context of the developments in South Africa. "
Therefore, recent misplaced calls to remove affirmative action measures or to adopt sunset clauses to limit their duration would be an irresponsible betrayal of not only the Constitutional injunction placed on us, but also the morality and legality underpinning our very existence and our Constitutional state.
I now turn to some of the measures, which are in place or are being put in place by the Department to create a legal framework, based on rationality and legality, within which the "full and equal enjoyment" of substantive equality is to be attained.
EQUALITY COURTS
Turning to Equality Courts, to date 75 cases have been lodged with the designated Equality Courts throughout the country. From these cases the following trends emerge:
* 31 of the cases relate to racial discrimination
* 23 relate to hate speech
* 17 relate to harassment
* 4 relate to discrimination on HIV status
* there are also 16 labour matters referred to the CCMA
There are presently 220 designated Equality Courts throughout the country. While the number of cases reaching these courts is still relatively low, this indicates to us that we must intensify our awareness raising campaigns about the legislation. Since their inception in June 2003, the Department of Justice and Constitutional Development has conducted public awareness campaigns in various areas of the country in order to highlight the importance of these courts.
In order to ensure that these courts are effective we have prioritised training programmes for all presiding officers. To date more than 800 magistrates have been trained in equality matters. More magistrates will receive training so as to ensure that more courts may be designated as equality courts.
The Equality Courts Implementation Project Team has also started a briefing sessions programme, which provides office managers and clerks with a refresher course on the implementation process, as well as on the completion of the necessary forms.
REGULATIONS
I am pleased to announce that the Department is presently taking steps to have the remainder of the Act, which deals with the promotion of equality, implemented. The target is Women's Day, 9 August 2004. It is important to note that the Act places a duty on the State as well as persons, including civil society and the private sector, to promote equality through the adoption of appropriate measures.
The draft Regulations provides, among others, that:
* all public institutions have to draft equality plans for specific periods
* these plans will have to be implemented 2 years after the Regulations come into operation
* the requirements for equality plans for the private sector are different in that they take into consideration the number of workers employed in the entity
* the South African Human Rights Commission and Commission for Gender Equality play a prominent role as monitoring, reporting and enforcement agencies
* a Code of practice be adopted to which all private entities have to adhere
* non-compliance will be criminally sanctioned
HATE SPEECH
I wish to briefly touch on the issue of hate speech as provided for in the Equality Act. I am sure you have seen the recent media reports relating to the draft Hate Speech Bill that my Department has distributed for comment. The Bill emanates from the Constitution and our international obligation arising from our ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in terms of which member states are required to enact specific legislation relating to hate speech. The Bill is now in a consultation phase and I urge you to submit your inputs. Careful consideration will be given to all representations before we submit this Bill to Cabinet.
EQUALITY REVIEW COMMITTEE
In order to ensure that the Equality Act is effectively implemented, the drafters provided for the establishment of the Equality Review Committee (ERC). The provisions of the Act relating to the Committee have been in operation since September 2000. The Secretariat of the Committee is located in the National Offices of the Department. The ERC is charged with the task of advising the Minister about the operation of the Act and laws that impact on equality. The Committee must also submit regular reports to the Minister on the operation of the Act, addressing whether the objectives of the Act and the Constitution have been achieved.
CONSTITUTIONAL INSTITUTIONS
The Constitutional institutions, especially the South African Human Rights Commission and the Commission on Gender Equality, have a very important role to play in respect of the promotion, protection and implementation of section 9 of the Constitution and the legislation itself. Sections 25 and 28 of the Act, including further elaborations in the new regulations, make specific reference to the responsibilities of these institutions. These institutions will thus be instrumental in ensuring that the right to equality becomes part of the social fabric of our society. Thus the collaboration and cooperation between and with these institutions in advancing the right to equality becomes critical and is being placed centrally to its actual attainment.
JUDICIARY
The judiciary too has a very prominent role in advancing the right to equality. It has already started shaping our jurisprudence in this regard in terms of interpreting the Constitution. The transformation of the judiciary is also very important in this regard. I am very pleased to note that a judge of the Constitutional Court will be addressing the Indaba on the challenges facing equality and the role of the judiciary in promotion equality.
CONCLUSION
The President has provided us with the guidance in his recent State-of-the-Nation address where he recommitted government to "successfully address the important challenges of persisting racial and gender inequalities, the disempowerment of our youth and people with disabilities, and proper care for children and the elderly."
We have over the last 10 years concentrated much of our efforts in putting in place legislative and policy frameworks that speak directly to the Constitution. This was an important process and still remains a priority. However, together with our partners both private and public, we now need to turn our attention to implementation issues. And to do so with indecent haste.
I believe that when meet again to review our performance in advancing the right to equality, we will be able to state that the people of South Africa are secure in the knowledge that they are recognised as human beings equally deserving of respect, and that opportunities have been provided for our people to realise their full potential within positive social relationships.
To this end, my Department will finalise as a matter of urgency, the outstanding legislation and regulations relating to the promotion of Equality, ensure that our Equality Courts and structures in the Department are well resourced and are well resourced and equipped to deal with the matters relating to equality, support and promote the activities of all institutions promoting equality intensify our awareness and education campaigns in conjunction with our partners, and finally ensure that a monitoring and evaluation framework is in place.
I wish you well with your further deliberations, which unfortunately I cannot attend and await the outcome with interest
Thank you.
Issued by: Department of Justice & Constitutional Development
24 June 2004
Source: Department of Justice & Constitutional Development (http://www.doj.gov.za)
Source: Department of Justice and Constitutional Development
Title: J de Lange: National Equality Indaba
OPENING ADDRESS BY ADVOCATE JOHNNY DE LANGE, MP, DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT, AT THE NATIONAL EQUALITY INDABA, Johannesburg, 24 June 2004
Programme Director, Mr Jody Kollapen
Distinguished Guests
Ladies and Gentlemen
It gives me great pleasure, and it is indeed an honour for me to have been requested to participate at this important indaba on equality, in the stead of my Minister Ms Brigitte Mabandla, MP. I would also like to convey Minister Mabandla's regret at not being able to be with you today, as she is abroad.
As you would all know, both the Minister and I are new to this portfolio. I would have liked to have given an input that would be able to highlight all the matters that require addressing around equality issues and map out a proposed departmental strategic vision for obtaining them. However, I restrain my input merely to an exposition of legislative and administrative measures that the Department has embarked on, or is embarking on to realise the right to equality in our country.
Perhaps then, in the circumstances, it is proper that this Indaba takes the lead in identifying these issues, make recommendations and provide further strategic impetus to the process.
INTRODUCTION
My input will therefore focus on where we come from and what has been achieved in the last ten years. It is important that this event should take place as we celebrate our 10th year of democracy. As we celebrate this milestone in our young democracy, it is appropriate that we look back, not only at our achievements in addressing the legacy of inequality, but also our shortcomings in the last decade. This introspection is vital if we are to successfully nurture our young democracy.
Our country was deeply divided because of racial oppression and our society is marked by strong patterns of inequality. The challenge for the new democratic dispensation is to ensure that it not only addresses the obvious inequalities along racial lines, but also effectively deals with the not so obvious or often talked about inequality, characterised along lines of gender and disability.
When we drafted our Constitution we wanted to ensure that our society is rooted in equality and the preservation of human dignity. South Africa is now one sovereign, democratic state founded on, amongst others, the values of human dignity, the achievement of equality, the advancement of human rights and freedoms, non-racialism and non-sexism. The Constitution thus prohibits unfair discrimination in all its forms and in all facets of our society. It provides a framework for the people's contract.
If we accept that the right to equality as entrenched in section 9 of the Constitution is the remedy for systemic patterns of social and economic inequalities of the past, then Government has the responsibility of ensuring that every citizen of this country is in a position to exercise this right. In this context the Constitution provides a rights-based environment within which implementation must take place. We must therefore, as a collective, ensure that the right to equality does not lose its significance.
RIGHT TO EQUALITY
Section 9(1) of the Constitution captures the traditional exposition of the right to equality, namely "Everyone is equal before the law and has the right to equal protection and benefit of the law." However, significantly Section 9(2) then elaborates far beyond the usual rights clauses by adding: "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."
Clearly, the founding drafters of these provisions recognised that the entire social formation in South Africa had been corrupted by privileges based on race and gender discrimination and special measures had to be introduced in order to dismantle the inherited racial order. This fundamental shift in thinking in relation to equality clauses is best captured by President Mbeki in an address to Parliament last year, when he said: "The wording of the 1993 Constitution was even more vocal in its injunction that equality before the law and equal protection of the law should be strengthened by full recognition of the plight of the disadvantaged people, and that measures or steps be taken to achieve the adequate protection and advancement of these people."
Given the history of apartheid and its legacy, it was inevitable, in order to ensure the full and equal enjoyment of all rights and freedoms enshrined in our Constitution, that government should introduce positive measures such as affirmative action. Otherwise, an absolute form of equality, in the classical sense of the word, which does not distinguish between the historically privileged and disadvantaged would amount to entrenching the existing inequalities.
Until we have fully addressed the racist legacy of inequality, which continues to characterise our society and ensure that everyone has a full and equal enjoyment of all rights, and freedoms that constitute equality, we cannot do away with these affirming measures. The duration of the government's affirmative action programmes is therefore directly dependent on the pace and success of our efforts to eradicate the legacy of inequality. The Constitutional Court has already started shaping our jurisprudence regarding the right to equality in this direction. For example, in the case of Pretoria City Council v Walker the Court held that an analysis of the right to equality "cannot be undertaken in a vacuum but should be based both on the wording of the section and in the constitutional and historical context of the developments in South Africa. "
Therefore, recent misplaced calls to remove affirmative action measures or to adopt sunset clauses to limit their duration would be an irresponsible betrayal of not only the Constitutional injunction placed on us, but also the morality and legality underpinning our very existence and our Constitutional state.
I now turn to some of the measures, which are in place or are being put in place by the Department to create a legal framework, based on rationality and legality, within which the "full and equal enjoyment" of substantive equality is to be attained.
EQUALITY COURTS
Turning to Equality Courts, to date 75 cases have been lodged with the designated Equality Courts throughout the country. From these cases the following trends emerge:
* 31 of the cases relate to racial discrimination
* 23 relate to hate speech
* 17 relate to harassment
* 4 relate to discrimination on HIV status
* there are also 16 labour matters referred to the CCMA
There are presently 220 designated Equality Courts throughout the country. While the number of cases reaching these courts is still relatively low, this indicates to us that we must intensify our awareness raising campaigns about the legislation. Since their inception in June 2003, the Department of Justice and Constitutional Development has conducted public awareness campaigns in various areas of the country in order to highlight the importance of these courts.
In order to ensure that these courts are effective we have prioritised training programmes for all presiding officers. To date more than 800 magistrates have been trained in equality matters. More magistrates will receive training so as to ensure that more courts may be designated as equality courts.
The Equality Courts Implementation Project Team has also started a briefing sessions programme, which provides office managers and clerks with a refresher course on the implementation process, as well as on the completion of the necessary forms.
REGULATIONS
I am pleased to announce that the Department is presently taking steps to have the remainder of the Act, which deals with the promotion of equality, implemented. The target is Women's Day, 9 August 2004. It is important to note that the Act places a duty on the State as well as persons, including civil society and the private sector, to promote equality through the adoption of appropriate measures.
The draft Regulations provides, among others, that:
* all public institutions have to draft equality plans for specific periods
* these plans will have to be implemented 2 years after the Regulations come into operation
* the requirements for equality plans for the private sector are different in that they take into consideration the number of workers employed in the entity
* the South African Human Rights Commission and Commission for Gender Equality play a prominent role as monitoring, reporting and enforcement agencies
* a Code of practice be adopted to which all private entities have to adhere
* non-compliance will be criminally sanctioned
HATE SPEECH
I wish to briefly touch on the issue of hate speech as provided for in the Equality Act. I am sure you have seen the recent media reports relating to the draft Hate Speech Bill that my Department has distributed for comment. The Bill emanates from the Constitution and our international obligation arising from our ratification of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) in terms of which member states are required to enact specific legislation relating to hate speech. The Bill is now in a consultation phase and I urge you to submit your inputs. Careful consideration will be given to all representations before we submit this Bill to Cabinet.
EQUALITY REVIEW COMMITTEE
In order to ensure that the Equality Act is effectively implemented, the drafters provided for the establishment of the Equality Review Committee (ERC). The provisions of the Act relating to the Committee have been in operation since September 2000. The Secretariat of the Committee is located in the National Offices of the Department. The ERC is charged with the task of advising the Minister about the operation of the Act and laws that impact on equality. The Committee must also submit regular reports to the Minister on the operation of the Act, addressing whether the objectives of the Act and the Constitution have been achieved.
CONSTITUTIONAL INSTITUTIONS
The Constitutional institutions, especially the South African Human Rights Commission and the Commission on Gender Equality, have a very important role to play in respect of the promotion, protection and implementation of section 9 of the Constitution and the legislation itself. Sections 25 and 28 of the Act, including further elaborations in the new regulations, make specific reference to the responsibilities of these institutions. These institutions will thus be instrumental in ensuring that the right to equality becomes part of the social fabric of our society. Thus the collaboration and cooperation between and with these institutions in advancing the right to equality becomes critical and is being placed centrally to its actual attainment.
JUDICIARY
The judiciary too has a very prominent role in advancing the right to equality. It has already started shaping our jurisprudence in this regard in terms of interpreting the Constitution. The transformation of the judiciary is also very important in this regard. I am very pleased to note that a judge of the Constitutional Court will be addressing the Indaba on the challenges facing equality and the role of the judiciary in promotion equality.
CONCLUSION
The President has provided us with the guidance in his recent State-of-the-Nation address where he recommitted government to "successfully address the important challenges of persisting racial and gender inequalities, the disempowerment of our youth and people with disabilities, and proper care for children and the elderly."
We have over the last 10 years concentrated much of our efforts in putting in place legislative and policy frameworks that speak directly to the Constitution. This was an important process and still remains a priority. However, together with our partners both private and public, we now need to turn our attention to implementation issues. And to do so with indecent haste.
I believe that when meet again to review our performance in advancing the right to equality, we will be able to state that the people of South Africa are secure in the knowledge that they are recognised as human beings equally deserving of respect, and that opportunities have been provided for our people to realise their full potential within positive social relationships.
To this end, my Department will finalise as a matter of urgency, the outstanding legislation and regulations relating to the promotion of Equality, ensure that our Equality Courts and structures in the Department are well resourced and are well resourced and equipped to deal with the matters relating to equality, support and promote the activities of all institutions promoting equality intensify our awareness and education campaigns in conjunction with our partners, and finally ensure that a monitoring and evaluation framework is in place.
I wish you well with your further deliberations, which unfortunately I cannot attend and await the outcome with interest
Thank you.
Issued by: Department of Justice & Constitutional Development
24 June 2004
Source: Department of Justice & Constitutional Development (http://www.doj.gov.za)
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