27 OCTOBER 1999
It is hereby announced that the above Bills are to be tabled today in Parliament by the Minister for Justice and Constitutional Development. Both Bills make provision for legislation for which, in terms of the Constitution, must be enacted by Parliament before 4 February 2000.
1. The Promotion of Equality and Prevention of Unfair Discrimination Bill of 1999
This Bill is in response to the Constitutional mandate derived from Section 9(2) which requires Government to pass a national legislation giving effect to equality.
It provides a framework for eradicating the legacy of apartheid and other forms of discrimination, which currently prevail in our society.
In promoting this Bill, Government took into account the fact that the oppression and the dispossession of the majority of South African People, was entrenched and sustained through the law. Although most of those laws have been repealed, the social consequences still remain with us and continue to prevail in all spheres of life in this country.
The Bill will provide an instrument for eradicating this social legacy of the past.
In keeping with substantive notion of Equality, the Bill goes further than a mere passive approach to discrimination. It acknowledges that discrimination is currently a reality and that Government and various key role players in society are faced with the serious challenges of eliminating it.
Chapter 2 of the Constitution containing our Bill of Rights is the cornerstone of democracy in South Africa. This Bill of Rights protects the rights of all people in South Africa and it confirms the democratic values of human dignity, equality and freedom, which must be respected, protected and promoted by the State. It must be noted that our constitution acknowledged the current reality of structural inequality and discrimination that continues along the lines of the social stratification engineered by colonialism and apartheid.
The Bill also seeks to provide a vehicle for incorporating the Convention on the Elimination of all Forms of Discrimination Against Women and the Convention of All Forms of Racial Discrimination, into our domestic law, following ratification.
The key features of the Bill include the following:
The guiding principles are intended to foster a purposive interpretation of the Act and to "pave the way" for special rules of procedure, special training of judicial officers,, the facilitation of legal assistance in deserving cases, the balancing of punitive measures and corrective or positive measures and the facilitation of expeditious, affordable, participative and, where possible, informal dispute resolution procedures. Regarding the application of the legislation, the proposed Act binds not only the State but also all persons, including juristic persons.
The Bill also deals with the prohibition and elimination of unfair discrimination and contains a general prohibition on any kind of unfair discrimination. Besides this general prohibition of unfair discrimination, the draft legislation, mindful of South Africa's past, specifically singles out gender discrimination and racial discrimination by giving them special attention, but not to the exclusion of other forms of unfair discrimination as envisaged in section 9(3) of the Constitution.
The Bill goes on to deal with numerous sectors in an attempt to eliminate and prevent unfair discrimination in areas of everyday life. For example the areas of employment, education, health care, accommodation, land and property, insurance, pensions, goods, services and facilities, associations and partnerships, clubs and sport and the professions.
The Bill also makes provision for special enforcement mechanisms. It provides for the designation of special Magistrate's and High Courts as equality courts, within their existing monetary jurisdictional limits. Designated courts will be those where there are Magistrates or Judges designated as equality court Magistrates/Judges. The designation by the Minister after consulting with the appropriate Commission, will be based on the skills, knowledge and attitude of the judicial officer in question. Persons who are currently not judicial officers, may be appointed as judicial officers in the normal way or in an acting capacity and then designated as equality judicial officers, where necessary.
Regulations will be made by the Minister for Justice and Constitutional Development in respect of a number of matters after the legislation has been passed by Parliament. These relate to matters such as the powers, duties and functions of equality court assistants, the procedure to be followed in an inquiry in terms of the legislation (which must be simple, fair and affordable), the question of legal aid and the appearance of persons on behalf of parties to the proceedings in court, which may include suitable persons other than attorneys or advocates.
The Bill also requires that a Review Committee be established to advise the Minister on the operation of the legislation, any other law that impacts on equality and on any changes that should be made to the legislation to improve its operation.
This Bill has been a product of extensive consultations with all the role players such as Government Departments, Non-Governmental Organisations, Community Organisations the South African Human Rights Commission, the South African Law Commission, Gender Commission, other Quasi Governmental Organisations, academic institutions as well as individuals.
Every effort has been made, as in the case of the Constitution, to make this legislation as simple as possible, user-friendly, that is in plain language for use by everyone.
The Administrative Justice Bill, 1999:
This Bill deals with the rights set out in section 33 of the Constitution, and aims to: give effect to the right to administrative action that is lawful, reasonable and procedurally fair; give effect to the written reasons for administrative action; impose a duty on administrators to give effect to those rights; establish fair administrative procedures; and provide for the review of administrative action.
Members of the public are invited to submit written comments on these Bills to the Secretary to Parliament, P O Box 15, Cape Town 8000, before 12 November 1999. Copies of the Bills are available on the website of Parliamentary Monitoring Group at "http:// www.pmg.org.za".
ISSUED BY PAUL SETSETSE ON BEHALF OF DR MADUNA:
CAPE TOWN
27 OCTOBER 1999
cell: 083 2524 770