Promotion of Equality Bill, South Africa

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REPUBLIC OF SOUTH AFRICA

PROMOTION OF EQUALITY ANDPREVENTION OF UNFAIRDISCRIMINATION BILL

(As introdllced in the National Assembly as a section 75 Bill: e.rp[anatory .sl[mman of Billpl[blished in Government G~zzette No. 20572 of j October 1999)

(The English te.rt is the oficial te.rt of the Bill)

(M INISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOP\lENT)

[B j7—99]

i . ~.. ., . .

S N O 621291048







PRE\’ENTION PROHIBITION AND ELIMINATION OF UNFAIRDISCRIMINATION AND PROMOTION OF EOUALITY IN SPECIFIC

SECTORS-

PART C

EMPLOYMEh’T 5

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DefinitionsProhibition of unfair discrimination in employmentMeasures to prevent and eliminate unfair discrimination and to promoteequality in employment

PART D 10

EDUCATION

DefinitionsProhibition of unfair discrimination in educationMeasures to prevent and eliminate unfair discrimination and to promoteequality in education 15

PART E

HEALTH CARE

DefinitionsProhibition of unfair discrimination in respect of health care services andbenefitsMeasures to prevent and eliminate unfair discriminationequality in health

PART F

ACCOMhfODATION, LAND AND PROPERTY

and to

Prohibition of unfair discrimination in respect of accommodation

Prohibition of unfair discrimination in respect of land and propertyMeasures to prevent and eliminate unfair discrimination and toequality in land matters

PART G

INSURANCE

Definitions

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promote

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promote

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Prohibition of unfair discrimination in provision of insurance servicesMeasures to prevent and eliminate unfair discrimination and to promoteequality in provision of insurance services

PART H 35

PENSIONS

DefinitionsProhibition of unfair discrimination in respect of pensionsMeasures to prevent and eliminate unfair discrimination and to promoteequality in respect of pensions 40



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PART I

GOODS, SERVICES AND FACILITIES

31. Definitions32. Prohibition of unfair discrimination in provision of goods, services ~d

facilities j

33. lMeasures to prevent and eliminate unfair discrimination and to promoteequality in provision of goods, services and facilities

PART J

ASSOCIATIOiVS AND PARTNERSHIPS

34. Prohibition of unfair discrimination in respect of associations35. Prohibition of unfdir discrimination in respect of ptiflrrerships

36. Measures to prevent and eliminate unfair discrimination and to promoteequ~lity in associations and partnerships

PART K

CLUBS AND SPORT

37. Definitions38. Prohibition of unfair discrimination by clubs39. Measures to prevent and eliminate unfair discrimination and to promote

equality in respect of clubs and sport

PART L

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PROFESSIONS

40. Definitions41. Prohibition of unfair discrimination by professional bodies42. Measures to prevent and eliminate unfair discrimination and to promote

equality in professions 25

CHAPTER 3

DEFENCES ACTS DONE FOR N1ORE THAN ONE REASON AND BURDENOF PROOF

43. Defence to a claim of unfair discrimination44. Acts done for more than one reason45. Burden of proof

CHAPTER 4

EQUALITY COURTS

46. Institution of proceedings in terms of or under Act

47. Equality courts48. Powers and functions of equality court49. Assessors50. Appeals

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3j

PRON1OTION OF EQUALITY 40

51. Promotion of equality



CHAPTER 6

GENERAL PROVISIONS AND IMPLEMENTATION OF ACT

52. RegUl~[i~[ls

53. I~llI~lellletltatic~[l of Act

CHAPTER 7,

REVIEW OF ACT, SHORT TITLE AND COMMENCEMENT

54. Establishment of reviev’ committee55. Functions of review committee56. Short title and commencement

CHAPTER 1

DEFINITIONS, OBJECTS, INTERPRETATION, GUIDING PRINCIPLES ANDAPPLICATION OF ACT

Definitions1. In this Act, unless the context indicates otherwise—

(i) “Commission for Gender Equality.’ means the Commission for Gender Equality

referred to in section 187 of the Constitution;(ii) “complainant” means any person who alleges any contravention of this Act and

who institutes proceedings in terms of the Act:

(iii) “Constitution’. means the Constitution of the Republic of South Africa. 1996(Act No. 108 of 1996):

(iv) “constitutional institution.. means any of the relevant institutions supportingconstitutional democracy referred to in Chapter 9 of the Constitution andincludes the Pan South African Language Board;

(v) “Department” means the Department of Justice and Constitutional Develop-ment;

(vi) “disability discrimination” includes—

(a) any act, practice or conduct which has the effect of unfairly hindering orprecluding any person or persons who have or who are perceived to havedisabilities from conducting their activities freely, and which undermines

their sense of human dignity and self-worth, and prevents their full andequal participation in society;

b any systemic. societal or individual act, conductor practice which has thedirect or indirect effect of unfairly defining persons with disabilities by-

(i) denying or removing from any person who has a visual or hearingimpairment or any other disability from their supporting orenabling facility necessary for their function in society, such as ahearing aid, a guide dog, braille, sign language or appropriateinformation technology;

(ii) contravening the code of practice or regulations of the SouthAfrican Bureau of Standards that govern environmental accessi-bility:

(iii) failing to take reaso[lable steps to accommodate the needs of aperson or persons with disabilities:

i ”) failing to identify or eliminate obstacles that unjustly limit o rrestrict persons with disabilities from enjoying equal opportuni-

ties;

(vii) “equality cour[’. means a court contemplated in section 47, read with section 53.

and includes “court..:(viii) “equality court assistant” means an equality COUrt assistant appointed in terms of

section 47, read with section 53, and includes “an assistant”;(ix) “harassment” means en agirrg in unwanted verbal, non-verbal or physical

conduct that denigrates, humiliates or shows hostility or aversion towards aperson or a group of persons because of their membership of, association with,

or a quality that pertains to, or is imputed to pertain to, a roup identified by oneor more of the prohibited rounds when such conduct—

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(b) in the granlillg of scholarships. bursaries. or any other form of assistance to alearner:

(c) in the provision of standard education;

(d) in the pro\ision of benefits. facilities or services related to education:(c} in the discipline of a learner: 5

(f) in the expulsion of a learner:(s) in the forcible segregation of learners with special needs into special schools,

based on their disabilities and not on their educational interests or capabilities:

1 1 in the provision of reasonable accommodation relating to cultural andreligious diversity. 10

(2) Any person who or that sets educational or vocational standards may not setstandards that unfairly discriminate against any person.

Measures to prevent and eliminate unfair discrimination and to promote equalityin education

18. The Minister responsible for education must take steps necessary to prevent and 15

eliminate unfair discrimination and to promote equality in the area of education ascontemplated in section j 1(4).

PART E

HEALTH CARE 20

Definitions

19. In this Part—

(i) .’health care services’. -

a includes those services necessary to ensure a state of complete physical.mental and social well-being and not only services aimed at ensuring the 25absence of disease and infirmity; and

(b) are not limited to those services aimed at preventing, diagnosing,alleviating, curing, healing and treating conditions that threaten orcompromise a person’s state of complete physical, mental and socialwell-being; 30

(ii) “health care benefits.’ includes but are not limited to subsidies, health insuranceand pensions.

Prohibition of unfair discrimination in respect of health care services and benefits

20. (1) No person may unfairly or unreasonably discriminate against any person inthe provision of health care services in any manner, includin the following: 35

(a)

(b)

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d

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(1?)

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By denying or refusing any person access to health care facilities or failin tomake health care facilities accessible to any person;in the nature or t>pe of health care services that are provided;in the terms, conditions or criteria in terms of which access to health careservices are pro\Jided: 40

in the manner in v’hich access to health care services are provided:in the qufllity of health care services that are pro~,ided:

by assuming that persons with disabilities should not or cannot procreate.adopt or care for a child. or foster or nurture a family environment purely on

the grounds that a person or a couple may have a disability or disabilities: 45

by precluding a person from contributing to his or her medical care ortreatment purely on the grounds that the person has a psychiatric or mentaldisability;by refusing to provide standard treatment or health care services to a personpurely on tbe grounds that the person has a disability; 50

by revealing a person’s health status to an employer, family member or other

person or body without receiving the person’s written permission orauthorisation. but taking into account national laws and policies relating tospecific notifiable diseases;by subjecti]lg any person to any unfair disadvantage re arding access to health 55care services;







the exclusion of any person from membership of a retirement fund or fromreceiving any benefits from the fund on one or more of the prohibited grounds;

unfair discrimination against one or more members or other beneficiaries of a

retirement fund.

NIeasures to prevent and eliminate unfair discrimination and to promote equality 5

in respect of pensions

30. The Minister responsible for pensions, in conjunction with other relevant

Ministers, must t e steps necessary to prevent and eliminate unfair discrimination and

to promote equality in the area of pensions as contemplated in section 5 l(4).

PART I 10

GOODS, SERVICES AND FACILITIES

Definitions

31. In this Part “services” includes services—

z) relating to banting and the provision of grants, loans, credit or finance;(b) relating to entertainment, recreation or refreshment: 15

(c) relating to transport or trdvel;

(d) provided by the State.

Prohibition of unfair discrimination in provision of goods, services and facilities

32. No person who provides goods or services, or m~es facilities available, Z.

whether for payment or not, may unfairly or unreasonably discriminate directly or

indirectly against any person or persons, in any manner, including the following:

(a) By refusing or failing to provide the goods or services in question or to m~ethe facilities in question available to any person or group of persons;

(b) in the terms or conditions in terms of which the goods, services or facilities are 25

provided or made available, as the case may be;

(c) in the manner in which the goods, services or facilities are provided or madeavailable;

(d) by imposing terms, conditions or practices that perpetuate the consequencesof past discrimination or exclusion regarding access to financial resources.

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Nleasures to prevent and eliminate unfair discrimination and to promote equality

in the provision of goods, services and facilities

33. The Minister responsible for finance, in conjunction with other relevantMinisters, must t e steps necessa~ to prevent and eliminate unfair discrimination and

to promote equality in the provision of goods, services and facilities as contemplated in 35

section 5 1(4).

PART J

ASSOCIATIONS AND PARTNERSHIPS

Prohibition of unfair discrimination in respect of associations

34. (1) No association may unfairly or unreasonably discriminate directly or 40

indirectly against any person who is not a member of the association in question in anymanner. including the following: ,

z) In the manner in which members are recruited;(b) by refusing or failing to consider J person’s application for membership of the

association; 4j

(c) in determining the terms or conditions in terms of which the association inquestion is prepared to admit a person as a member.

(2) No Jssociatioll may unfairly or unreasonably discriminate directly or indirectly~galnst any member. in ~ny manner, including the following:





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(b) by refusing or failing to consider a persons application for a different class or

type of membership;

(c) by denying or limiting access to any benefit, arising from membership, that isprovided by the club;

(d) by depriving a member of membership or varying the terms of membership; 5(e) by treating a member unfavorably in any manner in connection with the

membership or affairs of the club; ~) by subjecting the member to any other unfair disadvantage.

Nleasures to prevent and eliminate unfair discrimination and to promote equality

in respect of clubs and sport 10

39. (1) All clubs and national and provincial sport structures which benefit directlyor indirectly from public resources must identify all forms of inequality anddiscrimination in this sector and tke steps to eradicate such inequality, paying particularattention to the recruitment and equitable representation of designated groups inselection, administration, coaching and refereeing. lj

(2) The Minister must ttie steps necessary to prevent and eliminate unfairdiscrimination and [o promote equality in the areas of sport and recreation ascontemplated in section 5 1(4).

PART L

PROFESSIOIVS

Definitions

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40. In this Part—(i) “profession” means an occupation that requires tertiary education and

specialised training and shlls, and that is regulated by a professional body;(ii) ‘professional body” means a recognised body which is established to exercise 25

control over and regulate the profession in question and its members.

Prohibition of unfair discrimination by professional bodies

41. (1) No professional body may. unfairly or unreasonably discriminate directly orindirectly, against any person who wishes to become a member of the profession in

question in any manner, including the following: 30

a In the manner in which members are recruited to the profession; b by refusing access to training;(c) by refusing or failing to accept a person’s application for membership of the

profession;

(d) in the terms or conditions in respect of which the professional body is 35prepared to admit a person as a member of the profession.

(2) No professional body may, unfairly or unreasonably discriminate directly orindirectly, against a member of the profession in any manner. including the following:

a In the terms or conditions of membership which are afforded to the member;

b by denying the member access to, or by limiting the member’s access to, any 40

benefit or facility provided by the professional body;(c) by depriving a member of membership or varying the terms of membership of

the professional body;

(d) by subjecting the member to any other disadvantage:

(e) by imposing terms and conditions which perpetuate present disadvantages 45emanating from the past.

hIeasures to prevent and eliminate unfair discrimination and to promote equality

in professions

42. The Nlinister r e s p o n s i b l e for [abour, in conjunction with other relevant

I\Iinisters. must take steps necessary to prevent and elimin~te unf:lir discrimination and 50to promote equalit in the area of professions :]s contemplated in section 5 I (4).















(j) the granting of legal aid at State expense in appropriate cases in consultationwith the Legal Aid Board:

(k) the appearance of persons on behalf of the parties to the proceedings in court.which may include suitable persons other than attorneys or advocates:

(/) any other matter which is necessary to prescribe in order to regulate theservice of assessors in the equality courtj:

1~~ any matter required or permitted to be prescribed by regulation under this Act:

~~ any other matter which is necessary to prescribe in order to achieve the objects

of this Act.(2) Any regulation made under this section which may result in expenditure for the

State. must be made in consultation with the Minister of Finance,(3) A regulation made under this section may provide that any person who

contravenes a provision thereof or fails to comply therewith is guilty of an offence and

on conviction is liable to a fine or to imprisonment for a period not exceeding threemonths.

(4) Any regulation made under this section must be tabled in Parliament before

publication thereof in the Gu~erre.

(5) The re ulations made in terms of this section, and particularly subsection (1)(b)

relating to the procedure at an inquiry. must, as far as possible, ensure that theapplication of the Act is simple. fair and affordable.

Implementation of Act

53. (1) Despite section 47(1 a and (b). and until the Minister determines by noticein the Gazette, no proceedings may be instituted in any court unless—

(u) a presiding officer is available who has been designated as such by theMinister after consultation with the Magistrates’ Commission or the JudicialService Commission. as the case may be, by reason of his or her training.experience, expertise and commitment to the values of equality and humanrights; and

b one or more trained equality court assistants are available.(2) For purposes of giving full effect to this Act and makin the Act as accessible as

possible and in giving effect to subsection (1), the Minister may designate suitablemagistrates, additional magistrates, assistant magistrates or judges, as the case may be,and equality court assistants referred to in subsection (1) as presidin officers andequali[y court assistants, respectively, for one or more equality courts.

(3) The Minister must take all reasonable steps within the available resources of theDepartment to achieve the progressive realisation of the appointment of at least onepresiding officer and equality court assistant for each court in the Republic.

(4) The Minister must, after consultation with the Magistrates’ Commission and theJudicial Service Commission issue policy directives and develop training courses witha view to—

(a) establishing uniform norms, standards and procedures to be observed bypresiding officers and equality court assistants in the performance of their

functions. in the c~ing out of their duties and in the exercising of theirpowers as such in terms of or under this Act; and

b building a dedicated and experienced pool of trained and specialised presidingofficers and equalit} court assistants.

(5) The Minister must table in Parliament a copy of any policy directives and trainingcourses issued or developed in terms of subsection (4) as soon as possible after the

finalisation thereof,

CHAPTER 7

RE\JIEW OF ACT. SHORT TITLE AND COMMENCEMENT

Eshblishment of review committee

54. The Minister must, within five years after the commencement of this Act. bynotice in the GaZerte, establish a Review Committee consisting of—

(a) a senior judicial officer with appropriate qualifications;

(b) tie Chairperson of the South African Human Rights Commission;

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(c) a member of any relevant constitutional institution, a representative of civilsociety and an expert in the field of human rights, especially the right to

equality.

Functions of Review Committee

55. (1) The Review Committee— j(a) must advise the Minister about the operation of this Act;(/)) may advise the Minister about any law that impacts on equality;(c) has the other functions and powers as prescribed:

(d) must, as soon as practicable, submit a report to the Minister on the operation

of the Act, which must address whether the objectives of the Act and the 10Constitution have been achieved and must make recommendations on any

necessary ~mendments to the Act to improve its operation.(2) The Review Committee may conduct its business and proceedings at its meetings

as it deems fit.

Short title and commencement 15

56. (1) This Act is called tht Promotion of Equality and Prevention of UnfairDiscrimination Act, 1999, and comes into operation on a date fixed by the President byproclamation in the ~t~ette

2 Different dates may be so fixed in respect of different provisions of this Act.





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the persons or institutions which can institute proceedings in the equality COUrts.

Eve~ Magistrate’s Court and High Court is, in terms of clause 47, an equality court,within its existing monetary jurisdictional limits, but initially and in terms of clause

53, no proceedings may be instituted in any such court in terms of this legislationunless a presiding officer (that is a magistrate or judge, as the case may be) is avail-able who has been designated as such by the Minister. after consultation with theMagistrate’s Commission or the Judicial Service Commission. by reason of his or her

training, experience, expertise and commitment to the values of equality and hum~nrights. Clause 48 sets out a range of orders which an equality Coufi can make. Clause

49 deals with the appointment and regulation of assessors, who Ire members of the

court for purposes of the legislation, except in so far as a finding on a question of law is involved. Clause 50 deals with appeals from equality courts, either to the High

Court having jurisdiction or the Supreme Court of Appeal.

9. Chapter 5, dealing with the promotion of equality, sets out the duties of the Stute,

as defined in clause 1, and the constitutional institutions supporting democracy relat-ing to the promotion of equality, requiring them to take certain positive measures toensure that real equality is achieved as far as possible.

10. Chapter 6, dealing with general provisions and the implementation of the legisla-tion, empowers the Minister to make regulations in respect of a number of matters,

eg the powers, duties and functions of equality court assistants, the procedure to befollowed in an inquiry in terms of the legislation (which must be simple. fair andaffordable), the appointment of assessors, the question of legal aid and the appear-ance of persons on behalf of parties to the proceedings in court, which may includesuitab]e persons other than attorneys or advocates.

11, Chapter 7 of the Bill, dealing with the review of the legislation and the short title

and commencement thereof, empowers the Minister to establish a review committeeto advise the Minister on the operation of the legislation, any other law that impactson equality and any changes that should be made to the legislation to improve itsoperation.

FINANCML INIPLICATIONS

12 . The Bill has been drafted in a manner to ensure, as far as possible, that existingpersonnel and structures can be used to implement and apply the legislation. Whileevery effort will be made to use existing resources to implement this legislation, it isforeseen that there will be financial implications if the legislation is to be imple-mented successfully, for example the development of training programmed, the train-

ing of presiding officers, equality court assistants and assessors, the payment of allowances to assessors, the granting of legal assistance to complainants and the pos-sible expansion of the South African Human Rights Commission. It has been sug-gested that an amount of R50 million be set aside on a contingency basis for theproper and successful implementation of the Bill.

13 . During the research into and the preparation of the legislation, extensive consul-tation took place in the form of reference groups and workshops, to which relevantrole-players, including State Departments, were invited,

PARLIAMENTARY PROCEDURE

14. In the opinion of the Department and the State Law Advisers this Bill should bedealt with in terms of section 75 of the Constitution, since it contains no provisionsto which the procedure set out in section 74 or 76 of the Constitution applies.

Documents

Promotion of Equality Bill, South Africa