Prepared by the Research Unit, Parliament of South Africa

DRAFT REPORT ON THE IMPACT OF THE EQUALITY ACT ON THE LIVES OF WOMEN AND PEOPLE WITH DISABILITIES

12 December 2006

Table of contents /

Page

Executive Summary / i
1. / Introduction / 1
2. / Key themes emanating from the review / 2
2.1. / Inequality on the basis of gender / 3
2.1.1. / Income inequality / 4
2.1.2. / Equal access to land and property / 5
2.1.3. / Gender-based violence / 7
2.1.4. / Institutional mechanisms aimed at promoting gender equality / 10
2.1.5. / Women in decision-making positions / 13
2.2. / Inequality on the basis of disability / 14
2.2.1. / Access to employment / 15
2.2.2. / Access to information / 16
2.2.3. / Access to an integrated public transport system and public buildings / 16
2.2.4. / Inclusive and quality education / 17
2.3. / Mechanisms created by the equality Act to protect and promote the right to equality / 18
2.3.1. / Equality Courts / 18
2.3.2. / Equality Review Committee / 19
2.3.3. / The role of State Institutions Supporting Democracy / 20
3. / Conclusion / 23
4. / Recommendations / 25

Bibliography

Executive Summary

Section 9 of the Constitution provides for the enactment of national legislation to prevent and prohibit unfair discrimination, and to promote the achievement of equality. The Promotion of Equality and Prevention of Unfair Discrimination Act (No. 4 of 2000), also known as the ‘Equality Act’, was passed to give effect to this constitutional requirement by prohibiting practices that perpetuate inequality, and by promoting equality in all spheres of South African life.

Recognising that this year marks the tenth anniversary of the passing of the Constitution, Parliament embarked on a process to review the impact of the Equality Act on the lives of women and people with disabilities. The Equality Review Campaign consisted of a desktop study on the impact of the Equality Act as well as a series of hearings and oversight visits hosted in the main by the Joint Monitoring Committee on Improvement of Quality of Life and Status of Women and the Joint Monitoring Committee on Improvement of Quality of Life and Status of Children, Youth and Disabled Persons. The main findings emanating from the review process include the following:

Income inequality

The review revealed that discrimination and inequity remain common in South African society, with contributors arguing that women’s continuing inequality is attested to by the very high levels of gender-based violence in South Africa, and the fact that women constitute “the majority of the poor, the homeless, the jobless and the dispossessed”. Initiatives to achieve both the prevention and elimination of unfair discrimination and the promotion of equality have not sufficed in eliminating the scourge of inequity from South African society. It has further been argued that this problem is particularly exacerbated in rural areas due to a lack of resources and infrastructure.

The review highlighted the fact that income inequality between men and women because of the concentration of women in lower-paid, temporary or casual employment, or employment in the informal sector. The majority of women in South Africa, particularly black women, are poor. Chapter 5 of the Equality Act provides that Ministers must ensure that legislation and policies for which they are responsible do not perpetuate inequality. It further provides that appropriate laws and policies be put in place with a view to eliminating unfair discrimination. As far as employment equity is concerned, the legislation and policies envisaged in Chapter 5 of the Equality Act are in place. The mechanisms for monitoring progress in this regard have also been put in place, although the Department of Labour is experiencing difficulties in getting companies to comply with equity targets, and to comply with reporting requirements.

Access to land

The review further found that, while there is formal commitment in South Africa to gender equity in land reform, implementation of land reform programmes remains a problem. The pace of land delivery to the previously disadvantaged South Africans is relatively low when one considers the fact that approximately 4% of land has been delivered to black people since 1995. It has further been argued that the absence of a strong lobby for land rights among rural women and strength of patriarchal attitudes and practices in society meant that implementation of land rights for women received far less attention. In addition, there is lack of knowledge of their rights to land brought about by land reform programme among rural women.

The fact that many women are unable to own land and housing also emerged as key impediments to enhancing the quality of their lives, and negatively impacts on their economic status and on equality in general. In addition, if the land transferred to women is not suitable for agricultural purposes, for example, then gendered poverty, as a manifestation of inequality, has not been addressed. Unless women have access to support that will enable them to utilise land transferred to them, including training and credit, the transfer runs the risk of becoming meaningless.

The review also suggests that the implementation of legislation has been weak because of challenges with regard to the skills of land reform implementers, the appointment of dedicated staff with gender skills, the development of gender sensitive grant and credit systems and gender sensitive communication strategies as well as promoting the development of women commercial farmers.

Gender-based violence

Violence against women and gender-based violence (including rape, domestic violence, female genital mutilation, murder and sexual abuse) is a common phenomenon in South Africa, and, according to many observers, indicative of women’s unequal status in society. A study published by the Medical Research Council in 2004 indicated that every six hours, a South African woman is killed by her intimate partner.

The most important legislative measures aimed at combating gender-based violence are the Domestic Violence Act (Act No. 116 of 1998), but the implementation of this Act has proven to be challenging. There is a lack of dedicated resources for combating gender-based violence and for the protection of survivors of such violence. Furthermore, the review suggested that problematic attitudes on the side of police officials and court personnel present a major challenge for persons reporting gender-based violence, as these officials often see gender-based violence not as a criminal matter, but a domestic issue.

It has been suggested that domestic violence is increasingly perceived as unacceptable. However, submissions to the review indicated that where physical violence from a partner has abated, it has often been accompanied by an increase in emotional abuse. This gives rise to further complications, according to another submission, as magistrates do not appear to apply the definitions of concepts such as emotional and economic abuse consistently. These issues point not only to the need for greater and sustained public awareness on gender-based violence, but also continued focus on strengthening the implementation of the legislation aimed at protecting women.

Institutional mechanisms aimed at promoting gender equality

All the phases of the review examined the manner in which institutional mechanisms established to promote equality have contributed to greater equality. What has emerged is that the establishment of Gender Focal Points (GFPs) in line with the provisions of the National Policy Framework for Women’s Empowerment and Gender Equality continues to generate cause for concern. The level at which GFPs are appointed impacts negatively on the skills these positions are able to attract, and on the effectiveness of this work at provincial and local level. While structures are in place in many provinces and local government, the national gender machinery is not functioning as effectively as envisaged. It also became clear that the monitoring process has been hampered by insufficient and inappropriate information being provided by officials.

Women in decision-making positions

South Africa has made significant strides in increasing the numbers of women in decision-making, particularly in government and Parliament. In terms of rankings determined by the Inter-Parliamentary Union, South Africa ranked 13th in the world in relation to the number of woman Members of Parliament. There are currently 131 woman Members in the National Assembly, and 19 woman Members in the National Council of Provinces.

In addition, various forums have been established within Parliament to deal with gender issues. These include the multi-party Women’s Parliamentary Caucus, the Joint Monitoring Committee on the Improvement of Quality of Life and Status of Women, and the Women’s Empowerment Unit, which is located in the Speakers’ Forum.

In relation to government departments, the review indicated that a number of departments are doing relatively well in terms of its ratio of women to men both in positions of leadership and in departments generally. However, the organisational profile of most State structures and private sector organisations is skewed in favour of men, particularly in positions of decision-making. Sexual harassment also remains a critical issue, as is the development of a gender sensitive organisation ethos, culture and practices.

Inequality on the basis of disability

The Equality Act provides that neither the State nor any person may unfairly discriminate against any person on the ground of disability. It has emerged from the review process that, notwithstanding the political will to eradicate inequality, the appropriation of adequate resources for related initiatives continues to be a significant problem. There were also arguments indicating that the mainstreaming of disability issues has not been successful, and that those issues affecting people with disabilities may be dealt with more effectively if each department had a dedicated section that deals with disability issues.

Access to employment

The equality review has highlighted different factors that continue to act as barriers to persons with disabilities obtaining employment. Given the limitations that persons with disabilities have had in terms of access to education, it is more difficult for a significant proportion of them to find employment. Targets set for the training of persons with disabilities are not being met. It has further been noted that many of the programmes that address the needs of disabled people are disability specific, i.e. targeting only disabled people and therefore likely to inadvertently cause their further isolation.

According to submissions to the review process, employment equity plans often fail to take cognisance of the special needs of workers with disabilities, such as providing special technology to assist visually impaired employees. This suggests that the monitoring mechanisms that should ensure the implementation of employment equity plans are not functioning effectively.

Access to information

Persons with disabilities, specifically those living with intellectual disabilities, find it difficult to access information on government programmes, on health issues and on economic opportunities. It was noted, for example, that persons with disabilities are often ignored when providing communities with HIV and AIDS information. Existing information is often not available in a useable form. It was further noted that public buildings that do not have wheelchair-friendly ramps, prevent people with disabilities from gaining access to information.

Access to an integrated public transport system and public buildings

Persons with disabilities struggle to make use of the public transport system, thereby limiting their ability to participate fully in society. The review process illustrated that, while Government was making efforts to develop a fully integrated public transport system, the disability sector must fully participate in this process if it is to be meaningful. Similarly, the disability sector is often left out of the process of improving the accessibility of public buildings. This results in resources being spent on changes that often do not make any difference in terms of ensuring that persons with disabilities have equal access to public spaces.

Inclusive and quality education

Statistics dealt with during the equality review suggest that learners with disabilities continue to experience inequality. While Government has committed itself to inclusive education, and to the integration of learners with special educational needs, submissions suggest that this is not being put into practice. Educators are not adequately equipped to deal with learners with special educational needs. Additionally, the school transport system does not provide for learners with physical disabilities, which limits their access to quality mainstream education. In relation to the needs of children with severe mental disabilities, it was argued that the Department of Education was not taking on its responsibility for funding educational programmes for such children, as it should, in line with the principle that every child has the right to have his or her learning potential developed.

Mechanisms created to protect and promote the right to equality

Equality Courts

The Equality Act establishes a specialised court, known as the Equality Court, within the existing court system, to hear complaints concerning unfair discrimination on a number of listed grounds, including race, gender and disability, and unlisted grounds such as HIV status. Notwithstanding the progress made with establishing Equality Courts, these courts are currently under-utilised. A lack of public awareness was a major reason for the low number of cases being brought to these courts. The training of magistrates, court personnel and the SAPS emerged as another key area of concern in the functioning of the courts. It was further argued that the cost of private legal representation prevents complainants from successfully bring a complaint to the Court, and that the formal manner in which the courts function could intimidate complainants and witnesses.

Equality Review Committee

Section 32 of the Equality Act provides for the establishment of an Equality Review Committee to advise the Minister of Justice on the operation of the Act, laws that impact on equality, as well as submit regular reports on whether the objectives of the Act and the Constitution have been achieved. The Equality Review Committee was established in September 2000, and to date, the Committee has compiled only 4 reports, which are all still in draft format and are therefore not available to the public. Meeting procedures for the Equality Review Committee have not been established, which hampers the work of this Committee.

An important issue that the Committee was supposed to have advised the Minister on is whether HIV status should be included in the Act as a ground for unfair discrimination. In light of the stigma attached to being HIV-positive, it was argued that HIV status should be expressly included in “prohibited grounds”, providing HIV positive persons with protection against unfair discrimination.

The role of State Institutions Supporting Democracy

The Equality Act provides for very specific roles for Commission for Gender Equality (CGE) as well as for the South African Human Rights Commission (SAHRC). Submissions to the review process pointed out that these institutions should play a much more proactive role in investigating reports of discrimination and bringing these complaints before the Equality Court.

While the CGE and the SAHRC must monitor the measures taken by government departments and public institutions to promote equality, neither the SAHRC nor the CGE was required to report to Parliament on these matters. It has therefore been argued that these institutions should be required to report to Parliament on their work in this regard.

The CGE indicated that it was not functioning optimally, as the Commission on Gender Equality Act provided for too many Commissioners. It called for a streamlining of its composition, as well as a mechanism that will ensure that Commissioners have a thorough understanding of the legal framework within which the CGE operates.

It further emerged from the review process that the sections in the Equality Act dealing with the preparation and implementation of equality plans have yet to come into operation, as regulations pertaining to these sections have not yet been finalised. Until these regulations come into operation, the SAHRC, as well as the other Constitutional Institutions, are severely hampered in their ability to monitor what is being achieved in promoting equality and to insist that both State Departments and private institutions take proactive measures to promote equality.

Issues for consideration and recommendations

In light of the insights emanating from the review process, the JMCs make a number of recommendations, including the following:

That the Committees of Parliament responsible for justice issues engage the Department of Justice and Constitutional Development on the functioning of the Equality Review Committee.

That, in light of the fact that Parliament is sometimes provided with misdirected and meaningless information with regards to the functioning of the national gender machinery, the relevant Committees of Parliament are explicit and specific with regard to information requested from government departments.
That the relevant Committees of Parliament engage with the Department of Provincial and Local Government on the manner in which the national gender machinery has been put into operation.
That the relevant Committees of Parliament avail themselves of additional information from stakeholders in order to facilitate a comprehensive, more accurate assessment of the national and provincial situation as it pertains to gender.

That the Committees of Parliament responsible for education issues engage with the Department of Education on the implementation of the policy on inclusive education.

That, when the relevant Committees of Parliament engage with the Department of Transport on the implementation of an Integrated Public Transport, attention be paid to the needs of persons with disabilities.

That the relevant Committees of Parliament continue overseeing the establishment of Equality Courts. This includes engaging with the Department of Justice and Constitutional Development on its programme for raising public awareness around the function and scope of the Equality Act, as well as the existence and role of Equality Courts.
That the relevant Committees of Parliament monitor the functioning of Equality Courts at court level.
That the question of access to justice be investigated with a view to ensuring that financial constraints do not prevent complainants from bringing matters to the Equality Court.
That attention be paid to the manner in which language and a lack of access to information remain barriers to substantive equality for persons with disabilities.
That the relevant Committees of Parliament undertake a review of conflicting provisions governing the role of State Institutions Supporting Democracy (also known as Chapter 9 institutions) so as to ensure that they can play their role as envisaged in the Equality Act.
That the Equality Act be reviewed to ensure that Chapter 9 institutions are indemnified against adverse cost orders, as the possibility of an adverse cost order is currently impacting on the willingness of these institutions to institute proceedings on behalf of claimants.
That the relevant Committees of Parliament regularly invite Chapter 9 institutions to give an account of their work in terms of the Equality Act.
That Chapter 9 institutions be encouraged to bring cases before the Equality Court on behalf of complainants that cannot afford private legal representation, as the inaccessibility of the court at this level has been raised repeatedly during the review of the Equality Act.