Women Empowerment and Gender Equality Bill [B50-2013]: public hearings with Minister

Meeting report

The Chairperson welcomed everyone including the Minister for Women Children and People with Disabilities and Commissioners from the Commission on Gender Equality.

In her opening remarks the Chairperson stated that since the advent of democracy, South Africa had made a significant stride in enhancing gender equality and the empowerment of women, which was supported by the development of laws and creation of structures such as the Commission of Gender Equality and the establishment of the Ministry for Women Children and People with Disabilities in 2009. The President, Jacob Zuma, had emphasised that in the period of freedom and democracy, women’s emancipation should form an integral part of the political, social and economic transformation of the country. South Africa’s 2010 Millennium Development Goals report showed that the country had attained the goal of universal primary education before the target date of 2015. South Africa had been ranked 8th out of 188 national parliaments by the inter-Parliamentary Union in terms of women’s representation in Parliament. However, there was still need for more to be done to advance gender equality. Even though more girls were accessing primary, secondary and tertiary education, there were still many factors that impeded women’s development. A disproportionate number of women in South Africa lived in households where they were subjected to poverty, fulfilled multiple roles and were affected by gender based violence, HIV/AIDS and chronic diseases.

According to a 2013 international business report, women made up 28% of senior positions in publicly and privately traded companies in South Africa. This was above the world average of 24%. A 2012 survey by the Business Women’s Association of South Africa looked at women leadership in companies listed on the JSE found that female stood at 17.1% in line with the USA and ahead of Canada and Australia. However, women accounted for mere 3% in CEO positions which was low. The report noted that though the representation of women on boards of JSE listed companies had more than doubled in South Africa since 2004, women still represent less than 1 in 6 of all board members. Further, 21% of the companies surveyed had no women in senior management positions. Given all the challenges faced by women in the country, the DWCPD had lobbied for the Women Empowerment and Gender Equality Bill (WEGE) to address  gender inequality in the country. The purpose of the bill was to give effect to Section 9 of the Constitution of the Republic of South Africa  in so far as the empowerment of women and gender equality was concerned. It established a legislative framework for the empowerment of women; it aligned all aspects of law and implementation of laws pertaining to women empowerment, plus it ensured the appointment and representation of women in decision-making structures.

The WEGE Bill was introduced into Parliament on 6 November 2013 and referred for tagging as well as sent to the Portfolio and Select Committees on Women, Children and People with Disabilities.  The bill was subsequently tagged as a section 76 Bill on 14 November 2013 and also referred to the House of Traditional Leaders on 19 November 2013.

The mandate of the Committee was underpinned by four pillars: oversight, legislation, international participation and public participation. It held the executive structures responsible for improving the lives of Women, Children and Persons with Disabilities to account i.e. the Department (DWCPD) as well as other relevant organs of state. Also the Committee was to monitor and evaluate the implementation and oversee legislation with respect to the target groups of the Committee. For the Committee’s legislative role, it had to ensure that targeted groups were considered and prioritised in all legislation policy and programmes in addition to ensuring that the needs of the Committee’s targeted groups are mainstreamed into the core functions of government departments, organs of state, public entities and civil society at large. The Committee was mandated to create opportunities for public participation with civil society on key matters pertaining to the Committee’s target groups, hence the public hearings on WEGE Bill.

The Chairperson stated that the Portfolio Committee on Women Children and People with Disabilities had invited interested individuals and organisations to submit written comments on the WEGE Bill through the print media in December 2013. In keeping with the Committee’s mandate, the public hearings were intended to provide a platform for the public to present their views, concerns and recommendations about the Bill. The Committee would over a period of two days listen carefully to the comments from the public, the private sector, the religious sector, non-governmental organisations and individuals as all the contributions were important for the Committee to take heed of in its deliberations concerning the WEGE Bill. She also highlighted that whilst the Bill was introduced as a section 75 Bill it was tagged by the Joint Tagging Mechanism (JTM) as a section 76 Bill which meant that the Bill would be taken to all the provinces where the public participation processes would be followed.  She highlighted that the Provincial Legislature had a valuable role to play and civil society would be afforded an opportunity to make additional inputs. Once the public hearings were concluded, the Portfolio Committee would engage with DWCPD on the inputs received and a report would be compiled. The chairperson invited organisations to make their submission.

Commission for Gender Equality submission on WEGE Bill
Ms Thoko Mpumlwana, Deputy Chairperson, Commission for Gender Equality (CGE), said that CGE acknowledged WEGE Bill as an instrument of transformation and the realisation of rights for women of South Africa as it entrenched constitutional values of human dignity, non-sexism, equality and human freedoms. CGE further acknowledged that WEGE Bill addressed matters that were raised by the CEDAW and that South Africa had to comply by having an Act that ensured women empowerment and gender equality in the land. CGE noted that there were other pieces of legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), the Employment Equity Act (EEA) and many other pieces of legislation where women empowerment and gender equality issues were lost. She agreed with the Chairperson that the WEGE Bill zoomed into the target group. CGE noted that the Bill was a negotiated piece of legislation and some of its content had got watered down. However, it was important that substantive clauses that ensured gender equality and women empowerment were retained in the Bill.  Therefore CGE urged that the Bill should be passed by Parliament and some of the critical issues that needed enhancement had to be considered to ensure that the Bill’s enforcement was clear. CGE wished to call for a bill that ensured economic empowerment of women as well as putting in place measures that ensured such empowerment. CGE appealed that there should be clear directives for dealing with non-compliance in order to avoid duplication and impunity.

Ms Mpumlwana added that CGE supported the implementation of the WEGE Bill as it was believed that the bill would assert all aspects of South African society so that no aspect of South African society was left untouched.

Ms Janine Hicks, CGE Commissioner, agreed with Ms Mpumlwana that the CGE supported the bill but felt there were certain aspects of the bill that had some shortcomings which needed to be sorted out during the Committee’s deliberations. She said that CGE was obligated by its mandate to advise and engage with Parliament if there was legislation tabled before Parliament that was likely to affect women and gender equality.

Ms Hicks stated that CGE had worked closely with DWCPD in the development of the draft bill but regretted that it was not part of the developments and amendments to the final version that was tabled before Parliament. As such CGE was of the view that the bill was different from the draft bill because there were significant clauses that had been omitted but should be introduced.

CGE believed that the key ingredient of WEGE bill was an emphasis on the economy based on gender equity with concrete practical measures that accelerated women’s access to resources needed for economic advancement not merely empowerment. In addition there was a need for concrete measures that supported women entrepreneurs. CGE also called for the need to recognise and support the roles that women played within their communities and families as it affected women’s economic viability. Further, the perceived societal roles of women as mothers should not be used as a basis for discrimination against women or curtailing of their advancement within communities and the workplace. Thus a need to strike a balance between the two elements.

CGE observed that the bill needed stronger provisions which enacted measures that modified social and cultural norms and conduct which perpetuated and enabled discrimination and inequality which was a leading cause of gender based violence in South African society. Also there should be specific measures to promote changes to the perceived roles of men and women within society and families in relation to women’s roles and potential as leaders, women’s rights and benefits. CGE was of the view that there should be specifically enacted measures that promoted empowerment of women and equality. CGE wished for these components to be strengthened in the WEGE Bill as the bill in its current format did not adequately address critical components that were fundamental to the empowerment of women.

CGE believed that the constitutional framework provided the opportunity to be creative in terms of promoting women’s empowerment and gender equality. For instance the equality clause in the Constitution enabled one to put in place affirmative action or positive discrimination measures to protect and advance persons or groups disadvantaged by unfair discrimination. The state was permitted and empowered by the clause to give women special treatment with regard to employment, access to education, housing allocation, land ownership, participation in political life, access to resources whether financial or other forms to address imbalances caused by patriarchy. As such, CGE was taking the opportunity to call upon the Committee and the Ministry in its engagement on the bill to take up the creative opportunities enabled by the Constitution to implement the affirmative action provision more broadly and strengthen and enable women’s access to health care, land ownership, economic activities so that full advantage is taken of the provisions given by the Constitution.

On the shortcomings of the Bill, CGE was of the view that the bill had created much uncertainty with regards to the powers of the designated Minister for Women, Children and Persons with Disabilities which bumped up against the powers and independence of the CGE in terms of the Constitution. As such, the relationship that should exist between the CGE and the DWCPD should be defined by the bill. Further, in some instances the WEGE Bill was duplicating the mandate of the CGE as set out in the CGE Act.

Further shortcomings of the bill were some operational ambiguities which created unrealistic expectations by according the Minister unlimited discretion to designate any public or private bodies to be subjected to the Minister's jurisdiction which was overbroad and created legal uncertainty. The provision could be narrowed down for regulation. Technically the designation could apply to an entity such as Parliament or the CGE, hence the provision needed to be made more specific.

CGE was concerned about the rights of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) persons when talking about gender equality as it specifically addressed two genders of male and female which diminishes the protection of rights of people within LGBTI communities. Also the issue of patriarchy was not adequately addressed in the bill. It needed to be addressed in general and specifically in relation to gender inequality to include the ability for women to ascend to senior positions in traditional leadership and religious structures; addressing the practice of male primogeniture in protecting women’s right to inherit from their deceased spouse’s estate and ensuring equal pay for work of equal value. Patriarchy was an endemic problem in South African society and was addressed in the draft bill version in Clause 13(2) which was now removed and the CGE recommended its inclusion in the bill.

Another shortcoming was that the bill was its addressing of only a small percentage of women in South Africa, specifically those who were participating in the public life of the country. It did not adequately speak to the challenges of empowerment and inequality experienced by the majority of South African women who are unemployed, located in rural areas or vulnerable sectors of the economy such as sex workers which could be addressed by some creative measures.

CGE was of the view that in terms of international obligations and compliance, the WEGE Bill should be closely aligned to the articles set out in the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) which sought to address the systematic discrimination against women by providing a comprehensive guideline for women’s empowerment and gender equality. CEDAW required that issues of patriarchy be specifically addressed yet it continued to limit the empowerment of women in South Africa as certain traditional and religious practices and law perpetuated women’s inequality and the WEGE Bill had not adequately addressed the issues contrary to Articles 3 and 16 of CEDAW. Further, rights of rural women continued to be undermined by skewed land ownership, limited access to credit and constrained opportunities in relation to women’s economic advancement. CEDAW Article 14 spoke adequately on the issue yet the bill did not address the matter adequately. Also persistent criminalisation of consensual adult sex work continued to erode the dignity, health and labour rights of sex workers. This was contrary to the requirements of Article 6 of CEDAW that issues pertaining to sex workers should be addressed and the WEGE Bill should provide such a platform.

Still on international obligations, Article 2 of the SADC Gender and Development Protocol required state parties to harmonise national legislation, policies, strategies and programmes with relevant regional and international instruments relating to the empowerment of women. The WEGE Bill had not lived up to the requirements of Article 2 because it had not adequately aligned with CEDAW and there was inadequate harmonisation with existing legislation such as Employment Equity Act (EEA) and Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

CGE fully supported Clauses 7, 9 and 10 of the Bill which alluded to the 50/50 targets for men and women, which was significant and overdue. The Constitution provided for 50/50 and the CGE supported the endorsement of the target by the WEGE Bill for women’s participation in political life and the workplace.

Recommendations were made for the definitions of gender and equality to be expanded and embrace LGBTI persons as well as going beyond the use of Section 9(2) use of equality to get a broader definition of what constitutes empowerment.

Recommendations were made about Clause 6 which was about education to combat gender based violence. The constitutional implications of the Ministry’s authority over the CGE needed to be considered.

CGE supported Clause 4 on 50/50 but noted with concern that in numerous places there were no timeframes set for compliance and this would lead to on-going noncompliance. A two year time frame was believed to be a feasible target. In terms of Clause 8 it was recommended that the Ministry should bring in other offices such as the Office of the Auditor General to assist in auditing plans and measures to be put in place. Also when looking at gender mainstreaming there was a need for assignment of accountability to be addressed within regulations as well as effective monitoring and evaluation measures to be put in place because the practical implementation of gender mainstreaming was long overdue in South Africa.

Recommendations for Clause 9 were about checks and balances that address entities facing constraints such as skills shortages and operational requirements. The CGE proposed setting timeframes for compliance and guidelines which should be set out in regulations.

In relation to Clause 10, CGE believed greater attention is required with regard to economic empowerment. Proper bench marking in provisions should be in place, tighter definitions around women’s empowerment should be made with concrete measures put in place and enumerated with regard for instance to women’s access to finance and women’s land rights, if not in the bill itself it was proposed to be within the guidelines. A recommendation was also made for Clauses 11 and 12 to have clear definitions pertaining to the guidelines to be established by the Minister. Clause 13 was supported as it dealt with collaboration with relevant stakeholders which was necessary. However, the wording should be tightened and the nature of the relationship and anticipated roles and obligations that were anticipated should be spelt out more clearly. Clause 14 was supported by CGE in its current form.

The Chairperson thanked Commissioner Hicks for the submission and stated that where there were specific amendments to clauses they should be clear about and submit these to the Committee.

Ms H Lamoela (DA) agreed with the Chairperson that recommendations should be clear and draft amendments should be submitted in a timely manner to allow for adequate time for Members to review these submissions as they were valuable.

Centre for Constitutional Rights (CFCR) / FW de Klerk Foundation submission on WEGE Bill
Ms Phephelaphi Dube, CFCR Legal Officer, stated that the WEGE Bill was welcomed by CFCR in so far as it was giving effect to Sections 1 and 9 of the Constitution in dealing with non-sexism and equality respectively. There were several considerations that would help to strengthen the Bill:

- Clause 2(1), (2) and (3) made reference to the Minister’s ability to from time to time designate public or private bodies with compliance with various provisions within the Bill.  The provision was problematic in that the criteria used to guide the Minister in designating a body for compliance with the provisions was not listed. Where the criteria guiding the Minister was not known, the Minister’s actions could be rendered arbitrary which could mean the Bill was not a general law of application but rather a law applicable only to those public and private bodies which would go against the limitation clause of Section 36 of the Constitution.

- The objective in Clause 3(e) of the Bill about the progressive realisation of achieving a minimum 50% representation and meaningful participation of women in decision making structures, was problematic for two reasons; firstly the use of the term "a minimum of a 50% representation" implied that anything above 50% meant men would become under represented which would go against the Constitution's equality clause. Secondly, the Constitution seeks for the achievement of substantive equality rather than demographic representation based on percentages. For instance Section 195(1) of the Constitution was key to governing equality in the workplace and stipulates that in seeking equality in the workplace among designated groups, organisations should shy away from the use of percentages and quotas. Further the use of the term "progressive realisation" (which was a key part of the Bill as it had been used fifteen times) was problematic. It merely conferred a realised right as it did not have a qualitative interpretation. Thus the term needed to be clearly defined in order to make the Bill more substantive.



Clause 1 of the Bill was concerned with defining designated private bodies, which would require private bodies once designated to address and transform societal shortcomings. That was beyond the scope and competencies of private bodies. This was still the case even though the Constitution in Section 8 could be applied horizontally; however Section 7 of the Constitution stated that the responsibility of the state was to, respect, promote, protect and the Bill of rights. As such, the designation of bodies could be viewed as the state abdicating on its constitutional duties. In any event, it was debatable whether the designated bodies can address the pervasive discriminatory patriarchal attitudes of the lingering effects of apartheid.

Looking at Clause 7(1) of the WEGE Bill, designated bodies was set too wide. It would mean that organisations such as the Catholic Church and a male medical doctor practicing on his own account would be held accountable in terms of the Bill which was irrational. Further, the Constitution grants powers to the CGE, to investigate, monitor, research, educate and report on issues pertaining to gender equality. However, the Act, as noted by the CGE, appeared to duplicate the role of the CGE and the Bill was silent on how the ministerial powers would interact with powers of the CGE.

The recommendation, in line with the constitutional value of achieving equality, was that targets for laws on empowerment of women and gender equality should rather be based on a broad representation of society rather than strictly speaking to mandatory and minimum percentages. In the application of the Act, the Bill must provide criteria to be used by the Minister in selecting and excluding designated public and private bodies. The responsibility placed upon designated private bodies needed to be redefined to avoid irrational situations as noted earlier where the state would be abdicating its responsibility as provided for in section 8 of the Constitution. In addition the constitutional mandate of the CGE needed to be respected and supported by the Bill to avoid the existence of parallel mechanisms and a possible diminishing of the functionality of the CGE.

Discussion
Ms Lamoela, noting that there was existing legislation such as PEPUDA and EEA to mention a few, asked if CFCR was of the view that the Bill would be salvaged via amendments or could the objectives be realised through existing legislation.

Mr Johan Kruger, CFCR Director, responded that it was clearly stated in the submission that this Bill was silent on almost all existing pieces of legislation with regard to gender equality, gender based violence, and in relation to the CGE - which was a big concern. Also the Bill seemed to be overriding all other pieces of legislation apart from the constitutional clause on the CGE. The intent of the Bill was welcomed and the motion of achieving gender equality was supported, but whether the Bill was the best way of achieving that was a good question as a substantial amount of work was needed to achieve what it sets out to achieve. Existing legislation could be sufficient if aligned with each other and also if the CGE was empowered to be functional the way it was envisaged in the Constitution. In addition 90% of the powers allocated and afforded to the Minister in terms of the Bill belonged to the CGE. The CGE should be strengthened to do its job and the Bill aligned with existing legislation - as such the Bill could be salvaged with a bit of work, and there needed to be clarity on vagueness and a number of omissions in the Bill. Perhaps it would be easier to work with existing legislation and rather strengthen that framework.

Sonke Gender Justice Network (SGJN) submissions on WEGE BILL
Ms Cherith Sanger, Independent Legal Consultant for SGJN, said that the process of the Bill to date was applauded and SGJN supported the general purpose and objectives of the Bill. However, several substantive and process issues were observed that needed to be addressed if the Bill was to serve its intended purpose.

The first concern was the lack of consultation in drafting the Bill. Adequate consultation to include rural women, women with disabilities and other groups of women on the margins of society was not done.  These women were most adversely affected by lack of employment, lack of education and also by poverty. This was a crucial group of women that needed to be consulted as they were best placed to inform the Bill of its content. As earlier stated by the CGE, the Bill was mainly focused on specific groups of women who might not necessarily be on the margins of society or most adversely affected by unfair discrimination and gender inequality.

A process recommendation was made that the Committee institute a commission to allow for consultation with those most affected by gender inequality. There would mean a delay in passing the Bill into law but the consultations were imperative to promote public participation and the advancement of the Constitution.

Another concern was the duplication and conflict with other laws that the Bill presented and the kind of conflict that would be created if the Bill was passed into law. In terms of EEA and PEPUDA there was a definite duplication in the Bill with respect to gender mainstreaming and some strategies for women’s empowerment. However, the WEGE Bill calls for a quota of 50% women representation in terms of meaningful participation. This was unique as it did not appear in other pieces of legislation. Other duplications concerned the powers of the Minister of Justice in PEPUDA, and the Minster of Labour in terms of the EEA, which was problematic.

The recommendation was that the Bill needed to either amend both EEA and PEPUDA to avoid conflict between statutes or the Bill should not apply to women covered by EEA. Also measures for non-compliance could perhaps be extended to PEPUDA as it mainly focused on going to court to deal with non-compliance. However, in regards to PEPUDA, many of the equality courts were not being utilised the way they should be utilised. The WEGE Bill could serve a really important purpose; as such Sonke did not oppose the amendment of some statutes on the basis that the Minister of Women, Children and Persons with Disabilities had a focus on women and could better serve the legal advancement of women and women’s rights. A challenge was that the DWCPD was under-resourced – more so than most other departments and as such would not be able to effectively implement the Bill. Therefore there was a need to fully cost the Bill.

There were so many existing pieces of legislation that were not being fully implemented which implied that there was no real improvement via legislation intended to improve women’s lives. So what did it this mean for the WEGE Bill?

Another pertinent issue to be addressed was duplication in terms of the provision of powers of the Minister especially with regards to monitoring, research and education. These powers already fell within the powers of the CGE which was a constitutional oversight body to oversee government entities. This oversight should be upheld as they held a specific role for how democracy functions - considering the country’s history of apartheid - hence the need for checks and balances. The recommendation was therefore a need for some consultative collaboration such as the Minister collaborating with the CGE if the Bill was passed into law. More importantly the Bill needed to clearly set out areas of cooperation between the Minister and the CGE as well as clearly classify the jurisdiction of the Minister and the CGE.

To ensure implementation of existing progressive Acts such as the Sexual Offences Act and the Domestic Violence Act, it was necessary to know why the Acts were not being implemented and not serving their purpose. SGJN was therefore recommending that the Committee set up a commission to carry out research to establish why these progressive Acts were being poorly implemented.

The Bill provides for education and training which was good but there was a need for a more preventive focus with programmes targeted at men and boys as most incidents of domestic violence are perpetrated by males. The aim should be to shift inequitable gender attitudes and conduct.

The definitions section was silent on LGBTI and only talked of gender equality with reference to men and women and boys and girls. The Bill was important for LGBTI and thus needed to apply to the group. The Bill should also see LGBTI discrimination as gender discrimination because discrimination was experienced based on gender non-conformity.

The Bill had omitted intersectional discrimination. This must be addressed because of the different kinds of intersectional discrimination that women experience which was further exacerbated by racial and class differences. The Bill needed to address the compounded effect of intersectional discrimination. The recommendation was that strategies, policies and programmes formulated to mainstream gender should be flexible and subject to reformulation in order to take into account the compounded effects of intersectional discrimination as women are not a homogenous group of people.

The definitions of substantive equality needed to be clarified as the Constitution and Constitutional Court favour substantive equality particularly in terms of outcomes. The Constitution provides for the advancement of disadvantaged groups of people such as women. Progressive realisation was a challenge to achieve with the available resources and this affected implementation, therefore money should be available for implementation in order to advance women’s rights.

In terms of implementation, the Bill provided for a code of good conduct which stated that the Minister “may” do so. This did not set an obligation and may contribute to lack of implementation therefore the Bill should read the Minister “must” do. As a way of addressing poor implementation it was recommended that a regulatory framework be instituted to look at all the roles and responsibilities of people entrusted for implementation within a specified timeframe.

Centre for Law Society (CLS) Submissions on WEGE Bill.
Ms Monica De Souza, CLS Researcher, said that there were weak mechanisms for enforcing the rights that the Bill was trying to promote. In the Bill, designated public and private bodies were required to develop and implement a broad range of plans that dealt with women empowerment and gender equality.  However, the Bill did not provide strong mechanisms to ensure that these instruments would be developed and, more importantly, that they would be properly implemented.

The Minister’s powers seemed to be limited to the provision of guidance when designated bodies submitted their plans and to the discretionary reviewing of reports on the progress that designated bodies had made.  Where there was non-compliance by designated bodies with the Bill’s requirements, enforcement was to be achieved through dispute resolution mechanisms which was very weak. Further, where there was compliance, there was no guarantee that once a designated body had developed and launched a certain plan, that implementation would have a trickle-down effect within the body. Therefore the Bill only encouraged compliance with the Bill and did not encourage broad compliance with the actual policies developed in terms of the Bill.

Clause 11 of the Bill claimed to trump other laws. However there was no certain way to compel compliance if a designated public or private body did not develop or implement plans to empower women in rural areas socio-economically. Clause 11 stated that these bodies submit plans and reports only if the Minister asked them to do so.  Where non-compliance was persistent, the only remaining option was dispute resolution. CLS was therefore of the view that weak enforcement mechanisms undermined the potential of clause 11 in improving the circumstances of women in rural areas. 

Drawing from weak mechanisms, it was argued that the Bill provided no concrete mechanism for women to improve their circumstances in everyday real-life contexts.  The concern was that the Bill seemed to envision broad plans for empowerment and equality that were developed at top levels of designated private and public bodies for implementation downwards.  However, there was no specification as to how this would be implemented in the lives of ordinary women.

An intervention mechanism that compelled compliance when there were individual complaints of non-compliance with either the Bill itself, or with the policies or plans that had been developed in terms of the Bill, was necessary. Not all experiences of discrimination should be resolved in court. However the Bill should provide for special circumstances such as a woman in Kwazulu Natal being threatened with eviction from her rural home and land by her brother or, if in practice, her access to land depended on an allocation by a traditional leader. There were many women who had experienced such instances of discrimination.

Further Clause 11’s impetus to develop and implement land reform plans that ensured more land in the hands of women in rural areas was a commendable goal but was meaningless to rural women whose discrimination was enforced by cultural customs.  Therefore in practice, the Bill should provide a practical remedy for rural women’s daily struggles in respect of land.

Ms Thuto Thipe, CLS Reseacher, said that the aim for women’s participation articulated in the 50% representation requirement was strongly supported. However, the requirement was not an end in itself and needed to be accompanied by other requirements that enabled women’s meaningful participation and recognition in different spaces. Concurring with other submissions, substantive gender equality could not be understood without simultaneous reference to race, class, sex and sexual orientation, among other markers of identity. These intersecting identities materially impacted ways in which women were able to access resources, positions of influence, and formal recourse for grievances and as such could not be separated.

Clause 11 of the Bill required the development and implementation of plans to ensure equal representation and meaningful participation of women in traditional councils. It was unclear whether equal representation meant that 50% of traditional council members should be women. The quota in itself did not prevent the discrimination faced by women who were members of these councils. CLS’s work in the former homelands found that women continued to be deprived of the rights that were guaranteed to them in legislation and in the Constitution because of patriarchal constructions of women and femininity that limited their life options, made them dependent on men for social and material security, and devalued their contributions in all spaces. 

Similar to other submissions, existing legislation that promoted many of the same ideals as the WEGE Bill had failed to meaningfully impact women’s lives because of poor implementation.  Existing legislation required that one third of traditional council members should be women; still there were reports from women about discrimination, silencing and abuse both within traditional councils and in engaging with them.  Therefore, equal representation was not an end in itself and could not by itself change gendered power relations on the ground. As such there was a need to look at the multiple forms of discrimination that women faced and attempt to address them simultaneously.

Despite the Bill being drafted with commendable intentions, there was a concern that it did not provide women with meaningful mechanisms through which to protect and enforce their rights.

Sex Workers Education Advocacy Taskforce (SWEAT)/Sisonke submissions on WEGE Bill
Ms Danielle Coleman, Human Rights and Advocacy Fellow, SWEAT, acknowledged that the Bill was a way of exemplifying the government’s dedication towards eradicating gender inequality through numerous efforts made over the past 20 years through various pieces of legislation and the creation of the national gender machinery to address the disempowerment and inequality of women in South Africa. However the WEGE Bill was wholly rejected because of structural barriers inclusive of existing legislation on sexual morality and sexual offences. Such structural barriers made the Bill irrelevant to women in the informal sector such as, sex workers, farm workers, women in mining and unemployed women. Clauses 4, 7, 9 and 10 would primarily benefit women in the formal sector and those in senior positions, there were no distinct or planned out measures on implementation or how marginalised women would be incorporated.

Sex workers’ urgency was undermined which forced them into oppressive and sometimes life threatening and un-empowered situations. A 2009 survey showed that sex workers were subjected to exploitation from the police as 12% of the respondent said they had been raped by the police, some had condoms confiscated which increased their risk of contracting HIV, whilst some reported to have been refused ARVs whilst in Police custody, 28% reported to have been forced into providing sexual favours to the police. This showed the marginalised position of sex workers as some felt they could not report sexual crimes to the police which further exacerbated sex workers disempowerment. Further, only 5% sex workers who were infected by HIV were able to access HIV services because of the discrimination they face from health workers. Sex workers were disempowered and alienated because of the status of sex work.

Overall the WEGE Bill did not address issues experienced by sex workers which are disempowering. As a result the current laws were propagating the disempowerment of sex workers which was a direct violation of the intent of the WEGE Bill. For instance existing structural barriers through current sex laws would still deny sex workers access to empowerment regardless of whether the WEGE Bill was passed or not. Without decriminalisation of sex work the WEGE Bill would work as double victimisation for sex workers.

The provision for progressive realisation in the Bill did not apply to women in the informal sector or unemployed women as it clearly addressed the needs of women in the formal sector or those employed in the private and public sectors by stipulating progressive measures that would promote a 50% representation of women in leadership positions and management positions across the sectors as well as meaningful participation of women in decision making positions. Therefore the 50% representation would just be rendered as a matter of fairness and not necessarily to increase the market share of unemployed women or those in the informal sector, only previously privileged women would benefit and not those who are continuously and persistently excluded from the economy. The Bill would further prove to be disengaging and disempowering for sex workers who were already stereo typed as not fit to participate in the political and economic decision making process even though sex workers contribute to the economy by providing services, paying school fees and so forth.

The WEGE Bill was not needed as what was truly required was an examination and transformation of existing laws and pending legislation as there were several solvent Bills in the house of Parliament that would equally address issues outlined in the WEGE Bill, for example the Muslim Marriage Laws, Hate Crimes Bill and also for over a decade no progress had been made on the Sex Decriminalising Bill yet time was spent on WEGE Bill which had no relevance to sex workers, sex workers were still being harassed by the police and were not being protected from violent crimes. Sex workers remained vulnerable with no access to justice.

The current laws that criminalise sex work is the most disempowering and if the government was to invest in structures to address the issue then sex workers could discuss the relevance of the WEGE Bill this was possible with the decriminalisation of sex work.

The coordination towards the development of the WEGE Bill was exclusive with selective consultations; key populations were excluded as the government consulted with NGOs and selective agencies which directly contravened the purposes of the Bill. Many consultations had been given by Civil Society, thus it was urged that for the Provincial consultations there should be adequate time for those afar to attend, should be conducted in local languages as well as having strategic mobilisation strategies by the government to ensure that the voices of poor women, rural women, unemployed women and all women who had been excluded were included.

Lastly strengthening of existing legislation was called for to ensure legislation was budgeted for and most importantly tailored to the context of a woman and would begin with intersecting discrimination of marginalised groups as women were not a homogenous group.

Community Law Centre (CLC) Submissions on WEGE Bill
Ms Samantha Waterhouse, Researcher, Community Law Centre, said that all efforts to support the advancement of women in South Africa were broadly welcomed. However there were concerns that needed to be addressed if the intent of the Bill was to be achieved. There were some areas of the Bill that were agreeable but lacked substance and there were also some key issues concerning women’s rights such as sex work, hate crimes legislation which had not been addressed. The Muslims Marriage Act which was languishing but not necessarily in parliament, victim legislation which would affect women significantly, all these had a significant impact but had not been raised in the WEGE Bill.

As raised by other speakers, CLC was concerned with duplication with the WEGE Bill which could perhaps be best addressed through amendments or attention to implementation to existing legislation. It was believed that the analysis of responses to the drivers of women’s inequality and discrimination of women was very poor in the Bill. In relation to employment equality the Bill failed to address the implementation of existing law. It was also noted that the Bill did not speak to a majority of South African women hence more work was required. Most people knew the situation of South African women and CLS did a commendable job by using real life situations in its submissions as it was important to talk beyond just saying women were still living in very dangerous conditions. Discrimination against women was extremely rife and prevalent and many stakeholders were concerned that in spite of significant developments in the legal framework, policy arena and in other ways, changes were not being seen. In support of SGJN submissions, there were questions as to why conviction rates of sexual offences had been changed significantly even though there was a Sexual Offences Act and women are turned away from police stations when their rights have been violated.

Women were not a homogenous group as they had different experiences as such the issue of inter-sectionality with different forms of discrimination must be addressed. If responses were not tailored to address the particular marginalisation of different groups they would continue to be marginalised and only those who already had some kind of social or economic basis would continue to benefit.

The issue of patriarchy which was raised in the CGE’s submissions was noted to be at the core of discrimination and disempowerment of women in South Africa. It was part of the reason why changes were not being seen with existing laws. There were no government led national programmes to deal discriminations and violations fuelled by patriarchy. South Africa was not meeting its international obligations such as CEDAW, Maputo Protocol and the SADC Declaration on gender equality. The Bill was very weak in this regard as it did not address the issue in a meaningful way or in terms of programmes. It was mentioned that referencing to patriarchy in the Bill was not enough, more work would be required and leadership would be required from the government. Currently there were concerns with the level of understanding on patriarchy within the leadership of the country and the kind of statements routinely made and reported on in the press that fuelled the misogyny of patriarchy as it allowed everybody else to be misogynist. It was recognised that the task was not easy and would require a complex evidence based response as there was a general tendency for programmes to over simplify responses for complex embedded issues. Such programmes wasted money and did not have the desired effect. Therefore, a partnership with the Civil Society led by the government was needed. It was appreciated that a lot of time and financial resources would be required and it should not be a five year project.

The limitations of the Bill were more prominent where it lacked to address the interests of women in the informal sector. The Bill had as much as eight if not more Clauses that touched on important issues such as discrimination but they failed to address women in the informal sector and only said that something must be done. It was recommended that there should be clear targets, intervention plans, time frames, monitoring and reporting and most importantly human and financial resources. Most importantly about the limitations was the vagueness of provisions for instance when reading the Clause on progressive realisation it gave an impression of being aspirational and that the intent behind was not strong.

More than a new law was needed. A comprehensive audit of current policies should be carried out but should not be treated like a desk survey where a consultant would be employed for three months and then present the results to the DWCPD and various Committees. Failures of implementation should also be looked at in terms of budget spending. Most importantly accountability was to be looked at as South Africa was failing in accountability over and over again. The responsibility for accountability should not be left to DWCPD entirely as was stipulated in Clause 9 (4) (2) (C), it should be led more centrally either at the Ministerial level or by the Presidency. The Bill provided well for monitoring and reporting to the Minister but was not clear on how the Minister would handle the reports; as such the DWCPD should also report to the Legislature and not just the Committees on Women, Children and Persons with Disabilities but also to other relevant Committees on Health, education and Justice. Lack of information on how monitoring would be handed was a cause for concern because annual reports alone were not comprehensive as they did not specify what they should be reporting.

All implementing departments needed to have budgets in addition to mandatory women’s budgets. Money was going to have to be spent if women’s lives were to change.

On education and training it was said that many departments have got programmes on education and training about laws. The programmes are weak and insipid, magistrates and policemen have been trained on the Sexual Offences Act in 3hours and 1 hour sessions respectively which was not sufficient. Departments showed commitment but were unable to deliver and the Bill needed to stipulate precisely how training would be delivered. Assumptions were made that education and training would lead to implementation which was not the case. Implementation should be linked to accountability.

The value of equal representation was recognised and echoed the concerns raised by others that it was a duplication of existing laws. On gender mainstreaming and units it was said that this had been tried before and the Bill was not clear on the roles and responsibilities of the people employed. The Bill was also silent about gender desks and mainstreaming at the local levels such as in municipalities, police stations and local hospitals which could be a point interface between the government and the public rather than just having points of interface between NGOs could access at a national level, thus clarity was required on the various roles and frameworks on the national gender machinery.

Current efforts and hopefully efforts in the future in improving circumstances of women were supported; however it was not thought that the Bill in its current form would achieve that. There was a need for recognition that it would take time and that there was no quick fix. It would take intelligence, evidence and heart to achieve what the Bill intends to achieve. The Provincial hearings were going to provide further consultations but it was not clear as to how they would be done. A question of time and resources was an issue as well as other barriers such as language and child care. Concerns were also raised about the dangers of speaking out against patriarchy systems and there was a need for protection for women against any backlashing that might occur as a result of speaking out.

Centre for Applied Legal Studies/ Centre for the Study of Violence and Reconciliation submission
Ms Delphine Serumaga, Executive Director, Centre for the Study of Violence and Reconciliation (CSVR), stated that, CALS AND CSVR commended the Minister and her Department’s initiative to address the ever present issue of gender discrimination and the need for women’s empowerment through the effort of bringing into force measures that were intended to ensure and safeguard the lives and livelihoods of women in South Africa.

At 11:48 hours SWEAT staged a demonstration against WEGE Bill they held placards with various messages against Bill. CALS and CSVR’ s submission was disrupted. The Chairperson requested that the demonstrators leave the premises peacefully or they would be forcefully removed.

Ms Serumaga said, there were 6 observations that raised areas of concern. The first was the persistent obstacles to the advancement of women and the lack of representation in decision making positions in the public and private sector. The second area of concern was the disadvantaged position of women in rural and remote areas and the two had already been spoken about though the arguments might be slightly different. Thirdly, harmful customary and traditional practices had an adverse impact on women’s empowerment rights guaranteed under CEDAW and also under the South African Constitution. Fourthly, the high levels of sexual and domestic violence against women and girls, seemingly perpetrated with impunity when considering the low rates of prosecution and convictions for these crimes. Second last was that certain provisions of the Traditional Courts Bill might jeopardise women’s access to justice and equality of treatment before the law. Lastly a major obstacle to the goal of achieving women’s empowerment and gender equality was the persistence of patriarchal attitudes and deep-rooted stereotypes (embedded in patriarchy). The roles and responsibilities that discriminated against women which would address the issue of 50/50 as well as  the inadequate implementation of effective and comprehensive measures to modify or eliminate stereotypes and negative traditional values. Emphasis was on roles and responsibilities, patriarchy attitudes and implementation. 

Efforts of the Ministry to widen the consultation process were recognised however, in relation to representation in decision making process thus participation of women in policy formation, which was actually part of the principles of CEDAW, the Maputo Protocol which was not mentioned in the Bill and the South African Constitution, it raised concern of lack of adequate notice or time for full engagement in the consultation process which would have made a bigger difference had the target groups been involved rather than consultation with the Civil Society which was already organised.

Looking at the comprehensive legislative framework of South Africa, there was a concern that the proposed Bill tended to reinforce provisions already set out in law such as the EEA and PEPUDA. This was duplication in laws whereby resources could be used on closing the gaps of inadequate implementation of effective and comprehensive measures. The development of a Bill that introduced a quota system was at risk of providing limited commitment to real substantive equality transformation meaning that if the quota was reached what roles would women be given to play  for instance at local levels with traditional structures or religious structures that excluded women.

The Maputo Protocol specifically addressed the patriarchal, traditional and cultural institutional practices that hindered women’s empowerment. Whilst the Bill acknowledged patriarchy as a hindrance, it was limited in its resolve.  Inclusion of the provisions of the Maputo Protocol could strengthen the commitment to fighting for gender inequality that impact the majority of South African women.   Since South Africa had ratified the Protocol the objectives should address issues of patriarchy to bring in line South African legislation with international protocol.   

It was encouraging that the Portfolio Committee was confident that the Bill would not have significant direct financial implications due to structures mentioned in the Bill already being funded, as stated in Section 6 (3), however, gender budgeting continuously remained a challenge in developing equity measures and the WEGE Bill would have financial implications especially in processes of inclusive consultation, decision-making and implementation of the Bill thus gender budgeting should be considered.  

The issue of definitions needed emphasis because some of the definitions such as that of empowerment were unclear. For instance the Bill limited itself in defining the scope of empowerment and therefore was unclear on what issues were being addressed under the Bill.  Socio-economic empowerment, discrimination and gender mainstreaming were included however issues of justice and access to justice as forms of empowerment were excluded yet they played a big role in the lives of the majority of women in South Africa in terms of access to justice and decision making in relation to justice, for instance the Muslim marriage Bill which had been under discussion for more than 10 years. The issue was who was engaging in that process, for instance were women having a say in it and Further it would be an opportune time for the Ministry to take that up as an enforcement to push towards the empowerment of such particular groups of women.   

Section 9 revealed that the Bill did not adopt an intersectional approach to discrimination. Women were not a homogenous group of people, as such experiences were also different yet the Bill was quite linear in the way it attempted to deal with discrimination.

Terminology of the use of designated public and designated private bodies was a challenge in regards as to whom the Bill was referring to as there was a narrow definition of such bodies.  That was it was not inclusive of religious and traditional  or informal structures and institutions is  not made while South African women are part of such patriarchal institutions that in themselves make up a huge part of our societies.   

Gender responsive approaches and responsibility in the Bill tended to assume full responsibility of women on this social dilemma indicating a limited scope of addressing patriarchy. Educating men especially on socio-economic approaches to women’s empowerment should be considered for holistic social responsibility and transformation. A more inclusive approach to addressing patriarchy and gender inequality within institutions should be considered. It was hoped that the written and oral submissions would be closely considered to come up with an alternative approach or revised Bill through wider consultation and inclusivity of individuals.

Discussion

Ms Lamoela asked if whether the WEGE Bill could be salvaged with existing legislation or if the objectives of the legislation could be realised through amendments of existing legislation such as EEA, PEPUDA and BBBEE.

Ms Serumaga responded that in her opinion it would be best to look at an alternative such as closing the gaps in existing legislation first before enacting a new Bill as South Africa was good at legislation but not good in implementation, budgeting or expertise for reviewing and auditing due to the mobile nature of legislation and social transition. Once the gaps were closed the mandate of the Bill and what needs to be done would be clearer but at the moment the way in which the Bill was set out was not cohesive enough.

Business Unity of South Africa (BUSA) Submissions on WEGE Bill
Ms Vanessa Phala, Executive Director, Business Unity South Africa said that for process the Bill was tabled at the National Economic Development Labour Council (NEDLAC) for deliberations and some of the comments and observations raised earlier pertaining to duplication and issues of compliance were also raised at NEDLAC. Failure by the DWCPD to explain the rationale for introducing the Bill led to the withdrawal of the Bill from NEDLAC. The withdrawal was mostly due to the vagueness and ambiguity of the Bill, but also not being able to explain how compliance and most importantly enforcement would work.

The intent of the Bill was supported however; the Bill was not supported in its current form. The objectives of the Bill were understood but the targets were not clear including the duplication of existing legislation such as EEA, BBBEE. What was required of businesses was difficult to implement and they would be penalised for failing to implement the impossible. For instance, progressive realisation seeking for a 50/50 representation was based on the assumption that women were available in all labour markets. The reality was that female representation was not available in all sectors. Men and women make choices to enter particular labour markets as such there were some sectors which were male dominated others which were female dominated and some which had a balance. She agreed with earlier speakers who suggested investigating sectors which had a large supply of female labour so that a 50% representation of females in decision making positions could be achieved rather than making assumptions. For example, 95% of engineers were not women and a mining company would end up being penalised for something that was impossible to achieve. There must first be a pool to draw from.

Duplication of existing legislation was emphasised and that it was overriding existing legislation. Some existing legislation such as EEA and BBBEE had been amended and turned into Acts as such reviewing them could be problematic as the process was complete. Other ways such as doing comprehensive research or investigative audits as to why it was a struggle to implement existing legislation, what the DWCPD could do to support business could help in realising what the Bill sought out to achieve rather than new legislation that could also prove difficult to implement.

South Africa has an overly regulated labour market which has an impact on much needed foreign direct impact makes it difficult to attract new investors to create much needed jobs particularly for young people. A Bill that was not clear, was ambiguous, target groups were not known creates an impression that South Africa is a no go area to investors.

In terms of application of the Act the Bill was not clear as to who it would apply to as it talked of designated private and public bodies which were not defined and could lead to confusion.

Education and training had to be reiterated, as the Bill was referring to international agreements that were not refined in the Bill which could be problematic. Other areas of the Bill that could also cause problems due to lack of clarity were provisions for Health and Public Education, and Economic Empowerment whereby existing legislation already provided for measures to enhance the economic empowerment of designated groups including women.

The DWCPD were asked about the link between all listed pieces of legislation with compliance contained in schedule 1 of the Bill but no response was offered thus so many questions about duplication of legislation. It still remained unclear as to how issues of compliance and enforcement would be dealt with, hence many provisions in the Bill remained vague and ambiguous and the Bill was assuming a position of a super Bill by superseding existing legislation that had been in place for many years. The impact of the Bill’ provisions would result in uncertainty; the number of litigation cases would also increase the administrative burden on businesses and increase in the cost of employment.

The Bill as it stood currently had many short comings in structure and objectives which would make it difficult to implement its provisions and as such BUSA could not support it in its current form.

Justice Alliance of South Africa (JASA) Submissions on WEGE Bill
Mr John Smyth, Director JASA, said that the need and justification for the Bill was understood but there were some major concerns with the definition of private bodies in Clause 1 of the Bill and more importantly with Clause 2 of the Bill as it was questionable whether the Bill was constitutional or not. There was concern with the powers given to the Minister to deal with designated private bodies which was insufficiently defined in the Bill but could easily extend to private bodies of a religious nature such as churches, private charity organisations and bodies of traditional community leaders. It was questioned whether such private bodies should be open to designation by the Minister. Religious organisations such as the Roman Catholic Church which did not permit women in leadership position for theological reasons would face unfair discrimination. Charity organisations such as Non-Profit Organisations (NPO) rely on voluntary workers and as such should not be subjected to 50/50 representation. Churches and NPO did not carry on trade and professions and therefore did not qualify in the definition of private bodies.

Clause 2 should be drafted in a simple and certain way which the public could understand, know to whom it applies so that it was respected and obeyed. Clauses 2 (2) and 2 (3) of the Bill provided that the Minister could designate public and private bodies without providing proper or any guidelines as to the exercise of such a discretion. Therefore it was submitted that the Clause was unconstitutional because the constitutional court refers to offending against the delegation constraints required by the constitutional Courts. The Clause was further unconstitutional because of vagueness and possible arbitrary use by the Minister. Written submissions contained more detailed cases for referencing.

It was recommended that Clause 2 of the Bill was unconstitutional and should be re-drafted so that public and private bodies were clear on the criteria that would be applied in deciding to designate these bodies. One of the following alternatives should be adopted to rectify the definition in Clause 1 of the Bill; either the sub- definition of a private body should be deleted or add a sub section somewhere in clause 2 to say the Minister should not have power to designate any private body of a charitable, religious  or traditional leadership nature.

           

Cause for Justice Submissions on WEGE Bill
Ryan Smit, Executive Director, Cause for Justice, commended the Minister and the DWCPD for taking up the mandate to empower the vulnerable. Parliament had to consider if and the extent to which the Bill overlapped existing legislation enacted to empower the disadvantaged and promote equality. The Bill had to first pass the test of redundancy and also bear in mind that existing legislation was being implemented at a great cost to the tax payers. If enacting the Bill resulted in the government would end up being the chief beneficiary by either growing its human resources or increasing its budgetary demands or both, the Bill could not be supported.

The objectives of the Bill were to carry forward the constitutional vision of equality, by requiring the development and implementation of plans and measures to redress gender imbalances. Without providing the public with statistics regarding gender imbalances made it hard for the public to make informed decisions whether to support the Bill or not. The Bill might even be unnecessary or unwanted if gender imbalances were limited to specific geographical areas or as a result of unemployment. The DWCPD must provide statistics to the public and Parliament to make an informed decision.

The second submission was designation whereby the Bill was imposing burdensome obligations on private and public bodies. Bodies should be allowed to opt out or dispute their designation based on existing policies and measures and statistics regarding the promotion of women empowerment and gender equality within their organisations. The designation process should be drafted into the Bill to identify bodies that are not yet promoting gender equality in their organisations.

Clause 5 (1) talked of reproductive health and health rights but these were not clearly defined and needed clarity as to some extent the Clause could be rendered unconstitutional with regard to abortion rights which may infringe upon constitutional rights to freedom of religion, conscious or thoughts, beliefs and opinion and the right to freedom of association. It was proposed that Clause 5 (1) should be redrafted to provide protection to bodies’ rights to freedoms of religion, conscious and association. Cause for Justice was willing to assist with the redrafting process.

The Bill had several references to substantive equality; it was therefore proposed that the South African people or Parliament should debate the issue of gender equality and agree if both formal and substantive equality should be legislated. Cause for Justice was of the view that formal general equality was a constitutional aspiration and imperative. However, legislating substantive gender equality was to force equality out of reality and human dignity. Imposing an arbitrary 50% representation or any other percentage was forcing choices on people and restricting their choices and consequently infringing upon their rights to human dignity. It was proposed that the current 50% representation be replaced with an alternative measuring stick to promote women’s equal treatment in bodies. The focus on land rights should not be referred to individually but focus should be on the family and promoting the family. In respect of Clause 12 the DWCPD should provide Parliament with researched facts indicating that women with disabilities were currently worse off than men with disabilities. If this was not the case, promoting the empowerment of women only at the exclusion of men with disabilities, would amount to unfair discrimination. In respect of Clauses 15 and 16, the Ministers enforcement powers should be clearly defined and confined to mechanisms appropriate to the field of equality i.e. referrals to the Human Rights Commission or Equality Courts. It was recommended that a clause should be added containing the maximum penalties to which individuals that are responsible for implementation of the Bill could be subjected and such maximum penalty should not include the possibility of a prison sentence.

It was also recommended that the clause about good conduct should be published before the enactment of the Bill and only after a proper public participation process because to publish after the fact bodies would have obligations to comply with something that they were not fully informed about. A sun set clause should also be added to the Bill indicating a date when affirmative action would cease to exist and the South African people would be allowed to freely choose the nature and level of economic activity or inactivity.

Discussion
Ms G Tseke (ANC), requested that Cause for Justice to provide members with a written submission as they did not have it.

Mr Smit, apologised that he had submitted the submissions very late but trusted that they would be made available.

Ms E More (ANC), asked for Mr Smit’s opinion on the existing legislation being implemented, monitored and assessed to determine outcomes. She asked whether the Bill would help to empower women or bring equality.

Mr Smit responded that due to a tight work schedule CFJ was not able to consider all existing legislation in the field of equality and empowerment which made it difficult to answer the question. If the commit permitted it was better not to throw a wild opinion.

Freedom of Religion in South Africa (FORSA) Submission on WEGE Bill
MS Nadene Badenhorst, Advocate, FORSA, said that FORSA was mainly about pro-choice hence supported laws and legislation that allow individuals to exercise their constitutional rights to entertain religious beliefs as the person wished, the right to declare openly religious beliefs without fear of reprisal and the right to manifest religious beliefs by practice or by teaching and dissemination.

The definition of designated private bodies in the Bill was wide enough to include religious and other religious non-profit organisations. Religious organisation should be specifically excluded from the Bill. As an organisation FORSA was an avid supporter for the promotion of women but was concerned with the broad powers given to the Minister and the Bill’s infringement of other constitutional rights. An additional concern was the broad powers given to the Minister to designate who the Bill would apply to and in its current form it included churches and religious bodies. The Minister’s broad powers to enforce compliance were also a point of concern as they were very wide and vague. The powers were open to arbitrary use by the Minister and were open to a constitutional challenge.

FORSA was concerned with the Bill’s infringement of other constitutional rights. It was clear the Bill had a conflict of rights with non- discrimination of women on the one hand which aimed at allowing women to take up leadership roles at different levels in society, on the other hand this was in conflict with rights of other women who chose not to take up leadership positions in churches and chose to submit to men as subscribed by the holy scriptures. These rights had to be balanced as the Bill was threatening the central tenets of the Christian faith. In many Christian doctrines the husband was the head of the home as Christ was the head of church and therefore the church being a spiritual home most church leadership positions were reserved for men. If the Bill was to be enacted in its current form it would have dire consequences. Firstly, the legislature would be undermining pluralism and adversity as a core value of the Constitution. Neither the Constitution nor PEPUDA required uniformity in order to bring about equality they only required equal concern and equal respect. Secondly the intention to legislate values based on its value system and interpretation of Holy Scripture, the state would effectively be dictating on the grounds of gender what people should and should not believe which amounted to false control. Thirdly, autonomy of religious organisation which was guaranteed by the Constitution would be interfered with. A practical consequence would be women who practice religion might be forced to take up leadership positions against their will. Therefore religious institutions should be given the freedom of choice because in its current state the Bill was forcing religious institutions to choose between their faith and abiding by the law. Further the Bill was likely to contract a constitutional challenge which would be time consuming and costly.

To overcome constitutional challenges, it was recommended that religious bodies should be inserted in the definition of private bodies in Clause 1 (c). This would exempt churches, religious bodies and charitable organisations from the broad application of the Bill. Further Clause 14 (2) read with Clause16 concerning enforcement should clearly set out what dispute mechanisms would be applied. Freedom of religion was protected by the Constitution and FORSA appealed to the Committee not to pass legislation which would serve to bring about freedom from religion.

Tshwaranag Legal Advocacy Centre Submissions on the WEGE Bill
M Shireen Matara, Executive Director, Tshwaranag Legal Advocacy, she agreed with most of what had been said in terms of how to strengthen the Bill and the responses to deal with women’s empowerment and gender equality. She used illustrations from a short survey conducted by Tshwaranag to raise key issues and perhaps questions for the Committee to consider deliberating around the Bill. She stated that there was a sense of desperation from women for an effective mechanism to address inequality and marginalisation. According to the survey results the key issue was that many women felt the government was not responding to women’s challenges through poor implementation of the law. Inequality for women was exacerbated by geographic location, level of education and whether employed or unemployed and lack of access to resources that would enable women’s economic freedom.  Another key point to emerge from the survey was that most of the respondents felt reported crimes against women were not being followed up which further showed that laws were present but lacked implantation. Many of the respondents felt the WEGE bill was necessary which showed desperation for a solution to the serious marginalisation of women, Further if the law was enacted to would help hold the government accountable to improve the lives of women and children, bring about a balanced society and create better opportunities for women. The Committee should think about whether the WEGE Bill would address these needs taking into account that the current legal framework was having serious challenges with implementation.

Many women were concerned with gender based violence, safety and security, lack of access to justice which could have far reaching consequences to economic opportunities, safety of their children amongst other things. A key issue that emerged from the survey and was not addressed by the Bill was the issue of single parenting as there were more single mothers facing challenges that needed to be addressed. In addition discrimination in the work place was also a driver of women’s disempowerment and marginalisation, even with the EEA in place many women were still discriminated against in the work place. The Committee had to ask whether the Bill was an answer for single mothers who suffered multiple levels of disempowerment and marginalisation and would the provision for economic empowerment and quotas lead to a substantive improvement in women’s lives as BBBEE and EEA frameworks had failed to do so. With no enforcement mechanisms in place how was the Bill going to change women’s situations?  Was the Bill responding substantively to the drivers of inequality that were ingrained in South Africa’s structures?

In agreement with what others had raised was a concern with poor implementation of laws which was attributed to lack of accountability to duty bearers, insufficient infrastructure and insufficient allocation of resources. She therefore questioned how different would implementation of the WEGE Bill be? Further if other laws were going to be subservient to WEGE Bill then it was going to have an implication of weakening other laws which had some enforcement mechanism. The Bill should clearly specify the duty bearers and how they would be held accountable to enforcement.

Cebelele Foundation Submission on WEGE Bill
Ms Pinkie Numa, Cebelele Foundation, said that the consultation processes did not accommodate women in rural areas to participate in the Bills discussions. The views of rural women should be incorporated in the Bill. Much of the Bill’s shortcomings were already highlighted by other speakers but an area that needed to be addressed was the Bill’s oversight of young women. The Bill needed to emphasise and specify how young women were going to benefit from the Bill. The reality was that young women found it difficult to find space even amongst women.

The Bill did not mention safety and security measures in formal and informal occupations. Even though the Bill was aimed at eliminating discrimination by gender, the reality was that there were some occupations which were risky and unsafe for women as such necessary measures had to be considered for women’s safety. Whilst wanting to empower women, it must be ensured that various private and public sectors must understand what was required of them when elevating women.

The achievement of economic empowerment was emphasised through formal employment in the Bill, thus it was recommended that Clause 10 (3) (d) should read in the form that facilitates business, employment and access to markets as it was not every woman who wished to be employed formally as there were some who wished to be independent. Efforts in implementation, monitoring and evaluation of the impact of the Bill should be provided for because implementation was the key to the success of the Bill. For the Bill to be effective women must be willing to work hand in hand with the government and each other.

Women’s Legal Centre Submission on WEGE Bill
Ms Jennifer Williams, Director, Women’s Legal Centre, said that the political will to address gender inequality as evidenced with the presentation of the Bill was welcomed. Gender inequality in South Africa was amongst the highest in the world and gender based violence was very high of a country that not at war in the world. The criminal justice system was stubbornly unresponsive in as far as trying to prosecute cases of both sexual and domestic violence; there was a radical gender skewered dimension of poverty with women being the poorest of the poor, no access to land, many were concentrated in the informal sector with no benefits, rural women  faced culturally enforced exclusions which diminished their access to justice, sex workers’ human rights were not being recognised and high rates of hate crimes against LGBTI people, gender discrimination in the workplace with many incidents of sexual harassment and the gendered nature of the spread and impact of HIV and AIDS. Women were not a homogenous and as such experienced these gender inequalities in different ways. Therefore a Bill that sought to address these inequalities had to consult all groups of women in South Africa

A number of laws in dealing with equality of women already existed. Many have challenges in implementation for instance the Police in Khayelitsha had as many as 180 dockets as compared to the police in Muizenberg who had only 15 dockets. It was important to have structures or machinery in place to look at the oversight in enforcement to assess whether or not gender equality was being achieved. The Constitution envisages independence of an oversight body; therefore the powers given to the CGE should not be overlapped by the Ministry or any other new structure. The Equality Courts already had powers to order an audit of discriminatory policies and practices it can also order implementation of special measures. However existing measures were not being utilised and there was a need to look at how these could be utilised. Government’s efforts to overcome gender inequality needed to have a place where they could be held accountable, so far the Bill had taken away some of the enforcement mechanisms which may render some weaknesses to the Bill.

It was recommended that accountability powers be placed in the Office of the President to avoid creating a super ministry. Also in relation to the definition of gender equality was narrow and was limiting people’s constitutional rights. The binary nature of the definition i.e. man/woman or boy/girl was excluding gender non-conforming people  and the Equality Act has been amended to include inter-sex people as such Bill should also recognise that category of people. In relation to duplication of legislation, the EEA had provisions which seek to bring about empowerment of women and black woman therefore there was a need to strengthen enforcement mechanism to address intersecting forms of discrimination. The recommendation was to carry out an audit of existing legislation to identify the strengths and gaps and how they were being implemented before enacting the WEGE Bill. Once gaps had been identified consultation on a wider and national level with all groups of women would be required.

Business Women’s Association of South Africa (BWASA)Submission on WEGE
Samali Bosa, National Programme Manager, Business Women’s Association of South Africa, stated that BWASA supported the principles and objectives underlined in the WEGE Bill, but believed the Bill required a number of changes. Female entrepreneurs were failing to succeed in the corporate world due to inequalities that were inherent in the system. For the past three year BWASA annual census of women on boards in South Africa showed a stagnant 3.7% woman representation on boards. A Bill might not necessarily be what is needed to rectify the situation. Existing legislation such as EEA should have addressed the situation. The Bill to be more effective, needed to be targeted and perhaps focused on gaps in the current legislative framework. It should give effect to constitutional right of gender equality through well-resourced enforcement measures.

It was recommended that data on women should be aggregated to obtain a true representation of women’s situation on the ground. Aggregation of data would be best done by the Ministry of Women, Children and People with Disabilities; this would be the start of an evidence base for decision making. BWASA had worked with the UN Women who had created women’s principles to promote women empowerment principles. There was a charter that companies signed and once signed the company committed itself to practice and implement the principles. South Africa should look at a way of trying to emulate such guidelines to get companies or organisations to implement what they were supposed to do then gender equality would be achieved. It was found that some companies were not aware of what they were supposed to do.

Most businesses were structured in a way that best worked for men. For instance a company could allow flex-time for women with children but the drawback was that important meetings and decisions would be held and made when the women were away. A way to change such structures must be provided for but it did not necessarily have to be legislation. The Bill needed to provide clear progressive measures on enterprise development, supply chain and marketing practices starting in the public sector. Many organisations claimed that there was no pool of women to draw from hence the need to engage in a different kind of engagement which could be providing guidelines or even dialogue. A recommendation was made to provide a framework for implementation and establishing the enabling provisions for resources to support the implementation of existing rights on equal opportunities, inclusion and non-discrimination. Concise and effective monitoring and reporting measures on gender equality should be established. This would complement the need for data collection so as to obtain a clear picture of the situation at hand.

BWASA’s general comments on the Bill was that it should address the existing gap and not duplicate existing legislation, it should be constitutional and not contradict the Constitution, it should be clear about the rights and obligations as well as specifying which body would be obliged to comply.  It should seek to make incremental progress focusing on areas of great need such as women’s enterprise and supply chain development, mobilise resources to improve safety and freedom from violence. Specific areas of the Bill that needed to be fixed were the definitions, education and training, designated bodies should be clearly defined, international obligations should be included directly into the text where they applied, the formulation of targets should be reflective of substantive equality with due regards to the demographics of relevant people. Provisions for planning, monitoring and reporting should be streamlined and consolidated so that they could be used effectively for qualitative and quantitative monitoring with minimal regulatory burden. Resourcing enforcement and consequences for non-compliance should be clarified and strengthened to achieve the objectives of the Bill. Duplications with existing laws and contradictions with the Constitution should be removed. The Bill should be reformulated and re-submitted to NEDLAC focusing on critical target areas.

Wits Institute for Social Economic Research (WISER) Submissions on WEGE Bill
Ms Jennifer Williams, Director, Women’s Legal Centre, presented the submission on behalf of Ms Lisa Vetten, Researcher at WISER who was unable to attend the hearings. There was a need for some legislation and policy development to promote gender equality that was informed by an analysis of the gaps in existing legislation and policy. It appeared that no such analysis had been undertaken. The memorandum stated that the proposed legislation did not aim to create new anti-gender discrimination legislation, or additional mechanisms to enforce existing legislation and policies, so neither gaps in policy or implementation were addressed.

The Bill duplicated a number of existing pieces of legislation as provided in previous submissions. Duplication increased the likelihood of non-implementation. Duplication also caused problems of harmonisation, strains resources and creates an administrative burden. The recommendations were to do an analysis, remove duplicating provisions, mainstream monitoring and evaluation of gender equality into Department of Monitoring and Evaluation in the Presidency. An investigation should be conducted as to why chapter 5 of PEPUDA had not been operationalised in a decade and also find out what had happened to other legislation such as to Muslim marriages, domestic partnerships and adult prostitution.

The introduction of the DWCPD had fundamentally changed the nature of the National Gender Machinery (NGM).The involvement of women's organisations in the NGM was clearly stated from the outset but this was not the case with the DWCPD. As such, the participation of women’s organisations had been rendered as ad hoc and discretionary, rather than obligatory. Lack of participation was not addressed adequately by the WEGE Bill. More consultation should be done and clearly set out powers and functions of implementing agents. In addition, Section 15 of WEGE should be further developed in order to strengthen Gender Focal Points (GFP) or consideration should be made to creating a National Gender Machinery Council along the lines of NEDLAC that could institutionalise participation and include the private sector and women’s groupings.

Resources were required for the Bill as government audits showed that every department did not have a GFP (eg DPSA audits) and employing these would cost money, elevating existing GFPs to senior management positions would cost money and training government officials around gender mainstreaming would also cost money hence implementation and costing of the Bill needed to be reworked.

Currently the Bill offered a hollowed out response to the problem of gender inequality. To be substantive it needed to be informed by an analysis of existing gaps in legislation and policy; and analysis of what would strengthen implementation and not necessarily more law or policy.

The Chairperson noted that the intention of the Bill was appreciated but there was a lot of work to be done before the Bill could be formally considered. She acknowledged the existence of other pieces of legislation which were facing implementation challenges. After the public hearings, the Committee would sit with the DWCPD to deliberate on the Bill. Thereafter a report would be compiled and submitted to the NCOP before finalisation for interaction within the provinces.

The meeting was adjourned.








 

un�`: o�ll r the hearings. There was a need for some legislation and policy development to promote gender equality that was informed by an analysis of the gaps in existing legislation and policy. It appeared that no such analysis had been undertaken. The memorandum stated that the proposed legislation did not aim to create new anti-gender discrimination legislation, or additional mechanisms to enforce existing legislation and policies, so neither gaps in policy or implementation were addressed.

The Bill duplicated a number of existing pieces of legislation as provided in previous submissions. Duplication increased the likelihood of non-implementation. Duplication also caused problems of harmonisation, strains resources and creates an administrative burden. The recommendations were to do an analysis, remove duplicating provisions, mainstream monitoring and evaluation of gender equality into Department of Monitoring and Evaluation in the Presidency. An investigation should be conducted as to why chapter 5 of PEPUDA had not been operationalised in a decade and also find out what had happened to other legislation such as to Muslim marriages, domestic partnerships and adult prostitution.

The introduction of the DWCPD had fundamentally changed the nature of the National Gender Machinery (NGM).The involvement of women's organisations in the NGM was clearly stated from the outset but this was not the case with the DWCPD. As such, the participation of women’s organisations had been rendered as ad hoc and discretionary, rather than obligatory. Lack of participation was not addressed adequately by the WEGE Bill. More consultation should be done and clearly set out powers and functions of implementing agents. In addition, Section 15 of WEGE should be further developed in order to strengthen Gender Focal Points (GFP) or consideration should be made to creating a National Gender Machinery Council along the lines of NEDLAC that could institutionalise participation and include the private sector and women’s groupings.

Resources were required for the Bill as government audits showed that every department did not have a GFP (eg DPSA audits) and employing these would cost money, elevating existing GFPs to senior management positions would cost money and training government officials around gender mainstreaming would also cost money hence implementation and costing of the Bill needed to be reworked.

Currently the Bill offered a hollowed out response to the problem of gender inequality. To be substantive it needed to be informed by an analysis of existing gaps in legislation and policy; and analysis of what would strengthen implementation and not necessarily more law or policy.

The Chairperson noted that the intention of the Bill was appreciated but there was a lot of work to be done before the Bill could be formally considered. She acknowledged the existence of other pieces of legislation which were facing implementation challenges. After the public hearings, the Committee would sit with the DWCPD to deliberate on the Bill. Thereafter a report would be compiled and submitted to the NCOP before finalisation for interaction within the provinces.

The meeting was adjourned.