National Council of Provinces - 28 January 2000
FRIDAY, 28 JANUARY 2000 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
____
The Council met at 10:06.
The Deputy Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.
NOTICES OF MOTION
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Does any member wish to give notice of a motion?
Mr L G LEVER: Mr Chairperson, is this notice of a motion?
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Yes.
Mr L G LEVER: In that case, Mr Chairperson, I wish to give notice of a motion:
That the Council - (1) notes the startling double standard in morality displayed by the ANC when the DP enters into a co-operation agreement with the UCDP, when one takes into account …
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! That is not a notice of motion, hon member. That is a motion without notice.
Mr L G LEVER: I wish to give notice of a motion and I wish to move that, with notice.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Do you understand the distinction between a motion without notice and a notice of motion?
Mr L G LEVER: Yes, Mr Chairperson, that is why I asked in the first instance whether you were calling for motions with notice. Is this without? I apologise, then, Mr Chair.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! I called for notices of motion. I called for any member who wished to give notice of a motion. Is there any member wishing to do that? Does any member wish to move a motion without notice?
MOTION OF CONDOLENCE
(The Late Mr S Naidoo)
The CHIEF WHIP OF THE COUNCIL: Chairperson, I move without notice:
That the Council -
(1) notes with deep regret the passing away of Shoots Naidoo, the chief executive officer of Salga, the SA Local Government Association, who passed away this morning as a result of two severe heart attacks;
(2) further notes that Shoots Naidoo was a dedicated, diligent and competent CEO, who assisted the association tremendously, and that his passing away has really touched members of this Council and Salga in particular; and
(3) conveys its sincere condolences to the family of Shoots Naidoo, especially his wife and two children.
Mr J P GELDERBLOM (Western Cape): Mr Chairperson …
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! The hon member has moved a motion. Is that an objection?
Mr C ACKERMANN: Chairperson, we do not object to what the Chief Whip has said, but we want to add to what he has said. That is why my colleague from the Western Cape rose.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! If the motion is agreed to, and parties wish to say something on that, he can do so. Do you want to move an amendment, or do you want to say something? The motion is before the House. If parties are agreed, let them agree, and if parties want to say something and the Chief Whip agrees, I will have no objection to giving parties the opportunity to do so. Is there any objection to the motion? Chief Whip, are you prepared to allow other parties to say something?
The CHIEF WHIP OF THE COUNCIL: Chairperson, we have no objection whatsoever. The appropriate way would have been to apply for the amendment of the motion by adding certain sentiments which the party wishes to raise. But we have no difficulty at all if anything is added to that.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Any party wishing to express some sentiments on the motion is free to do so.
Mnr J P GELDERBLOM (Wes-Kaap): Mnr die Voorsitter, ons wil net van die Wes- Kaap se kant sê dat ons verneem het van die tragiese heengaan van mnr Shoots Naidoo. Ons dink hy het baie vir plaaslike regering beteken, nie net vir plaaslike regering alleen nie, maar vir die sfeer van regeringsvlak, en ons betuig ons innige simpatie met sy familie.(Translation of Afrikaans paragraph follows.)
[Mr J P GELDERBLOM (Western Cape): Mr Chairperson, we would just like to say from our side in the Western Cape that we have learnt of the tragic passing of Mr Shoots Naidoo. We believe he meant a great deal to local government, and not only to local government, but also to the wider sphere of government, and we express our sincere sympathy with his family.]
LANGUAGE POLICY FOR PARLIAMENT
(Draft Resolution)
Mnr A E VAN NIEKERK: Mnr die Voorsitter, ek stel voor:
Dat die Raad -
(1) kennis neem dat
(a) die Grondwet van Suid-Afrika erkenning gee aan 11 amptelike
tale, die uitbou daarvan, sowel as die beskerming van dié tale,
en die ander tale in Suid-Afrika, teen diskriminasie;
(b) Pansat in die lewe geroep is om bogenoemde te help doen; en
(c) taalrade besig is om hul voete te vind in die provinsies, maar
dat die Parlement van Suid-Afrika nog nie 'n taalbeleid het nie;
en (2) die Reëlskomitee maan om onmiddellik hieraan aandag te skenk. (Translation of Afrikaans draft resolution follows.)
[Mr A E VAN NIEKERK: Mr Chairperson, I move:
That the House -
(1) notes that
(a) the Constitution of South Africa gives recognition to 11
official languages, the promotion thereof, as well as the
protection of these languages, and the other languages in South
Africa, against discrimination;
(b) PanSALB has been formed to assist in achieving the above-
mentioned; and
(c) language boards are finding their feet in the provinces, but
that the Parliament of South Africa is still without a language
policy; and
(2) urges the Rules Committee to give immediate attention to this.]
Ms S N NTLABATI: Mr Chairperson, on a point of order: This is the second time we are having this motion. We also had it three months ago.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Are you objecting to the motion?
Ms S N NTLABATI: I am objecting, Chairperson.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! I am advised that the objection is that this motion has already been moved before this House. We will have to check the records to establish whether indeed this motion was ever moved during this session of Parliament. If so, we will deal with the matter at that stage.
Mr A E VAN NIEKERK: Mr Chairperson, this means if it has not been moved, it will be accepted if there is no other objection?
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Then we will put the question before the House.
Mr A E VAN NIEKERK: It will again be put before the House?
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Yes.
Mr A E VAN NIEKERK: Thank you, Chairperson.
DOUBLE STANDARDS DISPLAYED BY ANC
(Draft Resolution)
Mr L G LEVER: Mr Chairperson, if I may put my motion now?
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Yes, hon member.
Mr L G LEVER: Mr Chairperson, I move:
That the House -
(1) notes the startling double standards in morality displayed by the ANC when the DP enters into a co-operation agreement with the UCDP; and
(2) further notes that the ANC has a close relationship with the Minority Front of Mr Rajbansi, who was declared by the James Commission to be unfit to hold public office.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Is there any objection to the motion?
The CHIEF WHIP OF THE COUNCIL: We object to the motion, Chairperson.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! There is an objection to the motion and it therefore becomes a notice of motion.
CONGRATULATIONS TO BAFANA BAFANA
(Draft Resolution)
The CHIEF WHIP OF THE COUNCIL: Chairperson, I move: That the Council congratulates Bafana Bafana on their victory last night, 27 January 2000, and the fact that they have now qualified for the quarterfinals.
Motion agreed to in accordance with section 65 of the Constitution.
PRECEDENCE TO ORDER OF THE DAY
(Draft Resolution)
The CHIEF WHIP OF THE COUNCIL: Chairperson: I move:
That precedence be given to Order No 2.
The effect of this will be that the Preferential Procurement Policy Framework Bill and the report will be dealt with first, before Order No 1.
While I have the floor, Chairperson, may I also draw the attention of those in the gallery and the media to this. They may have come here early on the basis of the order as it is printed on the Order Paper. I can indicate to them that it is anticipated that the Promotion of Equality and Prevention of Unfair Discrimination Bill will be dealt with in this House at approximately 11:30. We regret any inconvenience occasioned by this. I have consulted with the other political parties.
Motion agreed to in accordance with section 65 of the Constitution.
PREFERENTIAL PROCUREMENT POLICY FRAMEWORK BILL
(Consideration of Bill and of Report thereon)
The DEPUTY MINISTER OF FINANCE: Mr Chairperson and members of the NCOP, I must say that this is the first opportunity for me to address this august House and I welcome the opportunity.
The debate we are having in this House today provides us with a unique opportunity as political parties, as members of the House and society broadly, to reflect on the achievements, progress, difficulties and challenges of present-day South Africa. It is an opportunity for us to take pride in, because we are a constitutional democracy whose Constitution provides an anchor for the actions, activities, rights and interactions of all actors in our society, be they individuals, groups, institutions or organisations.
Furthermore, we are fortunate to have a Constitution which was not drawn up as an academic exercise in boardrooms, but one which is firmly rooted in our society, and as such, recognises some of the anomalies and distortions that characterise our society.
So that, while section 217(1) of the Constitution says that organs of state, when contracting for goods and services, must do so in a manner which is fair, equitable, transparent, competitive and cost-effective, section 217(2) states that subsection (1) does not prevent the implementation of a procurement policy which provides for categories of preference in the allocation of contracts and the protection or advancement of persons, or categories of persons disadvantaged by unfair discrimination.
In saying all these things, I want to make it clear that the Bill before the House is firmly rooted in the Constitution, as it fulfils the requirements of section 217(3) of the Constitution which says that any preferential procurement policy must apply within a framework prescribed by national legislation. It is certainly not a product of arbitrariness by a rampant majority party.
The Bill and the debate also remind us that our society has unique problems which in turn require unique solutions, that our history and its legacy of disparity, inequality and distortions cannot be left to chance to correct, but that we shall have to take very deliberate steps to correct it. None among us, including those who have expressed the view that this Bill will lead to discrimination against young whites or small businesses of white people, should fear preference being given or affirmative action being taken.
In this regard, it must also be stated that discrimination and affirmative action are not only a racial phenomenon, as they also relate to geographic disparities, gender, disability and the urban-rural divide.
Having said that, this Bill is firmly rooted in our Constitution, and goes further in that it provides us with an instrument which enables us to deal with some of the realities of our country. One of the major challenges that face our country today is that of economic growth and job creation. In seeking solutions to these problems, we have identified the development of small, medium and micro enterprises as having potential to create many jobs and thus spur economic growth.
In an environment such as exists in South Africa, characterised by a lack of finance, and with Government being the largest consumer of goods and services, this Bill will give us an opportunity more vigorously to pursue the objective of small, medium and micro-enterprise development through the Government procurement system.
The Bill also has the necessary flexibility in that it provides for smaller and bigger contracts through the ratios 80/20 and 90/10, respectively, in terms of the determination of a formula and amounts to be stipulated in regulations. It is also flexible in that it enables exclusions, where necessary, from the provisions of this Bill.
I must say that the Bill also creates the opportunity for meaningful partnerships. I am saying this because one of the provisions in the Bill deals with a very negative phenomenon in South Africa, that of fronting, where either big businesses or white-owned businesses participate in this practice called ``rent a black’’. This is why one of the provisions of the Bill makes the submission of false information so as to win tenders illegal.
Further work still needs to be done in order to give potency to this Bill, namely the drafting and promulgation of regulations that will provide details which it would not have been wise for us to include in legislation. Furthermore, departments will have to pay closer attention to specifications for tenders. We need to speed up the process of the wider and more comprehensive reform of the state procurement system which, as we speak, I assure members, is work in progress.
Finally, the fact that there is broad consensus on this Bill is yet more proof that consultation is the best route for us in dealing with the multifaceted problems facing our country. We must, as we begin this debate, acknowledge the hard work that members put into processing this Bill and the co-operative effort between the National Assembly and the National Council of Provinces, particularly the role of the chairs of the finance committees of both Houses, Ms Barbara Hogan in the National Assembly and Ms Dorothy Mahlangu in the National Council of Provinces, in taking the Bill through the requisite stages and processes. I therefore commend this Bill for adoption by the National Council of Provinces. [Applause.]
Ms Q D MAHLANGU: Chairperson, Deputy Minister and hon members, I wish to thank the chairpersons of provincial standing committees and the NCOP permanent members of the Select Committee on Finance for their excellent co- operation in shaping the Preferential Procurement Policy Framework Bill and their unconditional support throughout. We had continuous interaction and intense contact during our deliberations on this Bill. It was not easy. There was a festive season and holidays but we tried our best.
I recently came across an article by Bernard Hoekman, a World Bank economist, which said that South Africa was the only country in the world that constitutionally required a framework on procurement. This is a first of its kind for our young democracy and that is as a result of ANC action.
Clause 2 of the Bill was a source of major concern and dissatisfaction.
There was a considerable debate on the usage of the word must'' or
may’’ to include other goals not specified in the Bill. Finally, the word
``may’’ was retained to allow scope for the inclusion of other goals, such
as skills transfer and others, depending on the type of goods tendered for.
The Bill is intended to empower the historically disadvantaged, and we owe
no apology to anyone for that.
However, we still need to take extra measures to ensure that the objectives of the Preferential Procurement Policy Framework Bill are met. At present, access to tender information and the tender bidding processes themselves are cumbersome and complicated. We need to ensure that the tender documents are simplified so that emerging entrepreneurs can complete them accurately and thereby not jeopardise their chances by submitting incomplete documents.
The key outcome of passing this Bill before us is that obstacles preventing informal township entrepreneurs, such as panel beaters, machinists and upholsterers, from tendering for Government goods and services have been removed. Clause 2 of the Bill distinguishes between large procurement transactions and smaller transactions by cost thresholds. Clause 2 makes a distinction between small contracts and large contracts by way of being equal to, less than or exceeding a prescribed amount.
A maximum of 20 points of the preference system are allocated to smaller contracts while only 10 points are allocated to larger contracts on the preference points system. The 10 or 20 points difference ensures that the emerging entrepreneurs are not out-competed by the well-established larger companies when tendering for small Government contracts.
This is a long-overdue measure to ensure the participation of the black local entrepreneur in local tenders. The Bill improves the access of small, medium and micro enterprises to the procurement process, which could lead to the speedy formalisation of the previously informal sector of the economy. The latter would increase the population of tax-paying citizens, because all bid documents require that successful tenders be awarded to persons in good standing with the Receiver of Revenue.
In addition, clause 3(a) allows the Minister, on request, to exempt an organ of state from any or all of the provisions of this Bill, if the likely tenderers are international suppliers. This particular amendment makes the Bill before us commensurate with the World Trade Organisation’s government procurement agreement and other procurement directives.
The empowerment of small or emerging contractors and entrepreneurs should not negate other constitutional goals such as equity, transparency, competition and cost-effectiveness. Women and black entrepreneurs can deliver timeously and inexpensively because of low input and overhead costs. The orthodox assumption that a preferential route always results in a premium and slow delivery is unfounded.
Research conducted for Ntsika entitled An Assessment of Procurement to SMMEs in Local Government indicated that a company owned by black women offered a lower cost for almost thrice the output of deliverables offered by well-established companies.
In respect of women’s empowerment, this Bill will go a long way to uplift them. They can, through partnership and joint ventures, obtain tenders, create jobs and transfer skills. Companies owned by women, or which have women in decision-making positions, are also listed as contracting persons historically disadvantaged and to whom preference may be given. Black women have not had the same access to education, training, credit and loan facilities and are thus placed in a position of relative powerlessness in obtaining tenders. ``You educate a woman, you educate a nation. You educate a man, you educate an individual!’’ [Laughter.]
Black people have been used in the past to secure tenders. However, this Bill addresses the issue of false disclosure of company ownership when tender documents are submitted. The Bill provides for penalties, which an organ of state may deem necessary to apply.
I am pleased to announce that all parties and provinces in the joint committee found the Bill desirable. I see no reason why anybody should oppose this Bill. This Bill seeks to redress the imbalances of the past.
I wish to thank the Minister of Finance, Mr Trevor Manuel, who is not with us today; his Deputy, Mr Mandisi Mpahlwa; Ms Barbara Hogan, the chairperson of the National Assembly portfolio committee, and the officials of the Department of Finance and State Expenditure. Lastly, I want to thank the Chief Whip of the NCOP, Mr Enver Surty, and all political parties for their understanding when called during the holiday period. [Applause.]
Ms P C P MAJODINA: Chairperson, Deputy Minister of Finance, A! Mthembu, if these walls had ways and means of staging a protest action, they would have done so long ago as result of the bombardment they are forced to absorb day in and day out, from expressions such as:
We in the DP, or we in the New NP, support the principle or the essence of the Bill, but cannot vote in favour of this Bill because of this or that reason.
Translated, it simply means that they cannot vote for the Bill because it is not to the advantage of their constituency, their rich constituency, ie the rich, but favours the other constituency which they do not respect, namely the majority, which falls under the class of the historically disadvantaged.
The opposition is sensitive and extremely allergic to the mention of the words ``historically disadvantaged’’. We, however, cannot easily forget or be so irresponsible as to forget where we came from.
This Bill will empower an ordinary MaNdlangisa and MQwathi from the remote rural village of Macacuma in the northern part of the Eastern Cape. It will protect these poor men from being used as window-dressing by certain individuals in order to secure preferential points. This Bill establishes the parameters of the preferences and defines both beneficiaries and objectives of such preferences.
Ndivumele ndigoduke, ndiwele iGqili, ndiwele iNciba, ndiwuwele noMbhashe. Sanele ngooSambuntsuntsu, ooSiswana-sibomvana, oohlohlesakhe abamfimfitha abantu bakowethu besenza uqhogwano olungunomgogwana kuba bejonge inzuzo nengeniso, bathi bakugqiba babalahle njengezikhoko. [Kwaqhwatywa.] (Translation of Xhosa paragraph follows.) [Let me cast my eye across the Orange, Kei and Bashee rivers. We have had it with people pursuing self-interest, who form partnerships with our people under false pretences and then leave them in the lurch. [Applause.]]
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Hon members, allow me to take this opportunity to welcome our special delegates, including members of Salga, to this Chamber.
Mr A MNGUNI (Free State): Chairperson, Deputy Minister and hon members, the objective of this Bill is to empower the historically disadvantaged majority.
For the past 40 years or so this majority has been ruthlessly dispossessed of its economic and political rights. This Bill is one of the instruments that will make sure that the majority is given its economic rights.
Let me sketch the situation in the Free State for hon members. Most of the people are in rural areas and the province itself is rural. With the continuing illegal evictions, most of the people are moving to urban areas. These people are illiterate and they do not have any skills. How does one expect these people to survive unless we make the Bill mandatory, even at local level? Farming was the only means of survival that they knew. If these people are kicked off the farms, how are they going to adapt in an urban situation?
In the urban areas most of the towns depend on the mines. The dwindling of reserves and the depreciating gold price make it impossible for these people, irrespective of whether they are white or black, to earn a living because the mines are closing down. If we make this Bill mandatory, even at council level, the very same white people who cannot make a living any other way will be enabled to tender and they will be able to remain in the economic mainstream.
Regarding the 90:10 and 80:20 formulae, the Opposition says that, if we apply the 80:20 formula, 11% fewer houses will be built and if we apply the 90:10 formula, 25% fewer houses will be built. Then either 11% or 25% less delivery will take place.
In my view it will be worthwhile for the state to ensure economic development for the majority at the cost of 11% less delivery. This will ensure the upliftment of the majority that are still outside the mainstream of the economy. If the state pays a premium of either 11% in terms of the 90:10 formula, or 25% in terms of the 80:20 formula, I believe this will be worthwhile as it will mean including the majority of the people into the mainstream of the economy.
The Bill is not discriminatory because anybody can tender. Providing that his or her tender is acceptable, he or she will get a contract. Most white companies today are still getting …
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Order! [Laughter.]
Mr A MNGUNI (Free State): A lot of companies today, white companies for that matter, are still getting state tenders. They were empowered by the NP government and today they are still empowered under this Government, because they have managed to crowd out the SMMEs through the tendering system. It is time for the SMMEs also to get empowered by this democratic Government.
It has already been said that one of the main issues or aims is to stop fronting. Fronting still occurs, whether by white or black companies. Big black companies are still using other people to secure tenders. When put into practice, this Bill will really address this situation. We hope and believe that, to some extent, fronting will be eliminated.
The opposition parties are concerned about the question of how long the disadvantaged will remain disadvantaged. The fact is that the disadvantaged did not receive proper education under the system of Bantu education. While the disadvantaged were fighting the unjust and oppressive system, their white counterparts were studying at universities. Because they did not get a proper education they are today still disadvantaged and cannot make a living. Therefore they will forever, or at least for some time to come, remain disadvantaged because of their poor education and as far as the economy is concerned.
Opposition parties say they are not going to vote in favour of the Bill because it is unconstitutional. Clause 44(2) of the Constitution says that the state can intervene in order to maintain economic unity. This Bill really addresses that issue. The Opposition therefore has no leg to stand on, unless they want to perpetuate white economic domination.
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Hon member, could you please round up? Your time has expired.
Mr A MNGUNI (Free State): Thank you, Chairperson. I say: Let the Opposition take this opportunity to make right what they did wrong in the past. [Time expired.] [Applause.]
Ms J FUBBS (Gauteng) Mr Chairperson, Deputy Minister of Finance - whom we certainly welcome to this House as this was his maiden address, but I suppose in his case we should call it a gentleman address - and hon members of this House, Gauteng fully supports the Bill before us as amended.
I just want to pass a few comments before coming to the substance of my speech. Many of the parties have supported or have finally seen reason to support this Bill, in spite of vigorous discussions and debate. However, I just want to address one of the fallacious arguments that were put forward in opposition to black entrepreneurs being given contracts. The dangers, we were told, are lack of delivery, or poor quality workmanship. I want to ask members of this House if they read an article a few weeks ago about all those houses that collapsed. What was the colour of the contractor? I want to ask members: Who built this unfinished bridge I see in Cape Town? Who were the contractors? I can go on and on with the list, but I do not wish to waste my time because I think we all read, and it would be a very big file to read about mismanagement of contracts by members of the white community, who are highly skilled. That is just one thing I wanted to address.
The other issue that came up, the second point, was about the danger of provinces losing their political power and status granted in the Constitution, that is, the great fear that national was now dictating to us. It was quite clear that the chapter on co-operative governance was ignored during this debate, and I think that what one sees within this Bill is a full recognition of the status of provinces. This is a framework that allows provinces to determine their preferential policy. Gauteng, of course, has done just that.
Procurement is a powerful instrument for transformation, and Government expenditure, through the purchase of goods and services at about R64 billion at the national level and R1 billion at Gauteng’s level, is probably the largest purchaser in the country, and as such directly influences GDP. Gauteng, incidentally, contributes 38,1% to this GDP and, clearly, we intend making a very big difference within the framework of this piece of legislation.
Within this legislation the historical disadvantages of race, gender and disability have clearly been addressed. I want to remind members that not so long ago there was a systematic disempowerment of black people, where legislation specifically excluded them and turned them into criminals for even attempting to operate businesses. But despite this there were, of course, a few entrepreneurs that managed to get ahead. Now this Bill aims to redress that legislative disempowerment that continued for over 40 years
- and if we include colonialism, 300-odd years.
However, what the Bill is also addressing is that - and I must make this clear - it does not act irresponsibly. There is implicit, throughout this Bill, fiscal discipline. It recognises that one cannot go 50:50 or 60:40. Yes, we need to cap this risk to the Government, this premium risk at around 11,1% and about 20% to 25%. It recognises that. One may ask oneself, as people were asking themselves during this debate: Can the Government afford this? I am asking members: Can we actually afford not to do this? That is the question members should be facing and answering.
This Bill will enable us - through this powerful instrument of procurement within which each province takes into account its own unique situations - to begin in a responsible manner to effectively redress the economic imbalances. It does this in a variety of ways through clause 2(1) and specific subsections. There are preferences, either specific or which can be written into the tenders, for companies which employ people from historically disadvantaged communities, and companies which show adequate transformation of the workplace and active commitment to issues of employment equity.
There is also the aspect of regulations. The Minister of Finance took this one step further and said that he would publish these draft regulations in the Gazette, not only for transparency, but again for constructive engagement, not just with those of us sitting here, but with civil society in general.
The Bill comprehensively accommodates RDP objectives. It increases application, irrespective of the value of contracts. It does not eliminate fronting. One cannot eliminate crime - show me any country that can eliminate it - but the Bill effectively reduces the incidence of fronting. It accommodates, as I have said, HDIs and women. My colleagues have spoken adequately and inspiringly about that. The Bill allows us to do what few countries have done. It harmonises fiscal discipline and economic development with empowerment. The Bill is not a Bill …
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): Order! Your time has expired, hon member.
Ms J FUBBS: May I then close by saying that this Bill will contribute to the dream of an African renaissance becoming action. [Applause.]
Dr E A CONROY: Mnr die Voorsitter, die Adjunkminister van Finansies en agb lede, in artikel 217(1) van die Grondwet word vereis dat alle staatsorgane op nasionale, provinsiale of plaaslike regeringsvlak en enige ander staatsinstellings wat in nasionale wetgewing geïdentifiseer word, ‘n regverdige, billike, deursigtige, mededingende en kostedoeltreffende stelsel van verkryging moet hê. Daar word egter in artikel 217(2) duideliker en meer spesifiek bepaal dat die reeds genoemde instellings ‘n beleid van verkryging kan toepas waarin voorkeurkategorieë by die toekenning van kontrakte bepaal word en persone of kategorieë persone wat tevore deur onbillike diskriminasie benadeel is, beskerm word.
Dít is waaroor hierdie belangrike stuk wetgewing gaan, naamlik dat entrepreneurs en opkomende entrepreneurs wat in die verlede deur wetgewing benadeel is en sodoende verhinder is om suksesvol vir staatskontrakte te tender, die geleentheid gegun word om ook hul deel van die ekonomiese koek te kry. Daar word dus spesifiek in klousule 2(1) van die wetsontwerp verwys na persone en kategorieë persone wat op grond van ras, geslag of gestremdheid benadeel is. Hierby kan ook die klein, medium en mikro entrepreneurs gevoeg word.
Die Nuwe NP vereenselwig hom heelhartig met hierdie beginsel in die wetsontwerp, omdat ons opreg meen dat dit ‘n instrument is wat baie daartoe kan bydra om die helingsproses van die verlede se wonde te versnel. Ons stem daarom vir die beginsels wat die wetsontwerp beliggaam en sou graag wou sien dat die wet - wat dit sekerlik by die afhandeling van vandag se debat sal wees - ‘n modelwet, of so ná moontlik aan perfek, moet wees. (Translation of Afrikaans paragraphs follows.)
[Dr E A CONROY: Mr Chairman, Deputy Minister of Finance and hon members, section 217(1) of the Constitution contains the requirement that all organs of state at national, provincial or local government level and any other government institution identified in national legislation, must follow a fair, reasonable, transparent, competitive and cost-effective procurement system. However, section 217(2) provides more clearly and specifically that the aforementioned institutions may apply a procurement policy in which preferential categories are determined when contracts are allocated and persons and categories of persons who were previously unfairly prejudiced by discrimination are protected.
This is what this important piece of legislation is about, namely that entrepreneurs and emerging entrepreneurs who were previously detrimentally prejudiced by legislation and consequently prevented from successfully tendering for contracts are given the opportunity to receive their slice of the economic cake. Specific reference is made in clause 2(1) of the Bill to persons and categories of persons who have been prejudiced on the grounds of race, gender or disability. Here one can include the small, medium and micro entrepreneurs.
The New NP associates itself wholly with this principle in the Bill, because we in all sincerity think that it is an instrument that can contribute much to accelerating the process of healing the wounds of the past. For that reason we are voting in favour of the principles contained in the Bill and would like to see that the Act - which it will certainly be after the conclusion of today’s debate - is a model Act, or as near perfect as possible.]
We have, therefore, in terms of the New NP’s policy of constructive engagement, argued the following points at the joint committee, which we felt should have been included in the main body of the Bill and not only be accommodated in the accompanying regulations.
In the first instance, we strongly feel that the provisions of the Bill should not result in the discrimination of South African citizens vis-à-vis foreign nationals. This is not, may I add, a case of xenophobia, a term which was often used out of context during the deliberations of the joint committee on the Promotion of Equality and Prevention of Unfair Discrimination Bill.
An example of discrimination of this nature would be if an African-American who retained his or her American citizenship obtained a South African residence or working permit and settled in the Republic with the purpose of involving himself or herself in the construction business. Although South Africa welcomes foreign investment and any new skills which might help in the acceleration of our economic growth, such a business should not enjoy the advantages of this Bill against tenders submitted by, for example, white females.
As far as foreign participation is concerned, foreign pressure was also apparently exerted on the Government to ensure that this Bill does not adversely affect the existing and future free trade agreements in the sense that there should be no discrimination against foreign companies that wish to tender. We are therefore pleased that clause 3(b) of the Bill states that the Minister may, on request, exempt an organ of state from any or all of the provisions of this Bill if the likely tenderers are international suppliers.
In the second instance, we are of the opinion that any company submitting a tender in terms of this Bill must be in good standing with the SA Revenue Service and that a clean bill of health, so to speak, should be a part of the required set of tender documents. The joint committee has been given the assurance that these matters will be addressed in the regulations, and one can assume that this will be done in future.
In the third instance, we feel that the Bill should make provision for review after a certain period. This could possibly be after 10 or 15 years. This Bill might hopefully no longer be necessary after a period of about 10 years, because all disadvantaged companies would have used that time fruitfully to acquire all the necessary skills to obtain access to finance and to understanding the tendering process. I conclude by saying that the New NP supports this Bill despite the few reservations I have enumerated. [Time expired.] [Applause.]
Mr J L MAHLANGU: Chairperson, I am speaking on behalf of the Province of Mpumalanga. We had a few public hearings and consultations with the various role-players in the province, and the finance committee in the province met to deliberate on the Bill. Members of that committee did participate also at the joint committee here in Cape Town with regard to this Bill, and the province supports the enactment of this important piece of legislation.
This Bill indeed gives a framework within which the affirmative procurement policy of Government will realise its set objective. I believe that this Bill, contrary to the view expressed by those who fear that it will have a negative effect and that it equates to apartheid in reverse, will bring about stability in our country and within our economic community. I think this Bill sends a very clear message to all South Africans that this Government is serious about redressing, in an appropriate way, the imbalances that the apartheid system left behind.
My colleague Mr Conroy, in his closing remarks, indicated that perhaps in 10 years’ time there will have to be a review, because at that time the effects of apartheid will have been eroded. I am not sure whether what he said could ever be correct. It takes a short time to cause destruction, but it takes a very long time to rebuild what has been destroyed. [Interjections.]
Obviously, one could expect that from the likes of my colleague on the other side. This Bill will deal with those issues and I think we can only succeed in redressing the imbalances of this country if all of us as a people look at the effects of the evils that have happened and look forward to addressing those things in a very constructive way. It is in the interests of all of us, black and white, and all of business to support initiatives of this nature. If we fail to do that, we shall have failed to admit the errors that were made.
We support the Bill and we believe that it is necessary. I am sure I agree with the previous speaker from Gauteng that it is very difficult to deal with fronting. But I believe that we should consider including in the Bill that will be considered by this Council in the near future, dealing with whistle-blowing, a clause that will, in one way or another, deal with the exposure of fronting within this sector of our community. However, in principle I would want to say that we strongly support the passing of this Bill. [Applause.]
Mr Z S KOLWENI: Chairperson, Minister, hon members of the Council, this day has come after intensive deliberations with civil society nationally, in all the provinces. May I remind this Council and the nation that it was never an easy exercise to come to the final tune of this piece of legislation and to meet the February deadline.
Ewe kuyinene ukuba uluntu ngokubanzi luza kuxhamla kulo mthetho uyilwayo unika ithuba lokuba omnye nomnye kwimiDaka yakowethu afake isicelo sokubonisa isakhono sakhe ekwenzeni umsebenzi othile, kanti norhwebo.
Umnyango uvulekile gengelele ngakumbi kuninzi lwama-Afrika ahlala emakhayeni kukudala elangazelela ukufikelela kumathuba anjengala aziswa ngulo mthetho uyilwayo namhlanje.
Ndivumele ndiphawule ndithi: Lo mthetho uyilwayo ungummiselo ongqina ncam okuyalelwa nguMgaqo-Siseko, kwicandelo lama-217. Sileli Bhunga lamaPhondo leSizwe elililizwi lamaphondo, sithi kuluntu malubaze iindlebe, luqaphele okokuba kungentsuku zatywala uMphathiswa wezeMali uza kundulula, apapashe zonke izicwangciso neenkcukacha ezifunqula lo mthetho uyilwayo, ukuze nina niwungenise endleleni enisa kwimpilo nobomi obungcono.
Yindlela ke leyo uluntu olwazikhethela yona mhla lwaluphawula igama lalo kuKhongolose ngonyaka ka-1994, lwaphinda ngo-1999. Ngoku amasi abekwe elangeni. Kosala amavila. Amavila ke siyawazi sonke. Into yawo yokuqala kukunqena ukululamela imithetho nezicwangciso. Asoloko efuna into engekhoyo, angayixabisi esondezwe phambi kwawo.
Xeshikweni bekuxovulwa, kuqulunqwa lo mthetho uyilwayo umntu ubesakuweva ebhomboloza ngesunset clause, leya thina sayishiya ezipalini zogqatso ngo-
- Inokuba iyagodola apho ikhoyo okanye itshiswa ngamalanga. Vuma ndikhumbuze le Ndlu noluntu ukuba apho kumnandi khona ngalo mthetho oyilwayo kukuba akukho nto intsha uyithethayo koko umisa iinjongo ze-RDP. (Translation of Xhosa paragraphs follows.)
[Yes, it is true that the wider community will benefit from this Bill that gives each and every black person an opportunity to submit an application to show his or her skill in a particular craft, as well as in trade.
The door is wide open, particularly for the majority of unemployed Africans who have been waiting eagerly for opportunities such as ones brought by this Bill.
Allow me to comment thus: This Bill serves to implement that which is instructed by section 217 of the Constitution. As the National Council of Provinces, which is the voice of the provinces, we say that the public should put their ear to the ground and note that the Minister of Finance will promulgate and publicise all the plans and details relating to this Bill so that they can take it down the road that leads them to a better life.
That is the road the community chose when they made their mark next to the ANC in 1994, and again in 1999. Now is the time. Only the lazy will not benefit. We all know the lazy. First they are lazy to obey laws and follow plans. They always look for something that is nonexistent and do not respect that which is brought before them. While the Bill was being debated one could hear them grumbling over the sunset clause, which we left in 1999. Wherever it is, this clause must be cold or frying in the sun. Allow me to remind this House and the public that the best thing about this Bill is that it does not say anything new, but implements the objectives of the RDP.]
In conclusion, I must reiterate that only those who uphold the principles of the RDP, as outlined in the White Paper, will find their way and that that will translate into the creation of SMMEs on a large scale. Like my province, I hope all provinces are ready to vote for this Bill. [Applause.]
Mr G A LUCAS: Chairperson, hon Deputy Minister of Finance, hon members of this House and hon special delegates from the provinces and Salga, section 217 of the Constitution states:
When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for goods or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost- effective.
It goes further to state in subsection (2):
Subsection (1) does not prevent the organs of state or institutions referred to in that subsection from implementing a procurement policy providing for -
(a) categories of preference in the allocation of contracts;
(b) the protection or advancement of persons, or categories of persons, disadvantaged by unfair discrimination.
Therefore we as the Northern Cape Province welcome this Bill, ie the Preferential Procurement Policy Framework Bill, precisely because it seeks to address and expresses our constitutional requirements as contemplated by section 217 of our Constitution. It is our firm belief that this Bill will greatly contribute towards the economic advancement of those historically disadvantaged by the brutal system of apartheid and that, indeed, our organs of state can play an important role in ensuring that the majority of those disadvantaged are able to enter the mainstream of our country’s economy.
We must ensure that we as the state, in our small way, contribute towards closing the gap between the rich and the poor of our country. This Bill seeks to do exactly that, especially in our province where the majority of our people live in abject poverty.
There is no way that we as elected representatives can oppose any progressive initiatives aimed at improving our people’s lives and living conditions. This would be a gross betrayal of our people’s confidence and trust in us to advance their needs and aspirations. Furthermore, it is our belief that this framework will ensure that fronting, which has been used by those who seek to enrich themselves at the expense of our disadvantaged people, does not continue. We have seen only yesterday that even political parties also use fronting by renting a Mangope to advance their own election. [Laughter.] Really we need to ensure that this Bill addresses those specific issues.
Furthermore, this Bill will ensure that there is uniformity among all our state organs in the procurement process which will greatly assist our people when tendering for Government programmes. During the public hearings we conducted in our province, the citizens of our province overwhelmingly supported this Bill without any reservations. In fact, they indicated that this framework was long overdue and that it would contribute towards accelerating the pace of change currently taking place in our country for the betterment of our people’s lives. It also came out clearly during those hearings that our people in the province are sick and tired of corrupt elements within our society who seek to use every available opportunity our Government creates to enrich themselves. It is their wish that we ensure that this procurement policy framework addresses their concerns.
Above all, this framework ensures that Government, in its tender process, adheres to clear business principles which are equitable, transparent and cost-effective. This Bill also emphasizes the importance of addressing the programmes for reconstruction and development which form key pillars of our Government’s commitment towards creating a better life for all. The Northern Cape Province supports this Bill without any reservations.
I wish to thank the two chairpersons of the committees for the sterling work and leadership that they have given during the deliberations on this Bill. Indeed, their contribution and leadership assisted us a lot. In conclusion I just wish to indicate that there have been concerns from the NNP that this Bill does not cover international issues and people from foreign countries. I am not sure where this fear comes from, because clearly, in terms of the Bill, there are exemptions that the Minister can apply to ensure that those people who are not South Africans are unable to use this Bill their to own advantage. I wish to suggest to the hon member that he must go through the Bill more thoroughly than he did in the committee, and maybe he will begin to understand some of the issues. [Interjections.]
Lastly, the question of timeframes is not necessary, because we have been elected to do an oversight work. It is important that in our execution of responsibilities, we are able to monitor the policy so that as conditions change, we are also able to change that policy to suit those particular conditions. I am not sure what the noise is all about concerning the question of timeframes. [Applause.]
Mr N MATHEBE (Salga): Mr Chairperson, hon Deputy Minister Mr M B Mphahlwa, hon members and special delegates, I am Norman Mathebe from the SA Local Government Association. Let me begin by wishing members all the best for the new millennium and the African century.
The Preferential Procurement Policy Framework Bill is an important piece of legislation for a number of reasons, among which the following are worth noting. The Constitution of South Africa requires all organs of state to follow a procurement system which is fair, equitable, transparent, competitive and cost-effective. This constitutional provision is important for the developmental state to advance the intentions of the reconstruction and development of our society.
Secondly, clause 2 of the Bill deals specifically with the required framework for the implementation of procurement policy. Even though our state is divided into different spheres, it has never been the intention of the Constitution to disintegrate the state and foster a lack of co- ordination. Therefore it is absolutely critical that the procurement policy of the state be uniform, consistent and coherent. This will ensure that the state is cohesive and fosters development in a co-ordinated manner.
The current state of affairs in municipalities is such that there are municipalities with different procurement policies, and some do not have policies at all. Depending on the type and capacities of the municipalities, one finds a mixed bag of types of procurement policies. We are confident that this Bill will begin a process of ensuring sound policies within our municipalities.
This Bill is important for local government, due to the nature of services that we provide. Municipalities, immediately after the passing of their budgets, are involved in issuing different types of tenders for key services that affect the lives of our people and generate income, jobs and economic growth. If those tenders are issued without a coherent procurement policy, the state will fail in advancing the development of this country. The Council is aware of the currently unfolding process of restructuring local government and its boundaries. After this process, there will be fewer municipalities, and they will be properly managed, both administratively and politically.
This Bill will assist those municipalities to put in place firm policies for procurement.
In conclusion, let me take this opportunity to thank the Minister and his department for drafting this Bill. I also wish to extend our thanks to both the chairpersons of the committee and all members of the committee, who participated in this process, for driving the process in considering this Bill.
Lastly, to the Chairperson of the NCOP and the members of this House, may your work and commitment to this institution bring you joy, success and the growth of the NCOP as an institution. [Applause.]
Mr G R KRUMBOCK: Mr Chairperson, the DP will be supporting this Bill, not only because a Bill of this nature is required by the Constitution, but also because we believe it is socially and economically desirable. It seeks to give disadvantaged people a hand up rather than a hand-out and, therefore, offers a prospect of permanent empowerment rather than creating dependency.
The amended Bill before us today is a victory for common sense. The DP has consistently argued that trade-offs were implicit in this legislation. Empowering disadvantaged builders by accepting a premium on price necessarily means fewer houses. An emerging printer who supplies textbooks at 20% over market price means 20% fewer textbooks.
We consistently argued that not all organs of state were equally well resourced; nor were profit margins among industries necessarily similar. A balance between empowerment and efficiency, as indeed between addressing poverty or inequality, needs to be maintained. The amendments contained in clause 2 of the Bill address these concerns. Organs of state now have substantial flexibility to determine their own preferential procurement policies. Cash-strapped local authorities may award fewer than either 10 or 20 points for categories of preference, and thus remain within their budgets. Up to 10 or 20 points may be awarded by financially stronger organs of state for tenders pertaining to a higher margin industry.
The restriction of the so-called 80/20 formula below a prescribed amount is a sensible amendment which helps to contain costs while affording assistance to entrepreneurs who need it most. So far so good.
A lingering unease remains whether the Bill will have the effect of creating a few new elites rather than empowering the many disadvantaged. The intent of the Bill is to empower and support the disadvantaged individuals and small and medium enterprises. Those who have succeeded against all the odds, despite the ravages of apartheid, to establish thriving businesses deserve admiration and respect. The focus of the legislation now is to shift to those who are still struggling to establish themselves.
There seems to be no logical reason not to place a ceiling on the value of tenders for which preferential treatment can be given. An enterprise that turns over millions of rands does not need further entrenchment.
Lastly, there is nothing in the legislation which restricts the same persons or businesses from receiving preference time and time again. The degree to which common sense and fairness is applied by organs of state when awarding their tenders will be critical to the success of this legislation. Likewise, the regulations that the Minister will need to promulgate will have to be realistic and workable. These are achievable objectives.
If these challenges are met, in the decades to come, this progressive legislation offers the prospect of a new class of emerging, self-assured and confident entrepreneurs for the foundation of an open society and successful economy. [Applause.]
Ms S SITHOLE (Northern Province): Mr Chairperson, it is a privilege to speak in this House today on behalf of the people of the Northern Province. We, as the Northern Province, want to thank our chair in the NCOP, Comrade Dorothy, for having actually involved us vigorously in the deliberations leading to the passage of this Bill today.
We also want to say, as a province, that we congratulate the Ministry of Finance for the role it has played in effecting transformation in South Africa today. This is not the first time. It has made so many efforts, such as the Bill that we have today, which is an instrument with which we are going to carry out our oversight role. The Department of Finance has further shown that it is prepared to face the challenge of economic transformation, by putting before this House the Bill that is going to change the face of procurement in our country for ever. As a country, we have to understand that, in order to address our present situation, we have to ask ourselves who we are. The answer is that we are South Africans coming from a background divided by the policies of apartheid. We are coming from a past in which there were people who were dismally disadvantaged. That we must understand.
Where do we want to go? We want to lead the world in showing that transformation can be done peacefully. It can be done. Transformation can be effected if people sit together around the table and talk, plan and legislate; because all of us here are members of the legislatures and members of the NCOP, and we are here because people trusted that we have one thing in mind - to transform South Africa for ever.
One writer, William Shakespeare, once wrote:
There is a tide in the affairs of men which, when taken at a time, may sometimes lead to fortune. This is the tide. We are on stage, as South Africans. If we take this chance - the Preferential Procurement Policy Framework Bill - we can change South Africa for ever, and I am pleading with everybody in this House that we should not come here and make empty political speeches, but must face the reality from which we come. The reality is that we come from a past with a lot of imbalances, and, today, we must stand up together, hold hands, address these issues and put them aside for ever.
William Shakespeare further wrote that the world is a stage where every man can play a part. I say that the world is a stage where South Africa can play a part. We have to demonstrate to the international community that when we talk of the African renaissance, it can be done; and when we talk about nation-building, it can be done. Today we must speak as one and say that we are putting aside the imbalances of the past.
As a province, we took this Bill very seriously. We went into public hearings, and we must thank our communication section in the legislature for doing its best to ensure that every part of the Northern Province was informed about this Bill. Our people came in numbers and stakeholders spoke. The public hearings were conducted in English, Afrikaans, Xitsonga, Tshivenda and Sepedi, and everybody spoke in their own language. They all said that this was a good Bill.
Of course, we had a few people - the DP to be specific - who actually cried a lot about the word ``historically’’, which they said they did not like. However, I am standing here to tell them that in order to put right what is wrong, one has to understand one’s history. [Applause.]
The DEPUTY CHAIRPERSON OF THE NCOP (Mr M L Mushwana): I am informed that the hon member A Ismail is not here at the moment. Let us proceed to the hon member A J Hamilton.
Mr C ACKERMANN: Mr Chairperson, may I just address you on the point that you have raised. Mr Ismail, who is the chairperson of the Standing Committee on Finance in the Western Cape, became very ill this morning. However, he attended all the meetings and was very involved with this legislation, and he still wanted to participate in the discussion on this legislation.
He was on his way but, apparently, this bug is very severe. I just want to apologise for the fact that he is willing to be here, but it seems that it is not possible. Therefore, please accept our apology for that.
Mr A J HAMILTON (KwaZulu-Natal): Mr Chairman, may I start by apologising for the absence of Felix Dlamini and John Aulsebrook. We have a gambling Bill going through our parliament today and that is where they are, therefore I will be representing all parties, as is correct in a coalition government.
Our government supports the Bill. In fact, we have had a two-tier procurement policy for our tenders in existence for the past three or four years, differentiating between small-value contracts and high-value contracts.
There is no question that gross disadvantages against black entrepreneurs were in existence until recently and are still, in many ways, in existence, but I myself was a member of a deregulation committee set up under the chairpersonship of Louise Tager. Literally hundreds of regulations and bylaws in all spheres of government were removed. So redress is justified. That said, the objectives that this Bill has been drafted to achieve will depend almost entirely on how the regulations are framed.
This matter was raised in the joint standing committee, and we received the assurance from the Minister that not only would the regulations be published in the national Government Gazette, but they would be published in all provincial government gazettes, and that consultation would take place. We should not forget that the vast bulk of tenders for goods and services emanate from the provinces, not from the national Government. So it is going to be our responsibility to ensure that the objectives for which the Bill was drafted are achieved.
I think it would also be naive to underestimate the ingenuity of mankind or womankind - humankind - in looking for and finding ways of exploiting loopholes in legislation. That would be very naive.
I would like to touch on a couple of items which I have some disquiet about. First of all, there is a lack of a review clause. It is a duty, in my view, that we, as the National Council of Provinces, the voice of the provinces, should ensure, perhaps on an annual basis, that the objectives which we wish to achieve by this Bill are achieved.
People have touched on the question of fronting. There are two kinds of fronting. There is the rent-a-black fronting that we have referred to, and then there is the kind of fronting in which a historically disadvantaged community member sets up a postbox and a telephone and obtains tenders for goods, and then hawks around and sells them for a commission. That does not achieve what we want to achieve, because the object here is to see the development of business and that is not a business. We would wind up paying a commission.
What is also very important if we are not to see the tender process in South Africa brought into disrepute is that great care be taken in framing every tender that is put out so that one is comparing apples with apples, and that tenderers are aware exactly what the criteria will be before they put in their tenders. I think we need to also ensure that room for subjectivity - and that is going to be a provincial responsibility - in awarding tenders by tender boards is removed. We cannot have a situation in which somebody on a tender board likes the sound of X, Y or Z’s name, rather than A, B or C’s name, and for whatever reason decides to make an award on a subjective basis. As long as one has room for subjectivity, the tender process can easily be brought into disrepute.
With regard to the values in the 80:20 and 90:10 qualification, I think great care is going to have to be taken in establishing those values. One hopes that the Minister and his department will consult with us, the provinces, on establishing those values. It is vital that we have consensus on the upper values of tenders for the 80:20 qualification and for the cut- off value for tenders that qualify for the 90:10 qualification.
I think, also, that another thing we need to be aware of is the point at which a historically disadvantaged community firm ceases to be historically disadvantaged. Is it when it has a listing on the Johannesburg Stock Exchange? Is it when the firm has successfully traded profitably for a period of years? This is because the more one runs the risk of getting an entrenched elite amongst a few firms, the less effective the legislation will be. We want to see hundreds and thousands of historically disadvantaged businesses starting up. We do not only want a few. So I think we would need to be careful about that.
I would also like to say that there should be an automatic disqualification of any firm or individual not in good standing with the SA Revenue Services from being allowed to tender. I think that is a very important qualification. There are other areas where this can be looked after. However, I think tender boards need to have their attention specifically drawn to a proviso like this.
However, as I said earlier, our province totally supports the objectives for which this Bill has been drafted and we have pleasure in supporting it. [Applause.]
Ms T ESSOP (Western Cape): Mr Chairperson, hon Deputy Minister, allow me, before I get into my speech, in the absence of Mr Ismail from the Western Cape, to put on record the Western Cape’s unanimous support for this particular Bill. I am sure Mr Ismail would have wanted that message to be delivered to this House today.
I want to relate a story I heard from a black businessman in the Western Cape, a certain Mr Kakaza, who reminded me about how blacks had been structurally and legally discriminated against and prevented from enjoying economic empowerment in the past. He spoke about how black businesses in the townships were only allowed to sell certain basic products, such as flour and mealie meal, and not products such as yeast. This meant that blacks were forced to buy other essential products from white businesses outside of the townships. Where contraventions were suspected, police confiscations took place. Black businesses had to apply annually for the renewal of licences to the township superintendent, who was white, who had so much power, and who would inevitably victimise individuals whom he or she considered cheeky.
African men were only permitted licences if married to women who had section 10 rights, ie the right to live in an urban area. Financial institutions were separated along racial lines and the Xhosa Development Corporation would only approve loans to businesses located in the Transkei and Ciskei. Today we still find these structural obstacles in place. Financial institutions still insist on security which, as hon members well know, is difficult to come by for people living in the townships, because property in townships has very little value. In fact, African ownership of property is very low. As Mr Kakaza said: ``When you fill in the second page of the loan application, you already disqualify yourself.’’
I am providing this historical context, because people need to understand that when we talk about affirmative procurement policies, we are not talking about hand-outs and we are not talking about favouritism based on race or gender. We are talking about the moral obligation - let alone the legal obligation - as enshrined in our Constitution and in this Bill, for us to redress the legacy of the past.
The structural and systematic economic disempowerment of our people is probably the most horrific legacy, as its reality remains with us today. It is much more so in the Western Cape, where black businesses still complain constantly about the lack of access and opportunity when it comes to provincial government procurement. So what is this reality in the Western Cape? For example, in the construction sector, out of a total of 54 million contracts awarded by the tender board, only 7,7 million have been awarded to black businesses since April 1999, and out of a total of 19 million awarded by the Department of Public Works, 8,5 million have been awarded to small businesses.
Let me go further. Of all the contracts worth over R1 million awarded since April 1999, only 10 million have been awarded to black businesses, and absolutely zero to women-owned businesses.
A good example of this would be the much-publicised case of a woman-owned construction company, Zeigon, which in this particular industry is something of a rare phenomenon. This company was not awarded a single contract by the provincial government. The 10-point preference system, which should have been applied, clearly did not benefit her.
Black businesses have expressed their unhappiness with the Western Cape provincial government, and everybody will recall the Sunday Times headline screaming: ``Black business threatens exodus from the Western Cape’’.
Therefore, for the disadvantaged businesses in the Western Cape, this Bill will certainly offer hope. And while it clearly does not go far enough to address all other obstacles in our procurement system, it certainly does provide these businesses with an important economic opportunity, a foot in the door. Many SMMEs rely on Government tenders as a way of establishing or sustaining themselves.
I must, however, express a word of caution based on our experience in the province. While the national Government has produced many important transformative pieces of legislation and policies, we often find that the implementation of these is still a problem. What we need is a political will and commitment from all players to ensure that the Preferential Procurement Policy Framework Bill will be implemented, otherwise it will once again be meaningless to all those whom it is intended to benefit.
We congratulate the Minister in his absence, the Deputy Minister and the department on their good work and their willingness to accommodate the very important amendments made to this Bill.
I would also like to thank the two chairpersons who led the process of this Bill so competently. [Applause.]
The DEPUTY MINISTER OF FINANCE: Mr Chairperson, I would like, at the outset, to thank all the members of the House generally for the support that they have given to this Bill, and also for some very useful observations that they have made about the processes that are going to be involved in realising this particular Bill.
There are one or two issues that I think do need to be clarified. One of these is the question of the premium that the Government pays when exercising or implementing a preferential policy.
While one has one’s 25% as the maximum premium that the Government pays, one does not, however, always pay that premium of 25%. I will tell members why. Information at our disposal shows that the premium that we pay as Government averages 3%. A simple example, perhaps, to illustrate this point is that if a company that is tendering is wholly black-owned, or wholly owned by women or wholly owned by a group of disabled people and it happens to have the lowest price among all the tenderers, that particular company automatically gets maximum points. And because it is either black-owned or owned by women, it automatically gets a full 10 points, depending on how the specification has been outlined. So in that case we actually do not pay a premium at all.
However, we have also had complaints around the issue of dominance of price. What we have actually found in practice is that one does not actually have too big a difference in price.
I think the important thing about price is that as Government we deliver services from a limited pool of resources, and therefore there has to be a limit on the sort of premium that we pay, because implementing a policy such as this one should not mean that we want to deliver services at any price. In that way we would, of course, limit the scope of what we can do, given that everything we do is from a limited pool of resources.
So it is not necessarily true that because we pay a premium it results in us building fewer houses because, as I have tried to show from the information that we have at the moment, the average is around 3%.
The other issue is the provision in the Bill which enables the Minister to make exemptions if it is in the public interest and if the bidders are international companies. The hon Dr Conroy has said that we have been under considerable foreign pressure to include such a provision. I would like to assure everybody here that we, in doing the work that we have been doing on this Bill, of our own volition, examined systems that are in place elsewhere. We even examined the agreement of the World Trade Organisation on public sector procurement, and we were doing this because we always try to get at something that would be best practice. I cannot recall, at any stage, that we as Government or the committee doing this work came under any foreign pressure to include particular provisions. These are things that we did to ensure that we do not lock ourselves into a situation that makes us unable to operate at times.
One would, for example, have tenders for defence equipment, and one necessarily has to create the necessary flexibility that, in such cases, one may make particular exemptions. It is not as a result of any foreign pressure, and in any case, I do not think that this particular Government is very prone to that kind of thing. I think our record over the past few years shows that we are, for example, pursuing an independent foreign policy, and therefore, we are not scared to differ with anyone, even those who are said to be the big policemen of this world.
The hon Hamilton asked when a firm of historically disadvantaged individuals ceases to be that. I would like to address that question by saying that we have got to recognise that, in South Africa, we need a greater change in the business environment that exists in the country. One needs transformation in the business environment itself, and when one has such an environment it will be an environment that will support all sorts of companies.
At present, I do not think we have that in South Africa and this is why - I think hon councillor Mathebe made reference to a developmental state - it is important for the state to play a particular role. We are functioning in a distorted environment, and we want to bring about that kind of wider change, in society and in the environment that exists, so as to offer opportunities to all and enable role-players to play their roles. In this context one can then examine the question that he is raising much more meaningfully.
With these few words, I would like to thank all members who participated in the debate. [Applause.] Debated concluded.
Bill agreed to in accordance with section 65 of the Constitution.
PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL
(Consideration of Bill and of Report thereon)
The DEPUTY CHAIRPERSON OF THE NCOP: Order! I take this opportunity to welcome the hon the Deputy Minister for Justice and Constitutional Development and thank the Deputy Minister of Finance for the deliberation. He may be excused if he so wishes.
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Thank you, Mr Chairperson. I would like to tell members that they should not panic because this is not a very long speech. It is just in big print.
Mr Chairperson, colleagues and comrades, it is a great honour for me to present the Promotion of Equality and Prevention of Unfair Discrimination Bill in the National Council of Provinces. At a function on Wednesday evening I talked with a woman and remarked that I had seen her sitting on the National Assembly gallery during the debate on the equality legislation. She seemed surprised at my comment and said that of course she had been there and that she could not stay away because it was too important to miss.
At first, I thought it was a demonstration of sisterly solidarity, but I
soon realised that by us'' she meantus South Africans’’. She was
right, because we cannot talk about freedom and liberty when a section of
our society, any section, languishes under the yoke of discrimination. So,
too, women, people living with disability, gays and lesbians are not the
only ones liberated by the removal of discrimination against them. The
removal or absence of discrimination liberates the whole society of which
they form part.
With the Promotion of Equality and Prevention of Unfair Discrimination Bill, we are proactively balancing the scales of justice for all South Africans. By explicitly promoting equality and eliminating unfair discrimination, we are on course to improve the quality of life of all citizens, and moreover, to help to free the potential that lies dormant in all South Africans.
This Bill affirms the inherent dignity in each one of us. Racism and sexism are the first discriminatory practices that spring to mind. However, our society is fraught with different types of pernicious repression. Indeed, it is the cumulative effect of subtle and deceptively trivial acts of discrimination that ultimately undermine our humanity and determine our status.
The compound oppression suffered by African, rural, working-class, poor women has made them one of the most tragic casualties of discrimination in our society. This Bill provides the mechanism to cast off those shackles of oppression. No person should be doomed to having their lives narrowly circumscribed to them by outmoded and degrading stereotypes.
The energies and resources of this country must be channelled into unleashing the best we can be as individuals and as a society. A dynamic and nuanced implementation of this legislation will contribute significantly to that aspiration. This Bill compels us to take stock of all the disempowering prejudices that pervade our society. It is not only the positive duty, but also the express commitment of this Government that the equality Bill becomes the touchstone of our very existence. Every decision that we take in policy formulation, legislation, implementation and in our day-to-day lives should be guided and informed by the substance of this Bill. It should and must become second nature to us, a natural human instinct.
Another important characteristic of the Bill is the parallel approach of fighting unfair discrimination, while, at the same time, advancing equality. This approach reflects the proactive strategy that informs all Government policy. A guiding principle of this legislation is that the historical context of South Africa should always be considered in its application. Here I refer to clause 4(2) of the Bill:
In the application of this Act the following should be recognised and taken into account:
(a) The existence of systemic discrimination and inequalities,
particularly in respect of race, gender and disability in all
spheres of life as a result of past and present unfair
discrimination, brought about by colonialism, the apartheid system
and patriarchy; and
(b) the need to take measures at all levels to eliminate such
discrimination and inequalities.
The remedies offered by the legislation will impact on the entire value system of our society. Nobody has been left out of the equation. As I have pointed out before, the Bill forbids unfair discrimination on the grounds of race and gender, but, more importantly, also on the grounds of disability. It also outlaws harassment and harmful hate speech.
It is of particular significance that disability has been given a primary focus in this legislation. On Wednesday, we heard from the hon Grové in the National Assembly how this very institution remains a veritable obstacle course for those MPs living with disability and who happen to work here. He described our vague discomfort about how we relate to people who do not look or speak or seem the same way we do and how this condemns those living with disability to isolation and loneliness.
It was a stark reminder that discrimination is reflected everywhere in our society, even in its architecture, and we need constantly to remind ourselves that privilege invariably comes at the expense of someone else.
This Bill will be our conscience, our guide and our mentor. It will form and shape the way we think and behave. No person or entity will remain untouched by this enactment, whether it be in the way we conduct ourselves in business or in our daily lives, whether it be in religious organisations or traditional systems of belief.
This legislation will contribute to the elimination of unfair discrimination in almost every aspect of our lives: In commerce; in employment; in the provision of such services as education, health and housing; in the acquisition of land; in the professions and in professional associations; in the provision of goods and services; in the rules governing pensions and even in social clubs and sports associations. All will have to take cognisance of this ground-breaking legislation. Our express goal with this legislation is the creation of a society based on respect for the dignity and equal worth of all human beings. The underlying tenet of the Bill is the belief, firstly, that we can eliminate systemic forms of unfair discrimination inherited from a past fraught with prejudice and bigotry, and secondly, that we can prevent and prohibit any new forms of disadvantage that may arise.
In this sense, the Bill follows the dual approach of undoing past wrongs by outlawing unfair discrimination, and at the same time proactively advancing the achievement of equality in all walks of life. It offers the use of corrective or restorative measures in conjunction with measures of a deterrent nature. In this light, I should point out that the legislation does not limit its ambit to a closed list of discriminatory practices or prohibited grounds. It is a legal instrument that will remain alive to the ever-changing dynamics of our society.
It is important for us to know against whom and on what grounds we may not discriminate. Grounds for unfair discrimination described in the Bill include race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
However, and most importantly, it does not restrict the application of the Bill to these specific grounds. It leaves the door wide open for the inclusion of any other ground where:
… discrimination based on that other ground -
(i) causes or perpetuates systemic disadvantage (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner, that is comparable to discrimination …
We are therefore not prescribing a closed list of unfair practices. Any person experiencing any form of unfair discrimination may seek legal remedy. This legislation imposes a positive duty on the state to adopt the directives of the legislation and, more importantly, to enforce and monitor its development and implementation.
The guardian of this legislation is a special seven-person Equality Review Committee that will include a member from the NCOP. Maybe, just maybe, the NCOP representative to the review committee will come from my home province, the Free State, and we will no longer have to bear the brunt of rude and derogatory references made to the good old Vrystaat. [Laughter.]
I take great pleasure in, once again, thanking the parliamentary committee that dealt with the Bill. I would also like to make special mention of the committee chairperson, Comrade Mohseen Moosa, Prof Shadrack Gutto, Adv Lawrence Bassett and Adv Thuli Madonsela. The state law advisers who were involved were Susan Masapu and Mr Shivaga Netshitomboni and there are many more, like of course our old stalwart, Mr Deon Rudman. All these people played a significant role in finalising this Bill and within the given deadlines.
I also cherish one final dream and that is that each and every citizen in this country could receive a copy of this Bill in her or his own language. It is a basic tool for personal empowerment.
It gives me great pleasure to put this Bill before the Council, and I look forward to an interesting debate. [Applause.]
Mr M V MOOSA: Chairperson, thank you very much for the opportunity to speak in this debate.
At the outset, I also need to thank a few people for what was a very difficult process in completing this Bill on time. Firstly, I want to thank my cochair, Comrade Ntombazana Botha, who is sitting up there right now. She played a very important role. The quiet confidence that she showed all along really helped in making sure that we were on track all the time in order to get our work done. I especially want to thank her.
I also want to thank the law advisers from the department, viz Prof Shadrack Gutto, Tuli Madonsela, Lawrence Bassett and Deon Rudman. I especially want to thank the NGOs, the business community and those who came to participate in the public hearings and who stayed with us right to the end. Some of them did that purely because they love equality and freedom and want to see the realisation of human dignity in our country. They stayed with us right up to the end and assisted us wherever they could. I want to thank them for that.
I also want to thank committee members who worked until very late, sometimes with very harsh statements from the chairperson that we would sit until three in the morning or until we were done. They were disciplined and they did that. I want to thank them for their support to members.
At times the department would be given instructions at three in the morning, and they would come back at eight o’clock the next morning with new drafts. I do not know how they managed it, but they did. Perhaps they were drinking Red Bull or something, or perhaps they were drinking something else, I am not sure. [Laughter.]
We come from a divided past, a past that we ourselves have divided because of our own prejudices. The inhumanity and the indignity that millions of our people have suffered throughout our history should have us hanging our heads in shame, because we ourselves, as South Africans, have for so long allowed so many innocent people to die in vain. We have allowed so many people to suffer without basic things such as fresh running water. We have dispossessed so much of their land, we have forcefully removed so many from their homes and so many children in our country knew only malnutrition and undernourishment as a way of life.
So many women, the bearers of life itself, were made to believe that they could never be equal to their menfolk, whether in the eyes of their religion, their culture or the law. So many disabled people were made to believe that they would always be something less than human.
It is within this context that the equality Bill was born and it is within this context that section 9 of the Constitution, which compels us to entrench equality in our society, was drafted.
At this point I want to say that it has been a real disappointment that some political parties in this Parliament have decided not to support the ideals enshrined in the Bill of Rights.
At a press conference two days ago I said that the DP’s opposition to this Bill was a smoke screen. Perhaps I should explain that further here. The DP said that they do not like the powers given to the Minister for Justice and Constitutional Development to designate magistrates and judges. They felt that that was an unconstitutional clause and therefore they could simply not find a way in which they could support this Bill.
Let me say from the outset that this Bill was not about designation. This Bill was about equality. This Bill was about transformation. This Bill was about changing the very fabric of our society so that we redress the disadvantages of a systemic nature that we have suffered as South Africans for so long, and so that over a period of time we attempt to achieve equality.
If the DP opposed this Bill then that is what they were opposing. Whether they clothed it in language legal or otherwise the principles of this Bill were sound and they have always been sound. Whatever reasons they may give, at the end of the day we are convinced, more and more every day, that the DP supports only the rich and the powerful in our society. They only speak on behalf of those people. They see no sense in anything that attempts to curb the privileges that those people have enjoyed all these years, and they make sure that any attempt that this Parliament makes to address some of the concerns that we as South Africans have about transformation is blocked and is opposed by them, and that must go down to be known for all time.
I believe that this was one opportunity that no political party should have missed: an opportunity to state squarely, categorically and unequivocally that they support equality, transformation and the bringing about of a society in which human dignity is a key to our harmonious coexistence.
I also want to say that there are further detailed matters that the DP opposed when we were discussing this Bill. In discussing the contents of the Bill, I will highlight them as we go along. I want to start with the notion of substantive equality. Equality itself is merely a concept. What is equality? When we speak about equality, we speak about the fact that ``all people are equal’’. Equal in what sense? Equal colour, equal clothing, equal wealth? What are we talking about? We are talking about equality in substance and equality in effect. We have written into this Bill a definition of equality that states that equality means equality in terms of outcomes. A simple thing, meaning that we do not talk about what processes we need to embark upon. We are not concerned about what the state needs to do or what individuals in society need to do or not do. At the end of the day, when we look at the outcomes, people must substantially have achieved an equal treatment by the law, the companies, the organisations and individuals in society. That is the kind of equality we speak of.
Believe or not, the DP opposed this. They spoke about equality as if it was some kind of a libertarian notion, and as if we lived in some kind of a Utopia. We cannot talk about equality without outcomes. What does equality of outcomes mean? They find it very difficult. We spoke yesterday of the ideological divide that we have between ourselves and a party like the DP. This is what we are talking about. They find it very difficult to understand that we are attempting to address patterns of disadvantage and redress these, and that when we speak about equality of outcomes we are speaking about eventually transforming our society so that it is a tolerant society which is based on respect for human dignity.
To the business community, we need to say that we are thankful that substantially, by and large, they have come to support the Bill and its contents. We were very encouraged by utterances made in an editorial in the Business Day which said that this Bill deserve support and also by newspapers such as The Citizen. An editorial in The Citizen squarely said that they thought this was a good Bill which must be supported.
We want to say to the business community that all the fears that they raised during the process were addressed. When they came to us and said that the first Bill had a legal mechanism that would make it very difficult for them to go about doing their business on a day-to-day basis, we listened to them. We engaged them. We discussed it every day for the whole three months that we dealt with this Bill, and at the end of the day we came with a process that we believe they are satisfied with. We have dealt with the issues substantially in a manner that they wanted us to.
However, one unfortunately cannot say the same for the insurance industry. Up until last week - and, in fact, even in this week - they have been writing, I do not know, to everybody: to the Deputy President, the President and to all the members of the committee. I have received letters from them, and I wonder if President Bill Clinton also received a letter. They have been saying that they are concerned that this Bill does not allow them to assess risk when they write insurance policies.
We have thought about this matter over and over again. We do not believe that they are correct. At first they said to us that they wanted us to exclude the notion of reasonableness and justifiableness from the test that we wrote into clause 14 of this Bill. We said to them that if we deleted that particular clause from the Bill, we might as well exclude the notions from the operation of the equality law, because that is what the equality law is all about. We said that when they engage in their practices on a day- to-day basis, if they say that they are doing it on objective criteria and if they are differentiating between people on objective criteria that are intrinsic to their activity, then they must have no problem in agreeing that those criteria must be reasonable and justifiable in an open and democratic society.
So we argued with them for weeks on end and it appeared that they never believed us. They never believed that was the correct approach. This week we had an opinion from their legal counsel, Peter Hodes. In his legal opinion, Peter Hodes said nothing about reasonableness and justifiableness being problems. Nothing at all.
The insurance companies were not big enough to come to us to say that we were correct. Even their own legal opinion is that we were correct. They were not big enough to do that. Up to now the insurance companies have not come to us and said that they have argued with us so much about this matter but that we were correct.
This week they had another problem. Their problem, according to their legal counsel, is the way in which we have written the onus provisions in this Bill - the burden of proof. Now, simply speaking, for people who are not lawyers, let me tell them what we have done with the legal test in this Bill. When somebody complains about discrimination and they go to court to complain about it, they must prove that they have been discriminated against. If they can prove that, then we tilt the court case in favour of the victim. That is what we have done and we do not apologise for it.
It has always been easier for big companies which have legal resources - big attorneys, big advocates and senior counsels - to go and defend their positions in court. It is not as easy for a black woman in a rural area who is suffering because of discrimination to be able to do the same thing. The onus provisions in this Bill have been tipped in favour of the underdog and we do not apologise for it. That is what the equality law is about. That is what equality in outcomes is about. That is what we have done in this Bill and that is the way we believe we will achieve equality in this country.
To the religious community and to the traditional sectors, we need to say a similar thing. This Bill does not say that one does not have to practise one’s religion and traditional culture. The Constitution of this country enshrines one’s right to practise it, and it has enshrined the obligation of all South Africans to respect one another in the practice of these rights, religion, culture and tradition.
What this Bill does is to state that one should practise one’s religion and culture in a value system that is universal, not only to this country, but all over the world. That is how one should practice one’s religion. If in one’s religion there is a practice that discriminates against one or other person, then that practise is outlawed. It is based on the basic notion that every culture, tradition and religion is based on interpretations. If I speak to a progressive understanding of Christianity, Islam or Judaisim, I will find umpteen references in the Bible or the Qur’an which say that men and women are all equal. But if I speak from a conservative, Calvinistic interpretation of that same Bible or Qur’an in the same tradition, I will find umpteen references that say that women are inferior to men.
So, at the end of the day, it is the value system that we put in place that must test whether these practices are acceptable in our society. If one’s religious practice is acceptable, reasonable and justifiable, and fair, then this Bill and its application in a court case will result in a court telling one to go ahead with one’s practice. In other words, if one can go to court and prove that it is legitimate that one is discriminating against somebody in one’s religion or practice, then this Bill will allow one to continue with that practice.
This Bill does not say that we are outlawing practices of a religious or traditional nature. What it says is that we are imposing a value system in which nobody is an exception - not religions, cultures, traditions, the business community, the government, the State President or the homeless community in Khayelitsha or in Phola Park. Nobody is an exception to this law. In that sense, this law - many have argued this - is probably the second most important piece of legislation in this country after the Constitution. Because of our historical background and because of where we come from as a society, we need to address these patterns of disadvantage.
I want to talk about the promotions clause in this Bill. The Deputy Minister has already alluded to the fact that we have adopted a carrot-and- stick approach, and she is correct. What we have done in this Bill is that we have said that everybody - the state, juristic persons, nonjuristic persons and natural persons - is compelled to promote equality. The state must do so by making sure that the Ministers implement measures to eliminate discrimination and achieve equality in the outcomes and programmes of their departments.
The Bill says that when the state contracts with any business, any independent contractor contracting or tendering to do business with the state, it must make sure that they have equality plans in place. If they do not have equality plans and an equality policy in place, the state must not do business with them. We have written a clause in this law that says that.
With regard to private companies, juristic persons, the Sunday breakfast club, the Saturday afternoon ladies’ club, sports clubs and everybody else, we have written a law that says they must have equality plans that will make sure that they achieve equality in the day-to-day work that they do. We have written a proportionality into this Bill so that if one is a big organisation such as Anglo American, one must have big equality plans. If one is a small organisation in Khayelitsha, one must have small plans. [Interjections.]
The CHAIRPERSON OF COMMITTEES: Hon member, your time is up.
Mr M V MOOSA: If you will allow me to finish, Chairperson, I have just got one little matter to raise. In conclusion, I just want to say that this law is for all time. In the year 2100, we must be able to achieve equality with this law, and I believe that we will. [Applause.]
Mrs J N VILAKAZI: Chairperson, hon Deputy Minister for Justice and Constitutional Development and hon members, the consolidation of democracy in our country is needed in order to eradicate inequalities of the past, especially those that are systematic in nature and which were generated by colonialism and apartheid.
Section 9 of the Constitution provides for the enactment of this legislation in order to prevent or prohibit all forms of unfair discrimination. The important part of the Bill is that it is the responsibility of the state and all citizens to promote equality. But the state has an important role to play by introducing measures to achieve equality. In fact, a Bill of this nature is overdue because systematic inequalities and unfair discrimination still remain deeply embedded in social structures, practices and attitudes of some of the resisting forces which do not want change.
The Bill states as follows:
This Act endeavours to facilitate the transition to a democratic society, united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom.
The Bill gives special rules of procedure and the balancing of deterrent measures to fight unfair discrimination and hate speech. This is applauded. The establishment of equality courts is a great achievement in the history of South Africa. Over and above that, this Bill implies the advancement, by special legal and other measures, of historically disadvantaged individuals, communities and social groups who were dispossessed of their land and resources, and, as the hon the Minister has said, deprived of their human dignity and still continue to endure the consequences.
Lo mThetho osezithebeni namhlanje usudlulelwe yisikhathi. Kufanele ngabe kudala washaywa ukuze kugcwaliseke inkululeko yethu thina ebesicindezelwe wuhlanga olumhlophe ngezindlela eziningi. Siyazi ukuthi kukhona abangawesaseli neze kodwa akusho lutho lokho. Kufanele bazi ukuthi sekuyisikhathi manje sokuthi sihlalisane ndawonye omunye nomunye singanaki ibala. Uphinde ube muhle futhi lo mThetho ngokuthi kunezinkantolo ezizoxazulula izimangalo eziqondene nokwephulwa kwawo. Ocwasa omunye ambize ngamagama edelelayo unokuhlawuliswa kanzima noma aboshwe. Emsebenzini, lo mThetho uzobhekela ukuthi akukho ukuxhashazwa ngenxa yebala. Iholo lizokuba njengokomsebenzi womuntu, hhayi njengoba kwakwenzeka kuqala.
Siyazi ukuthi abantwana bethu basahlukumezekile ezikoleni. Abantwana bethu basahlukumezekile ezikoleni zabamhlophe ngoba bafunda ngesiNgisi nangesiBhunu. Alukho ulimi lwabo. Ukuhlukumezeka lokho. Siyacela kwabezemfundo ukuthi bakusukumele lokhu. Umntwana makazikhethele ulimi afuna ukufunda ngalo angaphoqwa ukufunda ngolimi angalufuni. (Translation of Zulu paragraphs follows.)
[The Bill on the table is long overdue. It should have been passed a long time ago so as to complete our freedom, as we were oppressed by the white race in many ways. We know that there are those who are not happy about it, but that does not mean anything. They must accept that now is the time for us to live together regardless of colour. Another good aspect of this Bill is that there are tribunals which are established to resolve cases pertaining to the transgression of this Bill. Anyone who discriminates against another person is in danger of being heavily fined or arrested. In the workplace this Bill will make sure that there is no exploitation based on colour division. A salary will be based on a person’s performance in the job, unlike before.
We know that our children were embarrassed at school. They are still being exploited in white schools, because they are still learning through the medium of the English and Afrikaans languages. Their mother-tongue languages are not used at schools. That is a real humiliation. We appeal to the Ministry of Education to take this seriously. A learner should not be forced, but able to choose the language in which he/she wants to learn.]
We plead with the Education department, to just see to it that black children who are now attending the schools which were formerly white, are not forced to learn in foreign languages - both Afrikaans and English. They must be given time to choose the language they want to be taught in. We are very concerned about this. This is also inequality in a big sense. [Time expired.]
Ms C BOTHA: Madam Chair, Deputy Minister, this Bill is a wonderful opportunity we have had to give effect to our constitutional obligations and to the transformation of a very severely damaged society. We are fortunate enough to be in this Parliament not only at the dawn of a new millennium, but also at the dawn of a new nation. We have been given the opportunity to make history of a special kind. How history will judge us when it reviews our execution of this rare privilege is an open question.
Definitions of equality flourish, as we have heard. It is equity, it is substantive equality, de jure equality of de facto equality. De Tocqueville saw it as follows:
Democracy and socialism have nothing in common but one word, equality.
On the other hand Mahatma Gandhi believed in equality for everyone except reporters and photographers. Had he been present at our early deliberations on this Bill, he probably would have had his way!
Thus we have various and often conflicting agendas and definitions of rights, each proponent wanting to cut their coat according to their own fashionable interpretation of the equality cloth. And thus now, per new definition in this Bill, ``equality of outcomes’’ is departing from the constitutional wording and opening a whole new debate.
We want, without qualification, equality for everyone, even against the background of the horrendous injustices to which the majority of our population was subjected - even for the main perpetrators. We, the citizens, must be able to stand before the courts in the certainty of equal justice for all. My understanding of equality is not conditional on the circumstances of my past, nor does my past prevent me from understanding the core concept of the inalienable right to equality for people, who are not the same.
Wilberforce did not have to be a slave to campaign successfully for the abolition of slavery nearly 200 years ago, nor did Lincoln have to be a slave to fight a civil war in the same cause. And we would not have been forced to question the intent of this Bill if it served the simple purpose of getting rid of discrimination between persons as required, without new definitions of equality. But when it also grows grandiose in its manifest desire to redefine and circumscribe the moral obligations of every member of society, in that they have an undefined duty and responsibility, in terms of clause 24(2), to promote equality, then I tremble, as I did when fundamentalist religion could prescribe to all who could do what on which religious holiday, as when the Christian national state - Mr Moosa might be interested to know this - prohibited fishing for everybody on Sundays in the Free State, in the not-so-distant past.
The definition of equality'' andunfair discrimination’’ becomes
acutely problematic when we look at it in this Bill in relation to
specially created equality courts as set out in Chapter 4 - an aspect of
the Bill which the Deputy Minister for Justice and Constitutional
Development did not touch on and which, if I were in her position, I would
also try to ignore.
Let us presume that fairness and justice were the sole aims of the legislation and that the purveyors of justice were the traditionally blindfolded even-handed symbol of the law, that the presiding magistrates and judges would be selected at random, and that if one could chance one’s arm in the High Court one had a second chance. Then our debate could have ended here.
But it is not and they are not. Why does the Minister want to designate magistrates and judges? Does he or she want to ensure through this route that his or her definition of equality is the determinant of decisions made in the courts? If not, then why insist on this provision? It is questionable in the most generous of analyses and plainly sinister otherwise.
This is no innovation in this country. We have seen it all before. I asked
a previous member of the NP whether he remembered the expression hou
koers regters'' -their master’s voice judges’’, those whom the NP
government rewarded with high office for giving popular judgments
favourable to the intent of the ruling party. He did not, nor did he
remember the havoc they caused, and I presume neither do the members of the
parties who support this Bill.
A Bill on the prevention of horizontal unfair discrimination should have done exactly that - clearly and unambiguously prevented unfair discrimination. No one should have been left feeling that they alone shall pay the bill for the reprehensible ideologies of the past, regardless of their own histories or without ever reaching a state of final atonement.
And about the insurance industry, I think the chair protesteth too much. He
had conflicting caucuses to reconcile and we have sympathy with that. But
if there was no undisclosed agenda we could have the insurance industry as
an ordinary and legitimate component of the commercial world, as was done
with similar legislation in several countries. That is nothing new. We
always quote them for their progressive anti-discriminatory legislation,
but they have included, upfront in their bills, the exclusion of actual
prohibited cold actuarial differentiation from the ambit of such
legislation. That is very simple. We could have done so too.
[Interjections.] We could have done so without upsetting the committee
chair’s dearly beloved applecart, and without in any way giving to big
business or the big bad bear'', and at the same time the big employer, an
out’’ of genuinely applicable anti-discriminatory measures. What
silliness pretends that the eradication of poverty is not intrinsically
tied up with economic stability and growth?
I have sympathy with the Minister and also with Mrs Vilakazi who asks that her children be allowed to be taught in their mother tongue. The Minister asked that these Bills be translated into the different languages. We also asked this in the committee, but were told that it is an extremely expensive procedure to translate, that it will take two years before the speakers of other languages in this country will have available before them this Bill, which was supposedly written for the ordinary person.
Even as the DP supports the purpose of this Bill, in terms of our understanding of the Constitution we cannot vote for the erosion of judicial independence. Even whilst being referred to the independent court system for reassurance in this House yesterday, as protection against the state aggregating towards itself unwarranted power, the proverbial rotten apple in the barrel, under the guise of designation, was infecting this very independence.
I therefore implore the Minister to exclude from this Bill the inclusion of a power which he does not need, does not want and should not have. I know he will be credited for his vision. But if he does not, then be prepared, as we are, not to be judged by political opportunism but by history. The DP unambiguously supports equality, but not this Bill. [Time expired.]
Mr D M KGWARE: Chairperson, maybe before going into the debate I should say that on 27 April 1994 and on 2 June 1999, the ANC was given a very broad mandate to represent the people of this country. I think the other team members will pick up some of the issues that the last speaker has just raised.
The Promotion of Equality and Prevention of Unfair Discrimination Bill will enable us to heal the division of the past. It will strengthen the democratic foundation which we have laid since 27 April 1994. This Bill fills us with hope and excitement that at last we will be able to free the potential of each and every South African and inculcate a value system in everyone based on respect for democratic principles, social justice and human rights.
In its affirmation of equality, this Bill is consistent with the mainstream of international opinion reflected in the Declaration of Human Rights, the conventions and resolutions of the United Nations and the principles of the OAU that reject discrimination. In the global perspective, the ideology and practice of racism are no less repugnant than slavery. It is absolutely correct for this Bill to emphasise racism and prohibit its practice because racism was at the root of the oppression of our people.
Racism was the reason why we were dispossessed of our land and given barely one tenth of the surface area of the country of our birth. Racism caused us to live on the outskirts of all major towns. We often had to travel into these towns to do our business. Many of these towns had public facilities for whites only. This meant that we were unable to use facilities such as toilets, even if someone desperately needed to relieve himself or herself. One remembers towns like Brandfort, Hertzogville in the Free State, Jan Kempdorp and others. There used to be big signs showing the European and Non-European sections.
If one looks back at such happenings, it now seems almost bizarre that human beings could have been subjected to such inhumane treatment merely because they were black. Such racist practices are not something of the past, though. Although we have travelled a long road since then, we still find people who refuse to accept that all human beings are equal, regardless of colour. A case in point is the recent humiliation experienced by a black woman who requested holiday accommodation at a certain holiday resort in the Western Cape. She was very impolitely told that accommodation was not available for her, because the resort was fully booked. She immediately asked her white colleague to make a booking at the same place and it was immediately accepted.
In another case, a white barber refused to cut the hair of a black person, because of threats by his white patrons that they would not to make use of his service any more. These are but two of the many racist incidents that have occurred over the past few months. It shows the absolute necessity of the legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Bill.
This Bill envisages more than just outlawing racism. It seeks to unite all South Africans in our common cause for a single culture - a culture of tolerance and respect for human rights. This is important because black and white South Africans interact in many places and co-operate in a wide range of activities. Significant numbers of black and white South Africans hold the same religious beliefs, belong to the same kind of family organisation, play the same sporting games and pursue common political objectives.
The Promotion of Equality and Prevention of Unfair Discrimination Bill will play an important role in further consolidating the already good relations that exist between South African national groups. [Applause.]
Mr J O TLHAGALE: Madam Chairperson, and the honourable House, many people, especially in the remote areas of our constituencies, are crying out that their lives remain the same as prior to the birth of the new South Africa. Nothing has changed meaningfully and they still remain objects of discrimination, and it ends there. At the auction sales, their animals are not sold on a first-come, first-served basis, but are sold last, and at giveaway prices. They say the process of change and transformation has not touched their lives.
However, the Bill before this honourable House seeks to address these discrepancies. Section 9 of the Constitution of the Republic of South Africa of 1996 requires the enactment of national legislation that gives full effect to the right to equality. It seeks to imbue our people with the principle that they too, regardless of their circumstances and social standing in life, are individuals worthy of respect.
Furthermore, the Bill seeks to prevent and prohibit unfair discrimination, hate speech and harassment. No longer will anybody call anyone derogatory names, no longer will anybody discriminate against anyone on the basis that he or she has no struggle credentials and no longer will anybody discriminate against anyone on the basis of race, gender or disability.
The Bill also makes provision for the establishment of equality courts which could be approached by any aggrieved person in order to institute proceedings in terms of this Act. In this way the courts will become accessible, not only to the well-to-do people, but also to the poorest of the poor, who form a large percentage of my support base and constituency.
Before I conclude my speech, I wish to take this opportunity to thank and congratulate the chairperson of the Ad Hoc Joint Committee on Promotion of Equality and Prevention of Unfair Discrimination Bill, Comrade Moosa, and his committee for the work well done. [Applause.]
In conclusion, and on behalf of the UCDP, and in the interests of my support base and constituency, I declare that we support this Bill. [Applause.]
Ms L JACOBUS: Madam Chairperson, before going into my speech, I would also just like to add my voice to those who have been thanking the department for the work that they have done. It is a job well done.
The Chairperson has outlined the difficulties that we faced and the long hours that we sat. They were there with us throughout. I would also like to thank the chairperson for so diligently and competently leading and guiding the work of this committee.
In 1995 South Africa sent a delegation to the Beijing Conference in China. I am proud to say that I was part of that delegation. At this conference, various governments committed themselves to working towards gender equality in various ways. The question that we were all faced with there was: How do we meet women’s practical needs while getting rid of inequalities?
The conclusion we subsequently came to was that all government departments in all countries should respond to the Beijing Platform of Action in a very concrete way. One of the ways in which we can do this is to look at legislation that will satisfy the terms of Cedaw, which is the Convention on the Elimination of All Forms of Discrimination against Women. In the preamble of this Bill, we acknowledge our commitment towards this convention, and this Bill, to a very large extent, speaks to this commitment. It is against this background that I am happy to say that the Department of Justice and Constitutional Development has, once more, taken the lead in making good on these commitments that we made as a government five years ago.
The Bill before us today not only binds Government to promoting equality, but goes a step further to also place the responsibility on individuals, the private sector and civil society in general. Clause 24(1) and (2) speak to that.
The Promotion of Equality and Prevention of Unfair Discrimination Bill can be viewed as one of the most significant pieces of legislation since the dawn of our new democracy. The dedication and commitment to the promotion of equality is what we, as ANC legislators, expect from all South Africans. This piece of legislation is rivalled only by the Constitution in the significant impact it will have on the lives of the average South African. Since this Bill is required to give practical effect to section 9(4) of the Constitution, any opposition to it can be construed as opposition to the Constitution.
Every single piece of legislation that we have passed since 1994 has encompassed the promotion of equality and the prevention of unfair discrimination, but none has gone beyond the one before us today. All legislation passed thus far has sought, in its particular context, to correct the imbalances of the past, so that, bit by bit, we as the Government have chiselled away at the draconian laws which oppressed the majority of our people for decades. This Bill also embraces and elevates everything that we have so painstakingly sought to improve in the past five years. It unequivocally outlaws inequality and unfair discrimination in whatever shape, form or context it chooses to rear its ugly head.
Whilst the Bill imposes a heavier responsibility on the state and those who exercise public power to introduce measures to promote equality in their day-to-day activities, it also exerts similar pressure on companies, close corporations, partnerships, clubs, sports organisations, corporate entities and associations, by requiring them to do their share to actively promote equality.
The Bill amplifies what is enshrined in section 9 of the Constitution and refines and illustrates what is meant by equality before the law, and the right to equal protection and benefit of the law. It calls for a cohesive effort from all state institutions and Ministries to assist with the promotion of equality in every way possible, whether it be at a legislative or executive level, or by ensuring compliance with legislation or designing codes of practice and programmes geared towards the elimination of unfair discrimination.
As to how we promote equality and prevent unfair discrimination, this Bill gives us clear guidelines in clause 28 of the Bill. It requires the state and all of its institutions to develop awareness of fundamental rights through education by, amongst other things, taking measures to develop and implement programmes, developing action plans to address unfair discrimination, developing codes of practice with guidelines, providing assistance, advice and training in issues of equality and conducting information campaigns.
The SA Human Rights Commission and the Commission on Gender Equality have a duty, amongst others, to assist complainants in instituting proceedings in an equality court, to conduct investigations into cases of inequality and unfair discrimination and make recommendations to those equality courts, to request from the relevant Government departments regular reports of cases of unfair discrimination, and also to scrutinise equality plans from all Government departments. Needless to say, these two constitutional institutions will have a very significant role to play in the promotion and popularising of provisions of this Bill, and monitoring its implementation.
We have to look no further than our schools to find examples of what racism can result in. Examples were mentioned by my colleague over there. Two years into our new democracy in 1996 the Weekly Mail reported with the headline: ``Apartheid still rules in rural schools’’, and gave examples of schools such as Naboomspruit and Warmbaths in the Northern Province where these incidents took place. And we all know about the Vryburg High School debacle.
When looking at sexual harassment and gender discrimination one does not have to look further than these corridors of Parliament. In fact, I am told that there were reported incidents of harassment of members by other members, and harassment of staff by members and so on.
Through the introduction of this legislation we want to ensure that no woman, man or child has to go through the humiliation of discrimination and unequal treatment, whether they be found in Sandton, Johannesburg, or Cofimvaba in the Eastern Cape. This Bill goes to the heart of what makes us South Africans and human beings. It looks at our diverse cultures, religions and practices. It demands of us to rethink these practices and weigh them up against what would be unfair discrimination or constitute unequal treatment of our fellow South Africans. The Bill demands of us to put measures in place to prevent their recurrence and it also demands of us to monitor our environment so that never again will there be the likelihood of unequal treatment of one person by another.
In summary, this Bill goes to the heart of our liberation struggle, which was led by the ANC and other democratic forces, to create a united, nonracial and nonsexist society, and it gives us the means to restore the humanity and dignity of all our people wherever they may find themselves. With this Bill, we are well on course to creating a better life for all. [Applause.]
Mr R M NYAKANE: Madam Chair, hon Deputy Minister and hon members of the NCOP, we are debating in favour of a Bill that is aimed at preventing unfair discrimination, promoting equality and providing for matters connected thereto. In doing so we are responding to the call for national legislation in terms of section 9, read with item 23(1) of Schedule 6 of the Constitution.
We have to shake the pillars of persisting structural and systematic inequalities to demonstrate our seriousness about the process of transformation. Hence, those who interpret and apply this law must take into consideration the Constitution, the preamble, other laws, codes of practice, and international laws and agreements to which South Africa is a signatory.
The courts should begin to give judgments that make an impact on people’s lives. Hence, the Bill provides for corrective and restorative measures, as well as for measures of a deterrent nature. The state and all persons have a duty to prevent unfair discrimination and promote equality through equality plans, codes of practice and regular reports. However, the Bill, sensitive to the concerns of the business community, excises the additional grounds from those stipulated in the Constitution so that the Equality Review Committee can make recommendations to the Minister as proposed. The courts, however, can establish these if they undermine human dignity.]
The Minister’s power over the appointment of the equality court magistrates and judges must be understood in the context that such appointments are limited to the existing pool of judicial officers initially screened by the existing statutory commissions and are subject to consultation with them. The burden of proof placed on the respondent is balanced against the provision for the complainant to make out a prima facie case of discrimination.
Our view is that this Bill is balanced and yet it conscientises us to be sensitive to the reality of those who continue to suffer hardships and privations because of the lasting effects of discrimination, especially on issues of race, gender and disability.
That is why the court will consider these prohibited grounds as aggravating circumstances should it be proved that unfair discrimination was based on them.
With these few contributions, on behalf of the UDM, I support this Bill. [Applause.]
Ms M P THEMBA: Madam Chairperson, hon Deputy Minister, members, the Promotion of Equality and Prevention of Unfair Discrimination Bill embodies a firm commitment by our nation to ensure gender equality. Gender equality means the equal enjoyment by men and women of socially valued goods, opportunities, resources and rewards. This implies that opportunities and life chances are equally distributed between them and do not depend on their sex.
Under colonialism and apartheid, women and people with disabilities were unfairly excluded and disadvantaged in relation to social and economic resources and decision-making. This limitation of women and people with disabilities in terms of access to resources and decision-making limited their ability to develop and exercise their full capabilities for their own benefit and for the benefit of society.
The Promotion of Equality and Prevention of Unfair Discrimination Bill seeks to overturn this situation. It seeks to create the conditions for women to address the humiliating practices imposed on them by colonialism and apartheid. Although much has been said about the importance of this Bill, very little attention has been paid to its practical implications and how it will impact on the daily lives of women who were, and in some cases still are, subjected to various forms of unfair discrimination.
The Bill has real practical value and will impact positively on many aspects of the lives of women, the disabled and other groups who suffered unfair discrimination. I want to limit myself to three specific areas in which I wish to point out how this Bill will ensure a more qualitative way of life for those women affected by unfair discrimination.
The first area in which I know this Bill will have a positive impact is that of sexual harassment. Unfair discrimination through sexual harassment has left many women with a feeling of diminished self-worth.
At present no legislation exists which specifically addresses or defines sexual harassment outside the realm of labour legislation. Women exposed to this indignity must lay a criminal charge of either rape or assault, both of them attracting a high burden of proof from the complainant. The Promotion of Equality and Prevention of Unfair Discrimination Bill changes all that. It provides a practical and easy remedy to women who are daily subjected to sexual and other forms of harassment.
Another area in which this Bill will improve the quality of life of women is that of the prevention of violence against them. The Bill will provide relief for thousands of women, especially in our rural areas, who are still subjected to female circumcision which in many cases has led to the mutilation of their genital parts. Experts believe that over 120 million women in 28 countries throughout the world, and that includes South Africa, have been victims of some sort of genital mutilation.
Female circumcision can cause terrible health and psychological problems. In many instances, it has led to women becoming infertile and depressed, while others experience regular infections of the womb, kidneys or bladder, as well as complications during childbirth. Often, women are circumcised in groups and the same blade is used on them, adding to the danger of Aids which is already one of the main causes of concern in Africa.
In terms of this Bill, female genital mutilation is regarded as an unfair discriminatory practice. The significance of this fact is that women are now able to make a decision on whether they want to subject themselves to circumcision. I have no doubt that this will be widely welcomed by many women who regard female circumcision as an invasion of their privacy and an infringement of their right to bodily integrity. Another form of discrimination which is experienced on a regular basis and on which this Bill will impact positively is the inequalities experienced by women, men and children that form part of families that fall outside of the traditional nuclear family or recognised civil marriages. Such people continue to experience inequalities regarding the recognition of their relationships as well as their rights within these nontraditional family forms. This is because of the common-law definition of marriage, which recognises the voluntary union for life between one man and one woman, to the exclusion of all others, as the only legitimate form of marriage.
This definition is contrary to the reality of a culturally diverse society and does not recognise the multiplicity of family-forms that exist, such as same-sex marriages, single-parent families, cohabiters, extended family relationships and polygamous marriages. In terms of the Promotion of Equality and Prevention of Unfair Discrimination Bill, such inequalities will be regarded as unfair discrimination through the extended definition of marital status.
I have highlighted only three instances in which this Bill will impact positively on the lives of people who are unfairly discriminated against. There are many more areas in which the implementation of this Bill will have immediate and positive effect. Those who vote against this Bill, in fact, are arguing for the continuation of unfair discriminatory practices such as sexual harassment, female genital mutilation and the nonrecognition of the right to equality of people involved in certain kinds of relationships. [Applause.]
Mev J WITBOOI: Mnr die Voorsitter, agb Adjunkminister en agb lede … [Tussenwerpsels.] Ek stem soos my partykoukus besluit het, vir daardie agb lid se inligting.
Elkeen van die 454 lede van die Parlement moes al op die een of ander tydstip vir hom- of haarself gesê het dat hulle in hierdie bevoorregte, verantwoordelike posisies sit omdat die mense daar buite soveel vertroue in hulle gehad het om hulle hier te plaas. Die mense daar buite wie se belange hier ten beste gedien moet word se oë is dus op hierdie lede en die hantering van uiters belangrike wetgewing soos hierdie wetsontwerp, en ons kan verseker wees dat die hele kieserskorps daar buite stil word wanneer hulle evalueer hoe hierdie 454 lede van die Parlement gestalte gee aan wetgewing wat dit ten doel het om die ongelykhede van die verlede uit te wis. Dit is ‘n groot taak vir 454 mense, wat maar feilbaar is, maar dit is 454 mense in die twee raadsale wat verantwoordelik is vir elkeen van die 40 miljoen mense landswyd.
Die Nuwe NP steun die wetsontwerp omdat ons onlosmaaklik deel wil wees van die proses wat uiting moet gee aan artikel 9 van ons Grondwet. Ook as ons terugkyk op die weg waarlangs ons gekom het, kan ons nie anders nie as om na vore te kom en te sê ons wil deel wees van hierdie historiese gebeurtenis. Ons wil deel wees van die meganisme wat geskep word om ná die ondertekening van die wetsontwerp op 4 Februarie 2000 koers te help gee aan en rigting te help aandui op die pad vorentoe vir die demokrasie in die nuwe Suid-Afrika.
Vir miljoene voorheen benadeeldes, veral vroue en mense met gebreke, breek ‘n nuwe era aan en met die klousules wat spesifiek hieroor handel, het die Nuwe NP geen fout te vind nie. Met die ondersteuning van die wetsontwerp verklaar ons as party ons hiermee bereid om mee te doen aan die uitwissing van diskriminerende wette wat hierdie mense se menswees negatief mag beïnvloed.
Hierdie wetgewing het egter ook klousules waaraan nog geskaaf sal moet word. Tyd laat my nie toe om breedvoerig daaroor uit te wy nie, maar ons lede in die NRP deel die kommer wat deur ons kollegas in die Nasionale Vergadering geopper is. ‘n Waarheid wat egter staan, is dat almal die blaam sal dra as ons die demokrasie van koers sou dwing deur nie grootmoedig weer te kyk na bepaalde klousules as die tyd daarvoor ryp geword het nie. Ek wil die Minister by voorbaat bedank vir sodanige onderneming gegee aan my party se leier, mnr Marthinus van Schalkwyk.
Ná vandag is dit nie meer nodig om terug te kyk nie. Diegene wat dit doen, sal moedswillig wees. Van vandag af breek ons met wetgewing wat almal so vryelik toelaat om te verwys na die nalatenskap van apartheid, en dit sal die plig van elkeen van hierdie 454 lede in die Parlement wees om nie ander monsters in die plek daarvan op die gelykgemaakte speelveld toe te laat nie. Kom ons gee erkenning aan elkeen wat die hand aan die ploeg wil slaan om die pad na ‘n uitmuntende demokrasie oop te werk.
Inderdaad is dit die opregte wense van almal in hierdie land dat dinge vir almal die beste moet verloop en baie jare van Februarie 2000 af sal elkeen van ons se nageslag op hierdie gebeurtenis terugkyk, óf met trots óf met leedwese. Daaroor kan ons besluit.
Die Nuwe NP sal steeds, waar nodig, met die regerende party verskil. Ons staan steeds by ons ooreenkoms om konstruktiewe bydraes te lewer wat positiewe dividende vir latere geslagte kan oplewer. Grootmoedige leierskap aan die kant van die Nuwe NP is geopenbaar met die besluit om hierdie wetsontwerp te steun en saam met die ANC medeverantwoordelikheid vir die uitvoering daarvan te aanvaar. [Tyd verstreke.] [Applous.] (Translation of Afrikaans speech follows.)
[Mrs J WITBOOI: Mr Chairperson, hon Deputy Minister and hon members … [Interjections.] For the information of that hon member, I am voting as my party caucus decided.
Each and every one of the 454 members of Parliament must have told him or herself at some or other stage that they are in these privileged, responsible positions because the people out there had so much confidence in them that they placed them here. The people out there whose interests are to be best served here are therefore watching these members and how extremely important legislation such as this Bill are dealt with, and we can be assured of the fact that all voters out there become silent when they evaluate how these 454 members of Parliament give substance to legislation aimed at eradicating the inequalities of the past. This is a massive task for 454 people, who are, after all, fallible, but these 454 people in the two Chambers are responsible for each and every one of the 40 million people in the country.
The New NP supports the Bill because we want to be inextricably bound to the process which is to give expression to section 9 of our Constitution. When we look back at the road we have travelled we cannot help coming forward and saying that we want to be part of this historic event. We want to be part of the mechanism which is being created, after the signing of the Bill on 4 February 2000, to guide us and indicate the direction to be followed on the road ahead for democracy in the new South Africa.
For millions of previously disadvantaged people, especially women and people with disabilities, this is the beginning of a new era, and the New NP has no fault to find with the clauses dealing specifically with this matter. By supporting the Bill we, as a party, declare that we are prepared to participate in the elimination of discriminatory Acts which may adversely affect the human dignity of these people.
However, this legislation still contains clauses which will have to be amended. Time does not allow me to go into detail about this, but our members in the NCOP share the concern voiced by our colleagues in the National Assembly. However, it is an indisputable fact that everyone will be to blame if we were to force democracy off course by not magnanimously taking another look at specific clauses when the time comes for us to do so. I want to thank the Minister in advance for such an undertaking which was given to my party’s leader, Mr Marthinus van Schalkwyk.
After today it is no longer necessary to look back. Those who do so, will be being wilful. As from today we are breaking away from legislation which allows everyone to refer to the heritage of apartheid so freely, and it will be the duty of each of these 454 members in Parliament not to allow other monsters to take its place on the levelled playing field. Let us give recognition to all people who want to put their shoulders to the wheel to pave the way for an excellent democracy.
It is indeed the sincere wish of every person in this country that everyone should have the best possible life and that many years after February 2000 all our descendants will be able to look back at this event, either proudly or with sorrow. That is for us to decide.
The New NP will still, where necessary, disagree with the ruling party. We still stand by our agreement to make constructive contributions which can produce positive dividends for future generations. Magnanimous leadership on the part of the New NP was shown by the decision to support this Bill and to accept joint responsibility with the ANC for its implementation. [Time expired.] [Applause.]]
Mr M L MOKOENA: Mr Chairperson, how is this Bill going to affect the institution of traditional leadership? There is a perception in some quarters that when this Bill becomes an Act the institution of traditional leadership will be thrown into chaotic confusion.
They went on to mislead our traditional leaders that the Promotion of Equality and Prevention of Unfair Discrimination Bill is aimed at changing traditional leadership or how leaders ascend to their throne. How wrong they are.
Can I refer those political piccaninies to the provision in Chapter 12 of our Constitution, which categorically states that the institution, role, status, custom and practices of our traditional leaders will be recognised and protected.
This Bill is in no way going to cause disorder in these institutions. For example, I cannot for a moment think that our rain queen Modjadji will, because of this Bill, be removed from her throne.
I cannot imagine Kgoshigadi Langa of Mapela being pushed off her throne because of this Bill. There is no way Kgoshigadi Chuene of Ga-Chuene can be forced to vacate her seat because of this Bill. Who can believe the myth that Kgoshigadi Mashashane of Ga-Mashashane can now be removed from the throne because of this Bill? Who can believe those daydreamers who are saying that Kgoshigadi Maraba of Ga-Maraba will, because of this Bill, cease to rule over her subjects? The said magoši, regardless of their being women, are still respected by their subjects. I cannot see men in those respective areas challenging or claiming to be equal to them simply because of this Bill.
This cannot be because the culture, tradition, customs and practices, and beliefs of those areas are that only women can rule in those areas. At the same time, I cannot imagine women in the very areas where traditional leaders are men taking up arms and trying to remove traditional leaders who happen to be men. What a distortion of facts! This cannot happen for the very same reason. My colleagues who are traditional leaders should take it from me that this Bill will instead assist their institution not to be discriminated against by anybody.
I know that there was and there is still a complaint by some traditional leaders that they are always discriminated against when it comes to the area of development. This Bill will instead assist them not to be discriminated against. This Bill, contrary to what my magoši are being told, creates a very comfortable platform for them to stand up and be heard. If there is some legislation in some other corners which seeks to do away with the institution of traditional leadership, this is not the one. Unfortunately, some people like preaching to the converted. Therefore I cannot see a reason for this Bill not to be supported. [Applause.]
Mr A E VAN NIEKERK: Chairperson, I have decided not to be repetitive and to focus on only one aspect which should also be a reminder of the promotion of equality in the Promotion of Equality and Prevention of Unfair Discrimination Bill.
To speak in one’s mother tongue and be understood, and to listen to others and to understand, is a basic human right. The state and everybody here should do everything in their power to ensure that this right does not stay a right but becomes a reality in our daily lives. For, as the hon the Deputy Minister said, we should be assisted to be the best we are.
But the present realities, however, are that Africa’s main languages of governance are French and English. Whatever the historical or political reasons, most of the indigenous languages in South Africa and Africa have been neglected. South Africa is becoming monolingual. The Post Office, Eskom, the Department of Home Affairs, the Department of Trade and Industry, etc are all officially monolingual. The availability of mother tongue education is threatened and not encouraged. There is a lack of terminology development for most indigenous languages in South Africa. That is a marginaliser. No priority is given to the training of translators and interpreters.
When we talk about the promotion of equality and the prevention of unfair discrimination, it starts here, right here in Parliament, in connection with this issue I am mentioning. Parliament should set the example. We know exemplum docet, the example teaches. I am privileged to be a language ombudsman and I am granted the opportunity by President Mbeki to discuss any language issue with the Deputy President whenever I feel it to be necessary. I am having such a discussion next week. I have a few serious issues I am considering raising with him - issues that might be discriminatory.
Kom ons kyk na ‘n paar hiervan. Die gebrek aan ‘n taalbeleid vir die Parlement, soos vervat in die voorstel wat ek vanoggend ingedien het en wat ons moontlik later gaan goedkeur, is een so ‘n kwessie. Verder is dit ook nodig dat die taalbeleid wat deur die Departement van Kuns, Kultuur, Wetenskap en Tegnologie ontwikkel word, as spoedeisend gesien word, en dat die monolinguïstiese voorbeeld van die Parlement reggestel word deur byvoorbeeld die parlementêre webruimte, sodat dit nie net in een taal nie, maar in al die verskillende tale beskikbaar is, wat dan ook die welwillend van almal van ons jeens meertaligheid sal weerspieël.
Daar is vandag in hierdie Huis onwillekeurig gediskrimineer teen die mense wat op daardie galery gesit het - en in daardie stadium was daar ‘n klomp mense, selfs uit die Vrystaat, soos die agb Adjunkminister seker ook weet - toe die agb lid me Vilakazi gepraat het, want hulle kon haar nie verstaan toe sy in haar moedertaal gepraat het nie, bloot omdat ons nog nie gehoorapparate op ons galerye in die Parlement het nie.
Dan is daar ook die bevordering van respek vir al die amptelike tale in die provinsies en die gelyke gebruik daarvan soos bepaal deur provinsiale taalwetgewing, wat in plek behoort te wees of in plek gestel moet word. Die voorkoming van die gebruik van ‘n spesifieke taal of tale vir die doeleindes van uitbuiting, oorheersing of verdeling is nog ‘n kwessie vir bespreking. Die voorgestelde verengelsing in ons howe moet ook ondersoek word.
‘n Vertrekpunt om die negatiewe persepsies, die diskriminasie en ongelykheid tussen taalgroepe aan te pak, is om die gesprek te voer op die basis dat taal uit die kultuurpoel gehaal word en van enige historiese, politieke of enige ander vooroordele gestroop word en net as taal behandel word. Kom ons gebruik hierdie wetsontwerp om ons te herinner dat ons taal ‘n skakel kan wees, ‘n manier om hande te vat, Suid-Afrika te maak werk en ‘n beter lewe vir almal te bewerkstellig.
Ek is bly om ter afsluiting te sê dat ek met die verteenwoordigers van verskeie inheemse taalgroepe gesprekke hieroor voer en dat daar gesê kan word: ``Ons praat!’’, oftewel re a bolela, ri khou amba, siyakhuluma, siyathetha, a vula vula, re a bua. [Ons praat.] [Applous.] (Translation of Afrikaans paragraphs follows.)
[Let us look at a few of these issues. The lack of the language policy for Parliament, as contained in the motion I submitted this morning and which we are possibly going to approve later on, is one such an issue. It is furthermore also imperative that the language policy which is being developed by the Department of Arts, Culture, Science and Technology be seen as urgent, and that the monolinguistic example of Parliament be rectified by, for example, the parliamentary website, so that it is not only available in one language, but in all the different languages, which will also then reflect the goodwill of everyone of us towards multilingualism.
Today in this House involuntary discrimination was displayed against the people on the gallery - and at that stage there were many people, even from the Free State, as the hon Deputy Minister surely knows - when the hon member Ms Vilakazi spoke, because they could not understand her when she spoke in her mother tongue, simply because as yet we do not have interpreting devices on the galleries at Parliament.
Then there is also the question of promotion of respect for all the official languages in the provinces and the equal use thereof as determined by provincial language legislation, which should be in place or should be put in place. The prevention of the use of a specific language or languages for the purposes of exploitation, domination or division is another issue for discussion. The proposed anglicising in our courts should also be investigated.
In order to tackle the negative perceptions, the discrimination and inequality between language groups one should, as a point of departure, have the discussion on the basis that language be taken from a cultural pool and be stripped of any historical, political or any other prejudices and only be treated as language. Let us look at this Bill to remind us that our language can be a link, a way to take hands, to make South Africa work and to create a better life for all.
In conclusion I am delighted to be able to say that I am having discussions with the representatives of different indigenous language groups and that it is being said: ``Let’s talk!’’ [Applause.]]
Mr M E SURTY: Chairperson, we note with concern the fact that the DP suggests that it embraces the spirit and intent of our Constitution as the supreme law of our country, and yet accept a portion of it and reject another portion. In biblical terms one could ask: Do they accept one part of the Scripture and yet reject another part? Is this their religion, is it their ideology?
To explain to the House why I premise my debate on this statement, I will deal with issues that are fundamental to this Bill. The primary issue that I am going to talk about is the issue of human dignity. Our founding provisions commit us to this founding value. It is the only value that is unqualified. When the Constitution in its founding provision talks about equality, it talks specifically and categorically about the achievement of equality - not about equality in abstract and formalistic sense, but the achievement and promotion of equality in a substantive sense.
I want the DP to listen to this very attentively. When it talks about dignity, it talks about it in unqualified terms. Some of the examples of human dignity were illustrated by the hon D M Kgware, when he talked about our past, our lack of access to institutions and facilities, and how these prohibitions affected us, our self-worth and our self-esteem. But to have a narrow one-dimensional perspective of human dignity results simultaneously and concurrently in a narrow, limited and one-dimensional perspective of equality. I shall try to explain why.
When we talk about human dignity we ar not only talking about the self- worth and self-esteem of an individual, but also talking about the fulfilment and the realisation of the self-worth and the self-esteem of an individual.
If the DP could embrace that real progressive and comprehensive notion of human dignity, they would, likewise, embrace a comprehensive, progressive and radical notion of equality. I say that they are limited, narrow and feigning attachment and loyalty to the Constitution, because if they did not do so, they would draw the attention. There was a sinister silence yesterday about the failure to emit what the Constitution refers to.
I think I should read for the benefit of the House, and the DP, in case they have not read the Constitution and are not familiar with its contents, the provisions of section 9(2), and I would ask the hon member Botha to pay specific attention to it. It says very clearly:
Equality includes the full and equal enjoyment of all rights and freedoms.
What are ``all rights and freedoms’’? Is it only the freedom of expression, or does it include rights to access to basic education, housing and a clean environment? Are these the second-generation and third-generation rights which hon members really wish to embrace as they did in the constitutional negotiations? At the outset they totally rejected the inclusion of socioeconomic rights in the Constitution, and then, after much persuasion and out of a lack of will to fight a lost cause, they decided to embrace these values. Is this the position of the DP?
I am asking to these hon members: Why not argue for equality in its formal sense, as they would argue about the freedom of expression? Why say that that is important and that everybody has the right to freedom of expression, when they do not at the same time argue for the right to basic education in order that the individual could achieve fulfilment of that particular right to freedom of expression?
Can they imagine what it is like for an illiterate person to be able to express himself or herself fully? Can they have a one-dimensional approach and say that only the freedom of expression is important, yet the second- generation right to education is not important? Can they talk about education in the context of an individual who is deprived of access to institutions, housing and electricity? This is what the DP must understand.
When we talk about our freedom, we do so in a comprehensive sense, not in an abstract sense or in a vacuum. I think the time has come for them to cease this narrow, one-dimensional, limited and bigoted approach towards our freedom and liberty in this country.
If the DP was true and honest to this Constitution - but there was a sinister silence again - they would have said that the Constitution says:
To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
This is a statement in the Constitution to which we should be loyal. What does the DP say? They say: ``We are not concerned about the past, and we are not concerned about the atrocities of the past. We would like to look at equality as equality.’’ Abraham Lincoln ensured that there was a greater commitment to the ideal of equality. When there was a liberation or a struggle for liberation, it was not merely in words, it was in deeds. People went to war for the liberation of our people. If there was that kind of commitment by the DP, then certainly they would advance it here.
If we understand the concept of human dignity in its comprehensive form, then we will understand what this Bill seeks to do. It seeks to prohibit unfair discrimination and simultaneously advance the realisation of the self-worth and self-esteem of people by promoting equality.
Another aspect that I should deal with, although I know my time is limited
- otherwise I would have gone on - is the issue of judicial independence. Why has there not been a response to the issues that I raised yesterday? The sinister silence again suggests one thing, that by responding to the ANC, the DP would by assumption be saying that magistrates who are appointed by a magistrates commission and judges who are appointed by a judicial services commission, if they are so designated, are capable of being influenced by the Minister or by Government.
That would impeach or impugn on the integrity of those very judges who are independently appointed. They again fail to admit that the Constitution permits the Minister to appoint acting judges. Acting judges are designated to our family courts. Why has there been no hue and cry about this? It is functioning very well.
There have been no difficulties, yet Mr Lever raised the matter of training yesterday. He said that if training is the criterion, we should include it in the legislation. We have done so in the equality Bill. Why is that not mentioned? In other words, we are talking about a designated, trained and skilled group of magistrates who have previously not dealt with issues of this nature, and who will be designated by the Minister to fulfil a very important task.
This is groundbreaking, new, difficult, novel and complex legislation. Do hon members expect a magistrate who is dealing with traffic fines to be able to administer this law effectively and efficiently? Is this the view of the DP? Do they not recognise that there is a differentiation in skills amongst magistrates in terms of their day-to-day experiences in court? Would hon members say that a magistrate who sits in a criminal court is equivalent to, or has the same skills as, a magistrate dealing with civil disputes? Certainly not. The reality stares one in the face, and that is that magistrates who are arbitrating in civil disputes or presiding over those matters are more skilled and experienced in that particular area than those who deal with criminal matters.
These are the kinds of resources that this Bill talks about. This faint, weak and timid attempt to suggest that the independence of the judiciary is going to be influenced or interfered with, is an attempt to obfuscate and confuse people. They say that they have noble intentions because they believe in an independent judiciary. Yes, we too believe in that. Our Constitution says so and we, at least publicly, say that we shall embrace it. We have not violated this document.
The mere fact that the DP articulates the concept of equality in a way that does not include substantive equality, means that they are not true and loyal to the Constitution. I think this reality must be brought to the attention of the nation, that the DP is still continuing in the vein of an abstract liberal notion of equality, devoid of a recognition of our past difficulties, the objectives of our country and the attempt to advance the goals of our people.
I say this Bill is groundbreaking legislation and that it is important that we support it. I think we can again, like yesterday, celebrate the triumph of our new democracy which is open and based on human dignity, equality and freedom, and which is, as the DP should understand, based on our Constitution. [Applause.]
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, I have made so many notes. If members see me twisting my paper as if I am trying to find a place on a map, and if in the process I end up going round corners, please bear with me while I wade my way through my papers, because there are very important issues that have been raised. The DP’s failure to support this Bill is a failure to support equality, de facto or de jure or in any other way one wants to define it. It is a failure to support equality.
The arguments that they have forwarded in their defence of this action are incomplete and a sure case of smoke and mirrors. At the core of the DP’s failure to support this legislation lies a resistance to transformation and substantive change. I would like to take up a few of the issues and start, possibly, with the issue of language.
The Bill states clearly that the Minister must make the Act available in all official languages in the prescribed manner within a period of two years after the commencement thereof. On the issue of translation and the production of this legislation into the various languages, I would like to caution the hon Botha not to pooh-pooh the relevance of financial constraints experienced by the Government. If we met all the hon member’s party’s demands for the translation of this Bill and in other instances, we might have to consider raising their tax rates, and I can only imagine how ``the DP as the shop stewards of capitalism’’, to quote the hon Cronin, would react to their new tax status. [Laughter.]
I cherish the dream and I am secure in the knowledge that we have a limited time in which to meet our constitutional obligation to produce this Bill in the official languages.
On the insurance issue I have to be a little more detailed. One of the critical issues that the joint ad hoc committee had to grapple with was how to deal with differentiation inherent in much commercial activity, and how to distinguish between reasonable and justifiable differentiation on one hand and unfair discrimination on the other hand.
Commercial interest groups, particularly lobbyists for the insurance sector argued vigorously that their businesses depended on being able to differentiate between categories of people on objective grounds. This concern, I believe, is accommodated in clause 14 of the Bill. It sets out a host of factors that would play a role in determining whether an action is fair or unfair. It includes the very important consideration whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria intrinsic to the activity concerned.
It is clearly not the intention of the Bill to prevent insurance companies from deciding that smokers are a higher risk for life insurance than nonsmokers. What was not agreed was to exempt upfront all differentiation based on actuarial and other commercial characteristics. The reason for this is that under those conditions a complainant would have had to establish a prima facie case that the discrimination that he or she was complaining about was not differentiation. It would have raised the barriers for the complainant too high, and would undermine the fundamental principle of making justice accessible to the poor and ordinary victims of discrimination.
Although this has been dealt with exhaustively, the Minister’s power to designate must be addressed. The whole question about the Minister’s power to designate magistrates and judges to become presiding officers in the proposed equality courts is a tiny storm in an even smaller tea cup. Any person acquainted with the appointment procedures of judges and magistrates will know that the further designation of one of these appointed officers is not an unusual occurrence. It is not giving the executive sweeping powers. On the contrary it coincides with the designation of judicial officers to specific positions in other areas of specialisation, for example the land claims court, and in the constitution of the Magistrates Commission, as well as the Judicial Service Commission.
To oppose the Bill solely on the grounds of opposition to clause 16 is really a very incomplete defence. Besides, the Bill is clear that all High Court judges and magistrates will eventually be designated, not only a chosen few. However, they would only be so designated after acquiring the necessary skills. This is real judicial independence and social responsibility, and that is how it should be.
The DP’s viewpoint, furthermore, on the designation of magistrates by the Minister smacks of arrogance, and they are, of course, missing the point. Members will recall that the same argument was also raised yesterday by the DP during the deliberations on the Promotion of Administrative Justice Bill. It would also appear that this is one of the main reasons why they have opposed these two really important pieces of legislation.
I think it is important to put the matter in perspective. It is a reality, and a sad one indeed, that in the old apartheid era the issue of human rights was a foreign concept for many magistrates and judges. Proceedings and judgments on administrative law were reserved for the High Court only. If the hon member of the DP would care to read the reports of the portfolio committee again, she will realise that the committee has expressed its concerns about the lack of experience of the magistrates in respect of administrative law and related matters, and that magistrates who intend specialising in this field are to be specially trained.
This was also the reason why it was agreed and decided that the Minister should designate magistrates who have expertise and experience to adjudicate on the issue of administrative justice and the promotion of equality and prevention of unfair discrimination.
If the DP would take the time to speak to some of the magistrates, a number of them would indicate that they specialise in either criminal law or civil law and are not adequately trained to deal with some of the complex issues mentioned in the above Bills. But what will the hon members of the DP do now if some of their constituency members approach them for advice on how to settle, for example, an administrative issue in a simple way? Would they advise them to go to the magistrates’ court where the Minister has designated an experienced magistrate in administrative law? Or will the DP, in truly elitist fashion, advise their constituency members to approach the High Court for relief in an action like this instead of referring them to an accessible and affordable magistrates’ court? I can only imagine what the DP’s response would be.
About the definition of equality, it is sad that there is disagreement on a technical definition, because we all know in our hearts what equality is. It is about outcomes. Let me tell members again that it is about outcomes. Women, children and lots of men know that it is about outcomes.
But in order to discuss the issue as raised by the hon Botha, I have to go back a little bit because in fact, she, again, has missed the point. The Constitution, in section 9(2), states that equality includes the full and equal enjoyment of all rights and freedoms. This automatically imports the notion of substantive equality. Equal enjoyment of all rights and freedoms cannot be possible without enjoying equality, both in law and in the actual experiences of people.
The same subsection of the Constitution further states that:
to promote the achievement of equality, legislative and other measures designated to protect or advance persons, or categories of persons disadvantaged by unfair discrimination, may be taken.
The approach in the Bill fully complies with the Constitution. An approach which limits equality to formal equality would fall below the standard set in that precious document, our Constitution.
To put the hearts and minds of those doubters out there at rest, I would like to remind them - and those members who attended the debate in the National Assembly will recall this - that the Minister, in his opening address, undertook to monitor the legislation and to approach Parliament if necessary with suitable amendments should the legislation have any negative unanticipated implications, particularly for business. I think this is unbroken territory to a large extent, and I think that we have done something very special. But then I suppose I have to deal with the real issue, and that is people’s concerns, because those who are opposing the Bill have concerns about the promotion of equality. That is central to this.
Clearly, if one has problems with it, I have to resort to another argument and will do so by by saying that if one cannot, like a reasonable person, be persuaded on grounds of justice and equality that the promotion of equality should be one of our primary goals, I would like to offer our strident critics the option of approving this legislation on the basis of pure economic good sense.
It is acknowledged even by institutions such as the World Bank, as we heard from hon Davies in the National Assembly, that societies with greater equality, as measured by the Gini coefficient and a variety of other indicators, tend to be more successful economically than those with a high incidence of inequality.
The 1999-2000 World Bank development report identifies equality as one of a range of goals that must be pursued in the advancement of development. It is common knowledge that colonialism, apartheid and patriarchy left South Africa one of the most unequal societies in the world. So my advice is that if one cannot think with one’s heart and conscience, one must think with one’s purse.
I am proud to support this legislation and I would like to thank the House for a very interesting debate. [Applause.]
Debate concluded.
Bill agreed to in accordance with section 75 of the Constitution.
The DEPUTY CHAIRPERSON OF THE NCOP: Order! Before we disperse, allow me to dispose of a housekeeping matter which was raised during today’s session of motions without notice. You will recall that there was an objection to a motion raised by the hon member Mr Van Niekerk and the grounds were that the subject matter had been adjudicated upon by this House and could therefore not be reintroduced in the same House.
I have had the opportunity of going through the proceedings of this House since we began sitting and noted the following. On 18 November there was a motion on languages by Mr Van Niekerk. Again, on 26 January, there was another motion dealing with languages. All these motions deal with language issues, but I must say that the subject of each motion is distinct and separate and calls for a different action. For instance, the notice of motion which he introduced on 18 November dealt with the provision of audio apparatus for visitors in our parliamentary chambers. The notice which was introduced on 26 January dealt with a declaration on languages which was adopted at a conference in Eritrea.
Today’s motion laments the lack of a language policy and calls upon the House to urge the Rules Committee to give attention to the question of language policy. I therefore submit that today’s motion is not a matter which has been dealt with by this House, and I shall call upon the member just to read it out again to remind the members so that a decision can be taken on that motion.
Mnr A E VAN NIEKERK: Mnr die Voorsitter, ek stel voor:
Dat die Raad -
(1) kennis neem dat
(a) die Grondwet van Suid-Afrika erkenning gee aan 11 amptelike
tale, die uitbou daarvan, sowel as die beskerming van dié tale,
en die ander tale in Suid-Afrika, teen diskriminasie;
(b) Pansat in die lewe geroep is om bogenoemde te help doen; en
(c) taalrade besig is om hul voete te vind in die provinsies, maar
dat die Parlement van Suid-Afrika nog nie 'n taalbeleid het nie;
en
(2) die Reëlskomitee maan om onmiddellik hieraan aandag te skenk. (Translation of Afrikaans motion follows.)
[Mr A E VAN NIEKERK: Mr Chairperson, I move:
That the Council -
(1) notes that -
(a) the Constitution of South Africa gives recognition to 11
official languages, the promotion thereof, as well as the
protection of these languages, and the other languages in South
Africa, against discrimination;
(b) PanSALB has been formed to assist in achieving the above-
mentioned; and
(c) language boards are finding their feet in the provinces, but
that the Parliament of South Africa is still without a language
policy; and
(2) urges the Rules Committee to give immediate attention to this.]
The DEPUTY CHAIRPERSON OF THE NCOP: Order! I want to remind the members that this was a motion without notice. Any objection to the motion?
Motion agreed to in accordance with section 65 of the Constitution. The Council adjourned at 13:35.