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M U L T I - P A R T YG A U T E N G L E G I S L A T U R E

W MEN’S CAUCUSO

Gauteng Provincial LegislaturePrivate Bag X52

Johannesburg, 2000

Tel: +27(0) 11 498 5555Fax: +27(0) 11 498 5999

www.gpl.gov.za

Gauteng Legislature condemns violenceagainst Women & Children

Lest we

forget

Mainstreaming gender, race, disability and youth in the Gauteng Legislature

After Apartheid The South African Journey to Mainstreaming Gender, Race,

Youth & Disability

A Background Paper Produced as Part of the Assessment of Transversal Mainstreaming

in the Legislature: June 2017

Review by Muzi Ntuli (Researcher, Gauteng Legislature)

For more information contact Jamela Robertson:

GPL Transversal Mainstreaming Focal Point

Tel: 011 598 5816

Email: [email protected]

Socio-Economic Exclusion of Vulnerable GroupsNOT ON OUR WATCH

“The South African Constitution contains one

of the most wide-ranging lists of protected

grounds, including 16 prohibited grounds,

namely, race, gender, sex, pregnancy, marital

status, ethnic or social origin, color, sexual

orientation, age, disability, religion, conscience,

belief, culture, language and birth. The express

mention of sexual orientation contrasts with

the other Constitutions, and has been relied on

in a fruitful set of cases which systematically

outlawed sexual orientation discrimination.”

Fredman, S. (2013). Anti-discrimination laws and work in the

developing world: A thematic overview. Background Paper for the

World Development Report 2013

ContentsAcronyms 3

Introduction 5

Understanding the legal response to anti-discrimination in South Africa 7

A closer look at key themes 8

Race and the founding anti-discrimination legislation 9

Gender 19

Youth 24

Disability 26

Conclusion 29

Bibliography 30

Appendix 1: Comprehensive age structure of the Gauteng population (2016) 33

List of figures

Figure 1: Gauteng is home to . . . 6

Figure 2: Racial breakdown of South African population (2016) 9

Figure 3: Similarities between South Africa’s Employment Equity Act (1998) and the ILO’s Convention no 111 (1958) 13

Figure 4: Women make up the majority within 3 of South Africa’s 4 major race groups 15

Figure 5: Gender composition in Gauteng (2016) 17

Figure 6: Defining gender mainstreaming in South African policy 18

Figure 7: The NDP’s recommendations on gender (2012) 19

Figure 8: Defining youth 21

Figure 9: Age profile of the Gauteng population 22

Figure 10: People with disabilities in South Africa (2011) 23

Figure 11: Disability figures within the province of Gauteng (2011) 24

Figure 12: Age profile of the Gauteng population 24

Figure 13: People with disabilities in South Africa (2011) 26

Figure14: Disability figures within the province of Gauteng (2011) 27

A Background Paper Produced as Part of the Assessment of Transversal Mainstreaming in the Legislature: June 20172 |

Other Background Papers in this Series:This Background Paper is one of a series produced as part of

an assessment of transversal mainstreaming in the Gauteng Legislature. Other papers in the series include:

• The Emerging International Policy Agenda on Mainstreaming Gender, Race, Youth & Disability• Norms and Standards for Assessing Transversal

Mainstreaming in the Gauteng Legislature,• Gauteng Legislature Audit Methodology for Mainstreaming Gender, Race, Youth & Disability,• Mainstreaming Gender, Race, Youth &

Disability in the Gauteng Legislature: Internal Policy Environment.Also produced as part of the assessment of transversal mainstreaming in the Gauteng Legislature, is a report of the assessment titled: Mainstreaming issues of gender, race, disability and youth in the Gauteng Legislature: The road travelled thus far, a GPL Transversal

Mainstreaming Policy and GPL-Specific Transversal Mainstreaming Training

Material, customised for Members, Management and Staff.

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Acronyms

BCEA Basic Conditions of Employment Act

CCMA Commission for Conciliation, Mediation and Arbitration

CGE Commission on Gender Equality

CRL Commission for the promotion and protection of the rights of cultural, religious and linguistic communities

DPME Department of Planning, Monitoring and Evaluation

DPSA Department of Public Service and Administration

DTI Department of Trade and Industry

GER Gross Enrolment Rate

GPI Gender Parity Index

GPL Gauteng Provincial Legislature

IAEG-SDGs Inter-Agency and Expert Group on SDG Indicators

ILO International Labour Organisation

INDS Integrated National Disability Strategy

ISD Institution supporting Democracy

LRA Labour Relations Act

MDG Millennium Development Goal

MEC Member of the Executive Council

MPWC Multi-party women’s caucus

MTEF Medium-term Expenditure Framework

MTSF Medium-term Strategic Framework

NDP National Development Plan

NGF National Gender Framework

NPC National Planning Commission

NYP National Youth Policy

OSW Office on the Status of Women

PAIA Promotion of Access to Information Act

PAJA Promotion of Administrative Justice Act

PDI Previously disadvantaged individual

PEPUDA Promotion of Equality and Prevention of Unfair Discrimination Act (Equality Act)

PMTCT Prevention of Mother-to-Child Transmission

RDP Reconstruction and Development Programme

RSA Republic of South Africa

SAHRC South African Human Rights Commission

After Apartheid: The South African Journey to Mainstreaming Gender, Race, Youth & Disability4 |

SDG Sustainable Development Goal

SETA Sector Education and Training Authority

TM Transversal mainstreaming

TMFP Transversal mainstreaming focal point

UN United Nations

US United States

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1. Introduction

An exploration of anti-discrimination policy in South Africa cannot be understood in isolation of the country’s apartheid past. One of very few countries in the world to have overtly institutionalised discrimination in state policy, South African policy and law-making since 1994 provides valuable lessons on how to address a context such as these. Unlike most countries which have to deal with covert discrimination in either society or the workplace, South Africa’s first democratic government has had to construct an entirely new legal regime, underpinned by new norms and standards. The founding anti-discrimination legislation that was put in place in the country after 1994 must therefore be understood in that context.

This document is one of a series of background papers produced for the Gauteng Provincial Legislature (GPL) as part of a comprehensive transversal mainstreaming audit undertaken in 2017. The Gauteng Legislature is a provincial parliament established in 1994. As such, it is fundamentally rooted in the post-apartheid dispensation that was created in South Africa with the election of Nelson Mandela as the country’s first democratic president.

Given its roots, a significant body of the Gauteng Legislature’s early work was on repealing anti-discriminatory laws and creating a new, rights-based legal regime in their wake. As one of the legislative institutions in the embryonic democracy, its role was also to contribute to the nurturing of that democracy through exercising oversight on the executive arm of government in the province: the Gauteng Provincial Government (GPG). In pursuing these traditional roles of parliamentary bodies, the Legislature has also embraced the new South African state’s ethos of involving citizens in decision-making. This is seen most vividly in its commitment to public participation, giving further impetus to the notion of parliaments as deliberative assemblies. Through the course of these activities, the provincial parliament has developed close relationships with not only other spheres of government, but also the Institutions Supporting Democracy (ISDs) that were created after 1994 – a way of working that the South African Constitution describes as cooperative governance. Collectively, these activities translate into the four principal mandates of the Legislature – law-making, oversight, public participation and cooperative governance.

The issue of mainstreaming what may be termed marginalised groups has always been a key element of the Gauteng Legislature’s agenda. It may be seen, for example, in the institution’s early adoption of an employment equity plan or in the creation of dedicated political structures to focus on gender equality. It may also be seen in the forums that the institution has created over the past twenty years that bring young people, the disabled, women and other groups from civil society together for conversations with the legislative body.

Transversal mainstreaming within the Gauteng Legislature context refers to those issues that cut across multiple disciplines or sectors and, hence, are not neatly confined to any one specific administrative (or political) unit. Traditionally, the key debate within this arena has been whether women’s interests should be driven through a dedicated structure such as a gender standing committee or whether it should be ‘mainstreamed’ through all structures, systems and mandates of the Legislature. Today, the debate within the institution is considerably broader and includes discussions on how to mainstream issues of race, youth, gender, and people with disabilities.

The question of mainstreaming previously marginalised groups – particularly based on race, gender, youth and disability criteria - is not an issue on the outskirts of development policy in Gauteng. In 2016, women made up 49.62% of the provincial population1. Stated differently, the almost 6.7 million women in Gauteng today constitute almost half of that province’s residents. More generally, women also form the majority of the South African population, and 80.6% of women in the country are African2. Youth and children also constitute the majority of the population in Gauteng. In 2016, the province was estimated to have over 4.5 million youth between the ages of 15 to 34. And although Gauteng has one of the lowest rates of disability in the country, the province is still home to over 485 000 people with disabilities. Most of them may be found in the City of Johannesburg and Ekurhuleni.

1 Data calculated by Lynelle John and Associates, based on Stats SA data (2016b). 2 Data calculated by Lynelle John and Associates, based on Stats SA data (2016b). Stats SA’s latest official data estimates the female population in South Africa to be over 28.5 million.


Figure 1: Gauteng is home to . . .

In brief, development interventions in Gauteng cannot help but pay specific attention to questions of race, gender, youth and disability. These are not minority groups in the province but, indeed, form the majority of the population in many instances.

Transversal mainstreaming within the Gauteng Legislature is promoted through dedicated structures. The Gauteng Legislature’s Multi-Party Women’s Caucus (MPWC) is an association of women parliamentarians who are committed to advancing the economic and socio-political well-being of women in the province. The Caucus was re-established in 2015 and serves as an advisory body to the Gauteng Legislature. In addition, the Transversal Mainstreaming Focal Point (TMFP) was established as the administrative unit that implements the political mandate articulated by, inter alia, the MPWC.

This Background Paper has been written as a precursor to the transversal mainstreaming audit that was conducted in the Gauteng Legislature in 2017. Its findings have shaped the final results of the audit, as well as the audit methodology itself. The paper presents an overview of how national policy thinking on transversal mainstreaming themes have evolved in post-apartheid South Africa. Its focus is on national policy responses, although provincial policy tends to follow the principles and objectives set out in national policy. Because national policy responses to the question of discrimination have been so wide-ranging since 1994, this paper commences by providing a brief roadmap first. Chapter 2 sketches the legal response to anti-discrimination in South Africa. This serves as contextual background to the more detailed overview that follows in the subsequent chapter. The paper concludes by drawing a few tentative conclusions for the Gauteng Legislature. Its findings and conclusions should be read in conjunction with the other Background Papers produced in the series that explore the policy views of the international development community, the South African legislative sector as well as the Gauteng Legislature itself on these subjects. Collectively, these perspectives and policy statements have helped to form a normative framework for the transversal mainstreaming audit in the institution.

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2. Understanding the legal response to anti-discrimination in South Africa

The principal aim of this paper is to illustrate how the post-apartheid South African state sought to mainstream issues of race, gender, youth and disability through its national policy responses. This was particularly evident in the first five to six years following the demise of apartheid as the country began to construct an entirely new legal regime to replace the old dispensation that had institutionalised discrimination. A significant body of the new laws enacted during this period focused on the workplace: South Africa’s suite of labour legislation clearly provided the foundation for the anti-discrimination regime that emerged in the country after 1994. Moreover, these laws also introduced the conceptual notion of moving beyond anti-discrimination into more assertive affirmative action. This is in line with International Labour Organisation (ILO) conventions that had been espousing these global norms as early as the 1950s3. It is fairly important to note that key labour laws such as the Labour Relations Act (1995), the Basic Conditions of Employment Act (1997), the Employment Equity Act (1998), the Skills Development Act (1998) and the Broad-based Black Economic Empowerment Act (2003) – although ostensibly aimed at ending racial discrimination – took a far broader view of anti-discrimination. They included, to differing degrees, the issues of women, disability as well as age, including youth.

Early labour legislation was matched by a suite of sector-specific laws that intended to end discrimination in society. These encompassed education, health, social welfare, sport and culture. However, an overarching framework, and one that may be seen as complementary to the labour law regime, was what has popularly become known as the Equality Act (2000). The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) makes wide-ranging recommendations in terms of ending discrimination in South African society.

However, whilst issues of gender, youth and disability have been mentioned in the founding anti-discrimination laws of post-apartheid South Africa, there is some paucity in specific legal regimes for these transversal issues, particularly for gender and disability.

There has not, to date, been one comprehensive law in South Africa that focuses exclusively on the full spectrum of issues pertaining to gender equality. More targeted pieces of legislation have addressed critical elements of gender discrimination. These include the Domestic Violence Act, the Recognition of Customary Marriages Act, the Recognition of Customary Law of Succession Act and the Sexual Offences Act. Whilst of critical importance in constructing the new gender mainstreaming regime, the country remains without a comprehensive law that deals with the totality of gender issues. The closest framework that addresses this is the National Policy Framework for Women’s Empowerment and Gender Equality. Adopted in the year 2000, the National Gender Framework, as it became popularly known, remains the standard to which most debate in the sector refers to. More recently, a wide-ranging Bill on the subject of gender equality was proposed in the form of the Women Empowerment and Gender Equality Bill (RSA, 2013). However, it was later withdrawn because of, inter alia, the controversy it generated over its proposed quotas.

3 See other Background Paper in this series entitled A promise to leave no one behind: The emerging international policy agenda on mainstreaming gender, race, youth and disability.

The strongest stance on anti-discrimination in the world

“The South African Constitution contains one of the most wide-ranging lists of protected grounds, including 16 prohibited grounds, namely, race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. The express mention of sexual orientation contrasts with the other Constitutions, and has been relied on in a fruitful set of cases which systematically outlawed sexual orientation discrimination.” (Fredman, 2013)


Similarly, South Africa does not currently have any disability-specific legislation. A number of significant policy pronouncements have, however, been made on the subject, most notably in the South African Constitution and its Bill of Rights, as well as the National Development Plan (NDP). The closest that South Africa has to an overarching disability policy response was written as far back as 1997: the Integrated National Disability Strategy (INDS) was drafted by the Office of the President (Office of the President, 1997) and remains the most significant formal policy statement on disability in South Africa. It is now twenty years old.

By contrast, the subject of youth has received relatively more attention in the law-making arena. This has been preceded by a consistent set of policy guidelines in the form of National Youth Policies spanning, typically, five-year periods. The first National Youth Policy (NYP) was developed in 1997 and the current policy spans the years from 2015-2020 (Presidency, 2015). Policy-making in this arena has been paralleled by legislative development. This has included what is popularly termed ‘establishment legislation’ such as the National Youth Commission Act (1996) and the National Youth Development Act (2008). In more recent years, more targeted laws have been proposed, particularly the Department of Trade and Industry’s (DTI) Youth Enterprise Development Strategy (2013 – 2023) and the Employment Tax Incentive Act (2013). This is perhaps in response to the fact that youth unemployment has become an increasing area of attention for the country, as later chapters will show.

All these laws, and the policy that underpins them4, are underpinned by the South African Constitution and its Bill of Rights which expressly prohibits discrimination on 16 grounds including race, gender, age, disability, religion and sexual orientation. It is widely regarded as the strongest policy stance on anti-discrimination in the world.

3. A closer look at key themes

The introductory remarks of this paper made clear that South Africa is fairly unique in the world in that it is one of very few places to have overtly institutionalised discrimination in state policy. Hence, unlike the tacit discrimination that exists in other countries, the post-apartheid South African state had to both dismantle the pervasive discriminatory legal regime that had been in place before 1994 and to construct a different type of legal regime in its stead. The post-apartheid project is therefore a distinctive exercise in this arena, but one that holds major lessons for anti-discriminatory endeavours elsewhere on the globe.

There is another characteristic about the discrimination debate in South Africa that is completely unique to this country. Anti-discrimination measures in most states are put in place to protect minority groups from the biases of the majority segment of the population. The converse is true in South Africa, making the country a unique case study. A factor that was relatively unique about the South African context in 1994 was that those discriminated against – commonly referred to as previously disadvantaged individuals (PDIs) or groups – formed, in fact, the majority of the country’s population.

4 In many ways, South Africa follows the Westminster system of law-making, where policy papers (usually in the form of Green and White Papers) precede the drafting of laws. Policy is seen as a broad articulation of what the country wishes to achieve in a particular sector, whereas the laws that emerge thereafter provide more detail on how this may be achieved. Hence, the South African White Paper on Local Government (1997), for example, was followed by three laws dealing with, respectively, municipal demarcation, municipal structures and municipal systems – all enacted within three years of the White Paper’s adoption

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Today, as the accompanying graph illustrates, Black South Africans – and Africans, more specifically – continue to constitute the majority of the country’s population, estimated at just under 56 million (55 908 900) in August 2016. Hence, affirmative action and other targeted state action to uplift previously disadvantaged individuals groups will, by default, have a significant impact on the country’s economy and well-being as a whole. Labour legislation in post-apartheid South Africa, as the rest of this chapter will show, makes it clear that there are distinct economic as well as moral objectives to be attained.

3.1 Race and the founding anti-discrimination legislationGiven the history of apartheid, when policy-making began in democratic South Africa in 1994, previously disadvantaged groups were clearly identified in terms of race. In other words, it was uncontentious that Africans, Indians and Coloureds (the racial groups excluded from the political franchise before 1983) were identified as those requiring specific focus in terms of anti-discrimination measures as well as the more assertive affirmative action policies that emerged. However, the ruling party that came to power in 1994 had also previously held sustained policy conversations within the ranks on which groups should benefit from both anti-discrimination and affirmative action. Many of these conversations within the African National Congress (ANC) were influenced by the exiled movement’s engagements with organisations such as the International Labour Organisation (ILO) and various United Nations (UN) bodies. The influence is palpable when studying early South African labour legislation, for example, which bears the undeniable mark of ILO conventions of the 1950s.

The groups identified as previously disadvantaged are clearly reflected in the South African Constitution’s Bill of Rights. As was illustrated earlier, the country’s Bill of Rights outlaws discrimination on 16 grounds, including that of race, gender, age, disability, religion, language and sexual orientation. It is one of the most progressive anti-discrimination stances in the world (Fredman, 2013).

An important point to note about the suite of legislation that followed in the years immediately after apartheid’s demise was that most of them sought to promote anti-discrimination in general. Hence, although ending racial discrimination was an immediate objective for the post-apartheid legislative era, policymakers had, by then, been sensitised – through growing international norms and their own political party conversations - to the many ways that discrimination plays out in society. As a result, the immediate set of post-apartheid laws very consciously broadened its definition of discrimination to include – in the words of the Employment Equity Act - unfair practice on the basis of race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth (RSA, 1998a). Indeed, the Employment Equity Act, ostensibly introduced to deal with racial discrimination, is regarded by some as “the legislation bearing the greatest significance for increased gender equality in the labour market” (Shepherd, 2008, pp 6).

Labour legislation set the tone for post-apartheid South Africa’s legal response to discrimination in the country. Its hallmark piece, perhaps, was the Labour Relations Act (LRA) 66 of 1995. The LRA was enacted in 1995, but remains possibly the most cited piece of labour legislation today (RSA, 1995). Introduced to alter the legal framework governing labour relations in the country, the Act contains important provisions on freedom of association, collective bargaining, strikes and lock-outs, workplace forums, employer and trade union organisations as well as unfair dismissal. It was a ground-breaking piece of legislation which introduced a completely new regime in the South African workplace.

Figure 2: Racial breakdown of South African population (2016)


The LRA also sets out an elaborate institutional matrix for dispute resolution, seen as an important element of the legal machinery required to address the apartheid legacy and give previously disadvantaged voices the means to seek redress within the labour market. This included the Commission for Conciliation, Mediation and Arbitration (CCMA), Labour Courts and Labour Appeal Courts. It is an important act because it sets out fair labour practices that affect all workers. However, it also contains important provisions for women, PDIs as well as people with disabilities. It is, however, largely silent on the subject of either age or youth.

One of its most important sections in terms of anti-discrimination relates to what the Act terms ‘automatically unfair dismissals’ (s187). A dismissal is considered automatically unfair if “the employer unfairly discriminated against an employee, directly or indirectly, on any arbitrary ground, including, but not limited to race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, political opinion, culture, language, marital status or family responsibility” (RSA, 1995, s187(1)(f)). Pregnancy is cited as another reason why a dismissal could be considered automatically unfair.

The LRA contains other critical references to disability and gender. At a more generalised level, the Act calls for representivity in trade unions, employer organisations and even CCMA commissioners. More significantly, however, Schedule 8 sets out Codes of Good Practice for dismissal which explores, inter alia, the question of incapacity due to ill health or injury. The Schedule also provide guidelines for cases of dismissal arising from either ill health or injury. These early provisions in the 1995 Act have provided critical stepping stones for the disability policy framework that emerged later in the country.

The LRA acknowledges that incapacity on the grounds of ill health or injury may be either temporary or permanent. If an incapacity is temporary, employers are encouraged to explore all possible alternatives for the affected worker short of dismissal. In the event of permanent incapacity, however, employers are asked to ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee’s disability.

Similarly, section 11 sets out guidelines for those instances where dismissal has occurred as a result of ill health or injury. When determining whether these types of dismissal were unfair, the adjudicating body is asked to consider a number of factors. These include whether or not the employee is capable of performing the work. If the employee is not capable, then the LRA also asks that the adjudicating body consider the extent to which the employee’s work circumstances might be adapted to accommodate disability or, where this is not possible, the extent to which the employee’s duties might be adapted.

In brief, the LRA makes important pronouncements with regard to the rights of people with disabilities as well as on occupational health matters. As such, it provided a significant precursor to the other legislation that followed in this field. This includes the passage, a year later, of the supreme law of the land (RSA, 1996b).

The South African Constitution is widely regarded as one of the most progressive in the world when it comes to anti-discrimination pronouncements (RSA, 1996b). Chapter 2 is exclusively dedicated to a Bill of Rights which, inter alia, binds the state as well as all natural and juristic persons in the country to uphold the rights it espouses.

Section 9 of the Bill of Rights is known as the equality clause and contains very strong statements on equality and anti-discrimination. It explicitly declares that the state may not unfairly discriminate, either directly or indirectly, against anyone on the grounds of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. It is one of the most comprehensive legislative lists of prohibited grounds for discrimination.

An important element of the equality clause is that it lays the foundation for affirmative action and broad-based black economic empowerment to occur through, inter alia, legislative action. It does so by arguing that legislative and other measures may be adopted in order to “protect or advance persons, or categories of persons, disadvantaged by unfair

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discrimination” in pursuit of the overall objective of equality (RSA, 1996b, section 9(2)). In theory, this means that the Constitution opens the doorway to strong state action – including, albeit not limited to, legislative action – to actively promote certain segments of South African society including people with disabilities, women, and youth, as well as religious and linguistic minorities. This portal remains open to not only the executive arm of the state or the National Assembly, but also to provincial parliaments such as the Gauteng Legislature.

In addition to setting out a series of political and civil rights, commonly referred to as first generation rights, Chapter 2 of the Constitution also makes important pronouncements on labour relations, the environment, housing, health care and other second and third generation rights. In addition, section 32 (access to information) and 33 (just administrative action) have given rise to two important pieces of legislation in South Africa: the Promotion of Access to Information Act (PAIA) and the Promotion of Administrative Justice Act (PAJA) were enacted in 2000 and are discussed later in this paper.

Finally, Chapter 9 of the Constitution is titled State institutions supporting Constitutional democracy. The chapter establishes the South African Human Rights Commission (SAHRC), the Public Protector, the Commission for Gender Equality (CGE), the Commission for the promotion and protection of the rights of cultural, religious and linguistic communities (CRL Rights Commission), the Auditor-General and the Electoral Commission. Collectively, these institutions have become commonly referred to as Institutions supporting Democracy (ISDs) or Chapter 9 institutions. They are independent bodies subject only to the Constitution and the law, with the supreme law stating that ”No person or organ of state may interfere with the functioning of these institutions.” (RSA, 1996b) – phrasing that has become extremely important in the manner in which Constitutional democracy has evolved in this country5.

There are other important pieces of legislation that augmented the philosophy adopted by the Constitution. The Basic Conditions of Employment Act (BCEA), in particular, was an important piece of groundwork legislation in early post-apartheid South Africa because it set a framework for fair conditions of employment in a country emerging from a history of labour and other exploitation. As a result, the 1997 Act sets out guidelines on working hours, leave, termination of employment and so forth. It is line with ILO guidelines on the subject.

The BCEA sets out both variable and non-variable rights. The former may be negotiated between employer and employee and includes, for example, the notion of flexible hours for working mothers and migrant workers. The non-variable rights, however, set out the minimum conditions of employment and, as such, provide the overarching framework for post-apartheid labour relations. They include maximum hours of work, overtime limits, overtime pay, annual leave, sick leave, maternity and family responsibility leave as well as notice periods for termination of contracts. The BCEA provides for monitoring, enforcement and legal proceedings, again a reflection of the apartheid legacy that it sought to redress.

Sections 25 to 27 of the BCEA are important from a gender perspective as they deal with matters of both maternity and family responsibility leave. In line with ILO conventions on the subject, the South African law states that a pregnant worker can take up to four continuous months of maternity leave. This leave may commence any time from four weeks before the expected date of birth or on a date a doctor or midwife says is necessary for the health of the mother or the unborn child. A pregnant employee may also not work for six weeks after birth unless declared fit to do so by a doctor or midwife.

Family responsibility leave is also provided for in the Act. More specifically, it states that those full-time workers however have been employed more than 4 months can take up to three days paid family responsibility leave per year on request. This may occur when the employee’s child is born or sick, as well as in instances of the death of the worker’s spouse or life partner, parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.

At the time of its enactment, the BCEA had important implications for worker groups that had been significantly disadvantaged under the apartheid system. This included domestic workers as well as migrant miners. According to the Act, employers were obliged to follow certain guidelines in terms of termination of a contract. This includes notice periods ranging from one to four weeks, depending on the length of employment.

5 Tested, perhaps most visibly, by recent ConCourt rulings on the independence of the Office of the Public Protector.


In 1998, the Employment Equity Act was promulgated and is considered to be a pivotal piece of legislation in the post-apartheid dispensation (RSA, 1998a). Its preamble is particularly telling. The Act argues that repealing discriminatory laws is not sufficient to correct the imbalances in the national labour market. Instead, it is necessary to take active steps to promote employment equity in the interests of “the constitutional right of equality and the exercise of true democracy” (RSA, 1998a). In brief, the South African Act echoes the growing sentiment within international anti-discrimination debates that the repeal of laws is a necessary, but not sufficient, first step6.

The active steps that it suggests is what is today commonly known as ‘affirmative action’. Chapter 3 of the Act is dedicated to that subject with the chapter bearing that title. Burger and Jafta refer to the Employment Equity Act as “the first formalisation of affirmative action,” a view echoed by many (Burger and Jafta, 2010).The concept of affirmative action was first used in the United States (US) in the National Labor Relations Act of 1935 (van der Westhuisen and Wessels, 2011). The Wagner Act, as it is known, is considered to be a landmark anti-discrimination law because it sought to penalise unfair labour practices by employers. The Civil Rights Act of 1964 further entrenched this by prohibiting discrimination in the private sector (Coetzee, 2005; van der Westhuisen and Wessels, 2011). Almost a decade later, the Equal Opportunities Act of 1972 formally authorised preferential, results-oriented affirmative action in the US.

In South Africa, the concept of affirmative action was introduced through the Employment Equity Act of 1998. However, it had been discussed during the drafting of the country’s interim Constitution of 1993. Because the affirmative action clause was controversial during those multi-party talks, the final formulation followed the wording of the UN’s 1965 International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) quite closely (McGregor, 2007).

The substance of the Employment Equity Act was preceded by two important bodies of work (Burger and Jafta, 2010). The Presidential Labour Market Commission was established in 1995 to explore ways of redressing discrimination in the labour market. Its final report defined employment equity broadly where the labour market was intended to be both non-discriminatory and socially equitable. The Commission’s report also concluded, however, that comprehensive employment equity legislation be promulgated because of the structural nature of apartheid’s legacy, which would continue to self-reproduce and self-reinforce if there were no dedicated policy interventions to reverse this (McGregor, 2007). This perpetuation of unequal opportunities would make impossible to achieve the desired social equity in the labour market (Burger and Jafta, 2010).

The second significant precursor to the Employment Equity Act was the Green Paper on Employment produced by the Department of Labour in 1996. It argued that employer organisations, inter alia, conduct organisational audits and develop equity plans. These became legal requirements in the Employment Equity Act of 1998.

Some of the 1998 Act’s definition of terms are important for the purposes of this transversal mainstreaming audit undertaken by the Gauteng Legislature. The Employment Equity Act defines the term ‘Black people’ to mean Africans, Coloureds and Indians, a group that is often collectively referred to in post-apartheid South Africa as Previously Disadvantaged Individuals (PDIs). Its definition of ‘designated groups’ encompasses black people, women and people with disabilities. It also sets out a detailed breakdown of what constitutes employment policy or practice – a comprehensive list ranging from recruitment procedures to performance management systems. This deconstruction of ‘employment practice’ is an important one because it serves as an indicator of all the arenas where overt or covert

6 Expressed, for example, in the suite of ILO and UN Conventions since 1948. It finds its most recent expression in the Sustainable Development Goals of 2015

Correcting the labour market: Going beyond legislative repeal

“Recognising that as a result of apartheid and other discriminatory laws and practices, there are disparities in employment, occupation and income within the national labour market; and that those disparities create such pronounced disadvantages for certain categories of people that they cannot be redressed simply by repealing discriminatory laws.”

(Preamble to the Employment Equity Act, 1998)

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discrimination may occur. Finally, the Employment Equity Act makes a distinction between companies that are ‘designated employers’ and those that are not, with the former being legally obliged to implement affirmative action. The distinction is drawn on the basis of turnover and number of employees.

The Employment Equity Act does two things. It prohibits unfair discrimination and, importantly, it actively promotes affirmative action. Chapter 2 legally prohibits discrimination on a number of grounds including race, gender, age and disability. Chapter 3 sets out measures for affirmative action which include an analysis of the organisation’s employment policies and practice, the submission of annual employment equity plans to the Department of Labour as well as regular reporting on progress (RSA, 1998a). It also urges private and public sector employers to undertake extensive consultation with employees.

There are many similarities between South Africa’s Employment Equity Act and the Discrimination (Employment and Occupation) Convention (no 111) issued by the International Labour Organisation in 1958. Indeed, the South African Act specifically states that it must be interpreted in compliance with the country’s international law obligations, especially those contained in the ILO’s Convention 111.

Figure 3: Similarities between South Africa’s Employment Equity Act (1998) and the ILO’s Convention no 111 (1958)

ILO’s Convention on Discrimination (Employment and Occupation) Convention no 111 (1958)

South Africa’s Employment Equity Act(1988)

Defining discrimination

Article 1 (1)(a) For the purpose of this Convention the term discrimination includes – (a) Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

Section 6 (1)No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.

Promoting equal opportunity and fair treatment

Article 2Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

Section 2 (a)The purpose of this Act is to achieve equity in the workplace by – (a) Promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination.

Affirmative action is not discrimination

Article 5 (2)Any Member [state] may, after consultation with representative employers’ and workers’ organisations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognised to require special protection or assistance, shall not be deemed to be discrimination.

Section 6 (2)(a)It is not unfair discrimination to – (a) Take affirmative action measures consistent with the purpose of this Act; or


ILO’s Convention on Discrimination (Employment and Occupation) Convention no 111 (1958)

South Africa’s Employment Equity Act(1988)

Inherent requirements of the job

Article 1 (2)Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.

Section 6 (2)(b)It is not unfair discrimination to – (b) Distinguish, exclude or prefer any person on the basis of an inherent requirement of the job.

The Skills Development Act no 97 of 1998 was also part of the early suite of labour legislation in post-apartheid South Africa (RSA, 1998b). It has been amended several times, including as late as December 2010. Like the BCEA and Employment Equity Act, this piece of legislation is intended to redress inequalities in the labour market that had resulted from apartheid. Its specific focus is on employee skills, particularly those previously disadvantaged before 1994. In that regard, the Act provides an important definition of ‘designated groups’ as black people, women and people with disabilities7.

The principal intention of the Skills Development Act is to enhance the skills of the South African workforce. It seeks to achieve this by providing an institutional framework for national, sector and workplace strategies. These strategies were to be integrated into the National Qualifications Framework contemplated in the South African Qualifications Authority Act (1995), as well as the subsequent National Qualifications Framework Act 67 of 2008 - and these laws should be viewed as complementary. The Skills Development Levies Act of 1999 is also part of this complementary suite of legislation and seeks to finance the objectives of the Act through a levy financing scheme and a National Skills Fund. An important novelty introduced by the Skills Development Act was the provision of learnerships that lead to recognised occupational qualifications. As part of the implementation process, the National Skills Authority was established in April 1999, followed by the introduction of 25 Sector Education and Training Authorities (SETAs) in March 2000. The provisions of the Skills Development Act are used extensively buy the Gauteng Legislature, as its Annual Reports make clear.

The Employment Equity Act was drafted to prohibit discrimination within the workplace. The Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), on the other hand, applies to discriminatory practices within broader society. Both Acts are generally seen as part of the same suite of anti-discrimination legislation that followed the vision laid down in the South African Constitution.

Commonly referred to as the Equality Act, PEPUDA applies to both the public and private sectors (RSA, 2000c). It sets out a comprehensive stance on anti-discrimination by, inter alia, prohibiting hate speech and harassment. Its roots may be found in section 9.4 of the Constitution which states that no person may unfairly discriminate, either directly or indirectly, against anyone on a number of grounds (RSA, 1996b). These grounds are set out in subsection 3 and are widely regarded as one of the most progressive anti-discrimination statements in the world (Fredman, 2013; Andrews, 2016). They include discrimination on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. However, sub-section 3’s prohibition of discrimination is limited to state action. The next sub-section, though, broadens the prohibition by stating that “no person” may unfairly discriminate.

7 This definition was inserted in 2003 by the Skills Development Amendment Act no 31, reflecting perhaps policymakers’ evolving thinking on who should be targeted for affirmative action within the labour market.

From the Constitution to the Equality Act

“Section 9 of the Constitution provides for the enactment of national legislation to prevent or prohibit unfair discrimination and to promote the achievement of equality; This 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, deprived of their human dignity and who continue to endure the consequences.”

Preamble to the Equality Act (RSA, 2000c)

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Hence, sub-sections 3 and 4 of the South African Bill of Rights collectively prohibit discrimination in a comprehensive manner (Andrews, 2016). Section 9.4 also specifically calls for the enactment of national legislation “to prevent or prohibit unfair discrimination” (RSA, 1996b, section 9.4).Referencing South Africa’s international obligations, the Equality Act specifically references two key international conventions: the International Convention on the elimination of all forms of racial discrimination (ICERD) and the Convention on the elimination of all forms of discrimination against women (CEDAW).

Chapter 2 of the Act is focused on the prevention, prohibition and elimination of unfair discrimination, hate speech and harassment. Chapter 5, by contrast, speaks of the active promotion of equality. It also refers specifically to special measures to promote equality with regard to race, gender and disability. It obliges the state, institutions performing public functions as well as all persons to do two things. First, there is an obligation to eliminate discrimination on the grounds of race, gender and disability. The second obligation is to actively promote equality in respect of race, gender and disability. These twin themes, of eliminating discrimination as well as actively promoting equality, run throughout the Act.

Chapter 2 of the Act is hugely significant for a number of reasons. First, it expressly prohibits hate speech, harassment as well as the publication and dissemination of “unfair discriminatory information” (RSA, 2000c, sections 10 – 12). Many of the cases brought before the Equality Courts established by this legislation have indeed been about hate speech (SAHRC, 2006). Second, the chapter makes a general statement about the prevention and prohibition of unfair discrimination. It also, however, expounds on what constitutes unfair discrimination on the basis of race, gender and disability (RSA, 2000c, sections 7 – 9). This description is particularly important for the transversal mainstreaming audit of the Gauteng Legislature and is therefore captured in some detail in the figure below:

Figure 4: The Equality Act’s prohibition of anti-discrimination on the grounds of race, gender and disability No person may unfairly discriminate against any person on the grounds of:

Race • The dissemination of any propaganda or idea, which propounds the racial superiority or inferiority of any person, including incitement to, or participation in, any form of racial violence.

• The engagement in any activity which is intended to promote, or has the effect of promoting, exclusivity based on race.

• The exclusion of people of a particular race group under any rule or practice that appears to be legitimate but is actually aimed at maintaining exclusive control by a particular race group.

• The provision or continued provision of inferior services to any racial group, compared to those of another racial group.

• The denial of access to opportunities, including access to services or contractual opportunities for rendering services – or failing to take steps to reasonably accommodate such persons’ needs.

Gender • Gender-based violence.• Female genital mutilation.• The system of preventing women from inheriting family property.• Any practice - including traditional, customary or religious practice - which impairs the dignity of

women and undermines equality between men and women, including that of the girl child.• Any policy or conduct that unfairly limits access of women to land rights, fiancé and other resources.• Discrimination on the ground of pregnancy.• Limiting women’s access to social services or benefits, such as health, education and social security. • The denial of access to opportunities, including access to services or contractual opportunities for

rendering services – or failing to take steps to reasonably accommodate such persons’ needs.• Systemic inequality of access to opportunities by women as a result of the sexual division of labour.


No person may unfairly discriminate against any person on the grounds of:

Disability Denying or removing from any person who has a disability, any supporting or enabling facility necessary for their functioning in society.Contravening the code of practice or regulations of the South African Bureau of Standards that govern environmental accessibility.Failing to eliminate obstacles that unfairly limit or restrict people with disabilities from enjoying equal opportunities – or failing to take steps to reasonably accommodate such persons’ needs.

As the list makes clear, there is a focus on both active discrimination within the Equality Act as well as the more passive acts of, for example, failing to eliminate obstacles that unfairly limit or restrict certain categories of people.

Given the history of apartheid, as well as the relative lack of exposure to (and trust in) the court system by most South Africans, policing contraventions of the Equality Act was also likely to be a challenge. And without some measure of policing in the early days of the post-apartheid dispensation, it was highly foreseeable that changes within society, which are not regulated environments in the same way a workplace is, would not occur. The innovation offered by the Equality Act is that of Equality Courts, established through Chapter 4.

Equality Courts are tasked with hearing matters related to unfair discrimination, harassment or hate speech. All High Courts and Magistrates Courts may serve as Equality Courts. They are designed to be accessible to everyone and, hence, it is not necessary to have legal representation or pay court fees if one wants to bring a case before them. They are, therefore, a significant element of the anti-discrimination machinery established by the Act.

To date, no focused study has been undertaken on these Courts’ efficacy. However, in October 2006, the South African Human Rights Commission (SAHRC) participated in a parliamentary equality review process convened by the Portfolio Committee on Justice and Constitutional Development within the National Assembly. Part of the SAHRC’s brief for these hearings was to comment on the impact of Equality Courts on the lives of women and people with disabilities, in particular (SAHRC, 2006).

This came after the official designation of Equality Courts on 13 June 2003, making the parliamentary session a relatively early assessment of how well the new structures were performing their mandate.

The SAHRC found that the majority of cases brought before Equality Courts at that stage pertained to racial discrimination (SAHRC, 2006). There were also a fair number of cases from people with disabilities. These largely involved calls for making the built environment more accessible for people in wheelchairs. The SAHRC report noted that none of the disability cases brought before Equality Courts involved any other type of disability (SAHRC, 2006). In brief, the machinery established by the Equality Act of 2000 is being used by ordinary South African citizens and their rulings not only set precedent, but result in long-term, often structural, change in South African society. Another section of this Background Paper summarises some of the cases brought before the Gauteng Equality Court by people with disabilities. The synopsis will show that Equality Court rulings have led to structural changes within courtrooms, residential buildings and tertiary institutions.

Finally, it is worth noting that Schedule 6 of the Constitution sets out transitional arrangements. One of its provisions is that the national legislation called for in sections 9(4), 32(2) and 33(3) of the new Constitution must be enacted within three years of the date on which the new Constitution took effect. In practical terms, this means that the legislation needed to be enacted by 4 February 2000.

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Figure 5: Constitutional obligations to enact anti-discrimination and other legislation

Section Provision Resulted in

Section 9(4) Equality clause(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)8. National legislation must be enacted to prevent or prohibit unfair discrimination.

Promotion of Equality and Prevention of Unfair Discrimination (PEPUDA) Act no 4 of 2000.

Section 32(2) Access to information(1) Everyone has the right of access to - (a) any information held by the state; and;(b) Any information that is held by another person and that is required for the exercise or protection of any rights. (2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.

Promotion of Access to Information (PAIA) Act no 2 of 2000.

Section 33(3) Just administrative action(1) Everyone has the right to administrative action that is lawful, reasonable and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. (3) National legislation must be enacted to give effect to these rights, and must - a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) Promote an efficient administration.

Promotion of Administrative Justice Act (PAJA) no 3 of 2000.

Because of the transitional clauses contained in Schedule 6 of the Constitution, two other laws were enacted in February 2000: the Promotion of Access to Information Act (PAIA) (RSA, 2000a) and the Promotion of Administrative Justice Act (PAJA) (RSA, 2000b). As the terms suggest, PAIA is concerned with access to information, whilst PAJA’s focus is on the right to administrative action. The significance of the PAJA is that it compels the public service to respect citizens’ rights. It also limits the power of government by outlining how its powers can be exercised. Hence, together with the PAIA, PAJA promotes key elements of good governance, such as openness, transparency and accountability.

Both Acts serve as important legal instruments that operationalise the Bill of Rights in the Constitution. And although neither Act specifically highlights issues of race, gender, youth and disability, they remain significant levers of redress for all South African citizens.

Broad-Based Black Economic Empowerment (BBBEE) is a concept that is similar to, but distinct from, affirmative action. When apartheid ended in 1994, the new South African government sought ways to correct the imbalances in the labour market. The result was a series of laws and other regulations related to the promotion of Black economic empowerment. Given its centrality to the economy, the process is driven largely by the national Department of Trade and Industry (DTI).

The first legislative step in that regard was the BBBEE Act no 53 of 2003 (DTI, 2003). It was based on the BBBEE Strategy published earlier that year. The Act introduced the concept of Codes of Good Practice, to be issued by the Minister, as well as the notion of a BBBEE Advisory Council. The first Advisory Council was appointed on 3 December 2009 with the aim of monitoring the overall state of BBBEE performance in the economy. The first BBBEE Codes of Good Practice were issued in February 2007 (DTI, 2007).

8 Sub-section 3 reads: The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.


The BBBEE Act was a landmark piece of legislation in post-apartheid South Africa, not least because it provided the first legal mechanism to ensure that PDIs were actively included in the country’s economy. It also established the Black Economic Empowerment Advisory Council endowed with the task of advising government on BBBEE.

The Preamble of the Act is significant because it provides the justification for the post-apartheid government’s decision to assertively promote certain segments of the South African population. Mindful of the careful distinction, drawn through ILO and UN Conventions for example, between discrimination against and the active promotion of certain segments of the population, the BBBEE Act sets out the rationale for the law. More specifically, it outlines the socio-economic consequences of apartheid policy (DTI, 2003, Preamble). The justification for the Act is found in the history of apartheid which had effectively excluded the majority of South Africans from ownership of productive assets (such as land), access to productive resources, skills and decent wages. Given this history, the 2003 Act sought redress through the active promotion of those who had been previously excluded. In addition to redress, however, the Act also had very clear socio-economic objectives including the need to promote a higher national economic growth rate, increased employment, more equitable income distribution and the constitutional right to equality.

Some of the definitions in the Act are particularly important for the way in which anti-discrimination policy evolved in South Africa after 1994. These include the reinforcement of the Employment Equity Act’s definition of “Black people” as Africans, Coloureds and Indians. However, its definition of Broad-based Black Economic Empowerment goes broader conceptually in that it specifically directs its attention at the “economic empowerment of all black people including women, workers, youth, people with disabilities and people living in rural areas” (DTI, 2003, section 1). Hence, the specific segments of South African society that were targeted by the landmark law were based on race, gender, age (youth), disability, geography (rural dwellers) as well as a distinct section of the labour force (workers).

The Act envisages that this will be done through a range of socio-economic strategies. The first type of strategy focuses on the ownership and management of both enterprises as well as productive assets (such as land). The intention is to increase black ownership and management and it specifically targets black women, communities, workers, cooperatives and other collective enterprises as distinct groups for support. The second broad type of strategy relates to the nature of that public sector support: it includes preferential procurement, investment in black-owned and managed enterprises as well as skills development. Human resource and skills development are, indeed, central themes running throughout the Act – a recognition of the apartheid legacy that it is meant to address. A distinct call is also made to support equitable representation in all occupational categories and levels in the workforce.

Section 9 of the 2003 Act provides the first indication of a tool that was to become an important element of the economic empowerment arsenal in South Africa – the Codes of Good Practice. The Act makes allowance for the Minister to gazette Codes which may include indicators to measure BBBEE, the weighting to be attached to these indicators as well as guidelines for stakeholders in the relevant sectors of the economy to draw up transformation charters for their sector. The Act allows for these codes to also specify targets and timeframes for the achievement of those targets. In order to advance gender equality, Codes of Good Practice could also draw a special distinction between black men and black women.

The Codes of Good Practice are given formal status by the Act, which states that all public sector organs must “as far as is reasonably possible” apply relevant codes when determining qualification criteria for the issuing of licences, concessions or other authorisations in terms of any law – as well as criteria for the sale of state-owned enterprises and for entering into partnerships with the private sector. Significantly, public entities are also required to take the codes into account when developing and implementing their preferential procurement policy – an injunction that also holds relevance for institutions like the Gauteng Legislature.

Section 12 speaks, for the first time in post-apartheid legislation, of transformation charters. These were seen as guidelines for a specific economic sector and were to be developed by major stakeholders in that sector. The DTI introduced a number of these transformation sector charters in February 2007 when it gazetted the BEE Codes of Good Practice. Sector charters, as they are commonly referred to, are fully binding on all private enterprises within that sector (www.thedti.

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gov.za). The earliest Charter was developed for the Marketing, Advertising and Communication sector and came into effect in August 2008. Most of the more significant economic sectors, however, only came into effect in the latter part of 2012 – an indication of the difficulty of the BBBEE terrain in post-apartheid South Africa. The latter category included charters for the financial sector, agriculture and property.

Some of the key stipulations for the Transformation Sector Charters have immediate relevance for the oversight role of the Gauteng Legislature, particularly in terms of monitoring quotas.

3.2 Gender

The initial debate on ‘mainstreaming’ marginalised and vulnerable groups centred on bringing women into the mainstream of economic, social and political life in countries across the globe. Indeed, the term gender mainstreaming was the original catchphrase used in the development sector. Hence, women were the early focus of questions of inclusion and affirmative action in its broadest sense. This was reflected in the early International Labour Organisation Conventions of the 1950s and, since then, the question of gender equality has gained increasing momentum on the international stage. This commitment has been mirrored in post-apartheid South African national policy.

Figure 6: Women make up the majority within 3 of South Africa’s 4 major race groups

Mainstreaming issues of gender, as the statistics make clear, cannot be considered a fringe activity on the outskirts of the country’s principal development interventions. The latest population estimates released by Stats SA in August 2016 reveal that women make up 51% of the South African population (Stats SA, 2016b). The same report shows that women constitute the majority within three of the four designated race groups in the country. Figure 7: Gender composition in Gauteng (2016)

National statistics are mirrored somewhat in the gender decomposition of the Gauteng population. During the last official statistical release in August 2016, Gauteng was the most populous province in the country (Stats SA, 2016b). Its population was estimated to be almost 13.5 million people or 24% of the South African population. In other words, almost one-quarter of the national population reside in the province of Gauteng. The province, together with the Western Cape, receive the highest volumes of in-migration in the country. Gauteng is currently home to a male and female population each estimated to be just over 6,5 million. The province has slightly more men than women (Stats SA, 2016b).

Afr ican Coloured Indian White Total (2016)

Men 22,119,200 2,368,000 701,900 2,190,700 27,379,800Women 22,990,700 2,529,200 684,100 2,325,100 28,529,100Total: 55,908,900Source: Stats SA. Mid-year population estimates. Released 25 Aug 2016


In 2013, Stats SA released a comprehensive set of gender statistics9 for the country which showed that women are most likely to have the lowest household incomes (Stats SA, 2013a). It also confirmed long-held views, both internationally and in South Africa, that geographic location plays an important role in this equation as well:

Gender analysis also extends beyond mere disaggregation in another way, namely that disaggregation into male and female needs to be combined with disaggregation by other characteristics. In the South African context, dis-aggregation by population group remains important and many of the figures . . . illustrate how population group and gender interact to place particular groups – often black African women – at a particular disadvantage. Sim-ilarly, geographical location is often a strong determinant of the situation and opportunities available to different women and men, girls and boys.

Statistics SA (2013a). Gender statistics in South Africa, 2011

Hence, one cannot address poverty and under-development in South Africa without paying specific attention to the plight of women.

There have been some key national policy statements on gender in post-apartheid South Africa. It should be highlighted, again, that the suite of general anti-discrimination legislation presented in the preceding section was not confined to the issue of race, but made strong statements on gender as well. Hence, this section confines its attention to those policies and laws that were exclusively dedicated to the subject of gender equality.

It is worth noting that, to date, there has not been a single South African law dedicated exclusively to a comprehensive exposition of gender equality. Several general anti-discriminatory laws have been promulgated such as the Employment Equity Act and PEPUDA (Equality Act). In addition, smaller pieces of legislation have tackled critical elements of gender discrimination. In particular, the Domestic Violence Act, the Recognition of Customary Marriages Act, the Recognition of Customary Law of Succession Act and the Sexual Offences Act were all of vital importance in constructing the new South African democracy (Hicks, 2012). There has not, however, been a comprehensive law that dealt with the totality of gender issues.

One such wide-ranging Bill was proposed recently in the form of the Women Empowerment and Gender Equality Bill (RSA, 2013). It was later withdrawn from the National Assembly, amidst controversy largely over the quotas it had proposed. Because it was a landmark piece of proposed legislation, however, it is discussed in this section.

It should also be noted that a critical piece of legislation that began the process of establishing gender machinery in post-apartheid South Africa was the Commission on Gender Equality (CGE) Act of 1996. The Act is what may be termed ‘establishment legislation’ in that it provides for the composition, powers, functions and functioning of the newly-formed Commission on Gender Equality (RSA, 1996a). It is the practical realisation of the provisions of Section 181 of the Constitution, which called for such a Commission as well as other Institutions supporting Democracy. Adopted just two months after the Constitution10, the CGE Act is one of the earliest pieces of post-apartheid legislation.

Significantly, the CGE is tasked with monitoring compliance with gender-related international conventions and other charters acceded to or ratified by South Africa. It can prepare reports to parliament on these. In fulfilling its mandate, the Commission is also able to develop information and education programmes to foster public understanding of gender equality.

In 2000, the Office on the Status of Women (OSW) within the South African Presidency published what has become commonly known as the National Gender Framework (NGF) (OSW, 2000). Today, sixteen years later, the framework remains one of the most significant policy statements on gender in post-apartheid South Africa.

9 Statistics SA (2013a). Gender statistics in South Africa, 2011. Although the data is for 2011, this publication remains the most up-to-date set of data on gender in South Africa. 10 The Constitution was adopted on 8 May 1996. The Commission on Gender Equality Act was assented to on 24 July 1996

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It commences with a situational analysis and problem statement. The key themes that the National Gender Framework highlights are very similar to those advocated for within the international development community up to that point: poverty, education, health, housing, welfare, land and agriculture, environment, economy, power and decision-making, human rights, violence against women and information and communications technology.

Figure 8: Similarities between South Africa’s National Gender Framework (2000) and the UN’s Beijing Declaration (1995)

UN’s Beijing Declaration (1995) South Africa’s National Gender Framework (2000)

12 critical areas of concern Focus areas

Women and the environment Women and the environment

Women in power and decision-making Women, power and decision-Making

The girl child

Women and the economy Women and the economy

Women and poverty Women and poverty

Violence against women Violence against women

Human rights of women Women and human rights

Education and training of women Women and education

Institutional mechanisms for the advancement of women Institutional mechanisms

Women and health Women and health

Women and the media

Women and armed conflict

Women and housing

Women and welfare

Women, land and agriculture

Women and Information Communications Technologies (ICT)

Source: UN, 1995 and OSW, 2000

The key principles espoused by the NGF include that of equality between sexes, the recognition of differences and inequalities among women (based on factors such as race, disability, class, culture, religion, sexual orientation and geographic location), that women’s rights are human rights, that customary, cultural and religious practices are subject to the right to equality and that the public and private are not separable spheres of life. The Framework speaks of affirmative action programmes for women, economic empowerment and partnerships. An important principle it espouses is that of gender mainstreaming.

The NGF defines gender mainstreaming as “a process that is goal oriented. It recognises that most institutions consciously and unconsciously serve the interests of men and encourages institutions to adopt a gender perspective in transforming themselves. It promotes the full participation of women in decision-making so that women’s needs move from the margins to the centre of development planning and resource allocation” (OSW, 2000, pp xviii). According to the Framework, this principle recognises that most institutions serve the interests of men. The NGF therefore encourages institutions to adopt a gender perspective in transforming themselves (OSW, 2000). To this end, it encourages a number of actions which includes resource allocation to programmes for mainstreaming gender equality, the engendering of all government policies and programmes, policies and programmes geared towards the achievement of mainstreaming gender equality and the generation of gender disaggregated data by all institutions. These will all prove to be important signposts for transversal mainstreaming in the Gauteng Legislature.


Chapter 5 of the NGF sets out some detail on the gender mainstreaming process. As a first principle, it states that the implementation of gender equality is the responsibility of all institutions of government. It also outlines the three key interventions that government departments can make in terms of gender mainstreaming, which relate to both external and internal gender transformation. These involve promoting women’s empowerment and gender equality in departmental service provision, an exercise in external transformation. In the case of a parliamentary body such as the Gauteng Legislature, this would involve promoting women’s empowerment through the exercise of its traditional mandates such as law-making and oversight. Within public institutions, the NGF recommends promoting women’s empowerment and gender equality in internal employment policies and practices. Its final recommendation is for public sector institutions to raise public awareness about gender in their dealings with clients and stakeholders in the private and community sectors.

The NGF also describes the structure and functions of legislatures, as the accompanying text box illustrates. The functions of the Joint Monitoring Committee referred to are to monitor progress in terms of women’s empowerment in line with South Africa’s international commitments in terms of Beijing, the Convention on the Elimination of Discrimination against Women (CEDAW) and other international conventions. The Committee may also make recommendations to parliament on any related matter. It is clear, then, that the newly-democratic South African state’s policy frameworks on gender equality drew heavily on the international gender covenants already in place at the time. Moreover, the legal and monitoring mechanisms put in place – within both the executive and legislative branches of the post-apartheid state – referenced these international conventions.

This scenario was not confined to gender policy. As previous sections have shown, the new South African laws and policy on racial discrimination also drew heavily on international conventions in the early days of the new democracy. This was done partially to embrace the global norms and standards that were accepted within the international development community. However, it was also intended to navigate the testing waters of a negotiated settlement in the country. Because the question of affirmative action was so controversial during the multi-party negotiations, for example, the 1993 interim Constitution phrased its affirmative action clause very similarly to the UN’s 1965 International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) (McGregor, 2007).

The Women Empowerment and Gender Equality Bill was tabled in the National Assembly in 2013 (RSA, 2013). The Bill has since been withdrawn. However, its tabling prompted a robust conversation, both inside and outside parliament, on a number of aspects of the gender debate. For this reason, it remains an interesting piece of legislation to discuss in this section.

The Bill’s definition of gender mainstreaming is somewhat different to that offered by the National Gender Framework thirteen years earlier:

Figure 9: Defining gender mainstreaming in South African policy

Women Empowerment and Gender Equality Bill (2013)

National Gender Framework (2000)

Definition of gender mainstreaming

The process of identifying gender gaps and making women’s, men’s, girls’ and boys’ concerns and experiences integral to the design, implementation, monitoring and evaluation of policies and programmes in all sectors of life to ensure that they benefit equally.

A process that is goal oriented. It recognises that most institutions consciously and unconsciously serve the interests of men and encourages institutions to adopt a gender perspective in transforming themselves. It promotes the full participation of women in decision-making so that women’s needs move from the margins to the centre of development planning and resource allocation.

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The Bill applies to both private and public sector bodies, which is why it became so controversial (Ensor, 2014). Its most contested element was contained in Chapter 3 on equal representation and empowerment. The chapter obliges both designated11 public and private companies to progressively achieve a minimum of 50% representation of women in decision-making structures including Boards. This is accompanied by the injunction for “meaningful participation” which the Bill elaborates on. It includes building women’s capacity to participate, enhancing the understanding and attitudes of communities to accept women’s capabilities and participation women as equals as well as developing support mechanisms for women (RSA, 2013, section 7(1)). It also calls on political parties to develop measures for the progressive realisation of a minimum of 50% representation – as well as ensure the meaningful participation - of women in decision-making positions and structures.

In brief, the debate around the Bill raised the thorny issue of gender quotas in post-apartheid South Africa. There were other criticisms levelled at it. The Centre for Constitutional Rights, for example argued that the fundamental rights that the Bill required private companies to fulfil were, in essence, the duty of the state. The Centre also highlighted that the Bills’ failure to recognise or refer to any existing gender legislation was problematic in that it created a separate and new legal framework which, it also argued, was vague (Centre for Constitutional Rights, undated).

The National Development Plan (NDP) was released by the National Planning Commission in 2012 (NPC, 2012). It is the country’s first overarching development strategy12. Recognising that women make up a significant proportion of the poor, and particularly in rural areas, the NDP takes special note of gender, together with race and geographic location. To this end, it proposes a number of measures to advance women’s equality. Its recommendations include the following:

Figure 10: The NDP’s recommendations on gender (2012)

Source: Adapted from NPC, 2012, pp 43

In summary, there has been a significant policy response to the question of gender equality, perhaps far more so than there has been to issues of disability or youth. Despite this, key challenges remain despite the fact that women make up half of the South African population. This is the result, perhaps, of the fact that despite its oft-lauded policy and legal framework, South African development interventions lack effective implementation.

11 Designated’ is not defined in the Bill, which was one of the criticisms eventually labelled at it because it gave the Minister a significant degree of discretionary power (Centre for Constitutional Rights, undated).12 The NDP’s closest predecessor was the National Spatial Development Perspective (NSDP) (2006) which, as its title suggests, never reached policy status because Cabinet couldn’t agree on all its recommendations.


3.3 YouthAs a demographic group, youth are beginning to form ever-larger segments of the population in countries across the globe (WCY, 2014). Given their growing numbers, as well as the demographic dividend that may be gained from the phenomenon, the subject of youth has become part of the global policy conversation on development. This is reflected, for example, in the 2014 Colombo Declaration on Youth: Mainstreaming youth in the post-2015 development agenda (WCY, 2014) as well as in the United Nation’s SDGs (UN, 2015).

In South Africa, the term ‘youth’ is defined as “within the age group of 14 to 35 years”13(Presidency, 2015, pp 10). Despite some ambiguity in various government documents, Stats SA, widely regarded as an authoritative source, translates this into as being under 35 years old (Stats SA, 2016b). Hence, the data in this paper stratifies the youth segment of the population as being over the age of 14 and under the age of 35 years old. This is drawn from the data presented by Stats SA in its annual population estimates.14

The South African definition of youth is different from some international conventions, as the figure below illustrates.

Figure 11: Defining youth

Definition of ‘youth’ Source

United Nations: 15 – 24 World Programme of Action for Youth (2010)

African Union: 15 – 35 African Youth Charter (2006)

South Africa: 14 – 35 National Youth Policy 2015 - 2020 (2015)

There are over 20 million youth in South Africa15. In 2016, they constituted the majority of the population in the country. Indeed, more than one-third of South Africans are between the ages of 15 to 34. Over 17 million of these youth are African, with a relatively equal proportion of men and women.16

Figure 12: Age profile of the Gauteng population

This trend also holds true for the province of Gauteng, as the accompanying graph illustrates (Stats SA, 2016b). A complete breakdown on the age demographic for Gauteng is set out in Appendix 1. However, even a cursory glance at the composite numbers reveal interesting characteristics about the Gauteng population. Youth and children constitute the largest segments of the Gauteng population. Indeed, these numbers are significantly higher than any of the other age brackets captured in the graph. There are, for example, just less than 3.5 million children under the age of 15 in the province (3 433 921 children). Gauteng is also home to over

4.5 million youth between the ages of 15 to 34 (4 584 953 youth). The proportion of the Gauteng population over the age of 64 is relatively small (725 670 people or less than 5.4% of the provincial population)17

13 National Youth Commission Act (1996), National Youth Development Policy Framework (2002) and National Youth Policy 2015 - 2020 (2015).14 The age categories that Stats SA uses in its annual population estimates are set out in Appendix 1. These include the categories ’10 – 14’, ’15 – 19’ and ’30 – 34’. Hence, it is impossible to

gain reliable data for the age group ’14 – 35’ because data is not disaggregated in this manner in South Africa. As a result, this paper has opted to use the Stats SA definition of youth as being over 14 years old and under 35 years – a data disaggregation that has also been used in some of the national youth policies and strategies over the years.

15 There are 20 275 538 youth in South Africa. This constitutes 36.26% of the national population, which was estimated at 55 908 865 in August 2016 (Stats SA, 2016b). 16 Data calculated by Lynelle John and Associates, based on Stats SA data (2016b). 17 Data calculated by Lynelle John and Associates, based on Stats SA data (2016b).

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Although a separate research paper is required to do justice to this subject, it is possible to make a generalised comment, at this stage, about dependency ratios in Gauteng. Dependency ratios set out the ratio of dependents (both children under the age of 15 as well as people older than 64 years) to the total population of working-age in the area. Data is typically shown as the proportion of dependents per every 100 people of working-age in a particular geographic location. Hence, South African provinces which see a significant number of their working-age residents leave to find employment elsewhere, for example, tend to have high dependency ratios as children and the elderly are left behind. This makes it more difficult to sustain household income because the residents of the household are not able to be employed. Lacking access to the formal labour market, these households would need to find other means to sustain livelihoods. This is the reason that inter-province migrant remittances are so important to the questions of poverty and vulnerability in South Africa. Gauteng is somewhat unique in that it faces high in-migration volumes, yet also has very high dependency ratios as a result of the age structure of its population. Although the issue of child-headed households is beyond the scope of this paper, it bears mentioning that this phenomenon aggravates the problems of dependency, poverty and vulnerability in the province and, indeed, in South Africa as a whole.

Youth in South Africa face a distinct set of challenges, which is important to bear in mind when devising strategies to ‘mainstream’ this group. The challenges identified in the latest National Youth Policy, which spans the years 2015 – 2020, are both social and economic in nature (Presidency, 2015). They include the primary challenge of youth unemployment, exacerbated by high drop-out rates, inadequate skills development as well as an inadequate framework for youth work. The question of skills development is of particular importance. Stats SA recently released its social profile of youth, in which it stated that young people today are less educated and skilled than their parents were at that age (Stats SA, 2016c).

The NYP also identifies HIV AIDS prevalence, poor health, high rates of violence and substance abuse, lack of access to sporting and cultural opportunities as well as a lack of social cohesion as part of the challenge facing youth today. Significantly, the framework pays specific attention to the issue of disability amongst youth, arguing that policy responses should take cognisance of the social exclusion that this can result in (Presidency, 2015).

South Africa has developed a number of youth policies since 1994 and these typically cover a five-year period. The first National Youth Policy (NYP) was developed in 1997. The second NYP covered the period from 2009 to 2014, whilst the current policy spans the years from 2015 to 2020 (Presidency, 2015).

The youth policy framework has been complemented by several legislative and other mechanisms over the years. These have included what is popularly termed ‘establishment legislation’ such as the National Youth Commission Act (1996) and the National Youth Development Act (2008). The primary purpose of establishment legislation is to set up an institution, or institutional framework, that will further the policy objectives within a particular sector. Hence, the laws referred to here, for example, established the National Youth Commission and the National Youth Development Agency. However, more targeted instruments were introduced later and these include the Integrated Youth Development Strategy (2011), DTI’s Youth Enterprise Development Strategy (2013 – 2023) and, more recently, the Employment Tax Incentive Act (2013).

Most of South Africa’s key anti-discrimination laws, already discussed in this paper, have singled out youth as a specific grouping for national policy to pay attention to. These include the Constitution, Employment Equity Act, Equality Act (PEPUDA), Labour Relations Act, Basic Conditions of Employment Act, the BBBEE frameworks and the Skills Development Act. Their essential message is that South African youth be targeted, both in the labour market and in society, as a distinctive group that has historically been marginalised. To reinforce this point, Stats SA initiated a series of publications in recent years entitled Vulnerable Groups. Its first publication focused on South African youth (Stats SA, 2016c).

The Great Reversal?

“When parents are better equipped than the children, it’s a sign of regression.”

(Pali Lehohla, South Africa’s Statistician-General, speaking at the release of Stats SA’s The Social Profile of youth, 2009 – 2014, the first in its series on vulnerable groups. 18 April 2016). Quoted in the Daily Maverick, op cit.


The Employment Tax Incentive Act is a significant law which reflects the latest policy thinking in the country on how to address the challenges of youth development (Presidency, 2013). The Act was popularly referred to as the youth wage subsidy Bill and was the subject of lively deliberation when tabled in parliament. Trade unions, for example, raised concern that the law would lead to the displacement of non-qualifying (older) workers (Goitom, 2014).

The subsidy offered by the Act works on a sliding scale. For the first year of participation in the programme, employers that hire qualifying workers will receive incentives equal to 50% of the monthly wage of any qualifying employee earning R2000 or less in monthly salary. The subsidy available to employers for jobs that pay R2 000 to R4 000 in the first year of the program will be R1 000. The subsidies will be cut in half in the second year.

The Act is aimed at encouraging companies to hire youth through the provision of tax incentives. It also targets special economic zones in certain geographical areas as well as defined economic sectors. It is intended to address the problem of unemployment, still seen as the most critical issue facing youth in South Africa.

In brief, youth now form the majority of the South African population and may be found amongst the most vulnerable segments of society. Although they are no distinctive trends in terms of gender or disability amongst the group, there is a definite racial trend: the vast majority of youth are African. South African youth have therefore become the subject of increasing policy attention in the country, much of which is focused on alleviating the critical issues of unemployment.

Disability

In international comparative terms, the question of mainstreaming the issue of disability came to the foreground relatively late. Unlike the issues of race and gender, disability was not mentioned in the Universal Declaration of Human Rights, nor was it acknowledged in the numerous international conventions that followed. Its first mention was in 1982 with the adoption of the World Programme of Action concerning Disabled Persons. This was followed, in 2006, by the Convention on the Rights of Persons with Disabilities which remains an important covenant that post-apartheid South Africa has based its own policy statements on.

Figure 13: People with disabilities in South Africa (2011)

When apartheid formally ended in South Africa in 1994, however, the issue of disability was relatively prominent on the global agenda – and had been discussed within ruling party circles in this country as well. The clearest evidence of this was to be found in the Reconstruction and Development Programme (RDP). Today, with an estimated 7.5% of South Africans18 with disability, the importance of addressing the needs of this segment of the population cannot be under-estimated (Stats SA, 2014a). As the accompanying figures make clear, the majority of people with disabilities in South Africa are women and African (Stats SA, 2014a).

18 According to Stats Sa, this percentage excludes children under 5 or persons with psycho-social and certain neurological disabilities because of data limitations (Stats SA, 2014a).

People with disabilities in South Afr ica : 2011

Men 1,188,059

Women 1,682,071

Total: 2,870,130

African 2,381,668

Coloured 207,244

Indian 60,614

White 211,502

Other 9,102

Total: 2,870,130

Statistics SA (2014a). Census 2011: Profile of persons with disabilities in South Africa

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The most recent and comprehensive set of statistics for disability is Statistics SA’s Profile of persons with disabilities in South Africa. It was released in 2014, but the report is based on Census 2011 data (Stats SA, 2014a). Some of its key findings include the fact that Gauteng (5.3%), together with the Western Cape (5.4%), had the lowest percentage of persons with disabilities. This was in contrast to the South African national disability rate of 7.5%.

Figure 14: Disability figures within the province of Gauteng (2011)

Within Gauteng, the majority of people with disabilities were found in the City of Johannesburg, followed by Ekurhuleni and the City of Tshwane.19

Perhaps the most comprehensive policy diagnosis of the challenges facing people with disabilities in South Africa may be found in the 1997 Integrated National Disability Strategy (INDS) (Office of the President, 1997). It remains the most significant formal policy statement on disability in South Africa.

The INDS identifies exclusion as one of the greatest challenges facing people with disabilities. This is in line with the policy responses to other marginalised groups in the country, including youth, women and Black South Africans. This is perhaps unsurprising as vulnerable groups in any society tend to face social exclusion. The international SDGs, incidentally, echo the South African sentiment on vulnerability and exclusion. The INDS also makes a very important point about the relationship between disability and poverty.

In the case of disability, an additional – and very tangible - element of exclusion relates to questions of access. Several legislative and other instruments in post-apartheid South Africa have led to the mandatory construction of wheelchair ramps, the redesign of shopping malls and other public spaces as well as building standards for private property developers. A legal regime has also been put in place to monitor this, which gives people with disabilities recourse if they feel their rights have been violated.

At present, South Africa does not have any disability-specific legislation. Numerous anti-discrimination laws, mentioned elsewhere in this paper, single out disability as one of the grounds on which discrimination is prohibited. These include significant pieces of labour legislation such as the Employment Equity Act, Labour Relations Act and Skills Development Act. Social legislation has also played a key role in mainstreaming issues of disability, including the Promotion of Equality and Prevention of Unfair Discrimination Act, the Library for the Blind Act and the Social Assistance Act.

19 This data is based on Census 2011 results and therefore does not take account of any local government changes ushered in by the municipal elections of 3 August 2016.


Despite this legal sparseness, there have been a number of significant policy statements on disability in post-apartheid South Africa. The most important is undoubtedly contained in the South African Constitution and its Bill of Rights, discussed elsewhere in this paper. The 1997 Integrated National Disability Strategy is probably still the most significant formal policy statement on disability in South Africa (Office of the President, 1997).

More recently, the National Development Plan (NDP) argued that disability and poverty operate in a vicious circle: “Disability often leads to poverty and poverty, in turn, often results in disability. People with disabilities face multiple discriminatory barriers” (NPC, 2012, pp 52). As a result, the Plan argues that disability should be integrated into all facets of planning. They single out education and employment as specific areas of attention, arguing for greater access for people with disabilities. To this end, the NDP calls for relevant and accessible skills development programmes for people with disabilities, accompanied by equal opportunities for their productive employment (NPC, 2012).

A distinct suite of legislation on disability has, however, emerged within the education sector and targets the country’s schools. The South African Schools Act, for example, was one of the early pieces of post-apartheid legislation (RSA, 1996d). It made several important prescriptions for public schools. The first is an anti-discrimination stance contained in section 6 which states that public schools must admit learners and serve their educational requirements without unfairly discriminating in any way. It goes further to say that when determining the placement of a learner with special education needs, the Head of Department and principal must take into account the parent’s rights and wishes. In terms of the language policy of public schools, the Act also states that a recognised sign language has the status of an official language for purposes of learning at a public school.

Section 12 of the Act is fairly important as it describes the provision of public schools. It obliges provincial Members of the Executive Council (MECs) to provide education for learners with special education needs at ordinary public schools, where reasonably practicable. MECs are also asked to provide relevant educational support services for these learners and to take all reasonable measures to ensure that the physical facilities at public schools are accessible to disabled persons. The Act also provides guidelines for membership of governing bodies of public schools for learners with special education needs.

In 2001, the national Department of Education produced a White Paper entitled Education White Paper 6: Special needs education (Department of Education, 2001). One of its key findings was that the type of education provided in ‘special’ schools did not typically equip people with disabilities with the skills for the labour market.

There is some evidence to suggest that the policy and legislative framework is beginning to have some impact on people with disabilities. The Equality Courts established by PEPUDA, for example, have seen a number of disability cases brought before them (SAHRC, 2006).

In brief, the policy response to the issue of disability in South Africa is somewhat contradictory. The South African Constitution is one of very few in the world that explicitly include disability as a prohibited ground for discrimination. Despite the progressive stance adopted by the supreme law of the land, this has not been matched by a significant spate of disability-specific legislation. Some have argued that this lacuna has led to the burgeoning of disability charters and other quasi policy pronouncements from non-state actors (Sibanda, (undated). It bears noting, however, that disability is mentioned in critical post-apartheid labour and other legislation – perhaps the greatest test of ‘mainstreaming’.

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Conclusion

The national policy response to mainstreaming issues of race, gender, youth and disability in post-apartheid South Africa has been comprehensive. There has been some debate, as earlier sections of this paper have illustrated, as to whether the lack of a single comprehensive law on, for example, gender or disability, have been a hindrance. However, it is clear that the suite of general anti-discrimination legislation put in place since 1994, covering both the workplace and society, have provided a fairly wide-ranging set of grounds to prohibit discrimination.

Perhaps a greater truism, then, revolves not around whether an adequate policy or legal response has been formed to transversal mainstreaming – but as to how effective implementation of that regime has been. This is of direct relevance to the Gauteng Legislature with its key responsibilities of oversight, law-making and public participation.

Some of the implications for the Gauteng Legislature include the need to audit laws, policies and practices with a view to eliminating discriminatory aspects. There is a simultaneous need to enact appropriate laws as well as encourage the development of appropriate policies concerning transversal mainstreaming. As a bastion of representative democracy, the institution also plays the critical role of bringing the voices of the marginalised into the decision-making processes within the state – and then, perhaps more fundamentally, ensuring that those voices do indeed make their way into the final choices and priorities of government.


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Appendix 1: Comprehensive age structure of the Gauteng population (2016)

The data below is derived from the latest mid-year population estimates from Stats SA (Stats SA, 2016b). It was released in August 2016 and will be updated by Stats SA in July 2017. Hence, at the time of writing, this was the most recent set of population data for the province.

Figure 15: Comprehensive age profile of the Gauteng population (2016)

Age group Male Female Total (Gauteng) (2016)

% of Gauteng population

0 - 4 618,383 604,616 1,222,999 9.06%5 - 9 578,295 569,075 1,147,370 8.50%10 - 14 536,815 526,737 1,063,552 7.88%15 - 19 490,032 482,735 972,767 7.21%20 - 24 577,270 567,153 1,144,423 8.48%25 - 29 660,760 639,405 1,300,165 9.63%30 - 34 578,739 588,859 1,167,598 8.65%35 - 39 583,108 567,945 1,151,053 8.53%40 - 44 534,729 493,144 1,027,873 7.61%45 - 49 447,584 410,053 857,637 6.35%50 - 54 360,083 335,510 695,593 5.15%55 - 59 292,027 284,820 576,847 4.27%60 - 64 219,906 224,697 444,603 3.29%65 - 69 153,358 166,086 319,444 2.37%70 - 74 95,862 117,752 213,614 1.58%75 - 79 46,906 65,297 112,203 0.83%80+ 26,311 54,098 80,409 0.60%Total: 6,800,168 6,697,982 13,498,150Source: Lynelle John and Associates, based on Stats SA data (2016b)

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