PROCEDURE FOR INVESTIGATIONS REGULATIONS

PROCEDURE FOR INVESTIGATIONS

SUBSIDIARY LEGISLATION 456.02

PROCEDURE FOR INVESTIGATIONS

REGULATIONS

2nd August, 2011

LEGAL NOTICE 316 of 2011.

The title of these regulations is the Procedure for

Investigation Regulations.

(1)

In these regulations, unless the context otherwise

requires

"the Act" means the Equality for Men and Women Act;

"the Commission" means the National Commission for the

Promotion of Equality established in terms of article 11 of the Act

and includes any officer of the Commission duly authorised by it to

act on its behalf for a specific purpose or class of purposes under

the Act;

"the Commissioner" means the Commissioner for the Promotion

of Equality appointed under article 11 of the Act;

"wrongful act" means an act which allegedly is in breach of any

provision of the Act.

(2) Words and phrases used in these regulations shall have the

same meaning given to them in the Act.

(1) In carrying out investigations, whether upon receipt of

a complaint or in general investigations, the Commissioner shall be

assisted by a member of the Commission and by a person holding a

degree in law, who need not be an employee of the Commission.

(2) Both persons referred to in sub-regulation (1) shall be

appointed by the Commission to assist the Commissioner in a

particular investigation, but a member of the Commission or person

holding a degree in law may be appointed to assist the

Commissioner on two or more investigations at the same time

Provided that the Commission may, if in the circumstances

it deems it proper to do so, appoint a panel consisting of members

of the Commission and a panel consisting of persons holding a

degree in law, from which respective panels one member of the

Commission and one person holding a degree in law shall be

assigned to assist the Commissioner in any particular investigation.

(3) The persons so appointed, or their substitutes, under the

provisions of this regulation to assist the Commissioner, shall be

present for each meeting of the investigation for which they are

appointed.

No person other than the persons referred to in regulation

3, the parties to the investigation and their legal counsel, if any, and

witnesses called by the Commissioner or other persons whom the

PROCEDURE FOR INVESTIGATIONS

Commissioner considers to be directly concerned in the

investigation shall be present at any meeting of the investigation

Provided that the Commissioner may, at his own discretion,

exclude any person referred to in this regulation from attending the

meeting, or any part thereof, without prejudice to the right of such

person to have access to the minutes of the meeting.

(1) Without prejudice to the provisions of article 5 of the

A ct , wh en c om m e nc in g a n in v est i ga ti on in ex er ci se o f t he

functions referred to in article 12(g) and (h) of the Act, the

Commissioner shall with the assistance of the Commission, notify

by means of a registered letter all the parties concerned that he

intends to carry out an investigation.

(2) In the notice of commencement of an investigation to the

person who is allegedly responsible for the wrongful act, the

Commissioner shall inform such person of the allegations made in

his regard and shall moreover have the right to request such person

to provide, within ten working days, a report on the allegations

made

Provided that the Commissioner shall have the right to

commence, and proceed with, the investigation whether the report

is submitted, by the person so requested, within the stipulated time

or not.

(3) In the notice of commencement of an investigation, the

C o m m is si on er sh al l m or e ov e r f o r m al l y r eq u es t t h e pa r ti e s

concerned whether they accept to be bound by the findings of the

Commissioner in accordance with article 18(2) of the Act.

(1) The Commissioner, with the assistance of the

Commission, may request from any person any information as may

be deemed by the Commissioner to be required for the carrying out

of the investigation.

(2) The Commissioner may, by registered written notice and

with the assistance of the Commission, request any person

(a) to provide any information that may be described in

the notice within such time as is therein indicated;

(b) to attend and give oral information about the matter

specified in the notice and to produce all documents in

his possession or control relating to any such matter at

a meeting scheduled for such purpose

Provided that, a person shall not be obliged to give

information or produce a document requested in the notice, if that

person is deemed to be exempt from providing that information or

producing that document before a court in civil proceedings.

(3) Where a person so requested, in accordance with the

provisions of this regulation, fails to abide by the request of the

Commissioner within the stipulated time, the Commissioner may

request, by means of an application, the Civil Court, First Hall, to

order such person to comply with the notice issued to him in terms

of sub-regulations (1) and (2); the court may also be requested to

PROCEDURE FOR INVESTIGATIONS

give any other order which it may consider appropriate and

required according to the specific circumstances of the case.

(1) An investigation commenced upon receipt of a

complaint, shall be discontinued upon the withdrawal of the

complaint

Provided that this shall not prohibit the Commissioner, with

the assistance of the Commission, from initiating a general

investigation on the basis of any information already collected

during that investigation initiated on a complaint.

(2) Where the investigation upon receipt of a complaint is

discontinued according to sub-regulation (1), the Commissioner

shall inform in writing the complainant and the person against

whom the complaint is directed that the investigation has been

discontinued.

Where the Commissioner mediates between the

complainant and the per son against whom the complaint is

directed, in terms of article 18(1)(b)(ii) of the Act, and the person

against whom the complaint is directed, or the complainant, fails to

abide by the terms negotiated during the mediation, the

Commissioner may, by means of an application, request the Civil

Court, First Hall, to order such person failing to abide by the terms

of the mediation to undertake all necessary remedial action as may

be ordered by the court.

(1) In the case of an alleged discrimination by one person

ag ai n st a no t h er an d w h er e t h e Co m m i ssi o n c on si d er s i t so

appropriate in terms of article 18(4) of the Act, the Commission

may refer the matter to the competent court or to the Industrial

Tribunal for redress.

(2) In the case of an alleged discrimination as referred to in

sub-regulation (1), the Commission may, if it deems it appropriate,

join in and become a party to the suit.