GOVERNMENT GAZETTE
Vol 373 Cape Town, 24 July 1996 No 17341
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PRESIDENT'S OFFICE
No 1212 24 July 1996
It is hereby notified that the President has assented to the following Act
which is hereby published for general information: -
No. 39, 1996: Commission on Gender Equality Act, 1996
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Act
Preamble
Definitions
Seat of Commission
Composition of Commission
Vacancies in Commission
Meetings of Commission
Committees of Commission
Staff of Commission
Remuneration and allowances of members of Commission
Expenditure, finances and accountability
Independence
Powers and functions of Commission
Investigations by Commission
Entering and search of premises and attachment and removal of articles
Compensation for certain expenses and damage
Reports by Commission
Approach to President or Parliament
Legal proceedings against Commission
Offences and penalties
Short title and commencement
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ACT
To provide for the composition, powers, functions and functioning of the
Commission on Gender Equality; and to provide for matters connected
therewith.
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PREAMBLE
WHEREAS section 119 of the Constitution provides for the establishment of a
Commission on Gender Equality; the determination of the members of the
Commission; the requirements for appointment as members of the Commission;
AND WHEREAS the Constitution provides that the object of the Commission on
Gender Equality shall be to promote gender equality and to advise and to
make recommendations to Parliament or any other legislature with regard to
any laws or proposed legislation which affects gender equality and the
status of women;
AND WHEREAS section 120 of the Constitution provides that an Act of
Parliament shall provide for the composition, powers, functions and
functioning of the Commission on Gender Equality and for all other matters
in connection therewith,
BE it therefore enacted by the Parliament of the Republic of South Africa,
as follows:-
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Definitions
1. In this Act, unless the context indicates otherwise-
i. "Chairperson" means the chairperson of the Commission; (ix)
ii. "Commission" means the Commission on Gender Equality established
by section 119 of the Constitution; (iii)
iii. "committee" means a committee established under section 6; (ii)
iv. "investigation" means an investigation contemplated in section
ll( l )(e); (v)
v. "joint committee" means a joint committee of the Houses of
Parliament appointed in accordance with the Standing Orders of
Parliament for the purpose of considering a matter contemplated
in section 3(2) and (5); (i)
vi. "Minister" means the Minister of Justice; (iv)
vii. "premises" includes land, any road, building or structure, or any
vehicle, conveyance, ship, boat, vessel, aircraft or container;
(vi)
viii. "Public Service Commission" means the Commission established by
section 209(1) of the Constitution. (vii)
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Seat of Commission
2. 1. The President shall determine the seat of the Commission.
2. The Commission may establish such offices as may be necessary to
enable it to exercise its powers and to perform its duties and
functions conferred on or assigned to it by this Act or any other
law.
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Composition of Commission
3. 1. Subject to section 119(2) of the Constitution, the Commission
shall consist of a chairperson and no fewer than seven and no
more than eleven members, who shall-
a. have a record of commitment to the promotion of gender
equality; and
b. be persons with applicable knowledge or experience with
regard to matters connected with the objects of the
Commission.
2. The President shall, whenever it becomes necessary, appoint as a
member of the Commission a person-
a. proposed by interested parties as contemplated in subsection
(3);
b. nominated by a joint committee; and
c. approved by the National Assembly and the Senate by a
resolution adopted by a majority of the total number of
members of both Houses at a joint meeting: Provided that if
any nomination is not approved as required in paragraph (c),
the joint committee shall nominate another person.
3. Before the members of the Commission are appointed the Minister
shall invite interested parties through the media and by notice
in the Gazette to propose candidates within 30 days of the
publication of the said notice, for consideration by the
committee referred to in subsection (2)(b).
4. a. The members of the Commission may be appointed as full-time
or part-time members and shall hold office for such fixed
term, not exceeding five years, as the President may
determine at the time of each appointment: Provided that the
term of office of the full-time members shall not expire
simultaneously.
b. No fewer than two and no more than seven members shall be
appointed on a full-time basis.
5. The President shall remove any member from office if-
a. such removal is requested by a joint committee contemplated
in subsection (2)(b); and
b. such request is approved by the National Assembly and the
Senate by a resolution adopted by a majority of the total
number of members of both Houses at a joint meeting.
6. The President may, in consultation with the Commission, appoint a
part-time member as a full-time member for the unexpired portion
of that part-time member's term of office.
7. Any person whose term of office as a member of the Commission has
expired, may be reappointed for one additional term.
8. A member of the Commission may resign from office by submitting
at least three months' written notice thereof to Parliament
unless Parliament by resolution allows a shorter period in a
specific case.
9. a. A Chairperson of the Commission shall as often as it becomes
necessary be appointed by the President and a Deputy
Chairperson of the Commission shall as often as it becomes
necessary be elected by the members of the Commission from
among their number.
b. When the Chairperson is not available, the Deputy
Chairperson shall perform the functions of the Chairperson.
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Vacancies in Commission
4. 1. A vacancy in the Commission shall occur-
a. when a member's term of office expires;
b. when a member dies;
c. when a member is removed from office in terms of section
3(5); or
d. when a member's resignation, submitted in accordance with
section 3(8), takes effect.
2. A vacancy in the Commission shall not affect the validity of the
proceedings or decisions of the Commission.
3. a. A vacancy in the Commission shall be filled as soon as
practicable in accordance with section 3(2).
b. Any vacancy so filled shall be for the unexpired period of
the term of office in respect of which the vacancy occurred.
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Meetings of Commission
5. 1. The meetings of the Commission shall be held at the times and
places determined by the Chairperson: Provided that the first
meeting shall be held at the time and place determined by the
Minister.
2. If both the Chairperson and Deputy Chairperson are absent from a
meeting of the Commission, the members present shall elect one
from among their number to preside at that meeting.
3. The quorum for any meeting of the Commission shall be a majority
of the total number of members appointed in terms of section
3(2).
4. The decision of the majority of the members of the Commission
present at a meeting shall be the decision of the Commission, and
in the event of an equality of votes concerning any matter, the
member presiding shall have a casting vote in addition to his or
her deliberative vote.
5. a. The Commission shall determine its own procedure: Provided
that due regard shall be given to the principles of
transparency, openness and public participation.
b. The Commission shall cause minutes to be kept of its
proceedings.
6. The Commission shall from time to time by notice in the Gazette
make known the particulars of the procedure which it has
determined in terms of subsection (5).
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Committees of Commission
6. 1. The Commission may establish one or more committees consisting of
one or more members of the Commission designated by the
Commission and one or more other persons, if any, whom the
Commission may appoint for that purpose and for any period
determined by it.
2. The Commission shall designate a chairperson for every committee
and, if necessary, a deputy chairperson.
3. Subject to the directions of the Commission, a committee-
a. may exercise such powers of the Commission as the Commission
may confer on it; and
b. shall perform such functions of the Commission as the
Commission may assign to it.
4. On completion of the functions assigned to it in terms of
subsection (3), a committee shall submit a written report
thereon, including recommendations, if any, for consideration by
the Commission.
5. The Commission may at any time dissolve any committee.
6. The provisions of section 5 shall, with the necessary changes,
apply to a meeting of a committee.
7. The Commission shall not be absolved from responsibility for the
performance of any functions entrusted to any committee in terms
of this section.
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Staff of Commission
7. 1. The Commission shall at its first meeting or as soon as
practicable thereafter-
a. in consultation with the Public Service Commission and the
Minister of Finance, appoint a suitably qualified and
experienced person or a person seconded in terms of
subsection (4) as Chief Executive Officer of the Commission
for the purpose of assisting the Commission in the
performance of its financial, administrative and clerical
functions; and
b. be assisted by such staff, seconded in terms of subsection
(4) or appointed by the Commission in consultation with the
Public Service Commission and the Minister of Finance, as
may be necessary to enable the Commission to perform its
functions.
2. The persons appointed by the Commission in terms of subsection
(1) shall receive such remuneration, allowances and other
employment benefits and shall be appointed on such terms and
conditions and for such periods, as the Commission may, in
consultation with the Public Service Commission and the Minister
of Finance, determine.
3. a. A document setting out the remuneration, allowances and
other conditions of employment determined by the Commission
in terms of subsection (2), shall be tabled in Parliament
within 14 days after such determination.
b. If Parliament disapproves of any determination such
determination shall cease to be of force to the extent to
which it is disapproved.
c. If a determination ceases to be of force as contemplated in
paragraph (b)-
i. anything done in terms of such determination up to the
date on which such determination ceases to be of force
shall be deemed to have been done validly; and
ii. any right, privilege, obligation or liability acquired,
accrued or incurred up to the said date under and by
virtue of such determination, shall lapse upon the said
date.
4. The Commission may, in the performance of its functions
contemplated in subsection (l)(a), at its request after
consultation with the Public Service Commission, be assisted by
officers of the public service seconded to the service of the
Commission in terms of any law regulating such secondment.
5. The Commission may, in consultation with the Public Service
Commission, in the exercise of its powers or the performance of
its functions by or under this Act or any other law, for specific
projects, enter into contracts for the services of persons having
technical or specialised knowledge of any matter relating to the
work of the Commission, and with the concurrence of the Minister
of Finance, determine the remuneration, including reimbursement
for travelling, subsistence and other expenses, of such persons.
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Remuneration and allowances of members of Commission
8. 1. The remuneration, allowances and other terms and conditions of
office and service benefits of the full-time and part-time
members of the Commission shall be determined by the President.
2. The remuneration of the members of the Commission shall not be
reduced during their term of office.
3. A part-time member of the Commission may, for any period during
which that member, with the approval of the Commission, perform
additional duties and functions, be paid such additional
remuneration as may be determined by the President.
4. The provisions of section 7(3) shall apply, with the necessary
changes, in respect of the tabling in Parliament of a document
setting out the remuneration, allowances and other terms and
conditions of office and service benefits of the full-time and
part-time members of the Commission.
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Expenditure, finances and accountability
9. 1. Expenditure incidental to the performance of the functions of the
Commission in terms of this Act or any other law shall be
defrayed from money appropriated by Parliament in the same
manner, with the necessary changes, and subject to the same laws,
as in the case of the expenditure of a department of the National
Government.
2. The Chief Executive Officer referred to in section 7(1)(a)-
a. shall be responsible for the management of and
administrative control over staff appointed in terms of
section 7(1)(b) and shall for those purposes be accountable
to the Commission;
b. shall, subject to the Exchequer Act, 1975 (Act No. 66 of
1975)-
i. be charged with the responsibility of accounting for
money received or paid out for or on account of the
Commission;
ii. cause the necessary accounting and other related
records to be kept; and
c. shall perform the functions which the Commission may from
time to time assign to him or her in order to achieve the
objects of the Commission, and shall for those purposes be
accountable to the Commission.
3. The records referred to in subsection (2)(b)(ii) shall be audited
by the Auditor-General .
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Independence
10. 1. a. The Commission shall be independent.
b. A member of the Commission as well as a member of the staff
of the Commission shall perform his or her functions in good
faith and without fear, favour, bias or prejudice.
2. No organ of state and no member or employee of an organ of state
nor any other person shall interfere with, hinder or obstruct the
Commission, any member thereof or a person appointed under
section 6(1) or 7(1) or (5) in the performance of its, his or her
functions.
3. All organs of state, including any statutory body or functionary,
shall afford the Commission such assistance as may reasonably be
required for-
a. the protection of its independence and dignity;
b. the effective exercise of its powers and performance of its
functions.
4. No person shall conduct an investigation or render assistance
with regard thereto in respect of a matter in which he or she has
any pecuniary or any other interest which might preclude him or
her from exercising or performing his or her powers and functions
in a fair, unbiased and proper manner.
5. If any person fails to disclose an interest contemplated in
subsection (4) and conducts or renders assistance with regard to
an investigation while having an interest so contemplated in the
matter being investigated, the Commission may take such steps as
it deems necessary to ensure a fair, unbiased and proper
investigation.
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Powers and functions of Commission
11. 1. In order to achieve its object referred to in section 119(3) of
the Constitution, the Commission-
a. shall monitor and evaluate policies and practices of-
i. organs of state at any level;
ii. statutory bodies or functionaries;
iii. public bodies and authorities; and
iv. private businesses, enterprises and institutions, in
order to promote gender equality and may make any
recommendations that the Commission deems necessary;
b. shall develop, conduct or manage-
i. information programmes; and
ii. education programmes,
to foster public understanding of matters pertaining to the
promotion of gender equality and the role and activities of
the Commission;
c. shall evaluate-
i. any Act of Parliament;
ii. any system of personal and family law or custom;
iii. any system of indigenous law, customs or practices; or
iv. any other law,
in force at the commencement of this Act or any law proposed
by Parliament or any other legislature after the
commencement of this Act, affecting or likely to affect
gender equality or the status of women and make
recommendations to Parliament or such other legislature with
regard thereto;
d. may recommend to Parliament or any other legislature the
adoption of new legislation which would promote gender
equality and the status of women;
e. shall investigate any gender-related issues of its own
accord or on receipt of a complaint, and shall endeavour to
i. resolve any dispute; or
ii. rectify any act or omission,
by mediation, conciliation or negotiation: Provided
that the Commission may at any stage refer any matter
to-
A. the Human Rights Commission to deal with it in
accordance with the provisions of the Constitution
and the law;
B. the Public Protector to deal with it in accordance
with the provisions of the Constitution and the
law; or
C. any other authority, whichever is appropriate:
f. shall as far as is practicable maintain close liaison with
institutions, bodies or authorities with similar objectives
to the Commission, in order to foster common policies and
practices and to promote co-operation in relation to the
handling of complaints in cases of overlapping jurisdiction
or other appropriate instances;
g. shall liaise and interact with any organisation which
actively promotes gender equality and other sectors of civil
society to further the object of the Commission;
h. shall monitor the compliance with international conventions,
international covenants and international charters, acceded
to or ratified by the Republic, relating to the object of
the Commission;
i. shall prepare and submit reports to Parliament pertaining to
any such convention, covenant or charter relating to the
object of the Commission;
j. may conduct research or cause research to be conducted to
further the object of the Commission;
k. may consider such recommendations, suggestions and requests
concerning the promotion of gender equality as it may
receive from any source.
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Investigations by Commission
12. 1. The procedure to be followed in conducting an investigation
referred to in section ll(l)(e) shall be determined by the
Commission with due regard to the circumstances of each case.
2. The Commission shall from time to time by notice in the Gazette
make known the particulars of the procedure which it has
determined in terms of subsection (1).
3. a. If it is in the interest of justice or if harm to any person
might otherwise ensue,
b. the Commission or a member thereof may direct that any
person or category of persons shall not be present at the
proceedings during the investigation or any part thereof.
c. No person shall disclose to any other person the contents of
any document in the ossession of a member or a member of the
staff of the Commission or the record of evidence given
before the Commission during an investigation, unless the
Commission determines otherwise.
4. For the purposes of conducting an investigation referred to in
section 11 (1)(e), the Commission may-
a. through a member require from any person such particulars
and information as may be reasonably necessary;
b. require any person by notice in writing under the hand of a
member of the Commission, addressed and delivered by a
sheriff, to appear before it at a time and place specified
in such notice and to produce to it specified articles or
documents in the possession or custody or under the control
of any such person: Provided that such notice shall contain
the reasons why such person's presence is needed and why any
such article or document should be produced.
c. through a member of the Commission, administer an oath to or
take an affirmation from any person referred to in paragraph
(b), or any person present at the place referred to in
paragraph (b), irrespective of whether or not such person
has been required under the said paragraph (b) to appear
before it, and question him or her under oath or
affirmation.
5. Any person questioned under subsection (4) shall, subject to any
law governing privilege -
i. be competent and compelled to answer all questions put to
him or her regarding any fact or matter connected with the
investigation;
ii. be compelled to produce to the Commission any article or
document in his or her possession or custody or under his or
her control which may be necessary in connection with that
investigation.
6. Any person appearing before the Commission by virtue of the
provisions of subsection (4)(b) and ¨ may be assisted at such
examination by an advocate or an attorney, or both, and shall be
entitled to peruse such of the documents or records referred to
in subsection (4)(b) as are necessary to refresh his or her
memory.
7. If it appears to the Commission during the course of an
investigation that any person is being implicated in the matter
being investigated, the Commission shall afford such person an
opportunity to be heard in connection therewith by way of the
giving of evidence or the making of submissions and such person
or his or her legal representative shall be entitled, through the
Commission, to question other witnesses, determined by the
Commission, who have appeared before the Commission in terms of
this section.
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Entering and search of premises and attachment and removal of articles
13. 1. Any member of the Commission or a police officer authorised
thereto by a member of the Commission may, for the purposes of
exercising the powers and performing the functions mentioned in
section 11, on the authority of a warrant issued in terms of
subsection (5), search any person or enter and search any
premises on which anything connected with an investigation is or
is suspected to be.
2. The entry and search of any person or premises under this section
shall be conducted with strict regard to decency and order,
including the protection of a person's right to-
a. respect for his or her dignity;
b. freedom and security; and
c. his or her personal privacy.
3. A member or police officer contemplated in subsection (1) may,
subject to the. Provisions of this section -
a. inspect and search the person or premises in question, and
there make such enquiries as he or she may deem necessary;
b. examine any article or document found on the person or
premises;
c. request information regarding such article or document from
the owner or person in control of the premises or from any
person in whose possession or control that article or
document is, or who may reasonably be expected to have the
necessary information;
d. make copies of or take extracts from any book or document
found on the person or premises;
e. attach anything on the person or premises which has a
bearing on the investigation;
f. if he or she wishes to retain anything contemplated in
paragraph (e) for further examination or for safe custody,
remove it from the person or premises against the issue of a
receipt: Provided that any article that has been so removed,
shall be returned as soon as possible after the purpose for
which it was removed has been achieved: Provided further
that if there is no person present to receive the receipt
when it is issued, it shall be affixed to a prominent place
on the premises.
4. Any person from whom information is required in terms of
subsection (3)(a) and (c) may be assisted in supplying the
information by a legal representative and shall be so informed
before being required to give such information.
5. a. A warrant referred to in subsection (1) shall only be issued
by a magistrate, or a judge of the Supreme Court, if it
appears to such magistrate or judge from information on oath
that there are reasonable grounds for believing that any
article or document, which has a bearing on the
investigation is in the possession or under the control of
any person or on any premises within the area of
jurisdiction of such magistrate or judge and cannot
reasonably be obtained in any other manner.
b. A warrant referred to in subsection (1) shall be executed by
day.
c. A warrant referred to in subsection (1) may be issued on any
day and shall be of force until-
i. it is executed; or
ii. it is cancelled by the person who issued it or, if such
person is not available, by any person with like
authority; or
iii. the expire of one month from the day of its issue,
whichever may occur first.
d. A person executing a warrant under this section shall, at
the commencement of such search, hand the person referred to
in the warrant or the owner or the person in control of the
premises, if such a person is present, a copy of the
warrant: Provided that if no such person is present, he or
she shall affix a copy of the warrant to the premises at a
prominent and visible place.
e. A person executing a warrant under this section shall, at
the commencement of such execution, identify himself or
herself and if that person requires authorisation to execute
a warrant under this section, the particulars of such
authorisation shall also be furnished.
6. a. A person who may lawfully under this section enter and
search any premises may use such force as may be necessary
to overcome any resistance against such entry and search of
the premises, including the breaking of any door or window
of such premises: Provided that such person shall first
audibly demand admission to the premises and notify the
purpose for which he or she seeks to enter and search such
premises.
b. The proviso to paragraph (a) shall not apply where the
person concerned is on reasonable grounds of the opinion
that any article or document which is the subject of the
search may be destroyed, disposed of or tampered with if the
provisions of the said proviso are complied with.
7. If during the execution of a warrant in terms of subsection (5),
a person claims that an article or document found on the person
or premises contains privileged information and refuses the
inspection or removal of such article or document, the person
executing the warrant may request the registrar of the Supreme
Court which has jurisdiction or his or her delegate, to attach
and remove that article or document for safe custody until a
court of law has made a ruling on the question whether or not the
information in question is privileged.
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Compensation for certain expenses and damage
14. 1. Subject to the provisions of subsection (2), the Commission may,
with the specific or general concurrence of the Minister of
Finance, order that the expenses or a portion of the expenses
incurred by any person in the course of or in connection with an
investigation by the Commission, be paid from State funds.
2. Any person appearing before the Commission in terms of section
12(4)(b) who is not in the public service, shall be entitled to
receive from moneys appropriated by law for such purpose, as
witness fees, an amount equal to the amount which he or she would
have received as witness fees had he or she been summoned to
attend criminal proceedings in the Supreme Court held at the
place mentioned in the written notice in question.
3. If, in the execution of a warrant in terms of section 13(5), it
is necessary to use force to gain entry to premises as
contemplated in section 13(6)(a) and the force of such entry
causes damage to any lock, door, window, wall or other part of
the premises or to anything inside the premises, the Commission
may order that such damage be made good from State funds:
Provided that no such order shall be made if the person
responsible for the premises was present at the time of entry and
failed, without just cause, to facilitate the entry.
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Reports by Commission
15. 1. The Commission may, subject to the provisions of subsection (3),
in the manner it deems fit, make known to any person any finding,
point of view or recommendation in respect of a matter
investigated by it.
2. The Commission shall report to the President at least once every
year on its activities and the achievement of its objectives, and
the President shall cause such report to be tabled promptly in
Parliament: Provided that the Commission may at any time submit
any other report to the President and Parliament.
3. The findings of an investigation by the Commission shall, when it
deems it fit, be made available to the complainant and any person
implicated thereby.
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Approach to President or Parliament
16. The Commission may, at any time, approach the President or Parliament
with regard to any matter relating to the exercise of its powers or
the performance of its functions.
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Legal proceedings against Commission
17. 1. The Commission shall be a juristic person.
2. The State Liability Act, 1957 (Act No. 20 of 1957), shall apply
with the necessary changes in respect of the Commission, and in
such application a reference in that Act to "the Minister of the
department concerned" shall be construed as a reference to the
Chairperson.
3. No-
a. member of the Commission;
b. member of the staff of the Commission;
c. person contemplated in section 7(4); or
d. member of any committee who is not a member of the
Commission,
shall be liable in respect of anything reflected in any report,
finding, point of view or recommendation made or expressed in
good faith and submitted to Parliament or made known in terms of
this Act.
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Offences and penalties
18. A person who without just cause-
a. refuses or fails to comply with a notice under section 12(4)(b)
or refuses to take the oath or to make an affirmation at the
request of the Commission in terms of section 12(4)(c) or refuses
to answer any question put to him or her under section 12(4)(c)
or refuses or fails to furnish particulars or information
required from him or her under that section;
b. after having been sworn or having made an affirmation
contemplated in section 12(4)(c), gives false evidence before the
Commission on any matter, knowing such evidence to be false or
not knowing or believing it to be true;
c. wilfully interrupts the proceedings at an investigation or
misbehaves in any manner in the place where such investigation is
being held;
d. defames the Commission or a member of the Commission in his or
her capacity as a member;
e. in connection with any investigation does anything which, if such
investigation were proceedings in a court of law, would have
constituted contempt of court;
f. anticipates any findings of the Commission regarding an
investigation in a manner calculated to influence its proceedings
or such findings;
g. does anything calculated to influence the Commission improperly
in respect of any matter being or to be considered by the
Commission;
h. contravenes section 10(2);
i. acts contrary to the authority of a warrant issued under section
13(5) or, without being authorised thereto under section 13,
enters or searches any premises or attaches any article or
document or performs any act contemplated in section 13(3),
shall be guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding six months.
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Short title and commencement
19. This Act shall be called the Commission on Gender Equality Act, 1996,
and shall come into operation on a date fixed by the President by
proclamation in the Gazette.