To give effect to section 9 read with item 23 (1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, so as to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith.
[S. 16 substituted by s. 1 of Act 52 of 2002.
[S. 31 substituted by s. 3 of Act 52 of 2002.
'intersex' means a congenital sexual differentiation which is atypical, to whatever degree; [Definition of 'intersex' inserted by s. 16 (a) of Act 22 of 2005.
'sex' includes intersex; [Definition of ''sex' inserted by s. 16 (b) of Act 22 of 2005.
'this Act' includes any regulation made in terms of this Act.
[Date of commencement of s. 1: 1 September 2000.
to facilitate further compliance with international law obligations including treaty obligations in terms of, amongst others, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women.
the Preamble, the objects and guiding principles of this Act, thereby fulfilling the spirit, purport and objects of this Act.
comparable foreign law.
the dispute and the purpose of this Act. [Date of commencement of s. 3: 1 September 2000.
the development of special skills and capacity for persons applying this Act in order to ensure effective implementation and administration thereof.
The existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of past and present unfair discrimination, brought about by colonialism, the apartheid system and patriarchy; and the need to take measures at all levels to eliminate such discrimination and inequalities.
[Date of commencement of sub-s. (2): 1 September 2000.
This Act binds the State and all persons.
If any conflict relating to a matter dealt with in this Act arises between this Act and the provisions of any other law, other than the Constitution or an Act of Parliament expressly amending this Act, the provisions of this Act must prevail.
Employment Equity Act, 1998 (Act 55 of 1998), applies. [Date of commencement of s. 5: 1 September 2000.
Neither the State nor any person may unfairly discriminate against any person.
[Date of commencement of s. 6: 1 September 2000.
the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration, or failing to take steps to reasonably accommodate the needs of such persons.
systemic inequality of access to opportunities by women as a result of the sexual division of labour.
failing to eliminate obstacles that unfairly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons.
promote or propagate hatred.
Without prejudice to any remedies of a civil nature under this Act, the court may, in accordance with section 21 (2) (n) and where appropriate, refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law or relevant legislation.
No person may subject any person to harassment.
publish or display any advertisement or notice, that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person: Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.
the respondent must prove, on the facts before the court, that the discrimination did not take place as alleged; or the respondent must prove that the conduct is not based on one or more of the prohibited grounds.
if one or more of the conditions set out in paragraph (b) of the definition of 'prohibited grounds' is established; and unless the respondent proves that the discrimination is fair.
It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination or the members of such groups or categories of persons.
whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.
address the disadvantage which arises from or is related to one or more of the prohibited grounds; or accommodate diversity.
In cases of hate speech and harassment section 14 does not apply.
[Para. (c) substituted by s. 28 of Act 55 of 2003.
the head of an administrative region contemplated in paragraph (c) must, subject to subsection (2), designate in writing any magistrate or additional magistrate as a presiding officer of the equality court.
before the date of commencement of section 31; or as contemplated in section 31 (4), and whose name has been included on the list contemplated in subsection (4) (a) , may be designated as such in terms of subsection (1).
The Judges President and the heads of administrative regions must take all reasonable steps within available resources to designate at least one presiding officer for each equality court within his or her area of jurisdiction; and without delay, inform the Director-General of the Department of any judge, magistrate or additional magistrate who has completed a training course as contemplated in section 31 (4) and (5) or who has been designated in terms of subsection (1).
completed a training course as contemplated in section 31 (4) and (5); or been designated as a presiding officer of an equality court in terms of subsection (1).
Subject to subsection (2) and the laws governing the public service, the Director-General of the Department may, for every equality court, appoint or designate one or more officers in the Department, or may appoint one or more persons in the prescribed manner and on the prescribed conditions, as clerks of the equality court, who must generally assist the court to which they are attached in performing its functions and who must perform the functions as may be prescribed.
[Para. (a) substituted by s. 2 (a) of Act 52 of 2002.
If a clerk of an equality court is for any reason unable to act as such or if no clerk has been appointed or designated for any equality court under paragraph (a) , the presiding officer concerned may, despite subsection (2), designate any competent officer in the Department to act as clerk for as long as the said clerk is unable to act or until a clerk is appointed or designated under paragraph (a) , as the case may be.
[Para. (b) substituted by s. 2 (a) of Act 52 of 2002.
before the date of commencement of section 31; or as contemplated in section 31 (6), and whose name has been included on the list contemplated in subsection (3), may be appointed or designated as such under subsection (1) (a).
[Sub-s. (2) added by s. 2 (b) of Act 52 of 2002.
The Director-General may, subject to such conditions as he or she may determine, in writing delegate any power conferred on him or her by this section to an officer employed by the Department, but shall not be divested of any power so delegated and may amend or set aside any decision of the delegatee made in the exercise of such power.
been designated or appointed as a clerk of an equality court in terms of subsection (1) (a).
[Sub-s. (3) added by s. 2 (b) of Act 52 of 2002.
[Sub-s. (4) added by s. 29 of Act 55 of 2003.
The attendance of witnesses and the payment of witness fees in cases arising from the application of this Act must be determined by the Minister in the prescribed manner.
jurisdiction, subject to subsection (3), and in so far as no other provision has been made in the regulations under section 30 of this Act.
All proceedings before the court must be conducted in open court, except in so far as the court may direct otherwise in the interests of the administration of justice.
Subject to paragraph (b) , nothing in this Act precludes a magistrates' court sitting as an equality court from making an order contemplated in section 21 (2), which exceeds the monetary jurisdiction of a magistrates' court, in which case the order must be submitted in the prescribed manner to a judge of the High Court having jurisdiction for confirmation.
The operation of paragraph (a) , relating to the confirmation of an order, is suspended until any appeal contemplated in section 23 is finalised.
the South African Human Rights Commission, or the Commission for Gender Equality.
A person wishing to institute proceedings in terms of or under this Act must, in the prescribed manner, notify the clerk of the equality court of their intention to do so.
The clerk of the equality court must, within the prescribed period of receiving such notification, refer the matter to a presiding officer of the equality court in question, who must, within the prescribed period, decide whether the matter is to be heard in the equality court or whether it should be referred to another appropriate institution, body, court, tribunal or other forum (hereafter referred to as an alternative forum) which, in the presiding officer's opinion, can deal more appropriately with the matter in terms of that alternative forum's powers and functions.
If the presiding officer decides that the matter is to be heard in the equality court, the presiding officer must refer the matter to the clerk of the equality court who must within the prescribed period of such referral assign a date of hearing of the matter.
If the presiding officer decides that the matter must be referred to an alternative forum he or she must, in the prescribed manner, make an order, directing the clerk of the equality court to transfer the matter to the alternative forum mentioned in the order.
When making an order contemplated in paragraph (a) , the presiding officer may attach to the order any comments he or she deems necessary for the attention of the alternative forum.
On receipt of an order referred to in subsection (5), the clerk of the equality court must transfer the matter and notify the parties to the matter of the transfer in the prescribed manner.
On receipt of a matter transferred to it, the alternative forum in question must deal with the matter expeditiously in terms of its powers and functions.
the views of the appropriate functionary at any contemplated alternative forum.
fails to deal with the matter within a reasonable period in the circumstances; or is not able to resolve the matter to the satisfaction of one or both the parties and one or both parties so request, the alternative forum must, in the prescribed manner, refer the matter back to the equality court from which it was transferred, for adjudication, within the prescribed period from the date on which it was returned to the equality court.
The State and constitutional institutions must, as far as reasonably possible, assist any person wishing to institute proceedings in terms of or under this Act, amongst others, by ensuring that the person is directed to the appropriate functionary in order to take the necessary action in the furtherance of the matter in question.
The equality court before which proceedings are instituted in terms of or under this Act must hold an inquiry in the prescribed manner and determine whether unfair discrimination, hate speech or harassment, as the case may be, has taken place, as alleged.
an order to comply with any provision of the Act.
An order made by an equality court in terms of or under this Act has the effect of an order of the said court made in a civil action, where appropriate.
any proceedings before it to any relevant constitutional institution or appropriate body for mediation, conciliation or negotiation.
The court has all ancillary powers necessary or reasonably incidental to the performance of its functions and the exercise of its powers, including the power to grant interlocutory orders or interdicts.
In any proceedings in terms of or under this Act, the court may, at the request of either party, or of its own accord if the presiding officer considers it to be in the interests of justice, summon to its assistance one or two persons who are suitable and available and who may be willing to sit and act as assessors.
Assessors appointed in terms of subsection (1) are, subject to subsection (3), deemed to be members of the court for purposes of this Act.
Any matter of law arising for decision at the proceedings concerned and any question as to whether a matter for decision is a matter of fact or a matter of law must be decided by the presiding officer in the prescribed manner.
On all matters of fact the finding or decision of the majority of the members of the court is the finding or decision of the court, and in the event of one assessor, the finding or decision of the court prevails.
The presiding officer must give reasons for any direction referred to in subparagraph (i) or (ii).
if that party to the proceedings is not assisted by a legal representative; and if the presiding officer is of the opinion that the assessors concerned have clearly made an incorrect finding.
The clerk of the equality court must as soon as is practicable, submit those reasons and the record to the appeal court in question for review in the prescribed manner.
The appeal court has the power to confirm the said findings or to make any appropriate order in respect of such finding that, in the opinion of the appeal court should have been made in the circumstances.
if an assessor is absent, postpone the proceedings in order to obtain the assessor's presence.
Any person aggrieved by any order made by an equality court in terms of or under this Act may, within such period and in such manner as may be prescribed, appeal against such order to the High Court having jurisdiction or the Supreme Court of Appeal, as the case may be.
On appeal, the High Court or the Supreme Court of Appeal, as the case may be, may make such order in the matter as it may deem fit.
Notwithstanding subsection (1), any person aggrieved by any order made by an equality court may, subject to the rules of the Constitutional Court, appeal directly to the Constitutional Court.
In the event of conflicting decisions being made by presiding officers in matters in respect of paragraph (b) of the definition of 'prohibited grounds', the Minister may refer a stated case to the Supreme Court of Appeal or the Constitutional Court for a determination.
If a presiding officer in a magistrates' court makes a determination relating to a ground of discrimination referred to in paragraph (b) of the definition of 'prohibited grounds', the decision must, after the finalisation of the proceedings and in the prescribed manner, be submitted to the High Court having jurisdiction for review.
The High Court in question must, after considering the matter, make a determination in respect of the ground referred to in subsection (5) (a) and thereafter may make any order in terms of this Act as it deems fit.
The operation of subsection (5) (a) is suspended until any appeal contemplated in this section is finalised.
The State has a duty and responsibility to promote and achieve equality.
All persons have a duty and responsibility to promote equality. [Date of commencement of s. 24: to be proclaimed.
conduct information campaigns to popularise this Act.
The South African Human Rights Commission and other relevant constitutional institutions may, in addition to any other obligation, in terms of the Constitution or any law, request any other component falling within the definition of the State or any person to supply information on any measures relating to the achievement of equality including, where appropriate, on legislative and executive action and compliance with legislation, codes of practice and programmes.
request from the Department, in the prescribed manner, regular reports regarding the number of cases and the nature and outcome thereof.
eliminating any form of unfair discrimination or the perpetuation of inequality in any law, policy or practice for which those Ministers are responsible; and preparing and implementing equality plans in the prescribed manner, the contents of which must include a time frame for implementation of such plans, formulated in consultation with the Minister of Finance.
The equality plans must, within two years after the commencement of this Act, be submitted to the South African Human Rights Commission to be dealt with in the prescribed manner.
The South African Human Rights Commission must consult with the Commission on Gender Equality when dealing with the plans contemplated in paragraph (a) . [Date of commencement of s. 25: to be proclaimed.
enforcing and monitoring the enforcement of the equality plans, codes and regulatory mechanisms developed by them; and making regular reports to the relevant monitoring authorities or institutions as may be provided in regulations, where appropriate.
[Date of commencement of s. 26: to be proclaimed.
Pursuant to section 26, all persons, non-governmental organisations, communitybased organisations and traditional institutions must promote equality in their relationships with other bodies and in their public activities.
The Minister must develop regulations in relation to this Act and other Ministers may develop regulations in relation to other Acts which require companies, closed corporations, partnerships, clubs, sports organisations, corporate entities and associations, where appropriate, in a manner proportional to their size, resources and influence, to prepare equality plans or abide by prescribed codes of practice or report to a body or institution on measures to promote equality.
[Date of commencement of s. 27: to be proclaimed.
If it is proved in the prosecution of any offence that unfair discrimination on the grounds of race, gender or disability played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence.
The South African Human Rights Commission must, in its report referred to in section 15 of the Human Rights Commission Act, 1994 (Act 54 of 1994), include an assessment on the extent to which unfair discrimination on the grounds of race, gender and disability persists in the Republic, the effects thereof and recommendations on how best to address the problems.
promote equality in respect of race, gender and disability.
give priority to the elimination of unfair discrimination and the promotion of equality in respect of race, gender and disability.
[Date of commencement of s.
Without detracting from the generality of the provisions of this Act, the Schedule to this Act is intended to illustrate and emphasise some practices which are or may be unfair, that are widespread and that need to be addressed.
[Date of commencement of sub-s. (1): 1 September 2000.
The State must, where appropriate, ensure that legislative and other measures are taken to address the practices referred to in subsection (1). [Date of commencement of sub-s. (2): to be proclaimed.
The Minister must, on the recommendation of the Equality Review Committee, on an ongoing basis, assess the relevance of the practices contained in the Schedule for purposes of expanding, altering, varying or amending the list of practices in the Schedule.
[Date of commencement of sub-s. (3): 1 September 2000.
The Schedule is also intended to provide an illustrative list of practices that are or may be unfair discrimination in order to address and eliminate these practices; and assist persons in interpreting their experiences and practices.
[Date of commencement of sub-s. (4): 1 September 2000.
The illustrative list of practices in the Schedule is not conclusive and must be considered and revised by the Equality Review Committee on a continuous basis. [Date of commencement of sub-s. (5): 1 September 2000.
Any regulation made under this section which may result in expenditure for the State must be made in consultation with the Minister of Finance.
A regulation made under this section may provide that any person who contravenes a provision thereof or fails to comply therewith is guilty of an offence and on conviction is liable to a fine or to imprisonment for a period not exceeding 12 months.
Any regulation made under this section must be tabled in Parliament 30 days before publication thereof in the Gazette , if Parliament is then in session.
If Parliament is not in session as contemplated in paragraph (a) , the regulations must be submitted to the Speaker of Parliament, 30 days before publication thereof in the Gazette.
The regulations made in terms of this section, and particularly subsection (1) (a) relating to the procedure at an inquiry, must, as far as possible, ensure that the application of the Act is simple, fair and affordable.
any other matter which is necessary to prescribe in order to achieve the objects of this Act.
Despite section 16 (1) no proceedings may be instituted in any court unless a presiding officer and one or more clerks are available.
the Minister must make the Act available in all official languages in the prescribed manner within a period of two years after the commencement of this Act.
The Director-General of the Department must take all reasonable steps within the available resources of the Department to ensure that a clerk is available for each court in the Republic.
social context training for presiding officers; and uniform norms, standards and procedures to be observed by presiding officers in the performance of their functions and duties and in the exercise of their powers.
The Chief Justice must, in consultation with the Judicial Service Commission, the Magistrates Commission and the Minister, implement the training courses contemplated in subsection (4).
The Director-General of the Department must develop and implement a training course for clerks of equality courts with the view to building a dedicated and experienced pool of trained and specialised clerks, for purposes of performing their functions and duties as contemplated in this Act, by providing social context training for clerks; and uniform norms, standards and procedures to be observed by clerks in the performance of their functions and duties.
The Minister must table a report in Parliament, as prescribed, relating to the content and implementation of the training courses referred to in subsections (4) and (5).
a member of the National Council of Provinces.
[Date of commencement of s. 32: 1 September 2000.
has the other powers and functions as prescribed.
The Equality Review Committee may conduct its business and proceedings at its meetings as it deems fit.
Members of the Equality Review Committee referred to in section 32 (a) , (d) and are appointed for a period of five years and may be reappointed upon the expiry of their term of office.
The other terms and conditions of appointment of members of the Equality Review Committee are as prescribed.
The administrative work connected with the performance of the functions of the Equality Review Committee must be performed by officers designated by the Director-General of the Department.
The members of the Equality Review Committee referred to in section 32 (d) and (e) are entitled to the remuneration, allowances and other benefits; and section 32 (a) , (b) , (c) , (f) and (g) are entitled to the allowances, as may be determined by the Minister in consultation with the Minister of Finance. [Sub-s. (6) substituted by s. 33 of Act 66 of 2008.
[Date of commencement of s. 33: 1 September 2000.
the Equality Review Committee must, within one year, investigate and make the necessary recommendations to the Minister.
prevents a court from making a determination that any of these grounds are grounds in terms of paragraph (b) of the definition of 'prohibited grounds' or are included within one or more of the grounds listed in paragraph (a) of the definition of 'prohibited grounds'.
This Act is called the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, and comes into operation on a date fixed by the President by proclamation in the Gazette.
Creating artificial barriers to equal access to employment opportunities by using certain recruitment and selection procedures.
Applying human resource utilisation, development, promotion and retention practices which unfairly discriminate against persons from groups identified by the prohibited grounds.
Failing to respect the principle of equal pay for equal work.
Perpetuating disproportionate income differentials deriving from past unfair discrimination.
Unfairly excluding learners from educational institutions, including learners with special needs.
Unfairly withholding scholarships, bursaries, or any other form of assistance from learners of particular groups identified by the prohibited grounds.
The failure to reasonably and practicably accommodate diversity in education.
Subjecting persons to medical experiments without their informed consent.
Unfairly denying or refusing any person access to health care facilities or failing to make health care facilities accessible to any person.
Refusing to provide emergency medical treatment to persons of particular groups identified by one or more of the prohibited grounds.
Refusing to provide reasonable health services to the elderly.
Arbitrary eviction of persons on one or more of the prohibited grounds.
'Red-lining' on the grounds of race and social status.
Unfair discrimination in the provision of housing bonds, loans or financial assistance on the basis of race, gender or other prohibited grounds.
Failing to reasonably accommodate the special needs of the elderly.
Unfairly refusing on one or more of the prohibited grounds to provide or to make available an insurance policy to any person.
Unfair discrimination in the provision of benefits, facilities and services related to insurance.
Unfairly disadvantaging a person or persons, including unfairly and unreasonably refusing to grant services, to persons solely on the basis of HIV/AIDS status.
Unfairly excluding any person from membership of a retirement fund or from receiving any benefits from the fund on one or more of the prohibited grounds.
Unfairly discriminating against members or beneficiaries of a retirement fund.
Determining in an unfair discriminatory manner who should be invited to become a partner in the partnership in question.
Imposing unfair and discriminatory terms or conditions under which a person is invited or admitted to become a partner.
Imposing conditions that unfairly limit or deny entry into the profession of persons from historically disadvantaged groups.
Unfairly limiting or denying members access to benefits or facilities on the basis of a prohibited ground.
Unfairly refusing or failing to provide the goods or services or to make the facilities available to any person or group of persons on one or more of the prohibited grounds.
Imposing terms, conditions or practices that perpetuate the consequences of past unfair discrimination or exclusion regarding access to financial resources.
Unfairly limiting access to contractual opportunities for supplying goods and services.
Unfairly refusing to consider a person's application for membership of the association or club on any of the prohibited grounds.
Unfairly denying a member access to or limiting a member's access to any benefit provided by the association or club.
Failure to promote diversity in selection of representative teams.
To amend the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, so as to further provide for the training and designation of presiding officers of equality courts for purposes of the Act; to provide for the designation of magistrates' courts as equality courts; to further regulate the training of the clerks of equality courts; and to provide for matters connected therewith.
1 Substitutes section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
and paragraph (b) adds subsections (2) and (3).
3 Substitutes section 31 of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
This Act is called the Promotion of Equality and Prevention of Unfair Discrimination Amendment Act, 2002.