As South Africans, our rights are entrenched and protected by the South African Constitution and its Bill of Rights. In turn, laws give effect to the various rights. The right to equality, as one of these rights, is protected by law in the Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000 and the Employment Equity Act, No. 55 of 1998. The two acts work in synergy.
It should be noted, however, that the Promotion of Equality and Prevention of Unfair Discrimination Act, also referred to as the Equality Act, does not apply to any person to whom the Employment Equity Act applies, or to the same extent. The Employment Equity Act applies to all employers and employees, as defined by the Act, except the members of the National Defence Force, the National Intelligence Agency and the South African Secret Service. The Equality Act provides for those excluded from the Employment Equity (EE) Act, thereby including the unemployed and members of the aforementioned governmental agencies. The Equality Act can also be used by all the people of South Africa, including employers and employees, for disputes not provided for in the EE Act, such as hate speech.
eliminate unfair discrimination; and prevent and prohibit hate speech.
compliance with international law obligations, including treaty obligations; and measures to educate the public and raise public awareness on equality.
The Equality Act endeavours to facilitate the transition to a democratic society that is united in its diversity and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom. It places a positive duty and responsibility on the state, non-governmental organisations, community-based organisations, traditional institutions and all persons to promote equality.
eliminating any form of unfair discrimination and making sure inequality in any law, policy or practice, for which they are responsible, is not continued; and preparing and implementing equality plans for submission to the South African Human Rights Commission.
Equality, in terms of the Act, includes the full and equal enjoyment of rights and freedoms as contemplated in the Constitution, in all respects.
Persons who are excluded from the Employment Equity (EE) Act in respect of labour matters will be able to use the Equality Act in disputes regarding unfair discrimination, harassment. Furthermore, anyone, including all employers and employees, will be able to use the Act for disputes not covered by the Employment Equity Act, such as hate speech.
If any conflict arises between the Equality Act and another law, other than the Constitution, the former will prevail over the provisions of any other law. The State and all persons are bound to the Equality Act, which clearly states that neither the State nor any person may unfairly discriminate against any person.
from any person on one or more of the prohibited grounds.
The Equality Act prohibits unfair discrimination on certain grounds, which can either be listed or unlisted. The prohibited listed grounds are race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. Hate speech, harassment and the publication and dissemination of information, which unfairly discriminate, is also prohibited by the Act.
Unlisted grounds can include HIV/AIDS status, socio-economic status, nationality, family responsibility and family status.
adversely affects the equal enjoyment of rights and freedoms.
the denial of access to opportunities, including access to services; or failing to take steps to reasonably accommodate the needs of such persons.
discrimination on the grounds of pregnancy; or inequality of access to opportunities by women as a result of the sexual division of labour.
a failure 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 the disabled.
No person may publish, propagate, advocate or communicate words - based on one or more of the prohibited grounds against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or incite harm or promote or propagate hatred.
The Equality Court has the authority to order the referral of cases involving hate speech to the Director of Public Prosecutions, who will consider the institution of criminal procedures.
Section 11 of the Act states that no person may subject any person to harassment.
unwanted conduct which is persistent or serious, and demeans, humiliates or creates a hostile or intimidating environment, or is calculated to induce submission by actual or threatened adverse consequences, and which is related to sex, gender or sexual orientation, or a person's membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such a group.
Section 12 of the Equality Act provides that no person may disseminate or broadcast any information, or publish or display any advertisement or notice that could reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person. This does not, however, apply to valid engagement in artistic creativity, academic, or scientific inquiry, fair or accurate reporting in the public interest, or publication of any information, advertisement or notice, in accordance with section 16 of the Constitution of the Republic of South Africa, 1996, as amended, that deals with freedom of speech.
The Schedule to the Equality Act contains a list of unfair practices that is intended to illustrate and emphasise some practices that may be unfair, are widespread and need to be addressed. The State must, where appropriate, ensure that legislative and other measures be taken to address these practices. The list is not conclusive and needs to be considered and revised by the Equality Review Committee on a continuous basis.
For each practice on the list, specific conditions and principles must exist, as prescribed by the Act.
provision of goods, services and facilities; and clubs, sport and associations.
the existence of systemic discrimination and inequalities brought about by colonialism, the apartheid system and patriarchy; and the need to take measures at all levels to eliminate such discrimination and inequalities.
the discrimination did not take place as alleged; or the conduct is not based on one or more of the prohibited grounds.
If the discrimination took place on a listed ground, then it is presumed to be unfair, unless the respondent proves that the discrimination is fair. If the discrimination is based on an unlisted ground, it is considered unfair if one or more of the conditions are established, unless the respondent proves that the discrimination is fair. For instance, it is not considered unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination. This, however, does not apply in cases of hate speech and harassment.
Every High Court serves as an Equality Court for the area of its jurisdiction and the Magistrates Courts are designated by the Minister of Justice and Constitutional Development, after consultations with the and the needs and wishes of the parties Heads of Administrative Regions, as Equality involved. Courts.
With a referral, the presiding officer Administrative Regions designate, in writing, must make an order in the prescribed judges and magistrates who have attended manner, directing the clerk of the equalithe training as Presiding Officers of the ty court to transfer the matter to the Equality Courts in the High Courts and alternative forum as mentioned in the Magistrates Courts respectively.
order. The presiding officer can attach any comments deemed necessary, to the Certain steps have to be taken if a person order.
notify the parties accordingly in the pre scribed manner.
The alternative forum must deal with the the person's intention to do so.
matter as speedily as possible in terms of its functions and powers.
If the matter is not dealt with in a reaequality court, within the prescribed peri sonable period or is not resolved to the od of time.
The presiding officer must decide, within the matter can be referred back to the the prescribed period, if the matter equality court for adjudication, if so should be heard in the equality court or requested by one or more of the parties referred to an alternative institution, within a set period of time.
body, tribunal, court or forum.
If the matter is referred, the presiding he/she must refer the matter to the clerk stances into account, such as the per of the equality court to assign a date of sonal circumstances of the complainant hearing for the matter.
The court may, in any proceedings in terms of or under the Act, at the request of either party or of its own accord, and if the presiding officer considers it to be in the interest of justice, appoint two persons as assessors. These assessors are then considered members of the court.
conduct investigations into cases and make recommendations; and request regular reports from the Department of Justice regarding the number of cases, their nature and outcome.
Any person who is dissatisfied by an order made by the equality court may appeal against such order in the required manner and time to either the High Court or the Supreme Court of Appeal, as the case may be. An appeal can also be made directly to the Constitutional Court.
Whenever conflicting decisions are made by presiding officers in respect of matters relating to unlisted prohibited grounds, the Minister may refer the specific case to the Supreme Court of Appeal or the Constitutional Court. If a presiding officer in a Magistrate's Court rules on a ground of discrimination not listed by the Act, the decision must be submitted to the relevant High Court for review, once the proceedings have been finalised, in the prescribed manner. After consideration, the High Court must make a decision on the matter as it seems fit, within the scope of the Act.
It is the duty of the equality court to determine whether unfair discrimination, hate speech or harassment, as the case may be, has taken place as alleged.
a directive requiring the respondent to priate order in view of the circumstances.
restraining unfair discriminatory prac party to the proceedings, or an order to taken to stop the unfair discrimination, comply with any provisions of the Act.
said court in a civil action.
speech and harassment.
complying with any provisions of the Act.
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