South Africa as a country has adopted a Constitution in 1996 which is the Supreme Law. This means that the constitution has the highest power in the country and no one is above the law. The Constitution obliges the South African Government to protect and promote the rights of every individual.
It stipulates particularly under the Bill of Rights (Chapter 2) that:
The Equality Acts provides for the establishment of Equality Courts to ensure the implementation of the Act. For the purpose of the Equality Act, every High Court is Equality Court for the area of its jurisdiction. In 28 Aug 2009, the Minister of Justice and Constitutional Development, designated all Magistrate's Courts as equality courts in Government Gazette 32516, GoN 859, with equality clerks appointed to assist the public when lodging complaints. Equality courts are established to ensure that reported cases of alleged unfair discrimination are dealt with to ensure justice for all.
Should you wish to bring or report a case to the Equality Court in terms of the Equality Act, the clerk of the equality court must be informed in the prescribed manner about one’s intention to do so. The Equality Court Clerk must then refer the matter to the Presiding officer within a prescribed period of time. The Presiding Officer must decide within a prescribed period based on all the relevant circumstances of the parties involved whether the matter should be heard in the Equality Court or referred to an alternative institution, body, tribunal, court or forum.
Introducing the constitutional right to equality (section 9 of the Constitution, 1996)
South Africa as a country has adopted a Constitution in 1996 which is the Supreme Law. The Constitution obliges the South African Government to protect and promote the rights of every individual. It stipulates particularly under the bill of rights that:
- Everyone is equal before the law and has the rights to equal protection and benefit of the law.
- Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.
- 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 constitution also requires the state to enact a national legislation to prevent or prohibit unfair discrimination
What are Equality Courts
- Equality courts are specialised courts designated to hear matters relating to unfair discrimination, hate speech and harassment.
- The Equality courts were extended to the magistrate’s courts primarily to bring access to justice to the marginalized and vulnerable citizens to assert their rights.
- Proceedings in the High Courts are costly for the majority of our people however, in the equality courts, legal representation is not a prerequisite and there are no cost incurred when lodging a complaint, thus making it easy to access.
- In terms of the Equality Act the South African Human Rights Commission and Commission on Gender Equality are mandated, to assist complainants in taking their matters to the Equality Courts.
Who can institute proceedings in the equality court?
In order to institute proceedings in the equality court it is not a requirement that one must have legal representation. Proceedings in the equality court may be instituted by:
- Any person acting in his/her own interests can take a case to the Equality Court, even if you are not directly involved in what happened. This means a complaint to the court can be made against someone or an organisation you believe have failed to respect the rights of another person.
- Any person acting on behalf of another person who cannot act in his/her own name.
- Any person acting as a member of, or in the interests of a group or class of persons.
- Any person acting in the interest of the public.
- Any association or organization or body acting in the interests of its members; or The South African Human Rights Commission or the Commission on Gender.
The Act places specific duties on the South African Human Rights Commission, the Commission on Gender Equality and other bodies that have been set up in terms of the Constitution. They are required to assist complainants in bringing complaint to the equality courts and to conduct investigations into cases and advise complainants.
What type of cases are heard at the Equality Courts
- The Equality Courts deal with complaints that are about unfair discrimination, hate speech or harassment.
- If you believe you or someone was treated badly because of hatred or bias based on one of the following: race, gender, pregnancy, marital status, ethnic or social origin, colour of your skin, sexual orientation, age, disability, religion conscience & belief, culture, language, birth, nationality, HIV status or perceived status, economic or social status, family responsibility and status you can report your case at the Equality courts.
Where can I find these Courts?
In terms of the Act all High Courts are equality courts for their area of jurisdiction. The Department of Justice and Constitutional Development has designated all magistrates’ courts to serve as equality courts in all the 9 provinces.
Does one have to pay to institute proceedings at the equality court?
The equality courts are free of charge in other words the complainant does not have to pay any court fees.
If a person wants to report a case at the Equality courts the complainant will have to:
- Visits the Equality court which is found in the Magistrates court.
- Speak to the Equality Court clerk who will give the complainants necessary forms to fill.
- Complete the forms and if unsure ask the Equality court clerk for help.
- Complainant must have all the necessary information needed for the case.
- Give the Equality clerk back the forms and he or she will advise the complainant about the next step.
What is the meaning of unfair discrimination?
Unfair discrimination is when you are treated differently as compared to other categories of people and that your dignity as a human being is impaired by such treatment.
Discrimination is regarded as unfair when it imposes burdens or withholds benefits or opportunities from any person on one of the prohibited grounds listed in the Act, namely: race, gender, sex, pregnancy, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth etc.
It is important to note that the Act does not prohibit discrimination but unfair discrimination.There are certain circumstances where discrimination can be regarded as fair e.g. measures designed to advance persons disadvantaged by the previous system of racial discrimination.
What is meant by hate speech?
Hate speech is the publishing, propagating or communication of words that are based on one or more of the prohibited grounds. These words must be reasonably construed to demonstrate a clear intention to hurtful, harmful or to incite harm and to promote or propagate hatred e.g. by calling people by derogatory (insulting or offensive) names or words.
What is meant by harassment?
The Act defines harassment as 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 :
(a) sex, gender or sexual orientation;
(b) a person’s membership or presumed membership of a group indentified by one or more of the prohibited grounds or a characteristic associate with such a group.
What can victims of unfair discrimination, hate speech or harassment do?
If you believe that you have been unfairly discriminated against and you are a victim of hate speech or harassment then you can lodge your complaint at any of the designated equality courts.
Mr Nthapeleleng Graphney Seleka, Senior State Law Adviser,Tel: +27 (0) 12 357 8813, E-mail: NSeleka@justice.gov.za
SA Human Rights Commission: Website: www.sahrc.org.za
Commission for Gender Equality: Website: www.cge.org.za
Independent Electoral Commission: Website: www.elections.org.za
Public Protector: Website: www.pprotect.org
Pan South African Language Board: Website: pansalb.org
National Youth Commission: Website: www.nyc.gov.za
Commission for the Promotion and Protection of Rights of Cultural Religious and Linguistic Communities: Website: www.crlcommission.org.za