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Frequently Asked Questions (FAQs)

 

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:

  1. Everyone is equal before the law and has the rights to equal protection and benefit of the law.
  2. 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.
  3. 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.
  4. The constitution also requires the state to enact a national legislation to prevent or prohibit unfair discrimination

What are 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:

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

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:

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.