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. 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 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.
No person my unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3) National legislation must be enacted to prevent or prohibit unfair discrimination.
What to do if you are being unfairly discriminated on one or more grounds mention in the introduction
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. The Minister of Justice and Constitutional Development has designated a large number of equality courts throughout the country, 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.
Institution of proceedings in the Equality Court (section 20)
Any person acting in their own interest
Any person acting on behalf of another who cannot act in their own interest
Any person acting as a member of, or in the interest of a group, or class of persons
Any association acting in the interests of its members
The South African Human Rights Commission or the Commission for Gender Equality
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.