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Marius Scheepers & Company Attorneys |
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Promotion of Equality & Prevention of
Unfair Discrimination act, 4 of 2000 (updated 01/03) [ASSENTED TO 2 FEBRUARY
2000] [DATE OF COMMENCEMENT:
TO BE PROCLAIMED] (Unless otherwise indicated) (English text signed by
the President) ACT
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. Preamble
The consolidation of
democracy in our country requires the eradication of social and economic
inequalities, especially those that are systemic in nature, which were
generated in our history by colonialism, apartheid and patriarchy, and which
brought pain and suffering to the great majority of our people; Although significant
progress has been made in restructuring and transforming our society and its
institutions, systemic inequalities and unfair discrimination remain deeply
embedded in social structures, practices and attitudes, undermining the
aspirations of our constitutional democracy; The basis for
progressively redressing these conditions lies in the Constitution which,
amongst others, upholds the values of human dignity, equality, freedom and
social justice in a united, non-racial and non-sexist society where all may
flourish; South Africa also has
international obligations under binding treaties and customary international
law in the field of human rights which promote equality and prohibit unfair
discrimination. Among these obligations are those specified in the Convention
on the Elimination of All Forms of Discrimination Against Women and the
Convention on the Elimination of All Forms of Racial Discrimination; Section 9 of the
Constitution provides for the enactment of national legislation to prevent or
prohibit unfair discrimination and to promote the achievement of equality; This implies the
advancement, by special legal and other measures, of historically
disadvantaged individuals, communities and social groups who were
dispossessed of their land and resources, deprived of their human dignity and
who continue to endure the consequences; This Act endeavours to
facilitate the transition to a democratic society, united in its diversity,
marked by human relations that are caring and compassionate, and guided by
the principles of equality, fairness, equity, social progress, justice, human
dignity and freedom, BE IT THEREFORE ENACTED
by the Parliament of the Republic of South Africa, as follows:- TABLE
OF CONTENTS
CHAPTER
1
DEFINITIONS, OBJECTS,
INTERPRETATION, GUIDING PRINCIPLES AND APPLICATION OF ACT 1. Definitions 2. Objects of Act 3. Interpretation of Act 4. Guiding principles 5. Application of Act CHAPTER
2
PREVENTION, PROHIBITION
AND ELIMINATION OF UNFAIR DISCRIMINATION, HATE SPEECH AND HARASSMENT 6. Prevention and general prohibition of unfair discrimination 7. Prohibition of unfair discrimination on ground of race 8. Prohibition of unfair discrimination on ground of gender 9. Prohibition of unfair discrimination on ground of disability 10. Prohibition of hate speech 11. Prohibition of harassment 12. Prohibition of dissemination and publication of unfair
discriminatory information that unfairly discriminates CHAPTER
3
BURDEN OF PROOF AND DETERMINATION OF FAIRNESS OR
UNFAIRNESS
13. Burden of proof 14. Determination of fairness or unfairness 15. Hate speech and harassment not subject to determination of
fairness CHAPTER
4
EQUALITY COURTS
16. Equality courts and presiding officers 17. Clerks of equality courts 18. Witnesses 19. Rules and court proceedings 20. Institution of proceedings in terms of or under Act 21. Powers and functions of equality court 22. Assessors 23. Appeals and reviews CHAPTER
5
PROMOTION OF EQUALITY
24. General responsibility to promote equality 25. Duty of State to promote equality 26. Responsibility of persons operating in public domain to promote
equality 27. Social commitment by all persons to promote equality 28. Special measures to promote equality with regard to race, gender \
and disability 29. Illustrative list of unfair practices in certain sectors CHAPTER
6
GENERAL PROVISIONS AND IMPLEMENTATION OF ACT
30. Regulations 31. Implementation of Act CHAPTER
7
REVIEW OF ACT, SHORT TITLE AND COMMENCEMENT
32. Establishment of Equality Review Committee 33. Powers, functions and term of office of Equality Review Committee 34. Directive principle on HIV/AIDS, nationality, socio-economic
status and family responsibility and status 35. Short title and commencement CHAPTER
1
DEFINITIONS, OBJECTS,
INTERPRETATION, GUIDING PRINCIPLES AND APPLICATION OF ACT (ss 1-5) 1 Definitions (1) In this Act, unless the context indicates otherwise- ‘age’ includes the
conditions of disadvantage and vulnerability suffered by persons on the basis
of their age, especially advanced age; ‘clerk of the equality
court’ means a clerk of an equality court appointed or designated in terms of
section 17, read with section 31, and includes any reference to ‘a clerk’; ‘Commission for Gender
Equality’ means the Commission for Gender Equality referred to in section 187
of the Constitution; ‘complainant’ means any
person who alleges any contravention of this Act and who institutes
proceedings in terms of the Act; ‘Constitution’ means the
Constitution of the Republic of South Africa, 1996 (Act 108 of 1996); ‘constitutional
institution’ means any of the relevant institutions supporting constitutional
democracy referred to in Chapter 9 of the Constitution and includes the Pan
South African Language Board; ‘Department’ means the Department of Justice and Constitutional
Development; ‘discrimination’ means
any act or omission, including a policy, law, rule, practice, condition or
situation which directly or indirectly- (a) imposes burdens, obligations or disadvantage on; or (b) withholds benefits, opportunities or advantages from, any person on one or
more of the prohibited grounds; ‘equality’ includes the
full and equal enjoyment of rights and freedoms as contemplated in the
Constitution and includes de jure and de facto equality and also equality in
terms of outcomes; ‘equality court’ means a
court contemplated in section 16, read with section 31, and includes any
reference to ‘court’; ‘family responsibility’
means responsibility in relation to a complainant’s spouse, partner,
dependant, child or other members of his or her family in respect of whom the
member is liable for care and support; ‘family status’ includes
membership in a family and the social, cultural and legal rights and
expectations associated with such status; ‘harassment’ means
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, or (b) 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 group; ‘HIV/AIDS status’
includes actual or perceived presence in a person’s body of the Human
Immunodeficiency Virus (HIV) or symptoms of Acquired Immune Deficiency
Syndrome (AIDS), as well as adverse assumptions based on this status; ‘marital status’ includes
the status or condition of being single, married, divorced, widowed or in a
relationship, whether with a person of the same or the opposite sex,
involving a commitment to reciprocal support in a relationship; ‘Minister’ means the Minister for Justice and Constitutional
Development; ‘nationality’ means
ethnic or national origin and includes practices associated with xenophobia
and other adverse assumptions of a discriminatory nature but does not include
rights and obligations normally associated with citizenship; ‘person’ includes a
juristic person, a non-juristic entity, a group or a category of persons; ‘pregnancy’ includes any
condition related to pregnancy, intended pregnancy, potential pregnancy or
termination of pregnancy; ‘prescribed’ means prescribed by regulation in terms of this Act; ‘presiding officer’
means a presiding officer of an equality court contemplated in section 16,
read with section 31; ‘prohibited grounds’ are- (a) race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience,
belief, culture, language and birth; or (b) any other ground where discrimination based on that other ground- (i) causes or perpetuates systemic disadvantage; (ii) undermines human dignity; or (iii) adversely affects the equal enjoyment of a
person’s rights and freedoms in a serious manner that is comparable to
discrimination on a ground in paragraph (a); ‘regulation’ means a regulation in terms of this Act; ‘respondent’ means any
person against whom proceedings are instituted in terms of this Act; ‘sector’ means any
sector referred to in section 29, and includes the sectors set out in the
Schedule; ‘socio-economic status’
includes a social or economic condition or perceived condition of a person
who is disadvantaged by poverty, low employment status or lack of or
low-level educational qualifications; ‘South African Human
Rights Commission’ means the South African Human Rights Commission referred
to in section 184 of the Constitution; ‘the State’
includes- (a) any department of State or administration in the national,
provincial or local sphere of government; (b) any other functionary or institution- (i) exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in
terms of any legislation or under customary law or tradition; ‘this Act’ includes
any regulation made in terms of this Act. [Date of commencement of
s. 1: 1 September 2000.] 2 Objects of Act The objects of this
Act are- (a) to enact legislation required by section 9 of the Constitution; (b) to give effect to the letter and spirit of the Constitution, in
particular- (i) the equal enjoyment of all rights and freedoms by every person (ii) the promotion of equality; (iii) the values of non-racialism and non-sexism
contained in section 1 of the Constitution; (iv) the prevention of unfair discrimination and protection of human
dignity as contemplated in sections 9 and 10 of the Constitution; (v) the prohibition of advocacy of hatred, based on race, ethnicity,
gender or religion, that constitutes incitement to cause harm as contemplated
in section 16 (2) © of the Constitution and section 12 of this Act; (c) to provide for measures to facilitate the eradication of unfair
discrimination, hate speech and harassment, particularly on the grounds of
race, gender and disability; (d) to provide for procedures for the determination of circumstances
under which discrimination is unfair; (e) to provide for measures to educate the public and raise public
awareness on the importance of promoting equality and overcoming unfair
discrimination, hate speech and harassment; (f) to provide remedies for victims of unfair discrimination, hate
speech and harassment and persons whose right to equality has been infringed; (g) to set out measures to advance persons disadvantaged by unfair
discrimination; (h) 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. [Date of commencement of
s. 2: 1 September 2000.] 3 Interpretation of Act (1) Any person applying this Act must interpret its provisions to give
effect to- (a) the Constitution, the provisions of which include the promotion of
equality through legislative and other measures designed to protect or
advance persons disadvantaged by past and present unfair discrimination; (b) the Preamble, the objects and guiding principles of this Act,
thereby fulfilling the spirit, purport and objects of this Act. (2) Any person interpreting this Act may be mindful of- (a) any relevant law or code of practice in terms of a law; (b) international law, particularly the international agreements
referred to in section 2 and customary international law; (c) comparable foreign law. (3) Any person applying or interpreting this Act must take into account
the context of the dispute and the purpose of this Act. [Date of commencement of
s. 3: 1 September 2000.] 4 Guiding principles (1) In the adjudication of any proceedings which are instituted in
terms of or under this Act, the following principles should apply: (a) The expeditious and informal processing of cases, which facilitate
participation by the parties to the proceedings; (b) access to justice to all persons in relevant judicial and other
dispute resolution forums; (c) the use of rules of procedure in terms of section 19 and criteria
to facilitate participation; (d) the use of corrective or restorative measures in conjunction with
measures of a deterrent nature; (e) the development of special skills and capacity for persons
applying this Act in order to ensure effective implementation and
administration thereof. (2) In the application of this Act the following should be recognised
and taken into account: (a) 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 (b) the need to take measures at all levels to eliminate such
discrimination and inequalities. [Date of commencement of
sub-s. (2): 1 September 2000.] 5 Application of Act (1) This Act binds the State and all persons. (2) 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. (3) This Act does not apply to any person to whom and to the extent to
which the Employment Equity Act, 1998 (Act 55 of 1998), applies. [Date of commencement of
s. 5: 1 September 2000.] CHAPTER
2
PREVENTION, PROHIBITION
AND ELIMINATION OF UNFAIR DISCRIMINATION, HATE SPEECH AND HARASSMENT (ss
6-12) 6 Prevention and general prohibition of unfair discrimination Neither the State
nor any person may unfairly discriminate against any person. [Date of commencement of
s. 6: 1 September 2000.] 7 Prohibition of unfair discrimination on ground of race Subject to section
6, no person may unfairly discriminate against any person on the ground of
race, including- (a) the dissemination of any propaganda or idea, which propounds the
racial superiority or inferiority of any person, including incitement to, or
participation in, any form of racial violence; (b) the engagement in any activity which is intended to promote, or
has the effect of promoting, exclusivity, based on race; (c) the exclusion of persons of a particular race group under any
rule or practice that appears to be legitimate but which is actually aimed at
maintaining exclusive control by a particular race group; (d) the provision or continued provision of inferior services to any
racial group, compared to those of another racial group; (e) 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. 8 Prohibition of unfair discrimination on ground of gender Subject to section
6, no person may unfairly discriminate against any person on the ground of
gender, including- (a) gender-based violence; (b) female genital mutilation; (c) the system of preventing women from inheriting family property; (d) any practice, including traditional, customary or religious
practice, which impairs the dignity of women and undermines equality between
women and men, including the undermining of the dignity and well-being of the
girl child; (e) any policy or conduct that unfairly limits access of women to land
rights, finance, and other resources; (f) discrimination on the ground of pregnancy; (g) limiting women’s access to social services or benefits, such as
health, education and social security; (h) 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; (i) systemic inequality of access to opportunities by women as a
result of the sexual division of labour. 9 Prohibition of unfair discrimination on ground of disability Subject to section
6, no person may unfairly discriminate against any person on the ground of
disability, including (a) denying or removing from any person who has a disability, any
supporting or enabling facility necessary for their functioning in society; (b) contravening the code of practice or regulations of the South
African Bureau of Standards that govern environmental accessibility; (c) 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. 10 Prohibition of hate speech (1) Subject to the proviso in section 12, 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- (a) be hurtful; (b) be harmful or to incite harm; (c) promote or propagate hatred. (2) 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. 11 Prohibition of harassment No person may
subject any person to harassment. 12 Prohibition of dissemination and publication of information that
unfairly discriminates No person may- (a) disseminate or broadcast any information; (b) 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. CHAPTER
3
BURDEN OF PROOF AND
DETERMINATION OF FAIRNESS OR UNFAIRNESS (ss 13-15) 13 Burden of proof (1) If the complainant makes out a prima facie case of discrimination- (a) the respondent must prove, on the facts before the court, that the
discrimination did not take place as alleged; or (b) the respondent must prove that the conduct is not based on one or
more of the prohibited grounds. (2) If the discrimination did take place- (a) on a ground in paragraph (a) of the definition of ‘prohibited
grounds’, then it is unfair, unless the respondent proves that the
discrimination is fair; (b) on a ground in paragraph (b) of the definition of ‘prohibited
grounds’, then it is unfair- (i) if one or more of the conditions set out in paragraph (b) of the
definition of ‘prohibited grounds’ is established; and (ii) unless the respondent proves that the discrimination is fair. 14 Determination of fairness or unfairness (1) 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. (2) In determining whether the respondent has proved that the
discrimination is fair, the following must be taken into account: (a) The context; (b) the factors referred to in subsection (3); (c) whether the discrimination reasonably and justifiably
differentiates between persons according to objectively determinable
criteria, intrinsic to the activity concerned. (3) The factors referred to in subsection (2) (b) include the
following: (a) Whether the discrimination impairs or is likely to impair human
dignity; (b) the impact or likely impact of the discrimination on the
complainant; (c) the position of the complainant in society and whether he or she
suffers from patterns of disadvantage or belongs to a group that suffers from
such patterns of disadvantage; (d) the nature and extent of the discrimination; (e) whether the discrimination is systemic in nature; (f) whether the discrimination has a legitimate purpose; (g) whether and to what extent the discrimination achieves its
purpose; (h) whether there are less restrictive and less disadvantageous means
to achieve the purpose; (i) whether and to what extent the respondent has taken such steps
as being reasonable in the circumstances to- (i) address the disadvantage which arises from or is related to one
or more of the prohibited grounds; or (ii) accommodate diversity. 15 Hate speech and harassment not subject to determination of
fairness In cases of hate
speech and harassment section 14 does not apply. CHAPTER
4
EQUALITY COURTS (ss
16-23) 16 Equality courts and presiding officers (1) For the purposes of this Act, but subject to section 31- (a) every magistrate’s court and every High Court is an equality court
for the area of its jurisdiction; and (b) any magistrate, additional magistrate and judge may be designated
by the Minister, after consultation with the Judge President or the head of
an administrative region defined in section 1 of the Magistrates’ Courts Act,
1944 (Act 32 of 1944), concerned, as the case may be, as a presiding officer
of the equality court of the area in respect of which he or she is
magistrate, additional magistrate or judge, as the case may be. (2) A presiding officer must perform the functions and exercise the
powers assigned to or conferred on him or her under this Act or any other
law. 17 Clerks of equality courts (1) (a) Subject to 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. (b)
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 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. 18 Witnesses 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. 19 Rules and court proceedings (1) Except as is otherwise provided in this Act, the provisions of the
Magistrates’ Courts Act, 1944 (Act 32 of 1944), and the Supreme Court Act,
1959 (Act 59 of 1959), and of the rules made thereunder as well as the rules
made under the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985),
apply with the necessary changes required by the context to equality courts,
in so far as these provisions relate to- (a) the appointment and functions of officers; (b) the issue and service of process; (c) the execution of judgments or orders; (d) the imposition of penalties for non-compliance with orders of
court, for obstruction of execution of judgments or orders, and for contempt
of court; (e) 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. (2) 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. (3) (a) 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. (b)
The operation of paragraph (a), relating to the confirmation of an order, is
suspended until any appeal contemplated in section 23 is finalised. 20 Institution of proceedings in terms of or under Act (1) Proceedings under this Act may be instituted by- (a) any person acting in their own interest; (b) any person acting on behalf of another person who cannot act in
their own name; (c) any person acting as a member of, or in the interests of, a group
or class of persons; (d) any person acting in the public interest; (e) any association acting in the interests of its members; (f) the South African Human Rights Commission, or the Commission for
Gender Equality. (2) 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. (3) (a) 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. (b) 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. (4) The presiding officer, before making a decision to refer a matter
as contemplated in subsection (3), must take all relevant circumstances into
account, including the following: (a) The personal circumstances of the parties and particularly the
complainant; (b) the physical accessibility of any contemplated alternative forum; (c) the needs and wishes of the parties and particularly the
complainant; (d) the nature of the intended proceedings and whether the outcome of
the proceedings could facilitate the development of judicial precedent and
jurisprudence in this area of the law; (e) the views of the appropriate functionary at any contemplated
alternative forum. (5) (a) 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. (b) 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. (6) 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. (7) 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. (8) If the alternative forum referred to in subsection (7)- (a) fails to deal with the matter within a reasonable period in the
circumstances; or (b) 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. (9) 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. 21 Powers and functions of equality court (1) 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. (2) After holding an inquiry, the court may make an appropriate order
in the circumstances, including- (a) an interim order; (b) a declaratory order; (c) an order making a settlement between the parties to the
proceedings an order of court; (d) an order for the payment of any damages in respect of any proven
financial loss, including future loss, or in respect of impairment of
dignity, pain and suffering or emotional and psychological suffering, as a
result of the unfair discrimination, hate speech or harassment in question; (e) after hearing the views of the parties or, in the absence of the
respondent, the views of the complainant in the matter, an order for the
payment of damages in the form of an award to an appropriate body or
organisation; (f) an order restraining unfair discriminatory practices or
directing that specific steps be taken to stop the unfair discrimination,
hate speech or harassment; (g) an order to make specific opportunities and privileges unfairly
denied in the circumstances, available to the complainant in question; (h) an order for the implementation of special measures to address
the unfair discrimination, hate speech or harassment in question; (i) an order directing the reasonable accommodation of a group or
class of persons by the respondent; (j) an order that an unconditional apology be made; (k) an order requiring the respondent to undergo an audit of specific
policies or practices as determined by the court; (l) an appropriate order of a deterrent nature, including the
recommendation to the appropriate authority, to suspend or revoke the licence
of a person; (m) a directive requiring the respondent to make regular progress
reports to the court or to the relevant constitutional institution regarding
the implementation of the court’s order; (n) an order directing the clerk of the equality court to submit the
matter to the Director of Public Prosecutions having jurisdiction for the
possible institution of criminal proceedings in terms of the common law or
relevant legislation; (o) an appropriate order of costs against any party to the
proceedings; (p) an order to comply with any provision of the Act. (3) 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. (4) The court may, during or after an inquiry, refer- (a) its concerns in any proceedings before it, particularly in the
case of persistent contravention or failure to comply with a provision of
this Act or in the case of systemic unfair discrimination, hate speech or
harassment to any relevant constitutional institution for further
investigation; (b) any proceedings before it to any relevant constitutional
institution or appropriate body for mediation, conciliation or negotiation. (5) 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. 22 Assessors (1) 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. (2) Assessors appointed in terms of subsection (1) are, subject to
subsection (3), deemed to be members of the court for purposes of this Act. (3) 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. (4) 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. (5) (a) If an assessor dies, or in the opinion of the presiding
officer becomes unable to act as an assessor, or is for any reason absent, or
has been ordered to recuse himself or herself or has recused himself or
herself, at any stage before the completion of the proceedings concerned, the
presiding officer may, in the interests of justice and after due
consideration of the arguments put forward by the parties to the proceedings
or their legal representatives- (i) direct that the proceedings continue before the remaining member
or members of the court; (ii) direct that the proceedings start afresh; or (iii) if an assessor is absent, postpone the
proceedings in order to obtain the assessor’s presence. (b)
The presiding officer must give reasons for any direction referred to in
subparagraph (i) or (ii). (6) (a) A presiding officer who is assisted by assessors at an enquiry
where a party to the proceedings has an order made against him or her must
record the reasons for his or her opinion- (i) if that party to the proceedings is not assisted by a legal
representative; and (ii) if the presiding officer is of the opinion that the assessors
concerned have clearly made an incorrect finding. (b)
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. (c)
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. 23 Appeals and reviews (1) 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. (2) 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. (3) 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. (4) 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. (5) (a) 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. (b)
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. (c) The operation of subsection (5) (a) is suspended until any appeal
contemplated in this section is finalised. CHAPTER
5
PROMOTION OF EQUALITY
(ss 24-29) 24 General responsibility to promote equality (1) The State has a duty and responsibility to promote and achieve
equality. (2) All persons have a duty and responsibility to promote equality. 25 Duty of State to promote equality (1) The State must, where necessary with the assistance of the
relevant constitutional institutions- (a) develop awareness of fundamental rights in order to promote a
climate of understanding, mutual respect and equality; (b) take measures to develop and implement programmes in order to
promote equality; and (c) where necessary or appropriate- (i) develop action plans to address any unfair discrimination, hate
speech or harassment; (ii) enact further legislation that seeks to promote equality and to
establish a legislative framework in line with the objectives of this Act; (iii) develop codes of practice as contemplated in
this Act in order to promote equality, and develop guidelines, including
codes in respect of reasonable accommodation; (iv) provide assistance, advice and training on issues of equality; (v) develop appropriate internal mechanisms to deal with complaints
of unfair discrimination, hate speech or harassment; (vi) conduct information campaigns to popularise this Act. (2) 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. (3) In addition to the powers and functions of the constitutional
institutions these institutions are also competent to- (a) assist complainants in instituting proceedings in an equality
court, particularly complainants who are disadvantaged; (b) conduct investigations into cases and make recommendations as
directed by the court regarding persistent contraventions of this Act or
cases of unfair discrimination, hate speech or harassment referred to them by
an equality court; (c) request from the Department, in the prescribed manner, regular
reports regarding the number of cases and the nature and outcome thereof. (4) All Ministers must implement measures within the available
resources which are aimed at the achievement of equality in their areas of
responsibility by- (a) eliminating any form of unfair discrimination or the perpetuation
of inequality in any law, policy or practice for which those Ministers are
responsible; and (b) 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. (5) (a) 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. (b)
The South African Human Rights Commission must consult with the Commission on
Gender Equality when dealing with the plans contemplated in paragraph (a). 26 Responsibility of persons operating in public domain to promote
equality It is the
responsibility of any person directly or indirectly contracting with the
State or exercising public power to promote equality by- (a) adopting appropriate equality plans, codes, regulatory mechanisms
and other appropriate measures for the effective promotion of equality in the
spheres of their operation; (b) enforcing and monitoring the enforcement of the equality plans,
codes and regulatory mechanisms developed by them; and (c) making regular reports to the relevant monitoring authorities or
institutions as may be provided in regulations, where appropriate. 27 Social commitment by all persons to promote equality (1) Pursuant to section 26, all persons, non-governmental
organisations, community-based organisations and traditional institutions
must promote equality in their relationships with other bodies and in their
public activities. (2) 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. 28 Special measures to promote equality with regard to race, gender
and disability (1) 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. (2) 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. (3) (a) The State, institutions performing public functions and all
persons have a duty and responsibility, in particular to- (i) eliminate discrimination on the grounds of race, gender and
disability; (ii) promote equality in respect of race, gender and disability. (b)
In carrying out the duties and responsibilities referred to in paragraph (a),
the State, institutions performing public functions and, where appropriate
and relevant, juristic and non-juristic entities, must- (i) audit
laws, policies and practices with a view to eliminating all discriminatory
aspects thereof; (ii) enact appropriate laws, develop
progressive policies and initiate codes of practice in order to eliminate
discrimination on the grounds of race, gender and disability; (iii) adopt viable action plans for the
promotion and achievement of equality in respect of race, gender and
disability, and (iv) give priority to the elimination of
unfair discrimination and the promotion of equality in respect of race,
gender and disability. 29 Illustrative list of unfair practices in certain sectors (1) 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.] (2) The State must, where appropriate, ensure that legislative and
other measures are taken to address the practices referred to in subsection
(1). (3) 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.] (4) The Schedule is also intended to provide an illustrative list of
practices that are or may be unfair discrimination in order to- (a) address and eliminate these practices; and (b) assist persons in interpreting their experiences and practices. [Date of commencement of
sub-s. (4): 1 September 2000.] (5) 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.] CHAPTER
6
GENERAL PROVISIONS AND
IMPLEMENTATION OF ACT (ss 30-31) 30 Regulations (1) The Minister may, and where required in the circumstances, must,
make regulations relating to- (a) the procedures to be followed at or in connection with an inquiry
in terms of or under this Act, including the manner in which proceedings must
be instituted, the referral of matters contemplated in section 20 and the
hearing of urgent matters; (b) the form of any application, authority, certificate, consent,
notice, order, process, register or subpoena to be made, given, issued or
kept in terms of or under this Act, and any other form required in carrying
out the provisions of this Act; (c) the granting of legal aid at State expense in appropriate cases
in consultation with the Legal Aid Board; (d) the appearance of persons on behalf of the parties to the
proceedings in court, which may include suitable persons other than attorneys
or advocates; (e) the appointment, powers, duties and functions of a clerk of an
equality court; (f) the attendance of witnesses in cases arising from the
application of this Act and the payment of witness fees; (g) the confirmation of court orders emanating from magistrates’
courts sitting as equality courts as contemplated in section 19 (3) (a); (h) the procedure to be followed at, and criteria to be applied for,
the designation and registration of persons from the community who are
suitable and available to serve as assessors in each equality court; (i) the method to be followed in respect of the allocation of
assessors in respect of proceedings in terms of or under this Act; (j) the factors to be taken into account by an equality court when
deciding whether to summon assessors in the administration of justice; (k) the taking of the oath or making an affirmation by assessors; (l) the role of presiding officers and the procedure to be followed
in cases where an equality court is assisted by assessors; (m) the recusal of assessors and the procedure to be followed in
the case of such recusal; (n) a code of conduct for such assessors, and mechanisms for the
enforcement of the code of conduct, including the liability of an assessor if
any provision of the code of conduct is contravened by him or her; (o) the establishment of a mechanism to deal with any grievance or
complaint by or against an assessor; (p) the training of assessors; (q) the payment of allowances to assessors; (r) any other matter which is necessary to prescribe in order to
regulate the service of assessors in the equality courts; (s) the procedures to be followed at or in connection with appeals or
reviews as contemplated in section 23; (t) the reports contemplated in sections 25 (3) © and 26 © and the
equality plans contemplated in section 25 (4) (b) and (5) (a) and section 27
(2); (u) the translation of this Act into the official languages and the
distribution thereof as contemplated in section 31 (2) (b); (v) the powers and functions of the Equality Review Committee
contemplated in section 33; (w) any matter required or permitted to be prescribed by regulation
under this Act; (x) any other matter which is necessary to prescribe in order to
achieve the objects of this Act. (2) Any regulation made under this section which may result in
expenditure for the State must be made in consultation with the Minister of
Finance. (3) 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. (4) (a) 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. (b) 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. (5) 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. 31 Implementation of Act (1) Despite section 16 (1) (a) and (b), and until the Minister
determines by notice in the Gazette, no proceedings may be instituted in any
court unless- (a) a presiding officer is available who has been designated, by
reason of his or her training, experience, expertise and suitability in the
field of equality and human rights, and (b) one or more trained clerks are available. (2) For purposes of giving full effect to this Act and making the Act
as accessible as possible- (a) and in giving effect to subsection (1), the Minister may designate
suitable magistrates, additional magistrates or judges, as the case may be,
and clerks referred to in subsection (1) as presiding officers and clerks,
respectively, for one or more equality courts; (b) 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. (3) The Minister must take all reasonable steps within the available
resources of the Department to designate at least one presiding officer and
ensure that a trained clerk is available for each court in the Republic. (4) The Minister must, after consultation with the Magistrates
Commission and the Judicial Service Commission, issue policy directives and
develop training courses with a view to- (a) establishing uniform norms, standards and procedures to be
observed by presiding officers and clerks in the performance of their
functions and duties and in the exercise of their powers; and (b) building a dedicated and experienced pool of trained and
specialised presiding officers and clerks. (5) The Minister must table a copy of any policy directive issued in
terms of subsection (4) in Parliament within a reasonable period after the
finalisation thereof. CHAPTER
7
REVIEW OF ACT, SHORT
TITLE AND COMMENCEMENT (ss 32-35) 32 Establishment of Equality Review Committee The Minister must,
immediately, upon promulgation of this Act, by notice in the Gazette,
establish an Equality Review Committee and appoint members, consisting of- (a) a senior judicial officer with appropriate qualifications; (b) the Chairperson of the South African Human Rights Commission; (c) the Chairperson of the Commission on Gender Equality; (d) a representative of civil society; (e) an expert in the field of human rights, especially the right to
equality; (f) a member of the National Assembly; (g) a member of the National Council of Provinces. [Date of commencement of
s. 32: 1 September 2000.] 33 Powers, functions and term of office of Equality Review Committee (1) The Equality Review Committee- (a) must advise the Minister about the operation of this Act; (b) must advise the Minister about laws that impact on equality; (c) must submit regular reports to the Minister on the operation of
the Act, addressing whether the objectives of the Act and the Constitution
have been achieved and must make recommendations on any necessary amendments
to the Act to improve its operation; (d) has the other powers and functions as prescribed. (2) The Equality Review Committee may conduct its business and
proceedings at its meetings as it deems fit. (3) Members of the Equality Review Committee referred to in section 32
(a), (d) and (e) are appointed for a period of five years and may be
reappointed upon the expiry of their term of office. (4) The other terms and conditions of appointment of members of the
Equality Review Committee are as prescribed. (5) 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. (6) The members of the Equality Review Committee are entitled to such
remuneration, allowances and other benefits as may be determined by the
Minister in consultation with the Minister of Finance. [Date of commencement of
s. 33: 1 September 2000.] 34 Directive principle on HIV/AIDS, nationality, socio-economic
status and family responsibility and status (1) In view of the overwhelming evidence of the importance, impact on
society and link to systemic disadvantage and discrimination on the grounds
of HIV/AIDS status, socio-economic status, nationality, family responsibility
and family status- (a) special consideration must be given to the inclusion of these
grounds in paragraph (a) of the definition of ‘prohibited grounds’ by the
Minister; (b) the Equality Review Committee must, within one year, investigate
and make the necessary recommendations to the Minister. [Date of commencement of
sub-s. (1): 1 September 2000.] (2) Nothing in this section- (a) affects the ordinary jurisdiction of the courts to determine
disputes that may be resolved by the application of law on these grounds; (b) prevents a complainant from instituting proceedings on any of
these grounds in a court of law; (c) 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’. 35 Short title and commencement (1) 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. (2) Different dates may be so fixed in respect of different provisions
of this Act. Schedule ILLUSTRATIVE LIST OF
UNFAIR PRACTICES IN CERTAIN SECTORS (Section 29) 1 Labour and employment (a) Creating artificial barriers to equal access to employment
opportunities by using certain recruitment and selection procedures. (b) Applying human resource utilisation, development, promotion and
retention practices which unfairly discriminate against persons from groups
identified by the prohibited grounds. (c) Failing to respect the principle of equal pay for equal work. (d) Perpetuating disproportionate income differentials deriving from
past unfair discrimination. 2 Education (a) Unfairly excluding learners from educational institutions,
including learners with special needs. (b) Unfairly withholding scholarships, bursaries, or any other form of
assistance from learners of particular groups identified by the prohibited
grounds. (c) The failure to reasonably and practicably accommodate diversity
in education. 3 Health care services and benefits (a) Subjecting persons to medical experiments without their informed
consent. (b) Unfairly denying or refusing any person access to health care
facilities or failing to make health care facilities accessible to any
person. (c) Refusing to provide emergency medical treatment to persons of
particular groups identified by one or more of the prohibited grounds. (d) Refusing to provide reasonable health services to the elderly. 4 Housing, accommodation, land and property (a) Arbitrary eviction of persons on one or more of the prohibited
grounds. (b) ‘Red-lining’ on the grounds of race and social status. (c) Unfair discrimination in the provision of housing bonds, loans or
financial assistance on the basis of race, gender or other prohibited
grounds. (d) Failing to reasonably accommodate the special needs of the
elderly. 5 Insurance services (a) Unfairly refusing on one or more of the prohibited grounds to
provide or to make available an insurance policy to any person. (b) Unfair discrimination in the provision of benefits, facilities and
services related to insurance. (c) Unfairly disadvantaging a person or persons, including unfairly
and unreasonably refusing to grant services, to persons solely on the basis
of HIV/AIDS status. 6 Pensions (a) 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. (b) Unfairly discriminating against members or beneficiaries of a
retirement fund. 7 Partnerships (a) Determining in an unfair discriminatory manner who should be
invited to become a partner in the partnership in question. (b) Imposing unfair and discriminatory terms or conditions under which
a person is invited or admitted to become a partner. 8 Professions and bodies (a) Imposing conditions that unfairly limit or deny entry into the
profession of persons from historically disadvantaged groups. (b) Unfairly limiting or denying members access to benefits or
facilities on the basis of a prohibited ground. 9 Provision of goods, services and facilities (a) 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. (b) Imposing terms, conditions or practices that perpetuate the
consequences of past unfair discrimination or exclusion regarding access to
financial resources. (c) Unfairly limiting access to contractual opportunities for
supplying goods and services. 10 Clubs, sport and associations (a) Unfairly refusing to consider a person’s application for
membership of the association or club on any of the prohibited grounds. (b) Unfairly denying a member access to or limiting a member’s access
to any benefit provided by the association or club. (c) Failure to promote diversity in selection of representative
teams. Promotion of Equality & Prevention of Unfair Discrimination Amendment act, 52 of 2002
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