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Commentary on the Equality Act1

According to the Preamble to the Equality Act, 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 Constitutions 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 Discrimination Against Women and the Convention on the Elimination of Racial Discrimination.

Section 9 of the Constitution2 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 ad social groups who were dispossessed of their land and resources, deprived of their human dignity and who continue to endure the consequences.

The Equality 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. To this end, one of the objects of this legislation is to give effect to the letter and spirit of the Constitution, in particular –

  • The equal enjoyment of all rights and freedoms by every person;
  • The promotion of equality;
  • The values of non-racialism and non-sexism;
  • The prevention of unfair discrimination and protection of human dignity;
  • The prohibition of advocacy of hatred based on race, ethnicity, gender or religion, that constitutes incitement to cause harm ……3

Prevention and General Prohibition of Unfair Discrimination

Section 6 to 12 of the Act lists the grounds for non-discrimination and provides that neither the state nor any person may unfairly discriminate against any person. Unfair discrimination is prohibited on numerous grounds, including the following; race, gender, disability, hate speech and harassment.

Section 10 of the Act provides that no-one 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, promote or propagate hatred. According to this Act, the court may refer any case dealing with the publication, advocacy propagation or communication of hate speech to the Director of Public Prosecutions having jurisdiction for the institution of criminal proceedings in terms of the common law.

If the complainant makes out a prima facie case of discrimination, the burden of proof will rest on the respondent to prove on the facts before the court that the discrimination did not take place.

Every Magistrate’s Court and High Court is an equality court for the area of jurisdiction.

Institution of Proceedings

In terms of section 20 of the Act, proceedings may be instituted by–

  1. any person acting in their own interest;
  2. any person acting on behalf of another person who cannot act in their own name;
  3. any person acting as a member of, or in the interests of a group or class;
  4. any person acting in the public interest;
  5. any association acting in the interests of its members; and
  6. the South African Human Rights Commission or the Commission on Gender Equality.

There are various orders that a court may make and these are found in section 21 of the Act. Any person aggrieved by an order made by an equality court may appeal against the order to the High Court having jurisdiction or the Supreme Court of Appeal, as the case may be.

The state, all relevant constitutional institutions, for instance the South African Human Rights Commission, all Government Departments, persons operating in public domain and every South African, has the duty and responsibility to promote equality.

Illustrative List of Unfair Practices in Certain Sectors

A: Labour and Employment

  1. Creating artificial barriers to equal employment opportunities by using certain recruitment and selection procedures;
  2. Applying human resource utilisation, development, promotion and retention practices which unfairly discriminate against persons from groups identified by the prohibited grounds.
  3. Failing to respect the principle of equal pay for equal work.
  4. Perpetuating disproportionate income differentials deriving from past unfair discrimination.

B: Education

  1. Unfairly excluding learners from educational institutions, including learners with special needs.
  2. Unfairly withholding scholarships, bursaries, or any other form of assistance from learners of particular groups identified by the prohibited grounds. The failure to reasonably and practicably accommodate diversity in education.

C: Health Care Services and Benefits

  1. Subjecting persons to medical experiments without their informed consent;
  2. Unfairly denying or refusing any person access to health care facilities or failing to make health care facilities accessible to any person;
  3. Refusing to provide emergency medical treatment to persons of particular groups identified by one or more of the prohibited grounds;
  4. Refusing to provide reasonable health services to the elderly.

D: Housing, Accommodation, Land and Property

  1. Arbitrary eviction of persons on one or more of the prohibited grounds;
  2. “Red-lining” on the grounds of race and social status;
  3. Unfair discrimination in the provision of housing bonds, loans or financial assistance on the basis, gender or other prohibited grounds;
  4. Failing to reasonably accommodate the special needs of the elderly.

E: Insurance Services

  1. Unfairly refusing on one or more of the prohibited grounds to provide or make available an insurance policy to any person;
  2. Unfair discrimination in the provision of benefits, facilities and services related to insurance;
  3. Unfairly disadvantaging a person or persons, including refusing to grant services to persons solely on the basis of HIV/AIDS status.

F: Pensions

  1. Unfairly excluding any person from membership of a retirement fund or receiving any benefits from the fund on one or more of the prohibited grounds;
  2. Unfairly discriminating against members or beneficiaries of a retirement fund.

G: Partnerships

  1. Determining in an unfair and discriminatory manner who should be invited to become a partner in the partnership in question;
  2. Imposing unfair and discriminatory terms or conditions under which a person invited or admitted to become a partner.

H: Professions and Bodies

  1. Imposing conditions that unfairly limit or deny entry into the profession of persons from historically disadvantaged groups;
  2. Unfairly limiting or denying members access to benefits or facilities on the basis of a prohibited ground.

I: Provision of goods, services and facilities

  1. Unfairly refusing 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;
  2. Imposing terms, conditions or practices that perpetuate the consequences of past unfair discrimination or exclusion regarding access to financial resources;
  3. Unfairly limiting access to contractual opportunities for supplying goods and services.

J: Clubs, Sport and Associations

  1. Unfairly refusing to consider a person’s application for membership of the association or club on any of the prohibited grounds;
  2. Unfairly denying a member access to or limiting a member’s access to any benefit provided by the association or club;
  3. Failure to promote diversity in selection of representative teams.

Footnotes

  1. Promotion of Equality and Prevention of Unfair Discrimination Act, 2000
  2. Act 108 of 1996
  3. Section 2(a) – (h)

Author: Wendy Isaack
Originally published: Tuesday, 28 October 2003
Revised: N/A

 
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