The Equality Courts were created by the Promotion of Equality and Prevention of Unfair Discrimination Act, which was promulgated as a direct result of section 9, read with item 23(1) of Schedule 6, of the Constitution of the Republic of South Africa. The Act designates all Magistrate’s Courts and High Courts as Equality Courts for their area of jurisdiction.
Neither the State nor any person may unfairly discriminate against any person [Act 6]. Is considered a discrimination any act or omission – including a policy, law, rule, practice, condition or situation – which directly or indirectly imposes burdens, obligations or disadvantage on – or withholds benefits, opportunities or advantages from – any person:
- on the ground of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth or, if not part of this list;
- on the basis of any other ground where discrimination causes or perpetuates systemic disadvantage, undermines human dignity or adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner. In Larbi-Odam, the Constitutional Court found that citizenship constituted an unlisted ground for discrimination.
Proceedings may be instituted by any person acting in their own interest, on behalf of another person who cannot act in their own name, by any person acting as a member of, or in the interests of, a group or class of persons, by any person acting in the public interest or by any association acting in the interests of its members [Act 20(1)].
A person wishing to institute proceedings must notify the clerk of the equality court of his or her intention to do so [Act 20(2)] by means of the prescribed form [Reg. 6(1)]. The Equality clerk will then notify the respondent within 7 days, who, in turn, has 10 days to reply. The Presiding Officer has 7 days to decide whether the matter is to be heard at the Equality court or referred to an alternative forum. If the Presiding Officer decides to hear the matter, two hearings will take place. The first is the Directions Hearing, at which all parties will be present. The second is Hearing on the Merits to make a decision on the facts presented by the parties.