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REPUBLIC OF SOUTH AFRICA
PROMOTION OF EQUALITY AND
PREVENTION OF UNFAIR
DISCRIMINATION ACT
No , 2000

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 signi®cant 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 ¯ourish;
South Africa also has international obligations under binding treaties and customary
international law in the ®eld of human rights which promote equality and prohibit unfair
discrimination. Among these obligations are those speci®ed 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,
B
E IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,
as follows:Ð
TABLE OF CONTENTS
CHAPTER 1
DEFINITIONS, OBJECTS, INTERPRETATION, GUIDING PRINCIPLES AND
APPLICATION OF ACT
1. De®nitions
2. Objects of Act
3. Interpretation of Act5
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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 informa-
tion 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 Committee3
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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
De®nitions
1.(1) In this Act, unless the context indicates otherwiseÐ
(i) “age” includes the conditions of disadvantage and vulnerability suffered by
persons on the basis of their age, especially advanced age;
(ii) “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”;
(iii) “Commission for Gender Equality” means the Commission for Gender
Equality referred to in section 187 of the Constitution;
(iv) “complainant” means any person who alleges any contravention of this Act
and who institutes proceedings in terms of the Act;
(v) “Constitution” means the Constitution of the Republic of South Africa, 1996
(Act No. 108 of 1996);
(vi) “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;
(vii) “Department” means the Department of Justice and Constitutional Develop-
ment;
(viii) “discrimination” means any act or omission, including a policy, law, rule,
practice, condition or situation which directly or indirectlyÐ
(a)imposes burdens, obligations or disadvantage on; or
(b)withholds bene®ts, opportunities or advantages from,
any person on one or more of the prohibited grounds;
(ix) “equality” includes the full and equal enjoyment of rights and freedoms as
contemplated in the Constitution and includesde jureandde factoequality
and also equality in terms of outcomes;
(x) “equality court” means a court contemplated in section 16, read with section
31, and includes any reference to “court”;
(xi) “family responsibility” means responsibility in relation to a complainant’s
spouse, partner, dependent, child or other members of his or her family in
respect of whom the member is liable for care and support;
(xii) “family status” includes membership in a family and the social, cultural and
legal rights and expectations associated with such status;
(xiii) “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 toÐ
(a)sex, gender or sexual orientation; or
(b)a person’s membership or presumed membership of a group identi®ed by
one or more of the prohibited grounds or a characteristic associated with
such group;
(xiv) “HIV/AIDS status” includes actual or perceived presence in a person’s body
of the Human Immunode®ciency Virus (HIV) or symptoms of Acquired
Immune De®ciency Syndrome (AIDS), as well as adverse assumptions based
on this status;
(xv) “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;4
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(xvi) “Minister” means the Minister for Justice and Constitutional Development;
(xvii) “nationality” means ethnic or national origin and includes practices
associated with xenophobia and other adverse assumptions of a discrimina-
tory nature but does not include rights and obligations normally associated
with citizenship;
(xviii) “person” includes a juristic person, a non-juristic entity, a group or a category
of persons;
(xix) “pregnancy” includes any condition related to pregnancy, intended preg-
nancy, potential pregnancy or termination of pregnancy;
(xx) “prescribed” means prescribed by regulation in terms of this Act;
(xxi) “presiding officer” means a presiding officer of an equality court contem-
plated in section 16, read with section 31;
(xxii) “prohibited grounds” areÐ
(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 groundÐ
(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);
(xxiii) “regulation” means a regulation in terms of this Act;
(xxiv) “respondent” means any person against whom proceedings are instituted in
terms of this Act;
(xxv) “sector” means any sector referred to in section 29, and includes the sectors
set out in the Schedule;
(xxvi) “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 quali®cations;
(xxvii) “South African Human Rights Commission” means the South African
Human Rights Commission referred to in section 184 of the Constitution;
(xxviii) “the State” includesÐ
(a)any department of State or administration in the national, provincial or
local sphere of government;
(b)any other functionary or institutionÐ
(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;
(xxix) “this Act” includes any regulation made in terms of this Act.
Objects of Act
2.The objects of this Act areÐ
(a)to enact legislation required by section 9 of the Constitution;
(b)to give effect to the letter and spirit of the Constitution, in particularÐ
(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)(c)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;5
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(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 discrimina-
tion;
(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.
Interpretation of Act
3.(1) Any person applying this Act must interpret its provisions to give effect toÐ
(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 ful®lling
the spirit, purport and objects of this Act.
(2) Any person interpreting this Act may be mindful ofÐ
(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.
Guiding principles
4.(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 participa-
tion 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.
Application of Act
5.(1) This Act binds the State and all persons.
(2) If any con¯ict 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 No. 55 of 1998), applies.6
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CHAPTER 2
PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR
DISCRIMINATION, HATE SPEECH AND HARASSMENT
Prevention and general prohibition of unfair discrimination
6.Neither the State nor any person may unfairly discriminate against any person.
Prohibition of unfair discrimination on ground of race
7.Subject to section 6, no person may unfairly discriminate against any person on the
ground of race, includingÐ
(a)the dissemination of any propaganda or idea, which propounds the racial
superiority or inferiority of any person, including incitement to, or participa-
tion 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.
Prohibition of unfair discrimination on ground of gender
8.Subject to section 6, no person may unfairly discriminate against any person on the
ground of gender, includingÐ
(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,
®nance, and other resources;
(f)discrimination on the ground of pregnancy;
(g)limiting women’s access to social services or bene®ts, 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.
Prohibition of unfair discrimination on ground of disability
9.Subject to section 6, no person may unfairly discriminate against any person on the
ground of disability, includingÐ
(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.
Prohibition of hate speech
10.(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 toÐ7
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(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 contem-
plated 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.
Prohibition of harassment
11 .No person may subject any person to harassment.
Prohibition of dissemination and publication of information that unfairly discrimi-
nates
12.No person mayÐ
(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 thatbona ®de
engagement in artistic creativity, academic and scienti®c 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
Burden of proof
13.(1) If the complainant makes out aprima faciecase of discriminationÐ
(a)the respondent must prove, on the facts before the court, that the discrimina-
tion 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 placeÐ
(a)on a ground in paragraph(a)of the de®nition 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 de®nition of “prohibited grounds”, then
it is unfairÐ
(i) if one or more of the conditions set out in paragraph(b)of the de®nition
of “prohibited grounds” is established; and
(ii) unless the respondent proves that the discrimination is fair.
Determination of fairness or unfairness
14.(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 justi®ably 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 from8
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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 toÐ
(i) address the disadvantage which arises from or is related to one or more
of the prohibited grounds; or
(ii) accommodate diversity.
Hate speech and harassment not subject to determination of fairness
15.In cases of hate speech and harassment section 14 does not apply.
CHAPTER 4
EQUALITY COURTS
Equality courts and presiding officers
16.(1) For the purposes of this Act, but subject to section 31Ð
(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 de®ned in section 1 of the Magistrates’ Courts Act, 1944
(Act No. 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.
Clerks of equality courts
17.(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.
Witnesses
18.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.
Rules and court proceedings
19.(1) Except as is otherwise provided in this Act, the provisions of the Magistrates’
Courts Act, 1944 (Act No. 32 of 1944), and the Supreme Court Act, 1959 (Act No. 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 No. 107 of 1985), apply with the necessary
changes required by the context to equality courts, in so far as these provisions relate
toÐ
(a)the appointment and functions of officers;9
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(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 con®rmation.
(b)The operation of paragraph(a), relating to the con®rmation of an order, is
suspended until any appeal contemplated in section 23 is ®nalised.
Institution of proceedings in terms of or under Act
20.(1) Proceedings under this Act may be instituted byÐ
(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 noti®cation, 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.10
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(8) If the alternative forum referred to in subsection (7)Ð
(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.
Powers and functions of equality court
21.(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, includingÐ
(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 ®nancial
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 speci®c
steps be taken to stop the unfair discrimination, hate speech or harassment;
(g)an order to make speci®c 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 speci®c 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, referÐ
(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.11
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(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.
Assessors
22.(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 ®nding or decision of the majority of the members of the
court is the ®nding or decision of the court, and in the event of one assessor, the ®nding
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 representativesÐ
(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 opinionÐ
(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 ®nding.
(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 con®rm the said ®ndings or to make any
appropriate order in respect of such ®nding that, in the opinion of the appeal court,
should have been made in the circumstances.
Appeals and reviews
23.(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 ®t.
(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 con¯icting decisions being made by presiding officers in matters in
respect of paragraph(b)of the de®nition 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 de®nition of “prohibited
grounds”, the decision must, after the ®nalisation of the proceedings and in the
prescribed manner, be submitted to the High Court having jurisdiction for review.12
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(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 ®t.
(c)The operation of subsection (5)(a)is suspended until any appeal contemplated in
this section is ®nalised.
CHAPTER 5
PROMOTION OF EQUALITY
General responsibility to promote equality
24.(1) The State has a duty and responsibility to promote and achieve equality.
(2) All persons have a duty and responsibility to promote equality.
Duty of State to promote equality
25.(1) The State must, where necessary with the assistance of the relevant
constitutional institutionsÐ
(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 appropriateÐ
(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 reason-
able 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 de®nition 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 toÐ
(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 byÐ
(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). 13
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Responsibility of persons operating in public domain to promote equality
26.It is the responsibility of any person directly or indirectly contracting with the
State or exercising public power to promote equality byÐ
(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.
Social commitment by all persons to promote equality
27.(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 associa-
tions, where appropriate, in a manner proportional to their size, resources and in¯uence,
to prepare equality plans or abide by prescribed codes of practice or report to a body or
institution on measures to promote equality.
Special measures to promote equality with regard to race, gender and disability
28.(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 No. 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 toÐ
(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, mustÐ
(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.
Illustrative list of unfair practices in certain sectors
29.(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.
(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.
(4) The Schedule is also intended to provide an illustrative list of practices that are or
may be unfair discrimination in order toÐ14
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(a)address and eliminate these practices; and
(b)assist persons in interpreting their experiences and practices.
(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.
CHAPTER 6
GENERAL PROVISIONS AND IMPLEMENTATION OF ACT
Regulations
30.(1) The Minister may, and where required in the circumstances, must, make
regulations relating toÐ
(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, certi®cate, 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 con®rmation 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)(c)and 26(c)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.15
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(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 ®ne 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 theGazette, 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
theGazette.
(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.
Implementation of Act
31.(1) Despite section 16(1)(a)and(b), and until the Minister determines by notice
in theGazette, no proceedings may be instituted in any court unlessÐ
(a)a presiding officer is available who has been designated, by reason of his or
her training, experience, expertise and suitability in the ®eld 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
possibleÐ
(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 toÐ
(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 ®nalisation thereof.
CHAPTER 7
REVIEW OF ACT, SHORT TITLE AND COMMENCEMENT
Establishment of Equality Review Committee
32.The Minister must, immediately, upon promulgation of this Act, by notice in the
Gazette, establish an Equality Review Committee and appoint members, consisting ofÐ
(a)a senior judicial officer with appropriate quali®cations;
(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 ®eld of human rights, especially the right to equality;
(f)a member of the National Assembly;
(g)a member of the National Council of Provinces.16
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Powers, functions and term of office of Equality Review Committee
33.(1) The Equality Review CommitteeÐ
(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 ®t.
(3) Members of the Equality Review Committee referred to in section 32(a),(d)and
(e)are appointed for a period of ®ve 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 bene®ts as may be determined by the Minister in
consultation with the Minister of Finance.
Directive principle on HIV/AIDS, nationality, socio-economic status and family
responsibility and status
34.(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 statusÐ
(a)special consideration must be given to the inclusion of these grounds in
paragraph(a)of the de®nition of “prohibited grounds” by the Minister;
(b)the Equality Review Committee must, within one year, investigate and make
the necessary recommendations to the Minister.
(2) Nothing in this sectionÐ
(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 de®nition of “prohibited grounds” or
are included within one or more of the grounds listed in paragraph(a)of the
de®nition of “prohibited grounds”.
Short title and commencement
35.(1) This Act is called the Promotion of Equality and Prevention of Unfair
Discrimination Act, 2000, and comes into operation on a date ®xed by the President by
proclamation in theGazette.
(2) Different dates may be so ®xed in respect of different provisions of this Act.17
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SCHEDULE
ILLUSTRATIVE LIST OF UNFAIR PRACTICES IN CERTAIN SECTORS
(Section 29)
Labour and employment
1.(a)Creating arti®cial 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 identi®ed 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.
Education
2.(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 identi®ed by the prohibited
grounds.
(c)The failure to reasonably and practicably accommodate diversity in
education.
Health care services and bene®ts
3.(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 identi®ed by one or more of the prohibited grounds.
(d)Refusing to provide reasonable health services to the elderly.
Housing, accommodation, land and property
4.(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
®nancial assistance on the basis of race, gender or other prohibited
grounds.
(d)Failing to reasonably accommodate the special needs of the elderly.
Insurance services
5.(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 bene®ts, 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.
Pensions
6.(a)Unfairly excluding any person from membership of a retirement fund or
from receiving any bene®ts from the fund on one or more of the
prohibited grounds.
(b)Unfairly discriminating against members or bene®ciaries of a retirement
fund.18
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Partnerships
7.(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.
Professions and bodies
8.(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 bene®ts or facilities on
the basis of a prohibited ground.
Provision of goods, services and facilities
9.(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 ®nancial
resources.
(c)Unfairly limiting access to contractual opportunities for supplying goods
and services.
Clubs, sport and associations
10.(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 bene®t provided by the association or club.
(c)Failure to promote diversity in selection of representative teams.19
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