To give effect to section 9 (4) of the Constitution of the Republic of South Africa, 1996, Parliament enacted the Promotion of Equality and Prevention of Unfair Discrimination Act No 4 of 2000 (‘PEPUDA”). This Act seeks to further promote a democratic society that is united in its diversity, marked by human relations that reflect a caring and compassionate citizenry, and guided by the principles of equality, fairness, equity, social justice, human dignity and freedom for all.
This Act places a positive duty on the state and all persons (natural and juristic) to promote equality.
Main objectives of the Act
- To enact legislation required by section 9(4) of the Constitution
- To give effect to the letter and spirit of the Constitution in particular
(a) the equal enjoyment of all rights and freedoms by every person
(b) the promotion of equality
(c) the prevention and prohibition of unfair discrimination
(d) the prohibition of hate speech and harassment
- To provide remedies for victims of unfair discrimination
- To educate the public by raising awareness on the importance of promoting equality and overcoming unfair discrimination, hate speech and harassment
- To facilitate compliance with international law obligations
The meaning of unfair discrimination:
Unfair discrimination is when you are treated differently as compared to other categories of people and that your dignity as a human being is impaired by such treatment.
Discrimination is regarded as unfair when it imposes burdens or withholds benefits or opportunities from any person on one of the prohibited grounds listed in the Act, namely: race, gender, sex, pregnancy, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth etc. It is important to note that the Act does not prohibit discrimination but unfair discrimination.
There are certain circumstances where discrimination can be regarded as fair e.g. measures designed to advance persons disadvantaged by the previous system of racial discrimination.
What is meant by hate speech?
Hate speech is the publishing, propagating or communication of words that are based on one or more of the prohibited grounds.
These words must be reasonably construed to demonstrate a clear intention to hurtful, harmful or to incite harm and to promote or propagate hatred e.g. by calling people by derogatory (insulting or offensive) names or words.
What is meant by harassment?
The Act defines harassment as 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 :
- sex, gender or sexual orientation
- a person’s membership or presumed membership of a group identified by one or more of the prohibited grounds or a characteristic associate with such a group
What can victims of unfair discrimination, hate speech or harassment do?
If you believe that you have been unfairly discriminated against and you are a victim of hate speech or harassment then you can lodge your complaint at any of the designated equality courts.
What are equality courts and where to find them?
Equality courts are specialised courts designated to hear matters relating to unfair discrimination, hate speech and harassment.
In terms of the Act all High Courts are equality courts for their area of jurisdiction. The Department of Justice and Constitutional Development has designated all magistrates’ courts to serve as equality courts in all the 9 provinces.
Although the equality court is a formal court sitting, the rules and procedures are more relaxed than in normal courts e.g. the court room itself is usually not as intimidating as an ordinary court, the proceedings are held in a room that is arranged in boardroom style where the complainant and the respondent sit on either side. Normal rules of the magistrates’ court apply but the presiding officer does not apply them in a rigid manner when conducting the proceedings. The environment is less intimidating.
Who can institute proceedings in the equality court?
In order to institute proceedings in the equality court it is not a requirement that one must have legal representation.
Proceedings in the equality court may be instituted by:
- Any person acting in his/her own interests
- Any person acting on behalf of another person who cannot act in his/her own name
- Any person acting as a member of, or in the interests of a group or class of persons
- Any person acting in the interest of the public
- Any association or organization or body acting in the interests of its members
- The South African Human Rights Commission or the Commission on Gender Equality
The Act places specific duties on the South African Human Rights Commission, the Commission on Gender Equality and other bodies that have been set up in terms of the Constitution. They are required to assist complainants in bringing complaint to the equality courts and to conduct investigations into cases and advise complainants.
Does one have to pay to institute proceedings at the equality court?
The equality courts are free of charge in other words the complainant does not have to pay any court fees.
How to lodge a complaint in the equality court
The process of lodging a complaint at the Equality court is simple and straight forward. In each of the designated courts there is a trained equality court clerk who will assist the complainant with completing the necessary forms that are obtainable at any equality court.
Powers of the equality courts
Once you have proven that you were unfairly discriminated against or that you were a victim of hate speech or harassment, the presiding officer in an equality court has the power to issue one of many orders provided in the Act against the respondent.
Example: the equality court may order that the defendant makes an unconditional apology, order the payment of any damages etc. The presiding officer may also refer the matter to an appropriate forum or institution such as the South African Human Rights Commission or the Commission on Gender Equality for mediation or conciliation.
Equality Forms in 10 official languages. Click form below to download
- Equality Court Form 2 J693 English
- Equality Court Form 2 J693 Sepedi
- Equality Court Form 2 J692 isiNdebele
- Equality Court Form 2 J693 Sesotho
- Equality Court Form 2 J693 siSwati
- Equality Court Form 2 J693 Xitsonga
- Equality Court Form 2 J693 Afrikaans
- Equality Court Form 2 J693 isiXhosa
- Equality Court Form 2 J693 isiZulu
- Equality Court Form 2 J693 Setswana
Remarks by the Department
The Department of Justice and Constitutional Development would like to urge people to utilise the equality courts to assert their rights to dignity and equality, in order to realise the goal of achieving equality for all.
For more information on the Act and the equality courts contact:
Adv Samuel Rasiuba
Department of Justice and Constitutional Development
Tel: (012) 315 1683
Fax: 086 629 2098
Mr Mdumiseni Wakaba
Department of Justice and Constitutional Development
Tel: (012) 357 8736
Fax: 086 507 6925