Benefit or impediment?: The operation of the Equality Courts in South Africa

abstract

The Constitution of South Africa has enshrined the right to equality as being pivotal, central and a cornerstone of our democracy. The right to access a court of law has been echoed in innumerable international human rights instruments. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA) is South Africa’s anti-discrimination legislation and gives effect to section 9(4) of the Constitution of the Republic of South Africa, 1996, which calls for the enactment of legislation to prevent unfair discrimination. The main objective of PEPUDA is to prevent and prohibit unfair discrimination, harassment and hate speech. The Equality Courts were established by PEPUDA to adjudicate cases of discrimination thereby promoting equality. Gender and sexual orientation are just two of the seventeen listed grounds of discrimination which are presumed to be automatically unfair. The Equality Courts were established to adjudicate cases of discrimination on both the listed and unlisted grounds of discrimination and therefore the operation of the courts is intrinsic to the functioning of PEPUDA. Unfortunately, the poor implementation of PEPUDA has resulted in the Equality Courts being under-utilised in South Africa. The article will make observations about the Equality Courts and the respective mandates in terms of PEPUDA of the Chapter Nine institutions, the South African Human Rights Commission and the Commission for Gender Equality to initiate advocacy and litigation interventions to promote the Equality Courts.

keywords:

• hate speech
• unfair discrimination
• harassment
• gender
• sexual orientation

Notes

1. Section 9 of the Constitution of the Republic of South Africa, 1996:

• 9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.

•  (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

•  (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

•  (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3).

•  (5) National legislation must be enacted to prevent or prohibit unfair discrimination.

•  (6) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

2. Available at: http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2302812,00.html.

3. Available at: http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=nw20080409121529755C379034.

4. Available at: http://mg.co.za/article/2012-01-23-zulu-kings-homophobic-utterances-to-be-investigated.

5. Available at: http://citizen.co.za/349347/foreigners-must-go-home-king-zwelithini/

6. Available at: www.iol.co.za/news/politics/accuser-enjoyed-sex-with-zuma-432215

7. Available at: http://www.iol.co.za/news/crime-courts/equality-courts-crying-out-for-work-1591639.

Additional information

Notes on contributors

Taryn Janine Powys

TARYN JANINE POWYS has Bachelor of Law (LLB) and Master of Law (Labour Studies) degrees from the University of KwaZulu-Natal. Taryn is an admitted attorney with the KZN Law Society and has right of appearance in the High Court. In September 2010, she was admitted as a solicitor with the Solicitor’s Regulation Authority in England and Wales. Taryn was the Provincial Legal Officer at the Commission for Gender Equality (CGE) in Durban for ten years until her resignation in December 2015. Whilst at the CGE, Taryn instituted the first gender discrimination case in a South African Equality Court and represented the CGE on various forums including the KZN Human Trafficking/Harmful Traditional Practices/Prostitution/ Pornography and Brothels Task Team (HHPPB). She has taken a one-year sabbatical and is now residing in Dubai with her husband, Marc Joseph. She writes this article in her personal capacity.