Promotion of Equality and Prevention of Unfair Discrimination Act, 2000
(English text signed by the President.)
(Assented to 2 February 2000.)
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.
as amended by
Promotion of Equality and Prevention of Unfair Discrimination Amendment Act, No. 52 of 2002
Judicial Matters Second Amendment Act, No. 55 of 2003
Judicial Matters Amendment Act, No. 22 of 2005
Judicial Matters Amendment Act, No. 66 of 2008
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 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 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 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.
Be it therefore enacted by the Parliament of the Republic of South Africa, as follows:―
Table of Contents
Definitions, objects, interpretation, guiding principles and application of Act
1. (1) In this Act, unless the context indicates otherwise—
“age” includes the conditions of disadvantage and vulnerability suffered by persons on the basis of their age, especially advanced age;
“Commission for Gender Equality” means the Commission for Gender Equality referred to in section 187 of the Constitution;
“complainant” means any person who alleges any contravention of this Act and who institutes proceedings in terms of the Act;
“Constitution” means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);
“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;
“Department” means the Department of Justice and Constitutional Development;
“discrimination” means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly—
any person on one or more of the prohibited grounds;
“equality” includes the full and equal enjoyment of rights and freedoms as contemplated in the Constitution and includes de jure and de facto equality and also equality in terms of outcomes;
“equality court” means a court contemplated in section 16, read with section 31, and includes any reference to “court”;
“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;
“family status” includes membership in a family and the social, cultural and legal rights and expectations associated with such status;
“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 to—
“HIV/AIDS status” includes actual or perceived presence in a person’s body of the Human Immunodeficiency Virus (HIV) or symptoms of Acquired Immune Deficiency Syndrome (AIDS), as well as adverse assumptions based on this status;
“intersex” means a congenital sexual differentiation which is atypical, to whatever degree;
“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;
“Minister” means the Minister for Justice and Constitutional Development;
“nationality” means ethnic or national origin and includes practices associated with xenophobia and other adverse assumptions of a discriminatory nature but does not include rights and obligations normally associated with citizenship;
“person” includes a juristic person, a non-juristic entity, a group or a category of persons;
“pregnancy” includes any condition related to pregnancy, intended pregnancy, potential pregnancy or termination of pregnancy;
“prescribed” means prescribed by regulation in terms of this Act;
“presiding officer” means a presiding officer of an equality court contemplated in section 16, read with section 31;
“prohibited grounds” are—
“regulation” means a regulation in terms of this Act;
“respondent” means any person against whom proceedings are instituted in terms of this Act;
“sector” means any sector referred to in section 29, and includes the sectors set out in the Schedule:
“sex” includes intersex;
“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 qualifications;
“South African Human Rights Commission” means the South African Human Rights Commission referred to in section 184 of the Constitution;
“the State” includes—
“this Act” includes any regulation made in terms of this Act.
Objects of Act
2. The objects of this Act are—
Interpretation of Act
3. (1) Any person applying this Act must interpret its provisions to give effect to—
(2) Any person interpreting this Act may be mindful of—
(3) Any person applying or interpreting this Act must take into account the context of the dispute and the purpose of this Act.
4. (1) In the adjudication of any proceedings which are instituted in terms of or under this Act. the following principles should apply:
(2) In the application of this Act the following should be recognised and taken into account:
Application of Act
5. (1) This Act binds the State and all persons.
(2) If any conflict 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.
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, including—
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, including—
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, including—
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 to—
(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 contemplated 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 discriminates
12. No person may—
that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate against any person: provided that bona fide engagement in artistic creativity, academic and scientific 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.
Burden of proof and determination of fairness or unfairness
Burden of proof
13. (1) If the complainant makes out a prima facie case of discrimination—
(2) If the discrimination did take place—
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:
(3) The factors referred to in subsection (2)(b) include the following:
Hate speech and harassment not subject to determination of fairness
15. In cases of hate speech and harassment section 14 does not apply.
Equality courts and presiding officers
16. (1) For the purposes of this Act. but subject to section 31—
(2) Only a judge, magistrate or additional magistrate who has completed a training course as a presiding officer of an equality court—
and whose name has been included on the list contemplated in subsection (4)(a), may be designated as such in terms of subsection (1).
(3) The Judges President and the heads of administrative regions must—
(4) The Director-General of the Department must compile and keep a list of every judge, magistrate and additional magistrate who has—
(5) A presiding officer must perform the functions and duties 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 subsection (2) and 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, despite subsection (2), 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.
(2) Only an officer or person contemplated in subsection (1)(a) who has completed a training course as clerk of an equality court—
and whose name has been included on the list contemplated in subsection (3), may be appointed or designated as such under subsection (1)(a).
(3) The Director-General of the Department must compile and keep a list of every officer or person who has—
(4) The Director-General may, subject to such conditions as he or she may determine, in writing delegate any power conferred on him or her by this section to an officer employed by the Department, but shall not be divested of any power so delegated and may amend or set aside any decision of the delegatee made in the exercise of such power.
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 to— te
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 confirmation.
(b) The operation of paragraph (a), relating to the confirmation of an order, is suspended until any appeal contemplated in section 23 is finalised,
Institution of proceedings in terms of or under Act
20. (1) Proceedings under this Act may be instituted by—
(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 notification, 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:
(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.
(8) If the alternative forum referred to in subsection (7)—
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, including—
(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, refer—
(5) The court has all ancillary powers necessary or reasonably incident to the performance of its functions and the exercise of its powers, including the power to grant interlocutory orders or interdicts.
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 finding or decision of the majority of the members of the court is the finding or decision of the court, and in the event of one assessor, the finding 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 representatives—
(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 opinion—
(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 confirm the said findings or to make any appropriate order in respect of such finding 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 fit.
(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 conflicting decisions being made by presiding officers in matters in respect of paragraph (b) of the definition 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 definition of “prohibited grounds”, the decision must, after the finalisation of the proceedings and in the prescribed manner, be submitted to the High Court having jurisdiction for review.
(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 fit.
(c) The operation of subsection (5)(a) is suspended until any appeal contemplated in this section is finalised.
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 institutions—
(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 definition 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 to—
(4) All Ministers must implement measures within the available resources which are aimed at the achievement of equality in their areas of responsibility by—
(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).
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 by—
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 associations, where appropriate, in a manner proportional to their size, resources and influence, 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 tie 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 to—
(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, must—
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 puroses 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 to—
(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.
General provisions and implementation of Act
30. (1) The Minister may, and where required in the circumstances, must, make regulations relating to—
(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 fine 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 the Gazette, 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 the Gazette.
(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) no proceedings may be instituted in any court unless a presiding officer and one or more clerks are available.
(2) For purposes of giving full effect to this Act and making the Act as accessible as possible—
(3) The Director-General of the Department must take all reasonable steps within the available resources of the Department to ensure that a clerk is available for each court in the Republic.
(4) The Chief Justice must, in consultation with the Judicial Service Commission and the Magistrates Commission, develop the content of training courses with a view to building a dedicated and experienced pool of trained and specialised presiding officers, for purposes of presiding in court proceedings as contemplated in this Act, by providing—
(5) The Chief Justice must, in consultation with the Judicial Service Commission, the Magistrates Commission and the Minister, implement the training courses contemplated in subsection (4).
(6) The Director-General of the Department must develop and implement a training course for clerks of equality courts with the view to building a dedicated and experienced pool of trained and specialised clerks, for purposes of performing their functions and duties as contemplated in this Act, by providing—
(7) The Minister must table a report in Parliament, as prescribed, relating to the content and implementation of the training courses referred to in subsections (4) and (5).
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 of—
Powers, functions and term of office of Equality Review Committee
33. (1) The Equality Review Committee—
(2) The Equality Review Committee may conduct its business and proceedings at its meetings as it deems fit.
(3) Members of the Equality Review Committee referred to in section 32(a), (d) and (e) are appointed for a period of five 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 referred to in—
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 status—
(2) Nothing in this section—
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 fixed by the President by proclamation in the Gazette.
(2) Different dates may be so fixed in respect of different provisions of this Act.
Illustrative list of unfair practices in certain sectors
Labour and employment
Health care services and benefits
Housing, accommodation, land and property
Professions and bodies
Provision of goods, services and facilities
Clubs, sport and associations