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Promoting Equality

Did you know that South Africa has established a brand new type of court? They are called Equality Courts and have been set up to help people who have suffered unfair discrimination, hate speak or harassment to bring their case to court easier and faster.

What cases will the Equality Courts Hear?

Almost anyone can take a case to the Equality Court - even if you are not directly involved.

You can make a "Complaint", that is officially lodge a case with the court, if you believe someone or an organisation has harmed you or someone whose rights you want to fight for.

Cases can be brought for:

You are entitled to bring a case to the Equality Court if you feel the bad treatment you or someone else received was due to someone's irrational hatred or bias on one of the following grounds:

Then, when you lodge a plausible case with the Equality Case, it is for the other party, the person you have accused of the wrong, to prove to the Court that they did not unfairly discriminate against you.

If you cannot show that the discrimination was based on one of the above grounds, you can still bring a case to the Equality Court, but you will need to prove to the Court that the reason behind their discrimination was just as socially harmful as the grounds listed above.

The Equality Court will be especially likely to hold that the following grounds are tantamount to the listed grounds:

This is because the Equality Review Committee was asked to produce a Report on these grounds to see if the Act should be amended to include them. Their Report said that all four were just as harmful as the listed grounds and so the Act should be amended.

Where are these Equality Courts?

Whilst they are, technically, new courts, you don't need to look hard to find them. They are housed within all of the High Courts and many of the Magistrates' Courts. The Department of Justice web site has the main contact details for all the Provinces. Click Here for Details If you have any questions on whether you should lodge a case, how the case would progress, or what you can ask the court to help you achieve (that is, what you would like the Court to "Order" the person who hurt you to do or refrain from doing) you can ask the Equality Clerk at the Court.

But going to Court is expensive and confusing, isn't it?

Not necessarily with the Equality Courts. To bring a case is free, and both sides should normally fund their own costs (unless you don't bother to attend a court date without good reason, then the court might make you pay the costs of the side that did turn up). The Equality Clerk or the South African Human Rights Commission will be able to advise you on getting legal assistance. The Act says that the Court staff must help people find legal assistance if they ask for it. But it is also important to know that your legal assistance does nto need to be a qualified attorney. They can be a member of staff from a not for profit organisation, someone from an Advice Office, a paralegal or senior law student, or anyone who has a sufficient grasp of the subject matter and how the court will operate.

If your complaint involves specialist knowledge of a particular cultural community, for example, the person adjudicating the case, the "presiding officer", can appoint up to two recognised experts in this area, which the Act calls "Assessors,"to help the Court gain an insider's understanding.

If you do not speak the dominant language used by the Equality Court that your case is being held, you have the right to be helped by an interpreter.

fn1 The pages linked to here are from the Draft Report of the Equality Legislation Project on the inclusion of the additional grounds. It is linked to in order to assist people affected by such discrimination better prepare their argument for the court.

A ten point guide to lodging a case with the Equality Court

Do you think you would like to lodge a case? If so, follow the basic guide below:

  1. Download the Regulations from the internet.
  2. Download Form 3 which you use to record the details of your complaint.
  3. Contact your local Magistrates' Court and ask if they are an Equality Court. If they are not, ask where the closest one is.
  4. Go to the Equality Court and lodge your Complaint with the Clerk. If you think you need legal assistance (recommended) ask the Clerk, a web based search engine or your nearst Human Rights Commission office for help with finding an attorney or relevant Advice Office.
  5. The Equality Clerk must, within 7 days, notify the "Respondent" (that is the name given to the person whose behaviour you are complaining about) that you have lodged a Complaint. The Respondent will be given a copy of Form 4 that, if they want, they can use to give their side to the incident. They must return Form 4 to the Equality Clerk within 10 days of receiving it.
  6. The Equality Clerk must also pass details of the Complaint to the Presiding Officer within 3 days of you lodging it.
  7. The Presiding Officer must decide within 7 days if the case should be heard by the Equality Court, or if another forum would be more appropriate to deal with it.
  8. If the Presiding Officer agrees this is an Equality Court case, the Equality Clerk must set the first court date, which is called a Directions Hearing. At this Hearing, the Presiding Officer will sort out issues such as: when can the parties come to trial, does anyone need an interpretor; should Assessors be used?
  9. The Equality Clerk must then legally "serve" Notice of the Hearing on the parties. If either you or the Respondent are poor, the Equality Clerk can decide that the State must bear the cost of the service.
  10. If the Presiding Officer thinks another forum would be more appropriate (perhaps the CCMA), she or he will complete a referral Form and send this to the Equality Clerk. The Equality Clerk will notify the alternative forum. It is then for the alternative forum to contact the parties to the Complaint.

Next you will have your first appearance in the Equality Court! Good luck.

Any questions? Just let us know