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

Abstract

abstractThe 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.