What is the Law on Discrimination?

No matter which country you visit, as long as it contains more than 1 person, you’re likely to encounter some form of discrimination. It would seem that humans are hardwired to form in-group and out-group preferences and, sadly, this inclination has led to more forms of discrimination than most of us would care to imagine. Throughout the years, individuals have been mistreated on the basis of their race, gender and culture amongst other things and such practices persist into the modern era. Fortunately, many nations have recently taken steps to curb such treatment and create a fairer world. But how does South Africa compare? What can discrimination be based on and what does the law say? What is the Law on Discrimination?

Discrimination in South Africa is primarily curtailed by two pieces of legislation, namely – The Constitution & The Equality Act.

  • The Constitution – Section 9 of the Bill of Rights covers the topic of equality and expressly prohibits unfair discrimination based on multiple grounds such as race, gender, belief and culture as well as many others. This prohibition applies to both the state and the citizenry.

It should be noted that employment discrimination is not specified in the equality act simply because it is instead covered by the Employment Equality Act of 1998.

What is the Law on Discrimination?
What is the Law on Discrimination?

How is Unfair Discrimination Decided? – What is the Law on Discrimination?

Instances of alleged discrimination are adjudicated by the Equality Courts, these courts are typically extensions of the Magistrate Courts and specifically deal with matters that fall under the purview of the Equality Act. Those who believe that they have suffered from some form of unfair discrimination, harassment or hate speech are able to bring their cases before these Equality Courts. On the other hand, cases of employment discrimination can be taken to the CCMA

Another key factor when deciding such cases is the burden of proof which may shift from party to party depending on the nature of the allegation.

How does the Burden of Proof work in Discrimination Cases?

Throughout the world, the concept of the burden of proof is fairly consistent. In most cases, the person making the accusation is expected to provide adequate evidence to substantiate their claim. When dealing with cases involving unfair discrimination, the plaintiff is expected to provide such evidence until they have established a primae facie case of discrimination, at which point the burden of proof will switch and the onus will then fall upon the accused. But what does this mean?

In the legal world, a primae facie case involves an allegation that is backed by enough evidence that it is not automatically dismissed by the court or given an unfavourable directed verdict, it also shifts the burden of proof onto the accused.

What is the Law on Discrimination?
What is the Law on Discrimination?

Simply put, a mere allegation of discrimination will not be enough to shift the burden of proof and the accuser will need to gather more evidence with which to back up their case. That said, once a primae facie case has been established, the burden of proof shifts over and it becomes the respondent’s responsibility to prove that unfair discrimination did not take place.

Keep in mind, however, that establishing a primae facie case does not mean that a case has been won and the accused will still have an opportunity to make their rebuttal.

What are the Penalties for Unfair Discrimination? – What is the Law on Discrimination?

As most cases of unfair discrimination take place within a work environment, aggrieved parties are most commonly awarded compensation of some kind, the amount of which can vary depending on the specifics of the case. Usually, the exact amount awarded in successful cases will be based on things like the amount of money the wronged party would have earned had they not been discriminated against.

That said, there have been particularly notable cases in which individuals have been jailed on charges of crimen injuria.

How much are Court Fees at the Equality Courts?

In order to ensure that everyone has access to these anti-discrimination services, the equality courts are free of charge and thus, proceedings may be initiated without any form of payment. Additionally, legal representation is not required.

What is the Difference between Fair and Unfair Discrimination?

Although the term ‘discrimination’ is normally viewed with negative connotations, the legal system makes a distinction between two main forms of discrimination, namely – fair and unfair.

  • Unfair Discrimination – Discrimination is deemed to be unfair when an individual is treated differently based on certain traits and characteristics that are identified in the Equality Act as ‘prohibited grounds’. This type of discrimination is illegal in South Africa.

Prohibited Grounds are

●     Race
●     Gender
●     Sex
●     Pregnancy
●     Marital Status
●     Ethnic or Social Origin
●     Colour
●     Sexual Orientation
●     Age
●     Disability
●     Religion
●     Conscience
●     Belief
●     Culture
●     Language and Birth

Included in this definition are any grounds which, if discrimination were based on them, would –
●     Cause or perpetuate systematic disadvantage.
●     Undermine human dignity. 
●     Adversely affect the equal enjoyment of a person’s rights and freedoms in a manner comparable to the aforementioned forms of discrimination.

No doubt, some readers will already be questioning certain practices currently taking place throughout South Africa which seem to openly benefit specific groups and which should thus be considered a form of unfair discrimination, right? Not so fast, there’s a bit of a caveat at play here.

Acceptable Grounds are – 

  • Discrimination based on affirmative action programs
  • Discrimination based on inherent job requirements (ie, when working as a driver, applicants usually would require a driver’s licence)
  • Compulsory discrimination by law (ie, you would refuse to hire a child as such a practice is prohibited by law)
  • Discrimination based on productivity

Well, that was a lot of reading, but now at least you’re caught up with all the relevant discrimination laws and it’s not like that’s going to change anytime soon.

What is the Law on Discrimination?
What is the Law on Discrimination?

What are the Proposed Changes to the Equality Act?

An amendment to the Equality Act has recently been proposed which could alter many aspects of the aforementioned discrimination legislation. Most notably, the amendment intends to –

  • Extend the scope of the prohibition of unfair discrimination (the new definition seemingly removes the requirement for intent)
  • Provide for joint and several liability
  • Provide for the prohibition of retaliation

There are other changes included but those first two are the most hotly contested with many critics and advocates making their respective cases on the matter.

Critics of the bill argue that by removing the prerequisite of intent from the act, the new definition of unfair discrimination will become far too broad and will cause various negative consequences down the line. They also note that the addition of vicarious liability will make businesses liable for infringements performed by their employees, a standard which they view as unreasonable.

Advocates of the bill deride many of these concerns as misinformation and point out that many of these aspects already exist within the legal system and that this amendment is simply needed to clarify the current status of the law.

In their view, joint liability is needed to offer extra protection to vulnerable groups.

In Conclusion – What is the Law on Discrimination in South Africa and how is it Defined?

Besides the Constitutional provisions against unfair discrimination that serve as the cornerstone of the nation’s legal system, South Africa also makes use of the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (sometimes referred to as the Equality Act) which defines terms such as unfair discrimination, hate speech and harassment while simultaneously identifying the grounds upon which unfair discrimination may be based. These prohibited grounds include, but are not limited to –

  • Race
  • Gender
  • Ethnic or social origin
  • Religion
  • Age
  • Disability

Cases of unfair discrimination are decided in Equality Courts which determine whether or not the alleged discrimination has taken place and the extent of its effects. When initiating a case, the plaintiff is expected to produce a primae facie case, usually to ensure that it is not automatically dismissed. Once this is achieved, the burden of proof is transferred onto the defendant who is then expected to prove that discrimination has not, in fact, taken place.

Many cases involving alleged discrimination are quickly dismissed when they are not properly substantiated, however, when cases are successful, the aggrieved party is normally awarded some form of compensation as many cases tend to occur at the workplace. That said, there have been instances in which guilty parties have been sentenced to prison for their alleged discrimination, hate speech, etc.

What is the Law on Discrimination?
What is the Law on Discrimination?

Discrimination is divided into 2 primary subsets, namely – fair and unfair. Unfair discrimination occurs when one of the aforementioned infringements takes place and can result in legal repercussions, by contrast, fair discrimination occurs when the grounds of discrimination are deemed acceptable by the legal system and includes instances of discrimination based on things like productivity, job prerequisites and affirmative action programs.

Complaints can be brought before the Equality Courts free of charge and legal representation is not mandatory. This system is intended to ensure that all citizens are able to make use of these anti-discrimination provisions.

Recent changes have been proposed which could see the definition of discrimination expanded and the aspect of intent no longer required. Additionally, the concept of vicarious liability may be instituted which could see businesses being made partly responsible for infringements made by their employees.

Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although our posts cite the constitution in many instances, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.

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