For many years the law, and the protection afforded thereby, could be seen as a luxury afforded to the rich, as it was inaccessible and unfathomable to the man on the street.
In 1994, democracy was introduced to our country, and with it a Constitution to regulate the rights of the citizens.
The Constitution set the foundation for the normal person to be emancipated from his ignorance, and protect his dignity and rights which are inherent to being a human being.
Section 9 of the Constitution, states the following:
- Everyone is equal before the law, have the right to equal protection and the benefit of the law;
- No person may unfairly discriminate against another due to “race, gender, sex, prengancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”
In order to give effect to this right to equality the following forums were established:
- Commission for Conciliation, Mediation and Arbitration, established by the Labour Relations Act, 66 of 1995 (the LRA);
- Equality Court, established in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2002 (PEPUDA);
Any person who has been unfairly discriminated against in terms of Section 9, may approach the Equality Court, or the Commission for Conciliation, Mediation and Arbitration for relief.
There are currently 219 Equality Courts within the 9 provinces which increases accessibility, however the Department of Justice aims to establish an Equality Court in every court in the country.
The Equality Courts are situated within the Magistrates Court buildings around the country, however its processes are less formal and intimidating than those of the Magistrates Court. Any order made by the presiding officer of the Equality Court carries the same weight as an order made in a civil matter in the Magistrates Court.
The Equality Court has the authority to inter alia, order the following:
- payment of damages;
- an unconditional apology from the Respondent to the Applicant;
- that the Respondent make previously denied opportunities and privileges available to the Applicant.
It should be noted that the Equality Court’s jurisdiction and the jurisdiction of the CCMA may from time to time overlap, as PEPUDA and the Employment Equity Act are parallel to each other. In terms of unfair discrimination in the employment arena, the Employment Equity Act’s provisions may prevail over those contained in PEPUDA.
If you feel that you have been the victim of unfair discrimination please do not hesitate to contact us, we may be able to assist you in a manner that will presently suprise.
Ian Mc Laren