Since the inception of the highly publicised Julius Malema hate speech case, interest in the Equality Court has risen among members of the public, prospective complainants and legal practitioners alike, who were previously unaware of the scope and functions of such forum. What follows is a brief explanation of the functioning of this formerly obscure Court.

The Equality Courts were created by the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Act”), which was promulgated as a direct result of section 9 of the Constitution of the Republic of South Africa 108 of 1996. Equality Courts across the country have been operational since late 2003.

The purpose of Equality Courts is to adjudicate matters specifically relating to infringements of the right to equality, unfair discrimination and hate speech, with a view toward eradicating the ever present post apartheid spectre which essentially has divided the country along racial, gender and monetary related lines.

The Act stipulates that all High Courts are automatically designated as Equality Courts, but more importantly affords the bulk of adjudicative powers relating to equality matters to the Magistrate’s Courts. The Department of Justice designates Magistrate’s Courts as having jurisdiction to entertain equality matters once presiding officers and staff of such Courts receive the appropriate training. Fortunately such training has become commonplace for presiding officers, resulting in almost every Magistrate’s Court with civil jurisdiction being able to hear equality matters.

Specifically with reference to equality matters in the Magistrate’s Court, the Clerk of the Equality Court plays a vital role in expeditiously bringing matters before a Magistrate for their hearing. In terms of the rules for procedures in Equality Courts, a matter may be brought before a Magistrate for a Direction Hearing (discussed below) by no later than 37 days (cumulatively) after the lodgement of the complaint. This ensures speedy justice for aggrieved parties and aids the movement for instilling confidence in the judiciary.

After a complaint is submitted to the Clerk of the Equality Court by an aggrieved party (“the Complainant”), the Respondent to such complaint is given an opportunity to respond to the allegations raised by the Complainant, and the matter is referred to a Magistrate. The Magistrate may decide that the matter is not one for hearing by the Equality Court, alternatively that the matter must be heard in a different forum (for example if the discrimination relates to employment, such dispute should be referred to the CCMA) and if the matter is to proceed in the Equality Court, the Magistrate will set the matter down for a Direction Hearing.

At the Direction Hearing, the issues relating to the matter are narrowed as far as possible, and all facts admitted by both parties are noted as such.

Subsequent to the Direction Hearing, the matter proceeds to Inquiry stage (it is referred to as an inquiry rather than a trial due to the informal nature of proceedings), where the parties will ventilate the dispute before the Magistrate, and an order will be made.

The informal nature of proceedings in Equality Courts, in addition to the fact that many NGOs and Human Rights Organisations are willing to assist complainants in prosecuting their claim, makes the Equality Courts a very viable forum within which an unrepresented Complainant may seek relief.

Equality Court proceedings are more akin to civil proceedings as opposed to criminal proceedings in that the onus of proof of a claim is on a balance of probabilities, and there are no prosecutors present at inquiries.

A further manner in which Complainants are assisted the conduct of their proceedings is through a reverse onus created in certain circumstances. Should a Complainant’s claim be based on one of the prescribed grounds of unfair discrimination, namely race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language or birth, the Complainant need only show a prima facie case that the unfair discrimination occurred, whereafter the burden of proof shifts to the Respondent, who must show that such discrimination did not take place, or if it did, that such discrimination was not unfair.

The High Courts have not become completely obsolete regarding Equality Court cases though. In circumstances where an order is made by an Equality Court of the Magistrate’s Court which exceeds the normal civil jurisdictional limit of the Magistrate’s Court, or where such order pertains to unfair discrimination which does not fall within one of the prescribed grounds, such an order must be confirmed by the High Court having jurisdiction prior to such order being of force and effect. In addition, an appeal to the High Court lies from decisions made by Magistrate’s Court Equality Courts.

By way of conclusion, the existence of a speedy means with which to address grievances arising out of unfair discrimination and inequality is a godsend in a country plagued with historical baggage stemming from years past. The judiciary must however keep a watchful eye on Complainants for fear of being inundated with petty claims arising out of hurt feelings and bruised egos.

We hope the above is of interest to you.

Written and prepared by Brandon Hauser of Bouwer, Kobeli & Morabe Attorneys.

Please do not hesitate to contact us on +27 11 788-0083 should you have any further enquiries or email enquiries@bkm.co.za.

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