As LGBTQ people we are especially vulnerable to discrimination and hate speech. It can be tough to fight back against hate, but the Equality Courts are a powerful tool we can use to seek justice and assert our constitutional rights. And it may be easier than you think. Here is some useful information about these courts and how to use them.
When and why were the Equality Courts created?
Following the adoption of South African’s Constitution, the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act) was passed in 2000. The act prohibits unfair discrimination by the government, organisations and individuals and forbids hate speech and harassment. The Equality Act also designated certain Magistrates’ Courts as “Equality Courts” to hear discrimination, hate speech and harassment complaints. The courts are intended to give South Africans an accessible means to address discrimination and hate speech and assert their rights.
Who can use the Equality Courts?
Any South African who believes that their rights have been violated on the basis of, for example, their race, gender, pregnancy, marital status, ethnic or social origin, colour of your skin, sexual orientation, age, disability, religion conscience & belief, culture, language, nationality, HIV status or perceived status, and economic or social status.
How much does it cost to use the Equality Courts?
Lodging a complaint with an Equality Court is free. You also are not required to use a lawyer or any other legal expert. You can, however, choose to do so (and so can the person or organisation that you have filed a complaint against).
What kinds of cases can I take to the Equality Court?
These courts are meant to hear cases that specifically involve unfair discrimination, hate speech or harassment on the basis of race, gender, pregnancy, marital status, ethnic or social origin, colour of your skin, sexual orientation, age, disability, religion conscience & belief, culture, language, nationality, HIV status or perceived status, and economic or social status, among others. Cases involving workplace discrimination are not appropriate for the Equality Court and fall under the Labour Act. Criminal matters (e.g. rape, robbery, assault) should also not be taken to the Equality Court.
What is hate speech?
According to the Department of Justice, hate speech is the publishing, propagating or communication of words that are based on one or more of the prohibited grounds. They must be reasonably construed to demonstrate a clear intention to hurt, harm or to incite harm and to promote or propagate hatred. For example, someone calling you an anti-LGBTQ slur to insult you is hate speech.
What can I ask the Equality Court to do?
If the Equality Court rules in your favour it has the power to: Issue a restraining order against someone; order that damages (money) for financial loss, pain, suffering, psychological suffering or loss of dignity be paid to you; approve a settlement between the parties; require an apology be issued to you and / or your community / group affected; and, order changes to a policy that is discriminatory. The court can also order that a payment be made to a relevant organisation on your behalf, among other things.
How do I lodge a case with the Equality Court?
• You will need to visit your nearest Equality Court and ask to speak to the Equality Court Clerk. The clerk must then give you the required complaint form (known as Form 2) for you to fill out.
• Complete the form (you can ask the Equality Court Clerk for help if you need it). You must have the name (and, if possible, the address) of the person or organisation you are complaining against (known as the ‘respondent’).
• After you give the completed form to the Equality Court Clerk, they have 7 days to let the respondent know about your complaint. The respondent will thereafter have 10 days to submit a reply to your complaint to the clerk (the respondent can choose not to reply, but that won’t stop your case).
• The clerk then has 7 days to send you a copy of the reply (if received) and three days to send all the information about your case (including your complaint and the respondent’s reply, if they sent one) to the Equality Court Magistrate.
• The magistrate will then, within 7 days, decide whether your case is a legitimate one and whether the Equality Court should hear the matter. If the magistrate agrees, the clerk then has three days to let you and the respondent known the time, venue and date of the preliminary “direction hearing”. All the details about how the case will proceed and future dates will be decided at this hearing.
Can I ask someone else to help me?
You can approach the SA Human Rights Commission (SAHRC) and the Commission on Gender Equality (CGE) to assist you in bringing a complaint to the Equality Courts, including conducting an investigation into your case and advising you. To do so, go the SAHRC website or the CGE website.
Where are the Equality Courts located?
There are 382 courts around the country that have been designated as Equality Courts. You can find a list of these courts and where they are located here.
Why should I use the Equality Courts?
You have the right to affirm your rights and dignity as an equal South African citizen and to seek justice if you are victimised because of your sexuality, sexual orientation, gender identity or gender expression (or any of the other prohibited factors). The more of us who stand up for our rights, the more we help change our society and make it welcoming to all people.
References and useful links