Equality Courts

CHAPTER 4

Understanding the Equality Court – Leaddership

16. Equality courts and presiding officers

(1) For the purposes of this Act, but subject to section 31—

(a) every Division of the High Court or local seat thereof is an equality court for the area of its jurisdiction;

(b) any judge may be designated in writing by a Judge President as a presiding officer of the equality court of the area in respect of which he or she is a judge;

[S 16(1)(b) subs by s 31(a) of Act 8 of 2017.]

(c) the Minister must, after consultation with the head of an administrative region defined in section 1 of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), or the magistrate at the head of a regional division established for the purposes of adjudicating civil disputes, by notice in the Gazette—

(i) designate one or more magistrates’ courts as equality courts for the administrative region or regional division concerned, as the case may be;

(iA) designate any regional division established for the purposes of adjudicating civil disputes, as an equality court;

(ii) define the area of jurisdiction of each equality court referred to in subparagraph (i), which may consist of any number of districts, subdistricts, regional divisions or other areas of jurisdiction created in terms of section 2 of the Magistrates’ Courts Act, 1944;

(iii) increase or reduce the area of jurisdiction of each equality court referred to in subparagraph (i), when necessary to do so;

(iv) appoint one or more places within the area of jurisdiction of each equality court for the holding of sittings of an equality court; and

(v) withdraw or vary any notice made under this paragraph:

Provided that any proceedings pending before an equality court which are not finalised at the time of the publication of a notice in the Gazette as contemplated in this paragraph, must be finalised by that court, as if such notice has not been published; and

[S 16(1)(c) subs by s 28 of Act 55 of 2003.]

(d) the head of an administrative region or magistrate at the head of a regional division contemplated in paragraph (c) must designate in writing any magistrate, additional magistrate or magistrate of a regional division established for the purposes of adjudicating civil disputes, as a presiding officer of the equality court.

[S 16(1) subs by s 10(a) of Act 24 of 2015.] [S 16(1)(d) subs by s 31(b) of Act 8 of 2017.]

(2) …

[S 16(2) subs by s 10(a) of Act 24 of 2015; rep by s 31(c) of Act 8 of 2017.]

(3) The Judges President, heads of administrative regions and magistrates at the head of regional divisions established for the purposes of adjudicating civil disputes, must take all reasonable steps within available resources, to designate at least one presiding officer for each equality court within his or her area of jurisdiction.

[S 16(3) subs by s 10(a) of Act 24 of 2015, subs by s 31(d) of Act 8 of 2017.]

(4) …

[S 16(4) subs by s 10(a) of Act 24 of 2015; rep by s 31(e) of Act 8 of 2017.]

(5) A presiding officer must perform the functions and duties and exercise the powers assigned to or conferred on him or her under this Act or any other law.

(6) The provisions of section 12(6) and (8) of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), are applicable with the necessary changes required by the context.

[S 16 subs by s 1 of Act 52 of 2002; commencement of s 16: 16 June 2003 (Proc. 49, G. 25065); s 16(6) ins by s 10(b) of Act 24 of 2015; subs by s 31(f) of Act 8 of 2017.]

17. Clerks of equality courts

(1)

(a) Subject to subsection (2) and the laws governing the public service, the Director-General of the Department may, for every equality court, appoint or designate one or more officers in the Department, or may appoint one or more persons in the prescribed manner and on the prescribed conditions, as clerks of the equality court, who must generally assist the court to which they are attached in performing its functions and who must perform the functions as may be prescribed.

(b) If a clerk of an equality court is for any reason unable to act as such or if no clerk has been appointed or designated for any equality court under paragraph (a), the presiding officer concerned may, despite subsection (2), designate any competent officer in the Department to act as clerk for as long as the said clerk is unable to act or until a clerk is appointed or designated under paragraph (a), as the case may be.

[S 17(1) subs by s 2(a) of Act 52 of 2002.]

(2) Only an officer or person contemplated in subsection (1)(a) who has completed a training course as clerk of an equality court—

(a) before the date of commencement of section 31; or

(b) as contemplated in section 31(6),

and whose name has been included on the list contemplated in subsection (3), may be appointed or designated as such under subsection (1)(a).

[S 17(2) ins by s 2(b) of Act 52 of 2002.]

(3) The Director-General of the Department must compile and keep a list of every officer or person who has—

(a) completed a training course as contemplated in section 31(6); or

(b) been designated or appointed as a clerk of an equality court in terms of subsection (1)(a).

[S 17(3) ins by s 2(b) of Act 52 of 2002.]

(4) The Director-General may, subject to such conditions as he or she may determine, in writing delegate any power conferred on him or her by this section to an officer employed by the Department, but shall not be divested of any power so delegated and may amend or set aside any decision of the delegatee made in the exercise of such power.

[S 17(4) ins by s 29 of Act 55 of 2003.]

[Commencement of s 17: 16 June 2003 (Proc. 49, G. 25065).]

18. Witnesses

The attendance of witnesses and the payment of witness fees in cases arising from the application of this Act must be determined by the Minister in the prescribed manner.

[Commencement of s 18: 16 June 2003 (Proc. 49, G. 25065).]

19. Rules and court proceedings

(1) Except as is otherwise provided in this Act, the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), and the Supreme Court Act, 1959 (Act 59 of 1959), and of the rules made thereunder as well as the rules made under the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985), apply with the necessary changes required by the context to equality courts, in so far as these provisions relate to—

(a) the appointment and functions of officers;

(b) the issue and service of process;

(c) the execution of judgments or orders;

(d) the imposition of penalties for non-compliance with orders of court, for obstruction of execution of judgments or orders, and for contempt of court;

(e) jurisdiction, subject to subsection (3),

and in so far as no other provision has been made in the regulations under section 30 of this Act.

(2) All proceedings before the court must be conducted in open court, except in so far as the court may direct otherwise in the interests of the administration of justice.

(3)

(a) Subject to paragraph (b), nothing in this Act precludes a magistrates’ court sitting as an equality court from making an order contemplated in section 21(2), which exceeds the monetary jurisdiction of a magistrates’ court, in which case the order must be submitted in the prescribed manner to a judge of the High Court having jurisdiction for confirmation.

(b) The operation of paragraph (a), relating to the confirmation of an order, is suspended until any appeal contemplated in section 23 is finalised.

[Commencement of s 19: 16 June 2003 (Proc. 49, G. 25065).]

20. Institution of proceedings in terms of or under Act

(1) Proceedings under this Act may be instituted by—

(a) any person acting in their own interest;

(b) any person acting on behalf of another person who cannot act in their own name;

(c) any person acting as a member of, or in the interests of, a group or class of persons;

(d) any person acting in the public interest;

(e) any association acting in the interests of its members;

(f) the South African Human Rights Commission, or the Commission for Gender Equality.

(2) A person wishing to institute proceedings in terms of or under this Act must, in the prescribed manner, notify the clerk of the equality court of their intention to do so.

(3)

(a) The clerk of the equality court must, within the prescribed period of receiving such notification, refer the matter to a presiding officer of the equality court in question, who must, within the prescribed period, decide whether the matter is to be heard in the equality court or whether it should be referred to another appropriate institution, body, court, tribunal or other forum (hereafter referred to as an alternative forum) which, in the presiding officer’s opinion, can deal more appropriately with the matter in terms of that alternative forum’s powers and functions.

(b) If the presiding officer decides that the matter is to be heard in the equality court, the presiding officer must refer the matter to the clerk of the equality court who must within the prescribed period of such referral assign a date of hearing of the matter.

(4) The presiding officer, before making a decision to refer a matter as contemplated in subsection (3), must take all relevant circumstances into account, including the following—

(a) The personal circumstances of the parties and particularly the complainant;

(b) the physical accessibility of any contemplated alternative forum;

(c) the needs and wishes of the parties and particularly the complainant;

(d) the nature of the intended proceedings and whether the outcome of the proceedings could facilitate the development of judicial precedent and jurisprudence in this area of the law;

(e) the views of the appropriate functionary at any contemplated alternative forum.

(5)

(a) If the presiding officer decides that the matter must be referred to an alternative forum he or she must, in the prescribed manner, make an order, directing the clerk of the equality court to transfer the matter to the alternative forum mentioned in the order.

(b) When making an order contemplated in paragraph (a), the presiding officer may attach to the order any comments he or she deems necessary for the attention of the alternative forum.

(6) On receipt of an order referred to in subsection (5), the clerk of the equality court must transfer the matter and notify the parties to the matter of the transfer in the prescribed manner.

(7) On receipt of a matter transferred to it, the alternative forum in question must deal with the matter expeditiously in terms of its powers and functions.

(8) If the alternative forum referred to in subsection (7)—

(a) fails to deal with the matter within a reasonable period in the circumstances; or

(b) is not able to resolve the matter to the satisfaction of one or both the parties and one or both parties so request,

the alternative forum must, in the prescribed manner, refer the matter back to the equality court from which it was transferred, for adjudication, within the prescribed period from the date on which it was returned to the equality court.

(9) The State and constitutional institutions must, as far as reasonably possible, assist any person wishing to institute proceedings in terms of or under this Act, amongst others, by ensuring that the person is directed to the appropriate functionary in order to take the necessary action in the furtherance of the matter in question.

[Commencement of s 20: 16 June 2003 (Proc. 49, G. 25065).]

21. Powers and functions of equality court

(1) The equality court before which proceedings are instituted in terms of or under this Act must hold an inquiry in the prescribed manner and determine whether unfair discrimination, hate speech or harassment, as the case may be, has taken place, as alleged.

(2) After holding an inquiry, the court may make an appropriate order in the circumstances, including—

(a) an interim order;

(b) a declaratory order;

(c) an order making a settlement between the parties to the proceedings an order of court;

(d) an order for the payment of any damages in respect of any proven financial loss, including future loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering, as a result of the unfair discrimination, hate speech or harassment in question;

(e) after hearing the views of the parties or, in the absence of the respondent, the views of the complainant in the matter, an order for the payment of damages in the form of an award to an appropriate body or organisation;

(f) an order restraining unfair discriminatory practices or directing that specific steps be taken to stop the unfair discrimination, hate speech or harassment;

(g) an order to make specific opportunities and privileges unfairly denied in the circumstances, available to the complainant in question;

(h) an order for the implementation of special measures to address the unfair discrimination, hate speech or harassment in question;

(i) an order directing the reasonable accommodation of a group or class of persons by the respondent;

(j) an order that an unconditional apology be made;

(k) an order requiring the respondent to undergo an audit of specific policies or practices as determined by the court;

(l) an appropriate order of a deterrent nature, including the recommendation to the appropriate authority, to suspend or revoke the licence of a person;

(m) a directive requiring the respondent to make regular progress reports to the court or to the relevant constitutional institution regarding the implementation of the court’s order;

(n) an order directing the clerk of the equality court to submit the matter to the Director of Public Prosecutions having jurisdiction for the possible institution of criminal proceedings in terms of the common law or relevant legislation;

(o) an appropriate order of costs against any party to the proceedings;

(p) an order to comply with any provision of the Act.

(3) An order made by an equality court in terms of or under this Act has the effect of an order of the said court made in a civil action, where appropriate.

(4) The court may, during or after an inquiry, refer—

(a) its concerns in any proceedings before it, particularly in the case of persistent contravention or failure to comply with a provision of this Act or in the case of systemic unfair discrimination, hate speech or harassment to any relevant constitutional institution for further investigation;

(b) any proceedings before it to any relevant constitutional institution or appropriate body for mediation, conciliation or negotiation.

(5) The court has all ancillary powers necessary or reasonably incidental to the performance of its functions and the exercise of its powers, including the power to grant interlocutory orders or interdicts.

[Commencement of s 21: 16 June 2003 (Proc. 49, G. 25065).]

22. Assessors

(1) In any proceedings in terms of or under this Act, the court may, at the request of either party, or of its own accord if the presiding officer considers it to be in the interests of justice, summon to its assistance one or two persons who are suitable and available and who may be willing to sit and act as assessors.

(2) Assessors appointed in terms of subsection (1) are, subject to subsection (3), deemed to be members of the court for purposes of this Act.

(3) Any matter of law arising for decision at the proceedings concerned and any question as to whether a matter for decision is a matter of fact or a matter of law must be decided by the presiding officer in the prescribed manner.

(4) On all matters of fact the finding or decision of the majority of the members of the court is the finding or decision of the court, and in the event of one assessor, the finding or decision of the court prevails.

(5)

(a) If an assessor dies, or in the opinion of the presiding officer becomes unable to act as an assessor, or is for any reason absent, or has been ordered to recuse himself or herself or has recused himself or herself, at any stage before the completion of the proceedings concerned, the presiding officer may, in the interests of justice and after due consideration of the arguments put forward by the parties to the proceedings or their legal representatives—

(i) direct that the proceedings continue before the remaining member or members of the court;

(ii) direct that the proceedings start afresh; or

(iii) if an assessor is absent, postpone the proceedings in order to obtain the assessor’s presence.

(b) The presiding officer must give reasons for any direction referred to in subparagraph (i) or (ii).

(6)

(a) A presiding officer who is assisted by assessors at an enquiry where a party to the proceedings has an order made against him or her must record the reasons for his or her opinion—

(i) if that party to the proceedings is not assisted by a legal representative; and

(ii)if the presiding officer is of the opinion that the assessors concerned have clearly made an incorrect finding.

(b) The clerk of the equality court must as soon as is practicable, submit those reasons and the record to the appeal court in question for review in the prescribed manner.

(c) The appeal court has the power to confirm the said findings or to make any appropriate order in respect of such finding that, in the opinion of the appeal court should have been made in the circumstances.

[Commencement of s 22: 16 June 2003 (Proc. 49, G. 25065).]

23. Appeals and reviews

(1) Any person aggrieved by any order made by an equality court in terms of or under this Act may, within such period and in such manner as may be prescribed, appeal against such order to the High Court having jurisdiction or the Supreme Court of Appeal, as the case may be.

(2) On appeal, the High Court or the Supreme Court of Appeal, as the case may be, may make such order in the matter as it may deem fit.

(3) Notwithstanding subsection (1), any person aggrieved by any order made by an equality court may, subject to the rules of the Constitutional Court, appeal directly to the Constitutional Court.

(4) In the event of conflicting decisions being made by presiding officers in matters in respect of paragraph (b) of the definition of “prohibited grounds”, the Minister may refer a stated case to the Supreme Court of Appeal or the Constitutional Court for a determination.

(5)

(a) If a presiding officer in a magistrates’ court makes a determination relating to a ground of discrimination referred to in paragraph (b) of the definition of “prohibited grounds”, the decision must, after the finalisation of the proceedings and in the prescribed manner, be submitted to the High Court having jurisdiction for review.

(b) The High Court in question must, after considering the matter, make a determination in respect of the ground referred to in subsection (5)(a) and thereafter may make any order in terms of this Act as it deems fit.

(c) The operation of subsection (5)(a) is suspended until any appeal contemplated in this section is finalised.

[Commencement of s 23: 16 June 2003 (Proc. 49, G. 25065).]