These are courts set up in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act). Anyone can take a case to the Equality Court if they feel they have been discriminated against on any of the grounds for non-discrimination listed in the Constitution. In addition to a listed ground, the Equality Act also prohibits any discrimination of any other ground where the discrimination:

• Causes or encourages systemic disadvantage;
• Undermines human dignity;
• Seriously impacts on the equal enjoyment of a person’s rights and freedoms that is equivalent to discrimination on a ground listed in the Constitution.

You can also take a case for hate speech or harassment to the Equality Court. You may not take a case that involves discrimination in the workplace, this falls under the Employment Equity Act 55 of 1998. (See Equality Courts)
When you lodge a case with the Equality Court, it is up to the other party, the person who has been accused of discrimination, to prove to the Court that they did not unfairly discriminate against you.

REFERRING A CASE TO THE EQUALITY COURT

If you have any questions on whether you should lodge a case, how a case is progressing, or what you would like to ask the Court to do, you can ask the equality clerk at the Court.
It does not cost anything to bring a case to the Equality Court unless you fail to attend a court date without good reason, then the court might make you pay the costs of the side that did attend. The equality clerk or the South African Human
Rights Commission can advise you on getting legal assistance. The Act says that the Court staff must help people find legal assistance if they ask for it. However, legal assistance does not necessarily refer to a qualified attorney. Legal assistance can be given by a member of staff from a Non-profit organisation (NPO), someone from an advice office, a paralegal or senior law student, or anyone who understands the subject and how the court will operate.
If a complaint involves special knowledge of a particular cultural community, the presiding officer can appoint up to two recognised experts in this area, called ‘assessors,’ to help the Court understand the case more clearly.
If you do not speak the main language used by the Equality Court, you have the right to be helped by an interpreter.

STEPS TO TAKE IN REFERRING A CASE TO THE EQUALITY COURT

Contact your local Magistrates’ Court and ask if it is an Equality Court. If it is not, ask where the closest one is. All High courts and most Magistrates’ Courts have an Equality Court.

Go to the Equality Court and lodge your complaint with the Equality Clerk. The clerk will help you to complete the relevant form.

The Equality Clerk must, within 7 days, notify the other party called the respondent, that you have lodged a complaint. The respondent will be given a form by the Clerk if they deny the allegation and want to give their side to the incident. They must return the form to the equality clerk within 10 days of receiving it.
The equality clerk must also pass details of the complaint to the Presiding Officer within 3 days of you lodging it.

The presiding officer must decide within 7 days if the case should be heard by the Equality Court, or whether another forum, for example, the CCMA, would be more appropriate to deal with it. If the presiding officer decides to refer the matter to another forum, the clerk must notify the parties of the referral. The alternate forum must deal with the matter as fast as possible. If the alternate forum does not resolve the matter, it must refer the matter back to the Equality Court with a report. The Equality Court will then have 7 days within which to give instructions as to how the matter should be dealt with.
If the presiding officer agrees this is a case for the Equality Court, then the equality clerk must set the first court date, which is called a directions hearing. At this hearing, the presiding officer will sort out issues such as: when can the parties come to trial, does anyone need an interpreter or should assessors be used.
The Equality Clerk must then legally serve notice of the hearing on the parties. If either of the parties cannot afford to pay for the notice to be served, the equality clerk can decide that the State must pay for this.
The parties must then appear in the Equality Court on the date set by the Court.

WHAT ORDER CAN THE EQUALITY COURT MAKE?

It is the duty of the Equality Court to decide whether unfair discrimination, hate speech or harassment, as the case may be, has taken place as alleged in the
complaint. After holding the enquiry, the court will decide what order to make. The order could be:

• A settlement between the parties
• Payment of damages
• Requiring the unfair discriminatory practices to stop or that specific steps must be taken to stop the unfair discrimination, hate speech or harassment
• Making available specific opportunities and/or privileges that have been unfairly Denied to the complainant
• Implementing special measures to address the unfair discrimination, hate speech or harassment
• Directing the respondent to accommodate the needs of a group or class of people
• An unconditional apology
• Making the respondent go through an audit of specific policies or practices that the court decides
• Directing the clerk of the Equality Court to submit the matter to the Director of Public Prosecutions for the possible institution of criminal proceedings.

RIGHT OF APPEAL AND REVIEW IN THE EQUALITY COURT

Any person who is dissatisfied by an order made by the Equality Court may appeal against the order to either the High Court or the Supreme Court of Appeal. An appeal can also be made directly to the Constitutional Court.
If a presiding officer in a Magistrate’s Court rules on a ground of discrimination not listed by the Act, the decision must be submitted to the relevant High Court for review, once the proceedings have been finalised.