Neither the state nor any person can unfairly discriminate against someone, either directly or indirectly. It is against the law to discriminate against anyone on any of the following grounds:

• Race and colour
• Sexual orientation: being gay, lesbian or heterosexual
• Marital status: being single, married or divorced
• Gender: social and cultural male or female roles (for example, where a woman can’t get a certain job just because she is a woman) sex: physical differences between men and women (for example, a woman is discriminated against because she is pregnant)
• Pregnancy
• Age
• Disability
• Ethnic origin: being from a particular background, such as a clan or language group
• Culture: having a shared culture and traditional practices
• Language
• Religion, conscience, belief
• Birth

It is not always the case that an action which treats people differently is an infringement of the right to equality. The Constitutional Court has decided that there are a series of questions that need to be asked before it can be found that a particular action amounts to discrimination. These questions are:

• Does the action differentiate between people or categories of people?
• If the action does differentiate, is there a rational connection between the action and a legitimate government purpose? In other words, does the government have a good reason for the action?
• Does the differentiation amount to unfair discrimination?

The Promotion of Equality and Prevention of Unfair Discrimination Act (2000) creates a general prohibition against unfair discrimination and says what discrimination is against the law in different sectors of society including: in employment, education, health care, land, housing and accommodation, insurance, pensions, services, associations and partnerships, clubs, professions and the media. The Act also says how people who have been discriminated against can be compensated for this.

If someone is charged with unfair discrimination, it is up to the person who is discriminating (not the person discriminated against) to prove that the discrimination was reasonable and justifiable. The courts will decide if an action was unfair by looking at how the action affected the person bringing the claim.

Equality Courts can hear cases of discrimination and have powers to conciliate and mediate, grant interdicts, order payment of damages, or order a person to make an apology. (See www.doj.gov.za and click on Equality legislation for contact details of Equality Court Managers in the different provinces).

According to the South African Human Rights Commission, the right to equality remains the right most frequently litigated by the Commission in the Equality Courts. Most of these cases involve the use of derogatory words or comments with racial undertones. After race, discrimination based on disability and ethnic origin accounts for the largest number of equality-related complaints received by the SAHRC.

CASE-STUDY

A case of unfair discrimination was brought against the President when he said that certain women and children should be released from prison as part of an amnesty programme. Hugo, the person bringing the claim of unfair discrimination, said it was unfair that men weren’t given the same treatment as women.The argument brought by the President against Hugo was that the women prisoners were needed to look after the children, and that is why it was fair that they should be released rather than the men. The court said the action taken by the president was not unfair.