REPUBLIC OF SOUTH AFRICA

___________________________

PROMOTION OF EQUALITY AND

PREVENTION OF UNFAIR

DISCRIMINATION BILL

____________________________

[Parliamentary Ad-Hoc Joint Committee on Promotion of Equality and Prevention of Unfair Discrimination]

BILL

To give effect to section 9(4) read with item 23(1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, so as to prevent or prohibit unfair discrimination as contemplated in the Constitution; to eliminate unfair discrimination; to promote equality; and to provide for matters connected therewith.

PREAMBLE

[RECOGNISING THAT—

AND BEARING IN MIND THAT—

AND IN ORDER TO—

The consolidation of democracy in our country requires the eradication of social and economic inequalities, especially those that are systemic in nature, which were generated in our history by colonialism, apartheid and patriarchy, and which brought pain and suffering to the great majority of our people;

Although significant progress has been made in restructuring and transforming our society and its institutions, systemic inequalities and unfair discrimination remain deeply embedded in social structures, practices and attitudes, undermining the aspirations of our constitutional democracy;

The basis for progressively redressing these conditions lies in the Constitution which, amongst others, upholds the values of human dignity, equality, freedom and social justice in a united non-racial and non-sexist society where all may flourish;

South Africa also has international obligations under binding treaties and customary international law in the field of human rights which promote equality and prohibit unfair discrimination. Among these obligations are those specified in the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Elimination of All Forms of Racial Discrimination;

Section 9 of the Constitution provides for the enactment of national legislation to prevent or prohibit unfair discrimination and to promote the achievement of equality;

This implies the advancement, by special legal and other measures of historically disadvantaged individuals, communities and social groups who were dispossessed of their land and resources and deprived of their human dignity and who continue to endure the consequences;

This Act endeavours to facilitate the transition to a democratic society, united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom;

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—

TABLE OF CONTENTS

CHAPTER 1

DEFINITIONS, OBJECTS, INTERPRETATION, GUIDING PRINCIPLES AND APPLICATION OF ACT

1. Definitions 12

2. Objects of Act 19

3. Interpretation of Act 21

4. Guiding principles 23

5. Application of Act 24

CHAPTER 2

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION, HATE SPEECH AND HARASSMENT

6. Prevention and general prohibition of unfair discrimination 25

7. Unfair discrimination 25

8. Positive measures and differentiation

9. Prohibition of dissemination and publication of unfair discriminatory information

10. Prohibition of hate speech

11. Prohibition of harassment

CHAPTER 3

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION RELATING TO RACE, GENDER AND DISABILITY

12. Prohibition of racial discrimination and racism 26

13. Prohibition of gender discrimination 27

14. Prohibition of disability discrimination 28

CHAPTER 4

[DEFENCES AND] BURDEN OF PROOF AND DETERMINATION OF FAIRNESS

15. Discrimination on prohibited grounds 29

16. Burden of proof 29

17. Determination of fairness 30

CHAPTER 5

EQUALITY COURTS

18. Equality courts and presiding officers 32

19. Clerks of equality courts 33

20. Witnesses 33

21. Rules and court proceedings 34

22. Institution of proceedings in terms of or under Act 36

23. Powers and functions of equality court 38

24. Assessors 41

25. Appeals 46

CHAPTER 6

PROMOTION OF EQUALITY

26. General responsibility to promote equality 46

27. Duty of the State to promote equality 47

28. Responsibility of functionaries and [private bodies] juristic and non-juristic persons operating in the public domain to promote equality 49

29. Social commitment by all persons to promote equality 50

30. Special measures to promote equality with regard to race 50

31. Special measures to promote gender equality 51

32. Special measures with regard to the promotion of equality in the area of disability 52

CHAPTER 7

GENERAL PROVISIONS AND IMPLEMENTATION OF ACT

33. Regulations 69

34. Implementation of Act 69

CHAPTER 8

SECTORS

35. Sectors

CHAPTER 9

REVIEW OF ACT, SHORT TITLE AND COMMENCEMENT

36. Establishment of review committee 72

37. Functions of review committee 73

38. Short title and commencement 74

CHAPTER 1

DEFINITIONS, OBJECTS, INTERPRETATION, GUIDING PRINCIPLES AND APPLICATION OF ACT

Definitions

1. (1) In this Act, unless the context indicates otherwise—

(i) "clerk of an equality court" means a clerk of an equality court appointed in terms of section 19, read with section 34, and includes "a clerk";

(ii) "Commission for Gender Equality" means the Commission for Gender Equality referred to in section 187 of the Constitution;

(iii) "complainant" means any person who alleges any contravention of this Act and who institutes proceedings in terms of the Act;

(iv) "Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

(v) "constitutional institution" means any of the relevant institutions supporting constitutional democracy referred to in Chapter 9 of the Constitution and includes the Pan South African Language Board;

(vi) "Department" means the Department of Justice and Constitutional Development;

(vii) "discrimination" means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly -

    1. imposes burdens, obligations or disadvantage on; or
    2. withholds benefits, opportunities or advantages from,
    3. any person on one or more of the prohibited grounds;

      (viii) "equality" includes the full and equal enjoyment of [all] rights and freedoms as contemplated in the Constitution and includes de jure and de facto equality and also equality in terms of outcomes;

      (ix) "equality court" means a court contemplated in section 18, read with section 34, and includes "court";

      (x) "harassment" means unwanted conduct which is persistent or serious and demeans, humiliates or creates a hostile or intimidating environment or is calculated to induce submission by actual or threatened adverse consequences and which is related to -

      (a) sex, gender or sexual orientation; or

      (b) a person's membership or perceived membership of a group identified by one or more of the prohibited grounds or a characteristic associated with such group;

      (xi) "Minister" means the Minister for Justice and Constitutional Development;

      (xii) "person" includes a juristic person and any non-juristic entity or a group or category of persons;

      (xiii) "prescribed" means prescribed by regulation in terms of section 33;

      (xiv) "presiding officer" means a presiding officer of an equality court contemplated in section 18, read with section 34;

      (xv) "prohibited grounds" [includes] are one or more of the following:

      1. race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, nationality, HIV-AIDS status, socio-economic status, family responsibility and family status; or
      2. any other ground where discrimination based on that ground causes or perpetuates disadvantage and undermines human dignity and adversely affects the equal enjoyment of [all] a person's rights and freedoms in a comparably serious manner;

[(xvi) "racial discrimination" means any distinction, exclusion, restriction or preference, based on race, colour, descent, national or ethnic origin, which is aimed at or has the effect of nullifying, impeding or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other sphere of life;

(xvii) "racism" includes any act, practice or policy which denies or is calculated to deny or undermine the inherent dignity of a person or a group of persons on the basis of race, language, religion or ethnicity, as manifested in violence against such person or group of persons, the denial of free and equal access to, and participation in, all spheres of life;]

(xviii) "regulation" means a regulation in terms of section 33;

(xix) "respondent" means any person against whom proceedings are instituted in terms of this Act;

[(xx) "sector" means any sector referred to in section 35, including the sectors set out in Schedule I and any further sectors added by way of amendment;]

(xxi) "South African Human Rights Commission" means the South African Human Rights Commission referred to in section 184 of the Constitution;

(xxii) "the State" includes—

(a) any department of State or administration in the national, provincial or local sphere of government;

(b) any other functionary or institution—

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation or under customary law or tradition;

(xxiii) "this Act" includes any regulation made in terms of section 33 but does not include footnotes;

[(xxiv) "unfair discrimination" means discrimination as contemplated in section 7].

Objects of Act

2. The objects of this Act are—

(a) to enact legislation required by section 9(4) of the Constitution;

(b) to give effect to the letter and spirit of the Constitution, in particular -

(i) the equal enjoyment of all rights and freedoms by every person;

(ii) the promotion of equality;

(iii) the values of non-racialism and non-sexism contained in section 1 of the Constitution;

(iv) the prevention of discrimination and protection of human dignity contained in sections 9 and 10 of the Constitution;

(v) the prohibition of advocacy of hatred, based on race, ethnicity, gender or religion, that constitutes incitement to cause harm as contemplated in section 16(2)(c) of the Constitution and section 10 of this Act;

(c) to provide for measures to facilitate the progressive eradication of unfair discrimination, hate speech and harassment, particularly with regard to race, gender and disability;

(d) to provide for measures to educate the public and raise public awareness on the importance of advancing equality and overcoming unfair discrimination, hate speech and harassment;

(e) to provide remedies for victims of unfair discrimination, hate speech and harassment and persons whose right to equality has been infringed;

(f) to set out measures to advance persons disadvantaged by unfair discrimination, hate speech and harassment; and

(g) to facilitate further compliance with international law obligations including treaty obligations in terms of the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women amongst others.

Interpretation of Act

3. (1) Any person applying this Act must interpret its provisions to give effect to—

(a) the Constitution, the provisions of which include the promotion of equality through legislative and other measures designed to protect or advance persons disadvantaged by past and present unfair discrimination;

(b) the Preamble, the objects and guiding principles of this Act, thereby fulfilling the spirit, purport and objects of this Act;

[(c) any relevant code of practice, issued in terms of this Act or any other law].

(2) Any person interpreting this Act—

(a) must, where appropriate, consider any relevant law and code of practice, issued in terms of this Act or any other relevant law, subject to section 5(2);

(b) must, where appropriate, consider international law, particularly the international agreements referred to in section 2;

(c) may, where appropriate, consider foreign law;

(d) must prefer any reasonable interpretation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

(3) Any person interpreting this Act must, where a dispute arising from this Act revolves around an issue covered by-:

(a) a provision of an international agreement that binds the Republic as contemplated in section 231 of the Constitution; or

(b) a principle of recognised customary international law as contemplated in section 232 of the Constitution,

attempt to resolve the dispute in conformity with the principle of recognised customary international law or the provision of the international treaty in question, as the case may be.

(4) Any person applying or interpreting this Act must take into account the context of the dispute and the purpose of this Act.

[(5) Despite any other law to the contrary, the inclusion of any ground of unfair discrimination, or any prohibitions of unfair discrimination, harassment or hate speech referred to in this Act, must not be interpreted as an indication of the exclusion of other grounds, or prohibitions of unfair discrimination or hate speech.]

Guiding principles

4. (1) In the adjudication of any proceedings which are instituted in terms of or under this Act, the following principles should apply:

(a) The expeditious and informal processing of cases, which facilitate participation by the parties to the proceedings

(b) access to justice to all persons in relevant judicial and other dispute resolution forums;

(c) the use of special rules of procedure and criteria to facilitate participation;

(d) the use of corrective or restorative measures in conjunction with measures of a deterrent nature;

(e) the development of special skills and capacity for persons applying this Act in order to ensure effective implementation and administration thereof.

(2) In the application of this Act the following should be recognised and taken into account:

(a) The existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of present and past unfair discrimination, brought about by colonialism, the apartheid system and patriarchy; and

(b) the need to take measures at all levels to eliminate such discrimination and inequalities.

Application of Act

5. (1) This Act binds the State and all persons.

(2) If any conflict relating to a matter dealt with in this Act arises between this Act and the provisions of any other law, other than the Constitution or an Act of Parliament expressly amending this Act, the provisions of this Act must prevail: Provided that this Act only applies [to unfair discrimination] in respect of issues relating to employment to the extent that it deals with employees and employers who are excluded from the application of the Employment Equity Act, 1998 (Act No. 55 of 1998).

CHAPTER 2

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION, HATE SPEECH AND HARASSMENT

Prevention and general prohibition of unfair discrimination

6. Neither the State nor any person may unfairly discriminate directly or indirectly against any person.

Unfair discrimination

7. Subject to section 8, discrimination is unfair if it—

(a) impairs or is likely to impair human dignity;

  1. undermines equal enjoyment of all human rights and freedoms or access to opportunities in all areas of life by any person in a way that —

(i) creates or sustains systemic forms of inequality or disadvantage;

(ii) perpetuates or exacerbates or is likely to perpetuate or exacerbate past or existing forms of inequality and disadvantage, including the social consequences of discrimination, particularly on the grounds of race, gender and disability; or

(iii) constitutes failure to reasonably accommodate the needs of or enable any person to enjoy full and equal access to or participate or advance equally in all areas of life,

on one or more of the prohibited grounds.

Positive measures and differentiation

8. It is not unfair discrimination to –

(a) take measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination; or

(b) differentiate between persons according to reasonable, justifiable and objectively determinable criteria that are intrinsic and inherent to economic or other legitimate activity.

Prohibition of dissemination and publication of unfair discriminatory information

9. No person may—

(a) disseminate or broadcast any information;

(b) publish or display any advertisement or notice,

that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate: Provided that bona fide engagement in artistic creativity, academic and scientific inquiry, fair and accurate reporting in the public interest or publication of any information, advertisement or notice in accordance with section 16 of the Constitution, is not precluded by this section.

Prohibition of hate speech

10. (1) Subject to the proviso in section 9, no person may publish, propagate, advocate or communicate words that could reasonably be construed or reasonably be understood to demonstrate a clear intention to unfairly discriminate and which are harmful or promote hatred or are calculated to be harmful or hurtful or to propagate hatred against any person on any one or more of the prohibited grounds.

(2) Without prejudice to any remedies of a civil nature under this Act, the court may refer any case dealing with the publication, advocacy, propagation or communication of hate speech as contemplated in subsection (1), to the Director of Public Prosecutions for the institution of criminal proceedings.

Prohibition of harassment

11. (1) Harassment, as defined in section 1, is hereby prohibited .

(2) Any test of fairness, reasonableness or justifiability does not apply to harassment.

CHAPTER 3

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION RELATING TO RACE, GENDER AND DISABILITY

Prohibition of racial discrimination and racism

12. Without detracting from the generality of the provisions of this Act and subject to section 8, no person may unfairly discriminate directly or indirectly against any person on the ground of race, a combination of race and any other ground, including [in the following manner] -

(a) the dissemination of any propaganda or idea, which propounds the racial superiority or inferiority of any person, including incitement to, or participation in, any form of racial violence;

(b) the [operation of] engagement in any activity which is intended to promote, or has the effect of promoting, exclusivity, based on racism or racial discrimination;

(c) the exclusion of persons of a particular race group under any rule or practice that appears to be legitimate but which is actually aimed at maintaining exclusive control by a particular race group;

(d) the provision or continued provision of inferior services to any racial group, compared to those of another racial group, without taking [steps] reasonable measures to progessively realise equal services to both groups within the resources available;

(e) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration.

Prohibition of gender discrimination

13. Without detracting from the generality of the provisions of this Act and subject to section 8, no person may unfairly discriminate, directly or indirectly, against any person on the ground of gender, including -

(a) gender-based violence;

(b) female genital mutilation;

(c) the system of preventing women from inheriting family property;

(d) any practice, including traditional, customary or religious practice, which [unfairly violates] impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child;

(e) any policy or conduct that unfairly or unreasonably limits access of women to land rights, finance, education and other resources;

(f) discrimination on the ground of pregnancy;

(g) limiting women's access to social services or benefits, such as health, education and social security;

(h) the denial of access to opportunities, including access to services or contractual opportunities for rendering services for consideration;

(i) systemic inequality of access to opportunities by women as a result of the sexual division of labour.

Prohibition of disability discrimination

14. Without detracting from the generality of the provisions of this Act and subject to section 8, no person may unfairly discriminate directly or indirectly against any person on the ground of disability, including in the following manner:

(a) Denying or removing from any person who has a disability from his or her supporting or enabling facility necessary for his or her functioning in society;

(b) contravening the code of practice or regulations of the South African Bureau of Standards that govern environmental accessibility;

(c) failing to [identify or] eliminate obstacles that [unjustly] unfairly limit or restrict persons with disabilities from enjoying equal opportunities or failing to take steps to reasonably accommodate the needs of such persons.

CHAPTER 4

[DEFENCES] BURDEN OF PROOF AND DETERMINATION OF FAIRNESS AND UNFAIRNESS

Discrimination on prohibited grounds

15. Discrimination on one or more of the prohibited grounds in section 1 is unfair unless it is established that the discrimination is fair.

Burden of proof

16. If the complainant makes out a case of unfair discrimination in terms of this Act, which on the face of it, requires a response from the respondent—

(a) the respondent must prove that the discrimination is not based on one or more of the prohibited grounds; or

(b) if it is proved that the discrimination is based on one or more of the prohibited grounds, the respondent must prove that the discrimination is fair or the act or omission complained of falls within the scope of section 8.

Determination of fairness and unfairness

17. Subject to sections 7 and 8, any court or forum exercising jurisdiction in terms of this Act may take one or more of the following into account when determining whether the act, omission or conduct in question is fair or unfair: [discrimination is fair or unfair, depends on its context and all relevant circumstances, in particular the following:]

(a) The impact or possible impact of the discrimination on the complainant;

(b) the position of the complainant in society and whether he or she belongs to a group that suffers from patterns of disadvantage;

(c) whether the discrimination is systemic in nature;

(d) the nature and extent of the discrimination, including the nature and extent of the resultant disadvantage;

(e) the purpose of the discrimination and the extent to which that purpose is achieved, where applicable;

(f) whether there are less restrictive and less disadvantageous means to achieve the purpose;

(g) where appropriate, whether and to what extent the respondent has taken such steps as are reasonable in the circumstances to address the disadvantage or to accommodate diversity arising from or related to one or more of the prohibited grounds;

(h) whether it is consistent with any applicable legislation or any other policy or policy related document;

(i) whether, in the circumstances, it is reasonable and justifiable:

Provided that fairness, reasonableness and justifiability do not apply in cases of harassment and hate speech.

Option:

17. (1) Before a finding as contemplated in section 23(1) whether unfair discrimination has taken place, the following factors must be weighed up against each other, from the available evidence:

(a) whether the discrimination is fair or unfair, as contemplated in section 7;

(b) whether the act or omission or conduct complained of, is reasonable and justifiable in the circumstances, including whether the act or omission or conduct complained of, falls within the scope of section 8(b).

[Parked provisions relating to promotion]

CHAPTER 5

EQUALITY COURTS

Equality courts and presiding officers

18. (1) For the purposes of this Act, but subject to section 34—

(a) every magistrate’s court and every High Court is an equality court for the area of its jurisdiction; and

(b) any magistrate, additional magistrate and judge may be designated by the Minister to be a presiding officer of the equality court of the area in respect of which he or she is magistrate, additional magistrate or judge, as the case may be.

(2) (a) For the purposes of this Act, the Commission for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court referred to in the Labour Relations Act, 1995 (Act No. 66 of 1995), are deemed to be equality courts for all employment matters arising from this Act: Provided that the CCMA may only make orders contemplated in section 23(2)(c), (d), (g), (h), (i), (j), (k), (l), (m), (o) or (p).

(b) For the purposes of this Act every commissioner of the CCMA and every Labour Court judge is deemed to be a presiding officer of the equality court of the area in respect of which he or she is commissioner or Labour Court judge, as the case may be.

(3) A presiding officer [designated by the Minister] must perform the functions and exercise the powers assigned to or conferred on him or her by this Act or any other law.

Clerks of equality courts

19. (1) (a) Subject to 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 designate any competent officer in the Department to act as clerk 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.

Witnesses

20. 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.

Rules and court proceedings

21. (1) Except as is otherwise provided in this Act, the provisions of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), and the Supreme Court Act, 1959 (Act No. 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 No. 107 of 1985), apply with the necessary changes 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 33 of this Act for any matter mentioned in this subsection.

(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 23(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) Paragraph (a), relating to the confirmation of an order, does not apply in a case where a person appeals against an order made by an equality court as contemplated in section 25.

Institution of proceedings in terms of or under Act

22. (1) (a) The following may institute proceedings in terms of or under this Act:

(i) Any person acting in that person’s interest;

(ii) any person acting on behalf of another person who cannot act in that person’s own name;

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

(iv) any person acting in the public interest;

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

(vi) the South African Human Rights Commission, or the Commission for Gender Equality [or any other relevant person designated by the Minister by notice in the Gazette].

(b) No proceedings may be instituted in terms of or under this Act in relation to unfair discrimination in respect of issues relating to employment if the issues in question are regulated by the Employment Equity Act, 1998 (Act No. 55 of 1998).

(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, as the case may be, of his or her 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, [person], body, court or tribunal which, in the presiding officer's opinion, can deal more appropriately with the matter in terms of that institution's, [person's], body's, court's or tribunal'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 into account all relevant circumstances, including the following:

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

(b) the physical accessibility of any contemplated alternative institution, [person], body, court or tribunal;

(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 institution, [person], body, court or tribunal.

(5) (a) If the presiding officer decides that the matter must be referred to an alternative institution, [person], body, court or tribunal he or she must, in the prescribed manner, make an order, [together with any comments he or she deems necessary for the attention of the alternative institution, and] directing the clerk of the equality court to transfer the matter to the institution, [person], body, court or tribunal 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 institution, [person], body court or tribunal.

(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 institution, [person], body, court or tribunal in question must deal with the matter as soon as possible in terms of its powers and functions.

(8) If the institution, [person], body or tribunal 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 institution, [person], body, or tribunal 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.

Powers and functions of equality court

23. (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[, if it is satisfied that unfair discrimination has taken place, as alleged,] 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/complainant in the matter, an order for the payment of damages in the form of an award to an appropriate body or organisation responsible for addressing unfair discrimination [that does not have an interest in the matter];

(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;

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

(n) 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;

(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 for further investigation;

(b) any proceedings before it for mediation, conciliation or negotiation,

to the relevant constitutional institution: Provided that nothing precludes the court from attempting to resolve any dispute or to rectify any act or omission which gave rise to the proceedings in question.

(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.

Assessors

24. (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 interest 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, who, subject to subsection (2), are also members of the court for purposes of this Act.

(2) 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.

(3) 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.

(4) (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).

(5) (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—

(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,

record the reasons for his or her opinion.

(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.

Appeals

25. (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 think 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.

CHAPTER 6

PROMOTION OF EQUALITY

General responsibility to promote equality

26. The State and all persons have a duty and responsibility under this Act to achieve the progressive realisation of equality.

Duty of the State to promote equality

27. (1) Subject to section 26, the State must, where necessary with the assistance of the relevant constitutional institutions—

(a) develop awareness of fundamental rights in order to promote a climate of understanding, mutual respect and equality;

(b) take measures to develop and implement programmes in order to promote equality;

(c) where necessary, develop action plans to address any unfair discrimination, hate speech or harassment;

(d) where appropriate, enact further legislation that seeks to promote equality and to establish a legislative framework in line with the objectives of this Act;

(e) where appropriate, develop codes of practice as contemplated in this Act in order to promote equality, and develop guidelines, including codes on reasonable accommodation;

(f) provide assistance, advice and training on issues of equality, where appropriate;

(g) where necessary, develop appropriate internal mechanisms to deal with complaints of unfair discrimination, hate speech or harassment;

(h) conduct information campaigns [with a view] to [the] popularise this Act.

(2) Furthermore, the South African Human Rights Commission and other relevant constitutional institutions may, in addition to any other obligation, in terms of the Constitution, request organs of state or persons to supply information on any legislative, executive or other measures adopted, relating to the achievement of equality, including their compliance with legislation, codes of practice and programmes.

(3) In addition to the powers and functions of the constitutional institutions these institutions are also competent to—

(a) assist complainants in instituting proceedings in an equality court, particularly complainants who are disadvantaged in any way;

(b) conduct investigations into cases and make recommendations regarding persistent contraventions of this Act or cases of systemic unfair discrimination, hate speech or harassment referred to them by an equality court;

(c) [receive] request regular reports in the prescribed manner regarding the number of cases and the nature and outcome thereof dealt with by the equality courts within a specified period of time.

(4) All Ministers must effect progressive realisation of equality within available resources in the sectors falling within their area of responsibility by—

(a) eliminating any form of unfair discrimination or the perpetuation of inequality in any law, policy or practice for which those Ministers are responsible; and

(b) preparing and implementing equality plans in the prescribed manner—

(i) which are intended to achieve reasonable progress towards equality in those sectors falling within their area of responsibility; and

(ii) the contents of which must include a time frame for implementation of such plans, formulated in consultation with the Minister of Finance regarding the financial implications thereof.

(5) The prescribed equality plans must, within two years after the commencement of this Act, be submitted to the South African Human Rights Commission to be dealt with in the prescribed manner in consultation with the Commission for Gender Equality.

(6) In addition to the responsibilities of Ministers under subsection (5), all Ministers must —

(a) integrate the responsibilities relating to the active promotion of equality in respect of race, gender and disability as contemplated in sections 30, 31 and 32;

(b) carry out the duties and responsibilities assigned to them under this Chapter.

Responsibility of functionaries and [private bodies] juristic and non-juristic persons operating in public domain to promote equality

28. It is the responsibility of functionaries and [private bodies] juristic and non-non-juristic persons either exercising any public power or providing goods and services to the public or engaged in beneficial business relations with public [authorities] institutions to promote equality by-

(a) adopting appropriate equality plans, codes, regulatory mechanisms and other appropriate measures for the effective promotion of equality in the spheres of their operation;

(b) enforcing and monitoring the enforcement of the equality plans, codes and regulatory mechanisms developed by them; and

(c) making regular reports to the relevant monitoring authorities or institutions as may be provided in the regulations, where appropriate.

Social commitment by all persons to promote equality

29. [Every natural and juristic] All persons [in South Africa], including non-governmental organisations, community-based organisations and traditional institutions, [shall] must endeavour and strive to promote equality in all spheres of their relationships with others and within the institutions to which they belong or have responsibility over.

Special measures to promote equality with regard to race

30. (1) In the prosecution of any offence, if it is proved that unfair racial discrimination or racism played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence.

(2) The State, institutions performing public functions and all other persons have a responsibility to promote racial harmony in all fields.

(3) The State must take steps to eliminate any form of racial discrimination or racism in any law, policy or practice for which it is responsible.

(4) The South African Human Rights Commission must, in its report referred to in section 15 of the Human Rights Commission Act, 1994 (Act No. 54 of 1994), include an input on the extent to which racism or racial discrimination persists in the Republic, the effects thereof and recommendations on how best to address the problems identified.

(5) The Commission’s report referred to in subsection (4) may include specific mention of worst cases of unfair discrimination, hate speech and harassment as well as best examples in the promotion or racial equality and the elimination of unfair racial discrimination, hate speech and harassment.

Special measures to promote gender equality

31. (1) In the prosecution of any offence, if it is proved that gender discrimination played a part in the commission of the offence, this must be regarded as an aggravating circumstance for purposes of sentence.

(2) The State must take steps to promote gender equality in all fields, by eliminating any form of gender discrimination in any law, policy or practice for which it is responsible, especially in respect of the prohibitions referred to in section 13 [—

(a) the eradication of gender-based violence;

(b) the elimination of the oppression of women by religious, cultural and customary rules and practices;

(c) the inequality of access to resources;

(d) the inequality of access to employment opportunities as a result of the sexual division of labour;

(e) the eradication of multiple discrimination.]

(3) The Commission on Gender Equality must, in its report referred to in section 15 of the Commission on Gender Equality Act, 1996 (Act No. 39 of 1996), include—

(a) an input on the extent to which gender discrimination persists in the Republic;

(b) the effects of gender discrimination; and

(c) recommendations on how best to address gender discrimination.

(4) The Commission’s report referred to in subsection (3) may include specific mention of worst cases of unfair discrimination, hate speech and harassment as well as best examples in the promotion of equality and the elimination of unfair discrimination, hate speech and harassment.

Special measures with regard to the promotion of equality in the area of disability

32. The State and all persons have a responsibility to take steps to progressively realise equality for persons with disabilities.

CHAPTER 7

GENERAL PROVISIONS AND IMPLEMENTATION OF ACT

Regulations

33. (1) The Minister may, and where required in the circumstances, must, make regulations relating to—

(a) the powers, duties and functions of a clerk of an equality court;

(b) the procedures to be followed at or in connection with an inquiry in terms of or under this Act, including the manner in which proceedings must be instituted and the hearing of urgent matters;

(c) the form of any application, authority, certificate, consent, notice, order, process, register or subpoena to be made, given, issued or kept in terms of or under this Act, and any other form required in carrying out the provisions of this Act;

(d) the procedure to be followed at, and criteria to be applied for, the designation and registration of persons from the community who are suitable and available to serve as assessors in each equality court;

(e) the method to be followed in respect of the allocation of assessors in respect of proceedings in terms of or under this Act;

(f) the factors to be taken into account by an equality court when considering to summon assessors in the interest of justice;

(g) the taking of the oath or making an affirmation by assessors;

(h) the role of presiding officers and the procedure to be followed in cases where an equality court is assisted by assessors;

(i) the recusal of assessors and the procedure to be followed in the case of such recusal;

(j) a code of conduct for such assessors, and mechanisms for the enforcement of the code of conduct, including the liability of an assessor if any provision of the code of conduct is contravened by him or her;

(k) the establishment of a mechanism to deal with any grievance or complaint by or against an assessor;

(l) the training of assessors;

(m) the payment of allowances to assessors;

(n) the granting of legal aid at State expense in appropriate cases in consultation with the Legal Aid Board;

(o) the appearance of persons on behalf of the parties to the proceedings in court, which may include suitable persons other than attorneys or advocates;

(p) the reports contemplated in section 28(c);

(q) the attendance of witnesses in cases arising from the application of this Act and the payment of witness fees;

(r) any other matter which is necessary to prescribe in order to regulate the service of assessors in the equality courts;

(s) any matter required or permitted to be prescribed by regulation under this Act;

(t) any other matter which is necessary to prescribe in order to achieve the objects of this Act.

(2) Any regulation made under this section which may result in expenditure for the State, must be made in consultation with the Minister of Finance.

[(3) A regulation made under this section may provide that any person who contravenes a provision thereof or fails to comply therewith is guilty of an offence and on conviction is liable to a fine or to imprisonment for a period not exceeding three months.]

(4) Any regulation made under this section must be tabled in Parliament before publication thereof in the Gazette.

(5) The regulations made in terms of this section, and particularly subsection (1)(b) relating to the procedure at an inquiry, must, as far as possible, ensure that the application of the Act is simple, fair and affordable.

Implementation of Act

34. (1) Despite section 18(1)(a) and (b), and until the Minister determines by notice in the Gazette, no proceedings may be instituted in any court unless—

(a) a presiding officer is available who has been designated as such by the Minister after consultation with the [Magistrates’ Commission or the Judicial Service Commission] Judge President or the head of an administrative region defined in section 1 of the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), concerned, as the case may be, by reason of his or her training, experience, expertise and commitment to the values of equality and human rights; and

(b) one or more trained clerks are available.

(2) For purposes of giving full effect to this Act and making the Act as accessible as possible and in giving effect to subsection (1), the Minister may designate suitable magistrates, additional magistrates or judges, as the case may be, and clerks referred to in subsection (1) as presiding officers and clerks, respectively, for one or more equality courts.

(3) The Minister must take all reasonable steps within the available resources of the Department to achieve the progressive realisation of the appointment of at least one presiding officer and clerk for each court in the Republic.

(4) The Minister must, after consultation with the Magistrates’ Commission and the Judicial Service Commission issue policy directives and develop training courses with a view to—

(a) establishing uniform norms, standards and procedures to be observed by presiding officers and clerks in the performance of their functions, in the carrying out of their duties and in the exercise of their powers as such in terms of or under this Act; and

(b) building a dedicated and experienced pool of trained and specialised presiding officers and clerks.

(5) The Minister must table in Parliament a copy of any policy directives and training courses issued or developed in terms of subsection (4) as soon as possible after the finalisation thereof.

CHAPTER 8

SECTORS

Prohibition of unfair discrimination in sectors

35. (1) The sectors set out in Schedule I to this Act and any further sectors added by way of amendment form part of this Act.

(2) The examples of prohibited conduct or promotional measures in Schedule I must be taken into account in adjudicating cases arising from the application of this Act.

Alternative:

35. Without detracting from the generality of the provisions of this Act and subject to section 8, no person may unfairly discriminate on one or more of the prohibited grounds in any of the circumstances referred to in Schedule I.

CHAPTER 9

REVIEW OF ACT, SHORT TITLE AND COMMENCEMENT

Establishment of review committee

36. The Minister must, within [five] two years after the commencement of this Act, by notice in the Gazette, establish a review committee consisting of—

(a) a senior judicial officer with appropriate qualifications;

(b) the Chairperson of the South African Human Rights Commission;

(c) the Chairperson of the Commission on Gender Equality;

(d) a member of any relevant constitutional institution, a representative of civil society and an expert in the field of human rights, especially the right to equality.

Functions of review committee

37. (1) The review committee—

(a) must advise the Minister about the operation of this Act;

(b) may advise the Minister about any law that impacts on equality;

(c) has the other functions and powers as prescribed;

(d) must, as soon as practicable, submit a report to the Minister on the operation of the Act, which must address whether the objectives of the Act and the Constitution have been achieved and must make recommendations on any necessary amendments to the Act to improve its operation.

(2) The review committee may conduct its business and proceedings at its meetings as it deems fit.

Short title and commencement

38. (1) This Act is called the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, and comes into operation on a date fixed by the President by proclamation in the Gazette.

[(2) This Act shall not apply retrospectively.]

[(3)](2)Different dates may be so fixed in respect of different provisions of this Act.

SCHEDULE 1

(Section 35)

1. This Schedule forms an integral part of this Act as provided for in section 35.

2. In the determination of disputes arising from this Act, the forum hearing the dispute must, in establishing whether or not unfair discrimination, hate speech or harassment has occurred, take the specific sectoral prohibitions in this Schedule and the existing legislation and regulation into consideration.

Prohibition of unfair discrimination in employment

3. No person may unfairly discriminate against any person in any manner, including the following:

(a) by advertising in a manner which unjustly excludes or disadvantages potential applicants from any group of persons;

(b) by creating informal barriers to equal access to employment opportunities;

(c) by subscribing to and applying practices relating to selection and recruitment for employment, including the conduct and content of job interviews, which have the effect of unjustly excluding persons from particular groups;

(d) by subscribing to and applying human resource utilisation, development, promotion and retention practices which unjustly disadvantage persons from particular groups or have the effect of perpetuating consequences of past discrimination in employment;

(e) by subscribing to and applying criteria and practices which have the purpose or effect of unjustly excluding persons from particular groups from access to contracting opportunities;

(f) by subscribing to and applying policies and practices that have the effect of unequal pay for work of equal value;

(g) by failing to provide reasonable accommodation.

Prohibition of unfair discrimination in education

4. (1) No person may unfairly discriminate against any person in the provision of education in any manner, including the following:

(a) in the admission of a learner to an educational institution, including a learner with special needs: Provided that nothing in this Act prohibits the provision of gender-specific schools;

(b) in the granting of scholarships, bursaries, or any other form of assistance to a learner;

(c) in the provision of standard education;

(d) in the provision of benefits, facilities or services related to education;

(e) in the discipline of a learner;

(f) in the expulsion of a learner;

(g) in the forcible segregation of learners with special needs into special schools, based on their disabilities and not on their educational interests or capabilities;

(h) in the provision of reasonable accommodation relating to cultural and religious diversity.

(2) Any person who or that sets educational or vocational standards may not set standards that unfairly discriminate against any person.

Prohibition of unfair discrimination in respect of health care services and benefits

5. (1) No person may unfairly discriminate against any person in the provision of health care services in any manner, including the following:

(a) by denying or refusing any person access to health care facilities or failing to make health care facilities accessible to any person;

(b) in the nature or type of health care services that are provided;

(c) in the terms, conditions or criteria in terms of which access to health care services are provided;

(d) in the manner in which access to health care services are provided;

(e) in the quality of health care services that are provided;

(f) by assuming that persons with disabilities should not or cannot procreate, adopt or care for a child, or foster or nurture a family environment purely on the grounds that a person or a couple may have a disability or disabilities;

(g) by precluding a person from contributing to his or her medical care or treatment purely on the grounds that the person has a psychiatric or mental disability;

(h) by refusing to provide standard treatment or health care services to a person purely on the grounds that the person has a disability;

(i) by revealing a person’s health status to an employer, family member or other person or body without receiving the person’s written permission or authorisation, but taking into account national laws and policies relating to specific notifiable diseases;

(j) by subjecting any person to any unfair disadvantage regarding access to health care services;

(k) by refusing to provide emergency medical treatment on any of the prohibited grounds.

(2) No person who is in authority of, or responsible for, the provision of health care benefits, either as a principal or agent, may unfairly discriminate against any person in any manner, including the following:

(a) by refusing or denying a person access to health care benefits or failing to make those health care benefits available and accessible to that person;

(b) in the terms, conditions or criteria for eligibility for health care benefits;

(c) in the nature or quality of health care benefits provided;

(d) in the amount of health care benefits allocated for particular health care services;

(e) in the manner in which a person can gain access to health care services.

Prohibition of unfair discrimination in respect of accommodation

6. (1) No person, whether as principal or agent, may unfairly discriminate against any person in relation to accommodation in any manner, including the following:

(a) by refusing a person’s application for accommodation or lease;

(b) in the terms or conditions in respect of which accommodation or a lease agreement is concluded in favour of any person;

(c) by giving a person’s application for accommodation or a lease agreement in that person’s opinion, a lower order of precedence in any list of applicants for the accommodation or lease agreement in question;

(d) by denying a person access to, or limiting a person’s access to, any benefit associated with accommodation or leasehold occupied by the person in question;

(e) by refusing to allow a person to lease or acquire accommodation on the grounds that the person requires reasonable accommodation to make the occupation more accessible;

(f) in the eviction of a person;

(g) by subjecting a person to any other disadvantage in respect of the accommodation or lease.

(2) For purposes of this section, it is unfair discrimination to lease to any person or permit any person the use of premises for commercial sexual exploitation of a child under the age of 18.

Prohibition of unfair discrimination in respect of housing, land and property

7. No person, whether as principal or agent, may unfairly discriminate against a person in respect of land or property in any manner, including the following:

(a) by refusing or failing to dispose of or lease land or property or any other interest or right therein to any person;

(b) in the terms or conditions in respect of which land or property or any interest or right therein is disposed of or leased;

(c) in any condition subject to which land or property or any interest or right therein, is used;

(d) by failing to provide accessible accommodation in any development of land or property to the aged or disabled;

(e) by obstructing the realisation of the constitutional obligations in terms of sections 25 and 26 of the Constitution to strengthen security of tenure, facilitate equitable access to land, to undertake land reform, to prohibit demolition of any person's home or to evict any person from his or her home without a court order after considering all the circumstances.

Prohibition of unfair discrimination in provision of insurance services

8. No insurer may unfairly discriminate against any person in the provision of insurance in any manner, including the following:

(a) by refusing to provide or to make available an insurance policy to any person;

(b) in the terms or conditions in terms of which or the manner in which an insurance policy is provided or made available;

(c) in the provision of benefits, facilities and services related to insurance;

(d) in any other manner, including any policy or practice which unfairly disadvantages a person or persons on one or more of the prohibited grounds, including the refusal to grant services to persons solely on the basis of HIV or AIDS status.

Prohibition of unfair discrimination in respect of pensions

9. The Minister responsible for pensions must, by notice in the Gazette, determine a date, after which no existing or future rules may provide for—

(a) the exclusion of any person from membership of a retirement fund or from receiving any benefits from the fund on one or more of the prohibited grounds;

(b) unfair discrimination against one or more members or other beneficiaries of a retirement fund.

Prohibition of unfair discrimination in provision of goods, services and facilities

10. No person who provides goods or receives services, or makes facilities available, whether for payment or not, may unfairly discriminate directly or indirectly against any person or persons, in any manner, including the following:

(a) by refusing or failing to provide the goods or services in question or to make the facilities in question available to any person or group of persons;

(b) in the terms or conditions in terms of which the goods, services or facilities are provided or made available, as the case may be;

(c) in the manner in which the goods, services or facilities are provided or made available;

(d) by imposing terms, conditions or practices that perpetuate the consequences of past discrimination or exclusion regarding access to financial resources.

(e) by unduly limiting access to or benefits from contractual opportunities for supplying goods and services.

Prohibition of unfair discrimination in respect of associations

11. (1) No association may unfairly discriminate directly or indirectly against any person who is not a member of the association in question in any manner, including the following:

(a) in the manner in which members are recruited;

(b) by refusing or failing to consider a person’s application for membership of the association;

(c) in determining the terms or conditions in terms of which the association in question is prepared to admit a person as a member.

(2) No association may unfairly discriminate directly or indirectly against any member, in any manner, including the following:

(a) In the terms or conditions of membership which are afforded to a member;

(b) by refusing or failing to accept a person’s application for a particular class or type of membership;

(c) by denying a member access to, or by limiting a member access to, any benefit provided by the association;

(d) by depriving a member of membership or varying the terms of membership.

Prohibition of unfair discrimination in respect of partnerships

12. (1) No person who is a member of a partnership may unfairly discriminate against any person in any manner, including the following:

(a) in determining who should be invited to become a partner in the partnership in question;

(b) in the terms or conditions in terms of which a person is invited or admitted to become a partner.

(2) No person who is a partner in a partnership may unfairly or unreasonably discriminate against any other partner in the partnership in any manner, including the following:

(a) by denying that partner access to or by limiting that partner’s access to, any benefit arising from being a partner in the partnership;

(b) by expelling that partner from the partnership.

Prohibition of unfair discrimination by clubs

13. (1) No club, or committees, management or members thereof, may unfairly discriminate directly or indirectly against any person who is not a member of the club in question, in any manner, including the following:

(a) in determining the terms or conditions in terms of which the club in question is prepared to admit a person as a member;

(b) by refusing or failing to consider a person’s application for membership of the club;

(c) in the manner in which members are recruited or membership is processed.

(2) No club may, unfairly discriminate directly or indirectly, against a member in any manner, including the following:

(a) in the terms or conditions of membership which are afforded to a member;

(b) by refusing or failing to consider a person’s application for a different class or type of membership;

(c) by denying or limiting access to any benefit, arising from membership, that is provided by the club;

(d) by depriving a member of membership or varying the terms of membership;

(e) by treating a member unfavourably in any manner in connection with the membership or affairs of the club;

(f) by subjecting the member to any other unfair disadvantage.

Prohibition of unfair discrimination by professional bodies

14. (1) No professional body may, unfairly discriminate directly or indirectly, against any person who wishes to become a member of the profession in question in any manner, including the following:

(a) in the manner in which members are recruited to the profession;

(b) by refusing access to training;

(c) by refusing or failing to accept a person’s application for membership of the profession;

(d) in the terms or conditions in respect of which the professional body is prepared to admit a person as a member of the profession.

(2) No professional body may, unfairly discriminate directly or indirectly, against a member of the profession in any manner, including the following:

(a) In the terms or conditions of membership which are afforded to the member;

(b) by denying the member access to, or by limiting the member’s access to, any benefit or facility provided by the professional body;

(c) by depriving a member of membership or varying the terms of membership of the professional body;

(d) by subjecting the member to any other disadvantage;

(e) by imposing terms and conditions which perpetuate present disadvantages emanating from the past.