Draft E1 as of 17/12/99

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]

Re-Draft No. 1 (Work in progress)

17 December 1999

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.

PREAMBLE1

RECOGNISING THAT—

the consolidation of democracy in our country is inextricably linked to overcoming the acute and systemic social and economic inequalities generated by colonialism, apartheid, racism and sexism, which have caused and continue to cause pain and suffering to the great majority of our people;

the Constitution of the Republic of South Africa, 1996, commits South Africa and its people to the values of unity, human dignity, the achievement of equality and the advancement of human rights and freedoms;

South Africa has international obligations in terms of binding treaties and customary international law in the field of human rights relating to the promotion of equality and the prohibition and prevention of unfair discrimination;

although progress has been made in re-constructing a society based on equality, justice, non-racialism, non-sexism and human rights and freedoms, structural and systematic inequalities exist which undermine the values of our constitutional democracy;

AND BEARING IN MIND THAT—

national legislation must be enacted in terms of section 9 of the Constitution to prevent or prohibit unfair discrimination, and to promote the achievement of equality;

there is a need to make provision for the advancement and protection of persons disadvantaged by the original dispossession of land and resources as experienced since the colonisation2, and by continued unfair discrimination in all spheres of life from that time henceforth;

AND IN ORDER TO—

actively promote the building of our society that is rich in diversity, that is caring, compassionate and that strives progressively to achieve equality and live in peace within South Africa, and with neighbours in other African countries and the rest of the world community

give effect to the right of equality as contemplated in the Constitution;

adopt and set out measures to address and eliminate the imbalances and inequalities particularly in respect of race, gender and disability, existing in all spheres of life as a result of present and past discrimination brought about by the apartheid and patriarchal system, thereby contributing to the total transformation of South African society to one where the universal principles of equality, fairness, justice and human dignity apply to everyone;

conform to the international agreements, particularly the Convention on the Elimination of All Forms of Discrimination against Women and the Convention of the Elimination of All Forms of Racial Discrimination; [Check instrument on Disability]

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

2. Objects of Act3

3. Interpretation of Act 21

4. Guiding principles

5. Application of Act

CHAPTER 2

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION

6. Prevention and general prohibition of unfair discrimination

7. Prohibition of publication of unfair discriminatory information

CHAPTER 3

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

8. Prohibition of racial discrimination and racism

9. Prohibition of gender discrimination

10. Prohibition of disability discrimination

CHAPTER 4

DEFENCES AND BURDEN OF PROOF

11. Discrimination on prohibited grounds

12. Burden of proof

13. Determination of fairness

14. Measures to redress disadvantage

15. [Parked provisions relating to promotion] 32

CHAPTER 5

EQUALITY COURTS

16. Equality courts and presiding officers

17. Clerks of equality courts

18. Witnesses

19. Rules and court proceedings

20. Institution of proceedings in terms of or under Act

21. Powers and functions of equality court

22. Assessors

23. Appeals

CHAPTER 6

PROMOTION OF EQUALITY4

24. General Responsibility to Promote Substantive Equality

25. Duty of the State and Organs of State to Promote Substantive

Equality

26. Responsibility of Functionaries and Private Bodies Operating in the Public Domain to Promote Equality

27. Social commitment by all People to Promote Substantive Equality

28. Special Measures to Promote Equality with regard to Race

29. Special Measures to promotion of Gender Equality Gender

30. Special Measures with Regard to the Promotion of Equality in the area of Disability

CHAPTER 7

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION AND PROMOTION OF EQUALITY IN SPECIFIC SECTORS5

PART C

EMPLOYMENT

31. Prohibition of unfair discrimination in employment 6

32. Measures to prevent and eliminate unfair discrimination and to promote equality in employment

PART D

EDUCATION

33. Prohibition of unfair discrimination in education

34. Measures to prevent and eliminate unfair discrimination and to promote equality in education

PART E

HEALTH CARE

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

36. Measures to prevent and eliminate unfair discrimination and to promote equality in health

PART F

ACCOMMODATION, LAND AND PROPERTY

37. Prohibition of unfair discrimination in respect of accommodation 58

38. Prohibition of unfair discrimination in respect of land and property

39. Measures to prevent and eliminate unfair discrimination and to promote equality in land and housing matters

PART G

INSURANCE

40. Prohibition of unfair discrimination in Provision of Insurance Services

41. Measures to prevent and eliminate unfair discrimination and to promote equality in provision of insurance services

PART H

PENSIONS

42. Prohibition of unfair discrimination in respect of Pensions

43. Measures to prevent and eliminate unfair discrimination and to promote equality in respect of pensions

PART I

GOODS, SERVICES AND FACILITIES

44. Prohibition of unfair discrimination in provision of goods, services and

facilities

45. Measures to prevent and eliminate unfair discrimination and to promote equality in the provision of goods, services and facilities

PART J

ASSOCIATIONS AND PARTNERSHIPS

46. Prohibition of unfair discrimination in respect of associations

47. Prohibition of unfair discrimination in respect of partnerships

48. Measures to prevent and eliminate unfair discrimination and to promote equality in associations and partnerships

PART K

CLUBS AND SPORT

49. Prohibition of unfair discrimination by clubs

50. Measures to prevent and eliminate unfair discrimination and to promote equality in respect of clubs and sport

PART L

PROFESSIONS

51. Prohibition of unfair discrimination by professional bodies

52. Measures to prevent and eliminate unfair discrimination and to promote equality in professions

CHAPTER 8

GENERAL PROVISIONS AND IMPLEMENTATION OF ACT

53. Regulations

54. Implementation of Act

CHAPTER 9

REVIEW OF ACT, SHORT TITLE AND COMMENCEMENT

55. Establishment of review committee

56. Functions of Review Committee

57. Short title and commencement

CHAPTER 1

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

Definitions

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

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

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

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

"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;

"Department" means the Department of Justice and Constitutional Development;

"equality court" means a court contemplated in section 16, read with section 54, and includes "court";

"equality court assistant" means an equality court assistant appointed in terms of section 16, read with section 54, and includes "an assistant";

"harassment" means any communication, conduct or omission—7

(a) related to sex, gender or sexual orientation which—

(i) creates a hostile or intimidating environment for another person, group or category of person; or

(ii) consists of any actual or intimated decision, conduct or omission concerning the person affected in exchange for sexual favours; or

(b) which denigrates8, humiliates or shows hostility or aversion towards another person or group of persons—

(i) based on his or her membership or perceived membership of a group identified with reference to one or more prohibited grounds; or

(ii) related to a characteristic associated with a prohibited ground;

"Minister" means the Minister for Justice and Constitutional Development;

"person" includes a juristic person and any non-juristic entity;

"prescribed" means prescribed by regulation in terms of section 53;

"presiding officer" means a presiding officer of an equality court contemplated in section 16, read with section 54;

"prohibited grounds" includes one or more of the following listed grounds of discrimination:

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 any additional ground that—

(a) causes or perpetuates disadvantage;9

(b) undermines human dignity;10 or

"regulation" means a regulation made and in force in terms of section 53;

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

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

OPTION 1

"substantive equality" means the full and equal enjoyment of all right and freedoms as contemplated in the Constitution and includes [de jure and de facto] equality.

OPTION 2

"substantive equality" includes equality in terms of the law and in reality11 and also equality in terms of process and outcomes. ;

"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) who or which exercises a power or performs a function in terms of the Constitution or a provincial constitution; or

(ii) who or which exercises a public power or performs a public function in terms of any legislation, including functionaries or institutions functioning under customary law or tradition;

"this Act" includes any regulation made and in force in terms of section 53 but does not include footnotes;

DEFINITION OF UNFAIR DISCRIMINATION

Discrimination is unfair if it—

(a) causes disadvantage to or impairs or is likely to impair the fundamental human dignity of or equal enjoyment of all human rights and freedoms or access to opportunities in all areas of life by any person or persons ; or

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

(c) constitutes failure to reasonably12 accommodate the needs of or enable any person or group of persons, identified by one or more of the prohibited grounds, to enjoy full and equal access to or participate or advance equally in all areas of life,13

on one or more of the prohibited grounds.

[PARKED DEFINITIONS FROM SECTORS

"beneficiary" means a person who has received or is to receive benefits from a retirement fund in terms of the rules of the fund as a result of the person’s relationship with a member of that retirement fund;

"club" includes an association of persons or an association of clubs established for any social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purpose, whether incorporated or otherwise and includes specifically any company incorporated for purposes of managing the professional affairs of club;

"designated groups" means—

[a] persons previously classified as Africans, Coloureds or Indians;

[b] women; or

[c] persons with disabilities;

"educational institution" means—

[a] an education institution as defined in section 1 of the National education Policy Act, 1996 (Act No.27 of 1996);

[b] a higher education institution as defined in section 1 of the Higher Education Act, 1997 (Act NO. 101 of 1997); or

[c] a further education and training institution as defined in section 1 of the Further Education and Training Act, 1998 (Act No. 98 of 1998).

"health care benefits" includes but are not limited to subsidies, health insurance and pensions.

"health care services"—

[a] includes those services necessary to ensure a state of complete physical, mental and social well-being and not only services aimed at ensuring the absence of disease and infirmity; and

[b] are not limited to those services aimed at preventing, diagnosing, alleviating, curing, healing and treating conditions that threaten or compromise a person’s state of complete physical, mental and social well-being;

"insurance policy" includes an annuity policy, a life assurance policy, an accident insurance policy or an illness or injury policy, but does not include a retirement annuity fund, underwritten by an insurer;

"insurer" means a person who issues insurance policies or makes such policies available to others.

"learner" means—

[a] a learner as defined in section 1 of the South African Schools Act, 1996 (Act No. 84 of 1996);

[b] a student as defined in section 1 of the National Education Policy Act, 1996 (Act No. 27 of 1996), section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997) or section 1 of the Further Education and Training Act, 1998 (Act No. 98 of 1998); or

[c] any other person who is receiving education or training at any educational institution referred to in subparagraph (i).

"national sport structure" means the national union of any sport code;

"profession" means an occupation that requires tertiary education and specialised training and skills, and that is regulated by a professional body;

"professional body" means a recognised body which is established to exercise control over and regulate the profession in question and its members.

"provincial sport structure" means the provincial union of any sport code.

"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;

"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.

"retirement fund" means a pension fund, a provident fund or a retirement annuity fund;

"services" includes services-

[a] relating to banking and the provision of grants, loans, credit or finance;

[b] relating to entertainment, recreation or refreshment;

[c] relating to transport or travel;

[d] Provided by the State.]

Objects of Act14

2. The objects of this Act are—

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

(b) to give effect to—

(i) the letter and spirit of the Constitution;

(ii) the promotion of substantive equality;

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

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

(v) non-discrimination and human dignity contained in sections 9 and 10 of the Constitution; and

(vi) 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 by, amongst others—

(aa) making provision for measures to facilitate the progressive eradication of unfair discrimination; and

(bb) educating the public and raising public awareness on the nature and meaning of substantive equality, including measures to protect or advance persons or categories of persons disadvantaged by unfair discrimination;

(c) to prevent, prohibit and provide for the redressing of unfair discrimination based on race, gender, disability and all other recognised grounds of unfair discrimination, in line with international law, including treaty obligations that are binding on the Republic, such as—

(i) the Convention on the Elimination of All Forms of Racial Discrimination;

(ii) the Convention on the Elimination of All Forms of Discrimination against Women,

by, amongst others—

(aa) providing remedies for the victims of unfair discrimination and persons whose right to equality is infringed; and

(bb) preventing and prohibiting unfair discrimination; and

(d) to address and eliminate the imbalances and inequalities, particularly in respect of race and gender, existing in all spheres of life as a result of present and past unfair discrimination brought about by the apartheid system;

[(e) to clarify that unfair discrimination is not differentiation between individuals or groups of persons according to reasonable and justifiable criteria that are intrinsic and inherent to a normal commercial or other legitimate activity.]15

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 or categories of persons disadvantaged by unfair discrimination;

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

(2) Any person interpreting this Act—

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

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

(c) 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) The interpretation and application of this Act must be contextual and purposive.

(5) Despite any other law to the contrary, the inclusion of—

(a) any ground of unfair discrimination;

(b) any sector referred to in Chapter 7; or

must not be interpreted as an indication of the exclusion of other grounds, sectors or forms of unfair discrimination.

Guiding principles

4. (1) The principle of access to substantive justice must facilitate the interpretation and application of this Act by all persons and in all judicial and other dispute resolution forums and, where necessary, special rules of procedure and criteria to facilitate participation, including special training of judicial officers, as contemplated in section 180 of the Constitution, may be implemented in order to improve the quality of justice and to give effect to the objects of this Act.

(2) The State and non-governmental service providers must, within their available resources, provide legal assistance, including para-legal assistance, to victims of unfair discrimination who may need such assistance and who have no adequate means of their own to access such assistance in order to protect and realise their rights effectively in terms of this Act.16

(3) In the application of this Act, special attention must be given to the balancing of punitive measures against perpetrators of unfair discrimination and corrective measures, under the supervision of a court or any constitutional institution.

(4) Dispute resolution must be expeditious, affordable and participative, and where appropriate, informal.

(5) In the application of this Act, there should be acknowledgement of—

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

(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 which are not regulated by the Employment Equity Act, 1998 (Act No. 55 of 1998).

CHAPTER 2

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION

Prevention and general prohibition of unfair discrimination

6. (1) Neither the State nor any person may unfairly discriminate directly or indirectly against any person or group of persons.

(2) (a) It is not unfair discrimination to take measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination.

[(b) Objective differentiation to be included.]

Prohibition of publication of unfair discriminatory information

7. 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.

CHAPTER 3

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

Prohibition of racial discrimination and racism

8. No person may unfairly discriminate directly or indirectly against any person on the ground of race, including the following:

(a) The dissemination of any propaganda or idea, suggesting the racial superiority or inferiority of any person or group of persons, including incitement to, or participation in, any form of racial violence;

(b) the operation of any activity which is intended to promote, [or has the effect of,]17 exclusivity, based on racism or racial discrimination and which results in the de facto exclusion of persons of a particular race group under any principle that appears to be neutral, such as in sport, the recognised professions and health services;

(d) the provision of different and inferior services or the exclusion from different and superior services or any other advantage to a particular race group or persons belonging to such race group, when compared to the services provided to another race group or persons belonging to such race group;

[(e) the use of language which is recognised as being, and is intended in the circumstances to be, hurtful and abusive, including, amongst others, the use of words such as "kaffir", "kaffer", "kaffermeid", "coolie", "hotnot" and their variations.]18

Prohibition of gender discrimination

9. No person may unfairly discriminate directly or indirectly against any person on the ground of gender, including the following:

(a) Gender-based violence, including witchcraft or ritual-related violence;

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

(d) any practice, including traditional, customary or religious practice, which unfairly violates the dignity of women and undermines equality between women and men;

(e) practices that undermine the dignity, equality and liberty of the girl child;

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

(g) sexual harassment;

(h) pregnancy discrimination.

Prohibition of disability discrimination

10. No person may unfairly discriminate directly or indirectly against any person on ground of disability, including the following:

(a) Denying or removing from any person who has a visual or hearing impairment or any other disability from their supporting or enabling facility necessary for their function in society, such as a hearing aid, a guide dog, braille, sign language or appropriate information technology;

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

(d) failing to identify or eliminate obstacles that unjustly limit or restrict persons with disabilities from enjoying equal opportunities;

CHAPTER 4

DEFENCES AND BURDEN OF PROOF

Discrimination on prohibited grounds

11. Discrimination on one or more of the prohibited grounds in section 1 is unfair unless it is established that the discrimination is fair.19

Burden of proof

12. (1) If the complainant makes out a [prima facie]20 case of unfair discrimination in terms of this Act,—

(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 prove21 that the discrimination is fair.

(2) For purposes of this section the requirements to make out a "a [prima facie]22 case of unfair discrimination" include, amongst others, any act or omission which—23

(a) causes prejudice to a person of a disadvantaged group;

(b) causes a violation of the right to dignity or any other right;

(c) impairs or is likely to impair the fundamental human dignity of any individual, group, class or category of persons; or

(d) perpetuates or exacerbates existing patterns of disadvantage or is likely to do so,

based on or related to one or more of the prohibited grounds.

Determination of fairness

13. Whether the 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 suffers from patterns of disadvantage or belongs to a group that suffers from patterns of disadvantage;

(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;

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

(g) whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to overcome/address/accommodate disadvantage or to accommodate diversity arising from or related to one or more of the prohibited grounds;24

(h) whether it is consistent with any applicable legislation/guidelines/codes of practice/plans of action/regulations;25

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

Measures to redress disadvantage

14. Acts or omissions designed to protect or advance groups or categories of persons disadvantaged by unfair discrimination, or the members of such groups or categories of persons, do not constitute unfair discrimination.26

[Parked provisions relating to promotion

15. (1) The State and organs of state must implement measures to protect and advance Black people, women and people with disabilities.

(2) Natural and juristic persons engaged in any controlled activity must implement measures to protect and advance Black people, women and people with disabilities.]

CHAPTER 5

EQUALITY COURTS

Equality courts and presiding officers

16. (1) For the purposes of this Act, but subject to section 54—

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

(b) every magistrate, additional magistrate, assistant 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, assistant magistrate or judge, as the case may be.

(2) 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

17. (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

18. (1) On the application of a clerk of an equality court in the prescribed manner, the clerk of the court or registrar, as the case may be, must subpoena any witness to give evidence or to produce a book, document or any other information at any proceedings of the court.

(2) On the application of any person who is likely to be affected by any order which may be made by the court as a result of any proceedings therein or his or her legal representative or any person or institution that instituted the proceedings in question, the clerk of the court or the registrar, as the case may be, must subpoena any witness to give evidence or to produce a book, document or any other information at any proceedings of the court.

(3) A subpoena referred to in subsection (1) or (2) must be served on the witness concerned as if it were a subpoena in a criminal trial in a magistrate’s court.

(4) Sections 188 and 189 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), apply with the necessary changes required by the context in connection with a person subpoenaed under subsection (1) or (2) or required by a presiding officer.

(5) A witness referred to in subsection (1) or witness subpoenaed at the request of the presiding officer is entitled to such an allowance as would be due to him or her if he or she were attending criminal proceedings as a witness for the State.

(6) The court may, on the application of a witness referred to in subsection (2), on good grounds shown, direct that such witness be paid such allowance as may be paid to a witness for an accused person in criminal proceedings.

Rules and court proceedings

19. (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;

(d) the execution of judgments or orders;

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

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

and in so far as no other provision has been made in the regulations under section 53 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) 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.

Institution of proceedings in terms of or under Act

20. (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 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 10 days of receiving such notification, refer the matter to a presiding officer of the equality court in question, who must, within 10 days, decide whether the matter is to be heard in the equality court or whether it should be referred to another appropriate institution/body which, in the presiding officer's opinion, can deal more appropriately with the matter in terms of that institution's/body'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 who must within 7 days of such referral assign a date of hearing of the matter.27

(4) The presiding officer, before making a decision to refer a matter as contemplated in subsection (2), 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/body;

(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/body.

(5) If the presiding officer decides that the matter must be referred to an alternative institution, 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 mentioned in the order.

(6) On receipt of an order referred to in subsection (6), 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 in question must deal with the matter as soon as possible in terms of its powers and functions, but not later than 30 days after receiving the matter.

(8) If the institution referred to in subsection (7)—

(a) fails to deal with the matter within 30 days; 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 must, in the prescribed manner, refer the matter back to the equality court from which it was transferred, for adjudication, within not less than 30 days from the date on which it was returned to the equality court.

(9) The State and constitutional institutions must 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

21. (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 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;

(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 in question;

(e) an order for the payment of damages in the form of an award to a body or organisation responsible for addressing unfair discrimination;

(f) an interdict restraining unfair discriminatory practices;

(g) an order directing that specific steps be taken to stop the unfair discrimination;

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

(i) an order for the implementation of special measures to address the unfair discrimination in question;

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

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

(l) an order requiring the respondent to undergo an audit of specific policies or practices;

(m) an order to comply with any provision of the Act;

(n) an order suspending a licence of a person;

(o) 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;

(p) an order of costs against any party to the proceedings.

(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 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 carrying out of its power s, including the power to grant interlocutory orders or interdicts.

Assessors

22. (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, w, subject to subsection (5), are also members of the court for purposes of this Act.

(2) In this section "assessor" means a person whose name is registered on a roll of assessors, in terms of the regulations.

(3) (a) In considering whether the summoning of assessors under subsection (1) would be in the interest of justice, the presiding officer must take into account—

(i) the cultural and social environment of the parties to the proceedings;

(ii) the educational background of the parties to the proceedings;

(iii) the nature and the seriousness of the unfair discrimination in question;

(iv) the views, if any, of the parties to the proceedings regarding the summoning of assessors in respect of the proceedings concerned;

(v) any particular interest which the community in general, or any specific community, may have in the proceedings concerned; or

(vi) any other matter or circumstance which he or she may deem to be indicative of the desirability of summoning an assessor or assessors.

(b) The presiding officer may question the parties in relation to the matters referred to in paragraph (a), or obtain such information from their legal representatives.

(4) Every assessor must, upon registration on the roll of assessors referred to in subsection (2), in writing take an oath or make an affirmation subscribed by him or her before the magistrate of the district concerned or the judge of the High Court concerned in the form set out below, namely—

"I ................................ (full name) do hereby swear/solemnly affirm that whenever I may be called upon to perform the functions of an assessor in terms of section 52 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 1999, I shall to the best of my ability make a considered finding or decision, or give a considered opinion, as the case may be, according to the evidence tendered in the matter.".

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

(b) The presiding officer must adjourn the proceedings regarding any matter or question referred to in paragraph (a) and must sit alone for the hearing of such proceedings and the decision of such matter or question.

(c) Whenever the presiding officer makes a decision in terms of paragraph (a) he or she must give his or her reasons for that decision.

(6) 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.

(7) Whenever a presiding officer is assisted by assessors, he or she must, after the conclusion of the arguments by the parties or their legal representatives, but before judgment is passed in the matter, explain to the assessors any specific rule of evidence or any other matter that is relevant in respect of the evidence tendered to the court.

(8) The record of any proceedings where a presiding officer has been assisted by assessors—

(a) regarding the evidence adduced at the proceedings, must include any explanation or instruction given to the assessors by the presiding officer in respect of any applicable rule of evidence or any other matter; and

(b) regarding the judgment must indicate clearly whether the findings in respect of each material aspect of the evidence—

(i) are the unanimous findings of the members of the court; and

(ii) in the event of any member of the court making a finding different to that of the other members, set out the reasons for such different finding.

(9) (a) A presiding officer who is assisted by assessors may, on application by any of the parties to the proceedings, order the recusal of an assessor or assessors from the proceedings if he or she is satisfied that—

(i) an assessor has a personal interest in the proceedings concerned;

(ii) there are reasonable grounds for believing that there is likely to be a conflict of interests as a result of an assessor’s participation in the proceedings concerned; or

(iii) there are reasonable grounds for believing that there is a likelihood of bias on the part of an assessor.

(b) An assessor may recuse himself or herself from the proceedings for the reasons contemplated in paragraph (a).

(i) before the recusal of an assessor is ordered in terms of paragraph (a); or

(ii) in so far as it is practicable, before the recusal of an assessor in terms of paragraph (b),

be given an opportunity to address arguments to the presiding officer on the desirability of such recusal.

(d) The assessor concerned must be given an opportunity to respond to any arguments referred to in paragraph (c), and the presiding officer may put such questions regarding the matter to an assessor as he or she may deem fit.

(e) The presiding officer must give reasons for an order referred to in paragraph (a).

(10) (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).

(11) (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,

record the reasons for his or her opinion.

(b) The registrar must as soon as is practicable, submit those reasons and the record to a judge in chambers for review.

(c) The judge 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 judge, should have been made in the circumstances.28

Appeals

23. (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.29

(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 EQUALITY30

General Responsibility to Promote Substantive Equality

24. The state, organs of state, juristic and natural persons have a duty and responsibility under this Act to achieve the progressive realisation of substantive equality.

Duty of the State and Organs of State to Promote Substantive Equality

25. (1) Subject to section 24, the State and organs of 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 substantive equality;

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

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

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

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

(g) where necessary, develop appropriate internal mechanisms to deal with complaints of discrimination;

(h) conduct information campaigns with a view to the popularisation of this Act.

(2) The provisions of subsection (1), where appropriate, are also applicable to the constitutional institutions, which in addition, may request any organ of State or person to supply them with information on any legislative, executive or other measures adopted, relating to the achievement of substantive equality, including their compliance with legislation, codes of good practice and programmes of action.

(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 the equality court, particularly complainants who are disadvantaged in any way;

(b) conduct investigations into cases of persistent contravention of this Act or cases of systemic unfair discrimination referred to them by an equality court;

(c) receive regular reports 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 in the sectors falling within their responsibility by—

(a) eliminating any form 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; and

(ii) the contents of which must include a time frame for implementation of such plans in consultation with the Minister of Finance.

(5) The prescribed equality plans must, within two years after the commencement of this Act, be submitted to the South African Human Rights Commission.

(6) In addition to the responsibilities of all Ministers under sub-section (5), all Ministers shall—

(a) mainstream the promotional responsibilities with regards to race, gender and disability as required under Sections 28, 29 and 30 of the Act;

(b) carry out the duties and responsibilities assigned to them under Chapter 6 of the Act.

Responsibility of Functionaries and Private Bodies Operating in the Public Domain to Promote Equality

26. It is the responsibility of functionaries and private bodies either exercising public power or providing goods and services to the public or engaged in beneficial business relations with public authorities to promote substantive equality by:-

(a) adopting appropriate equality plans, codes, regulatory mechanisms and other appropriate measures for effective promotion of substantive 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 People to Promote Substantive Equality

27. Every natural and juristic person in South Africa, including non-governmental organisations, community-based organisations and traditional institutions, shall endeavour and strive to promote substantive 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

28. (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, state organs, institutions performing public functions and other private natural and juristic persons have a responsibility to promote racial harmony in all fields.

(3) The State and state organs 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 number 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 as well as best examples in the promotion or racial equality and the elimination of unfair racial discrimination.

Special Measures to promotion of Gender Equality Gender

29. (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—

(a) the eradication of gender-based violence;

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

(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

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

Special Measures with Regard to the Promotion of Equality in the area of Disability

30. The State, organs of state, institutions performing public functions and other private natural and juristic persons have a responsibility to take steps to progressively realise substantive equality for people with disabilities.31

CHAPTER 7

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION AND PROMOTION OF EQUALITY IN SPECIFIC SECTORS32

PART C

EMPLOYMENT

Prohibition of unfair discrimination in employment 33

31. 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.

Measures to prevent and eliminate unfair discrimination and to promote equality in employment

32. The Minister responsible for labour, in conjunction with the relevant Ministers responsible for social security policies and legislation must—

(a) undertake an audit of all laws, policies and practices in these areas;

(b) establish the existence of discrimination in such laws, policies and practices; and

(c) report within two years after the commencement of this Act in the prescribed manner to the South African Human Rights Commission.

PART D

EDUCATION

Prohibition of unfair discrimination in education

33. (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;

(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.

Measures to prevent and eliminate unfair discrimination and to promote equality in education

34. The Minister responsible for education must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the area of education as contemplated in section 25(4).

PART E

HEALTH CARE

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

35. (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;

(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;

(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.

Measures to prevent and eliminate unfair discrimination and to promote equality in health

36. The Minister responsible for health must, in conjunction with other relevant Ministers, take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the area of health as contemplated in section 25(4).

PART F

ACCOMMODATION, LAND AND PROPERTY

Prohibition of unfair discrimination in respect of accommodation

37. (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 shall be 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 land and property

38. 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;

(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 section 25 of the Constitution to strengthen security of tenure, facilitate equitable access to land and to undertake land reform.

Measures to prevent and eliminate unfair discrimination and to promote equality in land matters

39. The Ministers responsible for land and housing matters, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination in the area of land and housing matters and to promote equality in these areas as contemplated in section 25(4).

PART G

INSURANCE

Prohibition of unfair discrimination in Provision of Insurance Services

40. 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;

(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.

Measures to prevent and eliminate unfair discrimination and to promote equality in provision of insurance services

41. The Minister responsible for Finance, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the area of insurance provision as contemplated in section 51(4).

PART H

PENSIONS

Prohibition of unfair discrimination in respect of Pensions

42. 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.

Measures to prevent and eliminate unfair discrimination and to promote equality in respect of pensions

43. The Minister responsible for pensions, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the area of pensions as contemplated in section 25(4).

PART I

GOODS, SERVICES AND FACILITIES

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

44. 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;

(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.34

Measures to prevent and eliminate unfair discrimination and to promote equality in the provision of goods, services and facilities

45. The Minister responsible for finance, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the provision of goods, services and facilities as contemplated in section 25(4).

PART J

ASSOCIATIONS AND PARTNERSHIPS

Prohibition of unfair discrimination in respect of associations

46. (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;

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

Prohibition of unfair discrimination in respect of partnerships

47. (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.

Measures to prevent and eliminate unfair discrimination and to promote equality in associations and partnerships

48. The Minister responsible for trade and industry, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the areas of associations and partnerships as contemplated in section 25(4).

PART K

CLUBS AND SPORT

Prohibition of unfair discrimination by clubs

49. (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;

(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;

(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.

Measures to prevent and eliminate unfair discrimination and to promote equality in respect of clubs and sport

50. (1) All clubs and national and provincial sport structures which benefit directly or indirectly from public resources must identify all forms of inequality and discrimination in this sector and take steps to eradicate such inequality, paying particular attention to the recruitment and equitable representation of designated groups in selection, administration, coaching and refereeing.

(2) The Minister must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the areas of sport and recreation as contemplated in section 25(4).

PART L

PROFESSIONS

Prohibition of unfair discrimination by professional bodies

51. (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;

(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;

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

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

Measures to prevent and eliminate unfair discrimination and to promote equality in professions

52. The Minister responsible for labour, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the area of professions as contemplated in section 25(4).

CHAPTER 8

GENERAL PROVISIONS AND IMPLEMENTATION OF ACT

Regulations

53. (1) The Minister may make regulations relating to—

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

(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) 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;

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

(h) the training of assessors;

(i) the payment of allowances to assessors;

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

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

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

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

(n) 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

54. (1) Despite section 16(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, 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 equality court assistants 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, assistant magistrates or judges, as the case may be, and equality court assistants referred to in subsection (1) as presiding officers and equality court assistants, 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 equality court assistant 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 equality court assistants in the performance of their functions, in the carrying out of their duties and in the exercising 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 equality court assistants.

(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 9

REVIEW OF ACT, SHORT TITLE AND COMMENCEMENT

Establishment of review committee

55. The Minister must, within five 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;

(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

56. (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;

(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

57. (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) Different dates may be so fixed in respect of different provisions of this Act.

CHAPTER 4

PART B

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION RELATING TO RACE AND GENDER AND PROMOTION OF RACIAL HARMONY AND GENDER EQUALITY

Racism and racial discrimination

7. (1) In this Part—

(a) "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;

(b) "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.

(3) Any form of racial discrimination or racism, similar to what prevailed under apartheid, constitutes a crime against humanity, as defined in Articles I, II and III of the International Convention on the Suppression and Punishment of the Crimes of Apartheid, and is hereby prohibited.

Prohibition of racial discrimination or racism

8. All forms of racial discrimination or racism, including the following, are prohibited:

(b) the operation of any activity which is intended to promote, or has the effect of, exclusivity, based on racism or racial discrimination and which results in the de facto exclusion of persons of a particular race group under any principle that appears to be neutral, such as in sport, the recognised professions and health services;

(e) the use of language which is recognised as being, and is intended in the circumstances to be, hurtful and abusive, including, amongst others, the use of words such as "kaffir", "kaffer", "kaffermeid", "coolie", "hotnot" and their variations.

Measures to prevent and eliminate racial discrimination and racism and to promote racial harmony

9. (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 must take steps to promote racial harmony in all fields by eliminating any form of racial discrimination or racism in any law, policy or practice for which it is responsible.

(3) 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.

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

Gender discrimination

10. In this Part, "gender discrimination" means—

(a) any distinction, exclusion or restriction made on the basis of sex, pregnancy, marital status, domestic or family responsibilities or sexual orientation, which is aimed at or has the effect of impairing or nullifying the recognition, enjoyment or exercise by women or men, irrespective of their marital status on the basis of equality between women and men, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field;

(b) any act or conduct which has the effect of creating or sustaining systemic forms of domination and disadvantage which perpetuate and re-enforce unequal gender relations and prevent women from being able to develop to their full human potential and participate fully in society.

Prohibition of gender discrimination

11. All forms of gender discrimination, including the following are prohibited:

(a) Gender-based violence, including witchcraft or ritual-related violence;

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

(d) any practice, including traditional, customary or religious practice, which unfairly violates the dignity of women and undermines equality between women and men;

(e) practices that undermine the dignity, equality and liberty of a girl under the age of 18;

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

(g) sexual harassment;

(h) pregnancy discrimination.

Measures to prevent and eliminate gender discrimination and to promote gender equality

12. (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.

(a) the eradication of gender-based violence;

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

(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

PREVENTION, PROHIBITION AND ELIMINATION OF UNFAIR DISCRIMINATION AND PROMOTION OF EQUALITY IN SPECIFIC SECTORS

PART C

EMPLOYMENT

Definitions

13. In this Part—

(i) "employment" includes—

(a) a relationship which requires a person to work for or assist in any manner, in the conduct of the affairs of another person or the State, for any consideration; and

(b) a relationship which involves contracting work to another person for any consideration;

(ii) "unfair discrimination", or "to unfairly discriminate", in addition to the definition of "unfair discrimination" referred to in section 1(xxvi), includes—

(a) any distinction, exclusion or restriction made on the basis of one or more of the prohibited grounds, or on any other ground which is aimed at or has the effect of impairing or nullifying the enjoyment or exercise by a person or group of persons, of employment opportunities;

(b) the failure to identify and take reasonable measures to remove any barriers to the full enjoyment of employment opportunities, by persons who were historically denied such opportunities by law or practice.

Prohibition of unfair discrimination in employment

14. No person may unfairly or unreasonably 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;

(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.

Measures to prevent and eliminate unfair discrimination and to promote equality in employment

15. The Minister responsible for labour, in conjunction with the relevant Ministers responsible for social security policies and legislation must—

(a) undertake an audit of all laws, policies and practices in these areas;

(b) establish the existence of discrimination in such laws, policies and practices; and

(c) report within two years after the commencement of this Act in the prescribed manner to the South African Human Rights Commission.

PART D

EDUCATION

Definitions

16. In this Part—

(i) "educational institution" means—

(a) an education institution as defined in section 1 of the National Education Policy Act, 1996 (Act No. 27 of 1996);

(b) a higher education institution as defined in section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997); or

(c) a further education and training institution as defined in section 1 of the Further Education and Training Act, 1998 (Act No. 98 of 1998).

(ii) "learner" means—

(a) a learner as defined in section 1 of the South African Schools Act, 1996 (Act No. 84 of 1996);

(b) a student as defined in section 1 of the National Education Policy Act, 1996 (Act No. 27 of 1996), section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997) or section 1 of the Further Education and Training Act, 1998 (Act No. 98 of 1998); or

(c) any other person who is receiving education or training at any educational institution referred to in subparagraph (i).

Prohibition of unfair discrimination in education

17. (1) No person may unfairly or unreasonably 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;

(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.

Measures to prevent and eliminate unfair discrimination and to promote equality in education

18. The Minister responsible for education must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the area of education as contemplated in section 51(4).

PART E

HEALTH CARE

Definitions

19. In this Part—

(i) "health care services"—

(a) includes those services necessary to ensure a state of complete physical, mental and social well-being and not only services aimed at ensuring the absence of disease and infirmity; and

(b) are not limited to those services aimed at preventing, diagnosing, alleviating, curing, healing and treating conditions that threaten or compromise a person’s state of complete physical, mental and social well-being;

(ii) "health care benefits" includes but are not limited to subsidies, health insurance and pensions.

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

20. (1) No person may unfairly or unreasonably 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;

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

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

(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;

(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 or unreasonably 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;

(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.

Measures to prevent and eliminate unfair discrimination and to promote equality in health

21. The Minister responsible for health must, in conjunction with other relevant Ministers, take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the area of health as contemplated in section 51(4).

PART F

ACCOMMODATION, LAND AND PROPERTY

Prohibition of unfair discrimination in respect of accommodation

22. (1) No person, whether as principal or agent, may unfairly or unreasonably 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;

(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 shall be 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 land and property

23. No person, whether as principal or agent, may unfairly or unreasonably 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;

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

Measures to prevent and eliminate unfair discrimination and to promote equality in land matters

24. The Minister responsible for land matters, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination in the area of land matters and to promote equality in this area as contemplated in section 51(4).

PART G

INSURANCE

Definitions

25. In this Part—

(i) "insurance policy" includes an annuity policy, a life assurance policy, an accident insurance policy or an illness or injury policy, but does not include a retirement annuity fund, underwritten by an insurer;

(ii) "insurer" means a person who issues insurance policies or makes such policies available to others.

Prohibition of unfair discrimination in provision of insurance services

26. No insurer may unfairly or unreasonably 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;

Measures to prevent and eliminate unfair discrimination and to promote equality in provision of insurance services

27. The Minister responsible for trade and industry, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the area of insurance provision as contemplated in section 51(4).

PART H

PENSIONS

Definitions

28. In this Part—

(i) "beneficiary" means a person who has received or is to receive benefits from a retirement fund in terms of the rules of the fund as a result of the person’s relationship with a member of that retirement fund;

(ii) "retirement fund" means a pension fund, a provident fund or a retirement annuity fund;

(iii) "rules" means the constitution or rules of a retirement fund.

Prohibition of unfair discrimination in respect of pensions

29. 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.

Measures to prevent and eliminate unfair discrimination and to promote equality in respect of pensions

30. The Minister responsible for pensions, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the area of pensions as contemplated in section 51(4).

PART I

GOODS, SERVICES AND FACILITIES

Definitions

31. In this Part "services" includes services—

(a) relating to banking and the provision of grants, loans, credit or finance;

(b) relating to entertainment, recreation or refreshment;

(d) provided by the State.

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

32. No person who provides goods or services, or makes facilities available, whether for payment or not, may unfairly or unreasonably 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;

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

Measures to prevent and eliminate unfair discrimination and to promote equality in the provision of goods, services and facilities

33. The Minister responsible for finance, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the provision of goods, services and facilities as contemplated in section 51(4).

PART J

ASSOCIATIONS AND PARTNERSHIPS

Prohibition of unfair discrimination in respect of associations

34. (1) No association may unfairly or unreasonably 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 or unreasonably 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;

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

Prohibition of unfair discrimination in respect of partnerships

35. (1) No person who is a member of a partnership may unfairly or unreasonably 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.

Measures to prevent and eliminate unfair discrimination and to promote equality in associations and partnerships

36. The Minister responsible for trade and industry, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the areas of associations and partnerships as contemplated in section 51(4).

PART K

CLUBS AND SPORT

Definitions

37. In this Part—

(i) "club" includes an association of persons or an association of clubs that is established for any social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purpose, whether incorporated or otherwise and includes specifically any company incorporated for purposes of managing the professional affairs of a club;

(ii) "designated groups" means—

(a) persons previously classified as Africans, Coloureds or Indians;

(b) women; or

(iii) "Minister" means the Minister of Sport and Recreation;

(iv) "national sport structure" means the national union of any sport code;

(v) "provincial sport structure" means the provincial union of any sport code.

Prohibition of unfair discrimination by clubs

38. (1) No club, or committees, management or members thereof, may unfairly or unreasonably 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;

(2) No club may, unfairly or unreasonably 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;

(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.

Measures to prevent and eliminate unfair discrimination and to promote equality in respect of clubs and sport

39. (1) All clubs and national and provincial sport structures which benefit directly or indirectly from public resources must identify all forms of inequality and discrimination in this sector and take steps to eradicate such inequality, paying particular attention to the recruitment and equitable representation of designated groups in selection, administration, coaching and refereeing.

(2) The Minister must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the areas of sport and recreation as contemplated in section 51(4).

PART L

PROFESSIONS

Definitions

40. In this Part—

(i) "profession" means an occupation that requires tertiary education and specialised training and skills, and that is regulated by a professional body;

(ii) "professional body" means a recognised body which is established to exercise control over and regulate the profession in question and its members. Prohibition of unfair discrimination by professional bodies

Heading

41. (1) No professional body may, unfairly or unreasonably 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;

(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 or unreasonably 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;

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

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

Measures to prevent and eliminate unfair discrimination and to promote equality in professions

42. The Minister responsible for labour, in conjunction with other relevant Ministers, must take steps necessary to prevent and eliminate unfair discrimination and to promote equality in the area of professions as contemplated in section 51(4).