What are the Equality Courts?
- They are a special type of South African court that was established by the Promotion of Equality and Prevention of Unfair Discrimination Act.
- Equality Courts only deal with cases of unfair discrimination, hate speech and harassment based on things like race, sexual orientation, and gender identity and expression.
- Equality Courts are located at any Magistrates’ Court in South Africa.
- Anyone can open a complaint with the Equality Court. That includes the person who’s been discriminated against, or a person or organisation on behalf of someone else (or a group) who’s been discriminated against.
- The Equality Court does not deal with complaints about the workplace or criminal matters.
Ease of access and affordability
- Anyone can use the Equality Courts.
- You do not need a lawyer (but you may use one if you wish).
- There is no cost involved (unless you choose to pay for a lawyer).
What can the Equality Courts do?
- Issue an order to stop the unfair discrimination, hate speech and/or harassment.
- Order payment to victim/s for damages/loss/suffering, or for this to be paid to an appropriate organisation (e.g., an LGBTQ+ organisation)
- Order that changes be made to policies to stop the unfair discrimination and harassment.
- Order an apology.
- Refer the case for criminal prosecution.
Preparing to open a case with the Equality Court
- Make sure you have your complaint clearly written down.
- Explain what the discrimination was and why it was related to your sexual orientation and / or gender identity.
- Say when, where and who did the unfair discrimination against you.
- Prepare as much evidence as possible (written, audio, visual, audio-visual, witnesses if possible)
- It is not required but it will help if the complaint is written and prepared into a sworn affidavit.
- Know what you would like the court to do: e.g., order an apology, stop the discrimination, order compensation (money) paid to you etc.
Opening a case with the Equality Court
- Go to the Magistrates’ Court closest to where the discrimination took place. Take your complaint with you. Click here to see all the Magistrates’ Courts.
- Go to the Clerk of the court and explain that you want to open an Equality Court case.
- Ask the Clerk to help you fill in and submit the complaint form (FORM 2).
What happens next?
- The Clerk will send a notice of complaint (FORM 3) to the person you are complaining about (called “the respondent”)
- The respondent will have 10 days to respond by filling out and returning FORM 3 to the court.
- After this has been returned, the Clerk will send FORMS 2 and 3 to the magistrate or judge (called the Presiding Officer).
The Presiding Officer will within 7 days decide to either:
- Refer the case: The Presiding Officer may decide that it will be more effective to refer the matter to someone else like the High Court or the SA Human Rights Commission. Both you and the respondent will be advised on the next steps if this happens.
- Hear the case: If the Presiding Officer decides to hear the case, you and the respondent will be asked to attend a “directions hearing” meeting to make all the necessary arrangements, (e.g., is an interpreter required?), and to set a date for the actual hearing.
What happens at the actual hearing?
- You (the “complainant”) and the respondent will introduce yourselves.
- You will explain your side of the story, say what you want from the court and show any evidence you have. If you have a witness or witnesses, they will tell the court what they saw or heard.
- The respondent will be allowed to question your witness/es.
- The respondent will then explain their side of the story and be allowed to bring their witness or witnesses to say what they saw or heard.
- You can choose to question the respondent’s witnesses. You will also be given an opportunity to respond to or counter the respondent’s story.
- The Presiding Officer may give you and the respondent an opportunity to sum up your version of events.
- The Presiding Officer will then make a decision (“judgment”) in the case.
What if you are not happy with the decision?
- If you are not happy with the outcome of the Equality Court hearing, you can appeal to the High Court or Supreme Court of appeal within 14 days. You will, however, need a lawyer to proceed and a different set of rules and procedures will apply.