PART ONE: STATE OBLIGATIONS TO ENACT COMPREHENSIVE ANTI-DISCRIMINATION LAW PART ONE SOUTH AFRICA: PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION ACT In 2000, South Africa passed the Promotion of Equality and Prevention of Unfair Discrimination Act. The Act represents one of the earliest attempts to enact comprehensive anti-discrimination legislation, and has provided a basis for several laws, discrimination concepts and best practices to follow. Section 1 of the Act contains definitions. There, equality is defined to include “the full and equal enjoyment of rights and freedoms as contemplated in the Constitution”, including “de jure and de facto equality and also equality in terms of outcome”. Discrimination is defined to include “any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly (a) imposes burdens, obligations or disadvantage on; or (b) withholds benefits, opportunities or advantages from, any person on one or more of the prohibited grounds”. The prohibited grounds of discrimination are listed under section 1 of the Act to include (explicitly) “race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth and HIV/AIDS status.” Additionally, as discussed elsewhere in the present guide, the law sets out a test for the identification of new grounds of discrimination.81 Section 5 of the Act makes clear that its provisions bind “the State and all persons” although discrimination in the employment context is regulated separately by the Employment Equity Act.82 Section 6 of the Act contains a provision on the general prohibition of discrimination, which is established on the basis of all those grounds set out above. Sections 7 to 9 of the Act provide particular examples of the application of this prohibition on the grounds of race, gender and disability. For instance, section 8 of the Act clarifies that gender-based violence falls within the ban on gender-based discrimination. Under section 9, disability discrimination is defined to include the contravention of established accessibility standards. Sections 10 to 12 of the Act prohibit hate speech, harassment and the “dissemination and publication of information that unfairly discriminates”, respectively. In 2019, the Supreme Court of Appeal held that the definition of hate speech contained in section 10 was overbroad and thus unconstitutional.83 The Court made an order requiring that Parliament amend the relevant provision within 18 months. The case was subsequently appealed to the Constitutional Court, which partially upheld the finding in its 2021 judgment.84 Violations of the Act may be challenged by bringing a case to an equality court, which consist of high courts and magistrates courts, in accordance with section 16 of the Act. The powers of equality courts are set out under section 21 of the Act and include broad powers to make orders. Section 13 of the Act sets out specific rules regulating the shifting of the burden of proof in discrimination cases, while section 20 establishes broad rules of standing, which permit, inter alia, public interest litigation.85 81 See further discussion on this point in section I.A.1(a) of part two of the present guide. 82 Employment Equity Act, 1998 (Act No. 55). 83 Supreme Court of Appeal, Qwelane v. South African Human Rights Commission and Another (686/2018) [2019] ZASCA 167; [2020] 1 All SA 325 (SCA); 2020 (2) SA 124 (SCA); and 2020 (3) BCLR 334 (SCA) (29 November 2019). 84 In particular, the Court found that the use of the word “hurtful” in section 10 (1) (a) was overbroad and to that extent inconsistent with the Constitution. The operation of the declaration of unconstitutionality was suspended for two years, to afford Parliament sufficient time to amend the relevant part of the section. See Qwelane v. South African Human Rights Commission and Another (CCT 13/20) [2021] ZACC 22; 2021 (6) SA 579 (CC); 2022 (2) BCLR 129 (CC) (31 July 2021). 85 Promotion of Equality and Prevention of Unfair Discrimination Act, sect. 20 (1) (d). 9