The Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996) creates a new order in which all South Africans are entitled to a common South African citizenship in a sovereign and democratic state in which there is equality between men and women of all races. The right to equality enshrined in the Constitution enables all men and women to enjoy and exercise their fundamental rights and freedoms as contemplated in the Bill of Rights.

The right to equality is entrenched in section 9 of the Constitution. What does this right entail? Equality includes the full and equal enjoyment of all rights and freedoms.

Section 9 of the Constitution further provides that neither the state nor any person may unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. These are called the grounds of discrimination.

Direct discrimination occurs where a person is disadvantaged simply on the ground of his or her race, sex, ethnicity, religion or some other distinguishing feature, or on the grounds of some characteristics that are specific to members of a particular group. Indirect discrimination occurs when policies are applied which appear to be neutral, but which adversely affect a disproportionate number of a certain group.

In terms of section 9 of the Constitution legislative and other measures designed to protect or advance persons, or categories of persons disadvantaged by unfair discrimination, may be taken to promote equality.

This means that redistributive measures are permitted. They are designed to counteract patterns of inequality persisting from the past into the present. In this regard one can, for example, refer to the so-called affirmative action measures which have the effect of ensuring that equality is achieved.

Section 9 of the Constitution also requires that national legislation be enacted to prevent or prohibit unfair discrimination. Particulars of the legislation that has been enacted are dealt with in paragraph 2.2 below.

The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000) (the Equality Act) was promulgated to give effect to section 9 of the Constitution. It endeavours to facilitate the transition to a democratic society united in its diversity and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom.

The Equality Act makes provision for the prevention and prohibition of unfair discrimination. Discrimination means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly –

any person on one or more of the grounds of discrimination. The Equality Act sets out the procedures for the determination of circumstances under which discrimination is unfair. The Equality Act also facilitates the setting up of Equality Courts for the hearing of matters relating to this Act.

The Equality Act is based on the premise that there are systemic patterns of discrimination and material disadvantage based on race, gender, class and other forms of inequality. It therefore facilitates the implementation of pro-active measures to eradicate such patterns and hence requires positive action. The Equality Act therefore also provides for the promotion of equality.

The promotion of equality entails the promotion of a society in which all people are secure in the knowledge that they are recognised as human beings equally deserving of concern, respect and consideration. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships.

Section 24 read with section 28 of the Equality Act provides that the State and all persons have a duty and responsibility to—

In carrying out the aforementioned duties and responsibilities—

Section 27 of the Equality Act deals with the social commitment by all persons to promote equality. It includes persons (natural and juristic), non-governmental organisations, community-based organisations and traditional institutions. This section places an obligation on the Minister for Justice and Constitutional Development to develop regulations in relation to the Equality Act, which require companies, closed corporations, partnerships, clubs, sports organisations, corporate entities and associations to prepare, amongst other things, equality plans or abide by prescribed codes of practice.