Author: Gary Moore

Date: 14 March 2017

The Constitution[1] stipulates that no person may unfairly discriminate[2] against anyone on grounds including race, gender, disability, etc.[3] The Constitution required national legislation to be enacted[4] to prevent[5] unfair discrimination. The legislation to achieve that object[6] is the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.[7]

The Act states that no-one may unfairly discriminate against anyone.[8] It defines “discrimination” as an act or omission[9] which[10] imposes burdens[11] on, or withholds benefits[12] from, a person on prohibited grounds.[13]

The Act defines “prohibited grounds” as—

Race, gender, disability and other specified grounds,[14] and

other grounds on which discrimination causes disadvantage, or undermines dignity, or affects enjoyment of rights comparably to discrimination on a specified ground.[15]

The Act does not define “unfair” discrimination. (It has a Schedule[16] intended[17] to illustrate[18] practices which are “or may be” unfair[19] and are “or may be” unfair discrimination in order to address[20] them and assist persons interpreting their experiences and practices.[21])

The Act makes provision for deeming or designating high courts and magistrates’ courts as Equality Courts,[22] and designating judicial officers as presiding officers.[23]

A person wishing to institute proceedings under the Act must notify the Equality Court clerk, who must refer the matter to a presiding officer.[24] The Equality Court must hold an inquiry,[25] and determine if unfair discrimination has taken place.[26]

The Equality Court may make an order[27] to pay damages[28] or make unfairly-denied opportunities available to the complainant,[29] or an order for reasonable accommodation of a class of persons or recommending that an authority revoke[30] a licence[31] or that the matter be referred[32] to the Director of Public Prosecutions.[33]

As to burdens of proof, if the complainant makes out a case of discrimination, “the respondent must prove” the conduct is not based on one or more of the prohibited grounds.[34]

Also, if the discrimination took place—

On a specified prohibited ground,[35] then the discrimination is unfair,[36] or

on a comparable prohibited ground,[37] the discrimination is[38] likewise unfair,[39]

“unless the respondent proves” the discrimination is fair.[40]

These provisions placing on the respondent burdens of proof (that conduct was not based on a prohibited ground,[41] and that discrimination was fair[42]) depart from the basic rule that in civil matters “he who alleges must prove.”[43] These reverse-onus provisions thus arguably violate a Rule of Law principle that laws should be just.[44] The incidence of the burden of proof is determined by what is fair.[45]

(By way of analogy, it has been observed regarding criminal matters that statutory offences imposing a reverse burden of proof on the accused may violate the Rule of Law, if the burden is one that he may, although innocent, be unable in practice to discharge.[46])

(Provisions imposing a reverse onus[47] in statutory offences have been invalidated[48] as violating the fundamental right of an accused to be presumed innocent.[49] It is said they are invalid because an accused could be convicted despite a reasonable doubt of his guilt.[50])

Yet although the Act’s[51] reverse-onus provisions[52] may well violate the Rule of Law, the Constitution itself prescribes a reverse onus: The Constitution’s unfair-discrimination provisions[53] state that discrimination on a listed ground (race, gender, disability, etc.[54]) “is unfair unless it is established that the discrimination is fair.”[55]

This constitutionally-stipulated reverse onus can be described as an exception[56] to the Constitution’s general statement about the supremacy of the Rule of Law.[57] 

[1] Constitution of the Republic of South Africa, 1996.

[2] Directly or indirectly.

[3] And pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, religion, conscience, belief, culture, language and birth. Constitution, Chap 2 Bill of Rights s 9 (Equality) subsec (4) read with (3).

[4] Within three years of the date the Constitution took effect. Constitution s 9(4) and Sched 6 item 9(4).

The Constitution took effect on 4 Feb 1997. Constitution s 243(1) read with Proc R6 of 1997.

[5] Or prohibit.

[6] Among others.

[7] Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“the Act”) preamble fifth and ult. paras, s 2(a), (b)(iv), (c) and (g).

The Act was enacted on 2 Feb 2000, within the required three-year period. See fn 4.

[8] Act s 6. This provision is followed by others which, with more particularity, prohibit unfair discrimination on the grounds of race, gender, and disability respectively: Act ss 7, 8 and 9.

[9] Including a policy, rule, practice, condition or situation.

[10] Directly or indirectly.

[11] Or obligations or disadvantages.

[12] Or opportunities or advantages.

[13] Act s 1 sv “discrimination.”

[14] And sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, religion, conscience, belief, culture, language and birth. Act s 1 sv “prohibited grounds” para (a).

[15] Such other grounds are, in full:

(b) any other ground where discrimination based on that other ground—

(i) causes or perpetuates systemic disadvantage;

(ii) undermines human dignity; or

(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious manner that is comparable    to discrimination on a ground in paragraph (a);

Act s 1 sv “prohibited grounds” para (b).

[16] Act, Schedule.

[17] Without detracting from the generality of the provisions of the Act.

[18] And emphasise.

[19] And are widespread and need to be addressed: s 29(1).

[20] And eliminate.

[21] Act s 29(4)(a) and (b).

[22] Act s 16(1)(a) and (c)(i)–(v).

[23] Act s 16(1)(b) and (d), (2), (3) and (4), read with s 31.

[24] The presiding officer must decide if the matter is to be heard in the Equality Court or referred to another body or forum which in her opinion can deal with it more appropriately. Act s 20(2) and (3)(a).

If the alternative forum fails or is unable to resolve the matter satisfactorily it must refer it back to the Equality Court for adjudication. Act s 20(8).

[25] In the manner prescribed by regulation. Act s 21(1) read with s 1 svv “prescribed,” “regulation.”

The Minister may make regulations about procedures at an inquiry; how to institute proceedings; forms; appearance on behalf of parties; witnesses; designation of assessors and factors an equality court must take in account in deciding to summon assessors; appeal or review procedures; matters to prescribe in terms of the Act; and any matter necessary to achieve its objects. Act s 30(1)(a), (b), (d), (f), (h), (j), (s), (w), (x).

Regulations have been prescribed. Govt Notice R764 of 13 June 2003.

[26] As alleged. Act s 21(1).

[27] Appropriate in the circumstances.

[28] For financial loss, including future loss, or impairment of dignity, pain and suffering, or emotional and psychological suffering.

[29] And privileges.

[30] Or suspend.

[31] Or other such order of a deterrent nature.

[32] For possible institution of criminal proceedings under common law or any legislation.

[33] Or to implement special measures to address unfair discrimination, or undergo an audit of specific practices as determined by the Equality Court. The Court may also make an order of costs against a party. Act s 21(2)(d), (f)–(i), (k), (l), (n)–(p).

[34] Act s 13(1)(b).

Or that the discrimination did not take place on the facts alleged. Act s 13(1)(a).

[35] Race, gender, disability, etc. See fn 14 above.

[36] Act s 13(2)(a).

[37] I.e. any other ground on which discrimination causes disadvantage, undermines dignity, or affects enjoyment of rights comparably to discrimination on a ground specified. See fn 15 above.

[38] If the ground is established. Act s 13(2)(b)(i).

[39] Act s 13(2)(b).

[40] Act s 13(2)(a) and (b)(ii).

[41] Act s 13(1)(b) aforesaid.

[42] Act s 13(2)(a) and (b)(ii) aforesaid.

[43] If a person claims something from another in court, he should satisfy the court he is entitled to it.

Thus, the plaintiff normally bears the burden of proof in a civil trial. Joubert, The Law of South Africa vol. 18 3rd ed., “Evidence” (CWH Schmidt and DT Zeffertt, rev DP van der Merwe), Sufficiency: Burden of proof: Incidence in civil trials, par 269.

[44] Justice requires importing principles that include fairness, which is echoed in and supported by the Rule of Law. “The Just Rule of Law.” N Cowdery QC and A Lipscomb (2000) 4 Southern Cross University Law Review 1 at 6.

[45] Pillay v Krishna and Another 1946 AD 946 953 in fin to 954, citing Wigmore on Evidence para. 2486.

[46] Lord Bingham, “The Rule of Law.” Sixth Sir David Williams Lecture, 2006. Centre for Public Law, University of Cambridge.

[47] To disprove an essential element of a criminal charge.

[48] S v Zuma 1995 4 BCLR 401 (CC); S v Bhulwana, S v Gwadiso 1996 1 All SA 11 (CC); S v Ntsele 1998 1 All SA 15 (CC); S v Coetzee 1997 4 BCLR 437 (CC); S v Mello 1998 7 BCLR 908 (CC); S v Mbatha, S v Prinsloo 1996 3 BCLR 293 (CC).

[49] And to remain silent, and not to testify during the proceedings. Constitution s 35(3)(h). The cases were decided under the Interim Constitution (Act 200 of 1993).

[50] Joubert, The Law of South Africa vol. 6 2nd ed. repl., “Criminal Law,” (A St Q Skeen, updated S Hoctor), Statutory offences: Principle of mens rea in statutory offences, par 359.

[51] Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.

[52] Transferring to the respondent the burdens of proof aforesaid, that conduct was not based on a prohibited ground and that discrimination was fair.

[53] That no person may unfairly discriminate on grounds of race, gender, disability, etc.; and that national legislation be enacted to prevent unfair discrimination. Constitution s 9(4) read with s 9(3). See fnn 3 and 4.

[54] Constitution s 9(5) read with s 9(3). See fn 3.

[55] Constitution s 9(5).

[56] At least insofar as it relates to the Constitution’s listed grounds of discrimination. These are nearly identical to the Act’s specified grounds. Compare fnn 3 and 14.

[57] Constitution s 1(c).

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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