A critical analysis of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: to what extent have the remedies available to the Equality Court been utilised in achieving the objectives of the Act?

Abstract

In 1994, after decades of inequality and oppression, South Africa ushered in a new age of democracy with the help of its interim and final Constitutions. At the core of these Constitutions stand the values of human dignity, equality and freedom. In order to give effect to these values, Parliament has passed a wide range of statutes over the past 25 years. Perhaps the most significant of these is the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the ‘Equality Act’). As its short title clearly indicates, the purpose of this Act is, inter alia, to promote equality and to prevent unfair discrimination. Insofar as the second goal is concerned, however, the short title is misleading. This is because a careful examination of the Equality Act shows that its purpose is not simply to prevent unfair discrimination, but also to prevent, prohibit and eliminate hate speech and harassment. In order to achieve these various goals, the Equality Act makes provision for a new specialist court, namely the Equality Court. Apart from conferring the power on the Court to determine whether an act of unfair discrimination, hate speech or harassment has been committed, the Equality Act also confers a wide range of remedial powers on it. These remedial powers, which are set out in section 21, are varied in nature. While some look backwards and focus on remedying the individual harm suffered, others look forward and focus on preventing a recurrence of the harmful conduct. Despite being able to draw on such a wide range of remedies, an examination of the reported and unreported judgments of the Equality Court indicates that in the overwhelming majority of cases, the Court has relied on three remedies in particular, namely interdicts, damages and unconditional apologies. The aim of this thesis is to set out and critically discuss the manner in which the Equality Court has applied these three remedies.