REPUBLIC OF SOUTH AFRICA COMBINED SECOND PERIODIC REPORT UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLE`S RIGHTS and INITIAL REPORT UNDER THE PROTOCOL TO THE AFRICAN CHARTER ON THE RIGHTS OF WOMEN IN AFRICA 13. The right to equality and to be protected from discrimination features prominently in our Constitution.5 South Africa has enacted various pieces of legislation to rule out discrimination and ensure equality across a variety of areas, e.g. with regards to combating employment discrimination, there is the Employment Equity Act, 1998.6 During the period under review, the Civil Unions Act, 20067 was enacted to legalise same-sex marriage and prevent discrimination on the basis of sexual orientation. The objectives of this Act are to regulate the solemnisation and registration of civil unions, by way of either a marriage or a civil partnership and to provide for the legal consequences of the solemnisation and registration of civil unions. 14. Discrimination is a particular form of differentiation - it is differentiation on illegitimate grounds. Section 9 of the Constitution is an equality clause, which prohibits unfair discrimination on certain “listed grounds”. This means that discrimination on the basis of one of the grounds listed in s 9(3) is presumed to be unfair discrimination, until the contrary is proved. There is accordingly a presumption that differentiation on the listed grounds will impose burdens on those who have been victims of past patterns of discrimination or will impair the fundamental dignity of those affected. The listed grounds are race, colour, ethnic origin, gender, sex, pregnancy, sexual orientation, marital status, age, disability, religion, conscience and belief, culture and language, birth and social origin. Equality Courts 15. The Promotion of Equality and Prevention of Unfair Discrimination Act, 20008 provides for the framework for the implementation of section 9 of the Constitution. In this regard, the Act provides for the designation of Equality Courts. The purpose of Equality Courts is to adjudicate matters specifically relating to infringements of the right to equality, unfair discrimination and hate speech, with a view toward eradicating the ever present postapartheid spectre which essentially divided the country along racial, gender and monetary related lines. The Act stipulates that all High Courts are automatically designated as Equality Courts, but more importantly affords the bulk of adjudicative powers relating to equality matters to the Magistrates’ Courts. The Department of Justice and Constitutional Development designates Magistrates’ Courts as having jurisdiction to entertain equality matters, once presiding officers and staff of such Courts receive the appropriate training. 5 S 9(1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not 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 or birth. (4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination. (5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. 6 Act 55 of 1998 7 Act 17 of 2006 8 Act No. 4 of 2000 11