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South African anti-discrimination law is a body of law which protects people against unfair discriminatory actions by the government, by employers or by other parties. It derives primarily from section nine of the Constitution, which establishes the basic principles of equality and non-discrimination, along with several acts of Parliament which detail the legal procedures for preventing and prohibiting unfair discrimination. Equality is a particularly serious issue in South Africa because of its history of severe discrimination under colonialism and apartheid.
The constitution lists certain characteristics, discrimination on the basis of which is automatically presumed to be unfair; these are "race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth".[1] This is not an exhaustive list, and courts and tribunals may find that discrimination on the basis of other characteristics is also unfair.
Legal foundations
editSection nine of the Constitution provides that:
(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, language and 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.
This provision is directly applicable to the government and to all other parties. Parliament has, however, also enacted a number of other acts of Parliament to extend these protections and provide specific mechanisms for enforcing them.