Introducing the Constitutional Right to Equality (Section 9 of the Constitution of South Africa, 1996).

The South African Constitution, adopted in 1996, is the Supreme Law of our land. This means that the constitution has the highest power in the country, and no one is above the law. The Constitution obliges the South African Government to protect and promote the rights of every individual

Here is a bit of a historical and social context of the right to equality.

The importance of the equality right to the post-apartheid constitutional order is clear as during the apartheid era the political and legal system was based on inequality and discrimination. Apartheid dealt with the problem of scarce resources by systematically promoting the socio-economic development of the white population at the expense of the rest of the society.  As the Constitutional Court has pointed out, apartheid systematically discriminated against black people in all aspects of social life. Black people were prevented from becoming owners of property or even residing in areas classified as ‘white’, which constituted nearly 90 percent of the land mass of South Africa, senior jobs and access to established schools and universities were denied to them, civic amenities, including transport systems, public parks, libraries and many shops were also closed to black people. Instead, separate and inferior facilities were provided, and therefore equality is so important in our country.

South Africa is a country that has many differences amongst its citizens in terms of access to resources, access to education, wealth and a lack of opportunities given because of race, gender and amongst many others.

The Constitution makes it clear that the type of society it wishes to create is based on equality, dignity and freedom. Section 9 protects a right to equality and aims to provide a legal framework to prevent the unfair treatment of the citizens of South Africa based on either their race, sex, gender, disability, sexual orientation or any other personal characteristics. This creates a guarantee that the law will protect and benefit people equally and a prohibition on unfair discrimination. Equality s9(2), includes the full and equal enjoyment of rights and freedoms. To this end, special measures may be taken to ensure the protection or advancement of people who have been disadvantaged by discrimination in the past.

Under the Bill of Rights, Section 9 gives assurance to the right to equality and states that:

1. Everyone is equal before the law and has the rights 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 my 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.

What to do if you are being unfairly discriminated on one or more grounds mentioned above?

The Equality Acts provides for the establishment of Equality Courts to ensure the implementation of the Act. For the purpose of the Equality Act, every High Court is Equality Court for the area of its jurisdiction. The Minister of Justice and Constitutional Development has designated many equality courts throughout the country, with equality clerks appointed to assist the public when lodging complaints. Equality courts are established to ensure that reported cases of alleged unfair discrimination are dealt with to ensure justice for all.