What the Equality Court Is?
Established under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (PEPUDA, commonly called "the Equality Act"), the Equality Court exists to give effect to the Constitution's equality guarantee in practical, accessible terms.
Rather than being a distinct court structure, PEPUDA designates every High Court, and specific Magistrate's Courts, as Equality Courts for their area – so a matter might be heard "at the Johannesburg Magistrate's Court, sitting as the Equality Court," for example. An appeal from a Magistrate's Court-level Equality Court decision goes to the High Court.
Anyone who believes they've experienced unfair discrimination, hate speech, or harassment can lodge a complaint; there's no filing fee, and the process is built around the clerk of the court actively assisting complainants, not just receiving paperwork.
The Equality Court has no jurisdiction over workplace discrimination.
Under section 5(3) of PEPUDA, the Act simply doesn't apply where the Employment Equity Act already covers the situation, which means any discrimination, harassment, or unfair treatment connected to an employment relationship belongs at the CCMAor Labour Court, not the Equality Court.
This is one of the most litigated jurisdictional questions under the Act, and getting it wrong means your matter gets dismissed on a technicality before its merits are even considered.
If the conduct you're complaining about happened between you and your employer (or a colleague, in the course of your employment), start with our CCMA guide instead.
If it happened outside an employment relationship, with a business as a customer, a service provider, a school, a landlord, a member of the public – the Equality Court is the right forum.
What counts as Unfair Discrimination?
PEPUDA prohibits discrimination on a set of listed grounds:
Race, gender, sex, pregnancy, family responsibility or status, marital status, ethnic or social origin, HIV/AIDS status, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.
It also allows courts to recognise unlisted grounds where the discrimination causes or encourages systemic disadvantage, undermines human dignity, or seriously affects someone's rights and freedoms in a way comparable to discrimination on a listed ground.
The Act also separately prohibits harassment and hate speech – communication based on a prohibited ground that could reasonably be seen as intending to be hurtful, harmful, incite harm, or promote hatred, subject to specific exceptions for artistic expression, academic inquiry, and fair reporting in the public interest.
A separate, newer route for the most serious cases:
In May 2024, South Africa also enacted the Prevention and Combating of Hate Crimes and Hate Speech Act, which creates criminal offences for hate crimes and hate speech, prosecuted through the ordinary criminal justice system.
This runs alongside PEPUDA's Equality Court route rather than replacing it, PEPUDA gives you a civil remedy (an apology, compensation, an order to stop specific conduct), while the newer Act allows for criminal prosecution of the most serious conduct.
The two aren't mutually exclusive, and which one applies (or whether both do) depends on the facts of your situation.
The Rule that works in your favour:
Once you've made out a prima facie case of discrimination – shown enough for the claim to appear valid on its face – the burden shifts to the respondent to prove either that the discrimination didn't actually happen as alleged, or that it wasn't based on a prohibited ground.
This is a meaningfully different starting position from ordinary civil litigation, where the person bringing the claim generally carries the burden throughout.
In practice, it means a well-documented, clearly presented complaint can carry real weight even without extensive legal argument, because it's the other side's job to displace it.
Costs work in your favour too.
Unlike ordinary civil courts, where costs generally follow the result, the Equality Court has wide discretion under the Act to make no costs order at all where a complainant has acted in good faith, even if the complaint isn't ultimately successful.
This significantly reduces the financial risk of bringing a genuine complaint, compared to High Court litigation.
The Process, step by step
1. Lodge your complaint:Using the prescribed form with the clerk of the Equality Court at your local Magistrate's Court (or the relevant High Court division). The clerk is required to assist you in completing the form if you need help, this is a real, if imperfectly delivered, part of the design.2. Initial screening and possible referral:The matter may be referred to alternative dispute resolution, or to another body better placed to handle it (the South African Human Rights Commission, the Commission for Gender Equality, or another appropriate institution), rather than proceeding straight to a hearing.3. A directions hearing:May be held to determine how the matter will proceed, what documents are needed, whether affidavits will be exchanged, and the timeline going forward.4. Exchange of affidavits:Unlike the fully informal small-claims-style process, Equality Court matters typically involve a founding affidavit from the complainant and an answering affidavit from the respondent, similar in shape to a High Court application.5. The hearing:Oral evidence is often taken under oath in addition to the affidavits, and the presiding officer can take an active role in establishing the facts.6. The order:Because of the burden-shifting rule, the outcome often turns on whether the respondent has successfully rebutted the complainant's prima facie case.
Preparing and presenting your case:
1. Describe the conduct specifically and factually:What was said or done, by whom, when, and in what context, rather than only how it made you feel. A prima facie case needs concrete facts to work from.2. Identify the ground clearly:State plainly which listed ground (or, if none applies directly, which unlisted-ground criteria) the discrimination relates to.3. Gather your evidence early:Messages, emails, recordings, witness accounts, or any documentation of the incident or pattern of conduct.4. Double-check this isn't actually a workplace matter:Before you file, see the jurisdiction rule above.
1. Present your account clearly and in order:Let the documentation support the narrative rather than relying on recollection alone.
2. Remember the burden shift works in your favour:Once you've made out your basic case, you don't need to disprove every possible innocent explanation yourself.
3. Stay factual, even where the subject matter is personal or painful:The court is assessing whether the legal elements are met, and a clear, composed account serves that better than an emotional one, even though the underlying experience may be exactly that.
If you're the respondent:
1. Take the complaint seriously and respond within the required timeframe:
Given the burden-shifting rule, silence or a weak answering affidavit can be costly.
2. Focus your answer on the two available defences:
That the alleged conduct didn't happen as described, or that it wasn't actually based on a prohibited ground.
Common Mistakes:
• Bringing a workplace discrimination complaint to the Equality Court:Instead of the CCMA or Labour Court, this is the single most common jurisdictional error under the Act.• Filing a vague complaint:Without specific facts, dates, or an identified ground, weakening the prima facie case the whole process depends on.• Assuming a costs order will be made against you for bringing a complaint in good faith:The risk is genuinely lower here than in ordinary civil litigation, which shouldn't stop a legitimate complaint from being brought.• As a respondent, not responding at all:Given that the burden of proof shifts once a prima facie case is made — silence doesn't help your position.• Confusing PEPUDA's civil process with the criminal hate crimes and hate speech regime:They run in parallel, with different processes, standards, and outcomes.
Frequently Asked Questions (FAQs)
Quick Reference Glossary
PEPUDA – the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, also called the Equality Act.
Prima facie case – a claim that appears valid on its face, sufficient to shift the burden of proof to the other side.
Listed grounds – the specific categories of discrimination named in the Act (race, gender, disability, and others).
Unlisted grounds – other characteristics a court can recognise as prohibited grounds, based on the impact of the discrimination.
Directions hearing – an early hearing to determine how a matter will proceed procedurally.
This guide provides general information about Equality Court process and jurisdiction in South Africa as at the review date above and is not a substitute for professional legal advice.
Always confirm current procedures with your local Equality Court clerk, the South African Human Rights Commission, or a qualified attorney before proceeding.
