The main theme of this paper is the practical function and justification of the Equality Courts implementation of the substantive right to equality in South Africa.
People in South Africa are still marked by the extreme inequality which was institutionalised by the apartheid system. Inequality is deeply rooted in structures, practices and attitudes. The Equality Act, established in 2000, gives effect to the substantive right to equality in South Africa. These provisions seek firstly to protect individuals from disadvantages created by the previous regime. Secondly the act seeks to take positive measures to educate and transform people in the society along the lines of national agenda of democracy.
The Equality Act provides a clear intention of greater access to justice and less formalism in handling disputes, all through a specialized procedure. Giving everyone a chance to have their case tried before the courts is a necessary precondition to enforce equality rights. The procedure therefore intends to be user-friendly, informal and provide participation for the parties. A special trained judiciary, called the “Equality Courts” is established to give effect to these provisions, dealing with disputes rooted in unfair discrimination, hate speech and harassment.
How may this new system of litigation provide a more just and appropriate system to sustain equality rights? The research for this is based on a field-study conducted in Durban Equality Court in 2005. The thesis explores how institutional and procedural features of the Equality Courts in practice respond to the quest for individual and social justice. Of the study conducted emerges a tension between the individual protection of equality rights and the societal need for promotion of equality as a means of social transformation.