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Under the heading "Equality", the section states: 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.
Act to give effect to section 9 read with item 23 (1) of Schedule 6 to the Constitution of the Republic of South Africa, 1996, so as to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith.
The Equality Act of 2000 contains statutory prohibitions on hate speech which are broader than the limitations implied by section 16(2). In Qwelane v South African Human Rights Commission, the Constitutional Court considered whether those statutory prohibitions are consistent with the section 16 right to freedom of expression. [13]
In May 1996, South Africa became the first jurisdiction in the world to provide constitutional protection to LGBTQ people, via section 9(3) of the South African Constitution, which disallows discrimination on race, gender, sexual orientation and other grounds. Since 16 December 2007, all discriminatory provisions have been formally repealed.
Equal Remuneration Act, 1976 - Guarantees equal pay for equal work to men and women. Indian Penal Code , 1860 (Section 153 A) - Criminalises the use of language that promotes discrimination or violence against people on the basis of race, caste, sex, place of birth, religion, gender identity, sexual orientation or any other category.
In response, Qwelane challenged the constitutionality of section 10(1) of the Equality Act, arguing that, read with other provisions of the act, it was impermissibly vague and imposed an unjustifiably broad limitation on the constitutional right to freedom of expression.
The court found that the rights violated were important ones, particularly in the South African context. The rights to equality and dignity were among the most valuable in any open and democratic State, and assumed special importance in South Africa, due to its history of inequality and hurtful discrimination on grounds such as race and gender. [9]
She claimed that, in declining to promote her, the SAPS had unfairly discriminated against her on the ground of her race, in violation both of section 9(3) of the Constitution and of section 6(1) of the Employment Equity Act, 1998.