The background

The background

Under the equality clause of the Constitution (“Equality Clause“), no person may 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.  And discrimination on one or more of those grounds is unfair unless it is established that the discrimination is fair.  In addition, the Equality Clause requires that national legislation must be enacted to prevent or prohibit unfair discrimination; hence the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“Equality Act“).

The Equality Act largely echoes the Equality Clause (including the reverse onus), and particularises unfair discrimination on the ground of race, gender, and disability.  The gender specific section (“Gender Section“) includes outlawing:

the system of preventing women from inheriting family property;

any practice, including traditional, customary, or religious practice, which impairs the dignity of women and undermines equality between women and men, including the undermining of the dignity and well-being of the girl child; and

any policy or conduct that unfairly limits access of women to land rights, finance, and other resources.

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The judgment

The consequences as described by the majority

The practical consequences

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Talking Point February 2021