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patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;

the nature and extent of the discrimination;

whether the discrimination is systemic in nature;

whether the discrimination has a legitimate purpose;

whether and to what extent the discrimination achieves its purpose;

whether there are less restrictive and less disadvantageous means to achieve the purpose;

whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to—

address the disadvantage which arises from or is related to one or more of the prohibited grounds; or

accommodate diversity.

Hate speech and harassment not subject to determination of fairness

15. In cases of hate speech and harassment section 14 does not apply.

CHAPTER 4

EQUALITY COURTS

Equality courts and presiding officers

16. (1) For the purposes of this Act, but subject to section 31—

every magistrate’s court and every High Court is an equality court for the area of its jurisdiction; and

any magistrate, additional magistrate and judge may be designated by the Minister, after consultation with the Judge President or the head of an administrative region defined in section 1 of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), concerned, as the case may be, as a presiding officer of the equality court of the area in respect of which he or she is magistrate, additional magistrate or judge, as the case may be.

(2) A presiding officer must perform the functions and exercise the powers assigned to or conferred on him or her under this Act or any other law.

Clerks of equality courts

17. (1) (a) Subject to the laws governing the public service, the Director-General of the Department may, for every equality court, appoint or designate one or more officers in the Department, or may appoint one or more persons in the prescribed manner and on the prescribed conditions, as clerks of the equality court, who must generally assist the court to which they are attached in performing its functions and who must perform the functions as may be prescribed.

(b) If a clerk of an equality court is for any reason unable to act as such or if no clerk has been appointed or designated for any equality court under paragraph (a), the presiding officer concerned may designate any competent officer in the Department to act as clerk for as long as the said clerk is unable to act or until a clerk is appointed or designated under paragraph (a), as the case may be.

Witnesses

18. The attendance of witnesses and the payment of witness fees in cases arising from the application of this Act must be determined by the Minister in the prescribed manner.

Rules and court proceedings

19. (1) Except as is otherwise provided in this Act, the provisions of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), and the Supreme Court Act, 1959 (Act No. 59 of 1959), and of the rules made thereunder as well as the rules made under the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), apply with the necessary changes required by the context to equality courts, in so far as these provisions relate to— te

the appointment and functions of officers;