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[2019] ZAEQC 5
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Gordhan v Malema and Another (EQJHB 5/2019) [2019] ZAEQC 5; 2020 (1) SA 587 (GJ); [2020] 1 All SA 417 (GJ) (31 October 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: EQ JHB 5/2019
REPORTABLE
OF
INTEREST TO OTHER JUDGES
31
October 2019
In
the matter between
PRAVIN
JAMNADAS
GORDHAN
APPLICANT
and
JULIUS
SELLO
MALEMA
RESPONDENT
FREEDOM
OF EXPRESSION
INSTITUTE
AMICUS CURIAE
JUDGMENT
SUTHERLAND
J
:
Introduction
[1]
The
issue before the Equality Court is whether these utterances
contravene section 10 of the Equality Act:
[1]
"Our attack on
Pravin Gordhan is an attack on White Monopoly Capital because Pravin
is a dog of White Monopoly Capital. We
must hit the dog until the
owner comes out, and once the owner comes out, we must deal
decisively with the owner.
Pravin is a cabal
that belongs to the UDF and destroyed all good African comrades...
he's no good this guy. He has destroyed Peter
Mokaba, he has
destroyed Winnie Mandela, he has destroyed everyone else that stood
for the truth against the apartheid regime.
His shenanigans are not
new.
Pravin has gone in
to all SOE and removed all black excellence because he hates
Africans, he doesn't like Africans. Any African
that speaks back to
Pravin, Pravin threatens those people...
Once you take a
decision to go after Pravin, you must be ready. If you are not ready,
don't come to the EFF. We've now taken a decision
to fight Pravin,
and therefore you must know Pravin is going to fight dirty... There
will be casualties. There can even be loss
of life. If you are not
ready for that, stand aside. I'm not scared. I'm ready. I'm prepared
to confront them one by one."
[2]
These utterances were made by the respondent in a speech to a
crowd of his supporters on 20 November 2018 outside the venue where
the hearings of the Zondo Commission into State Capture were being
conducted, and shortly after the applicant had testified in
the
Commission, and among other statements, had criticised the Economic
Freedom Fighters (EFF) and the respondent.
[3]
The applicant is the Minister of Public Enterprises in the
government and a leading member of the ruling party, for the time
being,
the African National Congress (ANC). The respondent is the
leader of the EFF, the third largest political party represented in
Parliament. The ANC and the EFF e rivals for power and critical of
one another and of their members.
[4]
The provisions of the Equality Act relevant to this
controversy are Section 10(1) and section 1: definition of
'prohibited grounds':
10. Prohibition of
hate speech
(1) Subject to the
proviso in section 12,
[2]
no
person may publish, propagate, advocate or communicate words based on
one or more of the prohibited grounds, against any person,
that could
reasonably be construed to demonstrate a clear intention to-
(a)
be hurtful;
(b)
be harmful or to incite harm;
(c)
promote or propagate hatred.
Section 1:
'prohibited grounds' are-
(a)
race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion,
conscience, belief, culture, language, birth and HIV/AIDS status; or
(b)
any other ground where discrimination based on that other ground
(i) causes or
perpetuates systemic disadvantage;
(ii) undermines
human dignity; or
(iii) adversely
affects the equal enjoyment of a person's rights and freedoms in a
serious manner that is comparable to discrimination
on a ground in
paragraph
(a)
[5]
These sections of the Equality Act must be applied subject to
the prescripts of section 16 of the Constitution. That section
provides:
16. Freedom of
expression
(1) Everyone has the
right to freedom of expression, which includes-
(a) freedom of the
press and other media;
(b) freedom to
receive or impart information or ideas;
(c) freedom of
artistic creativity; and
(d) academic freedom
and freedom of scientific research.
(2) The right in
subsection (1) does not extend to
(a) propaganda for
war;
(b) incitement of
imminent violence; or
(c) advocacy of
hatred that is based on race, ethnicity, gender or religion, and that
constitutes incitement to cause harm.
[6]
The
relationship between section 16 of the Constitution and these
sections in the Equality Act have been addressed in the case law.
The
parties are in agreement that the interpretation of the subsections
of section 10 be understood conjunctively and not disjunctively
and
that the scope of section 10 itself is circumscribed by section
16(2)(c) as set out in
SAHRC
v Khumalo
2019
(1) SA 149
(GJ) at [81] - [83]
[3]
.
[7]
The test, as set out in section 10, whether the utterances
could reasonably be construed to demonstrate a
clear intention
to
be hurtful, harmful or incite harm, promote or propagate hatred is
objective in that the effect of the words on hearers or readers
is
what is relevant Mindful of this dimension of the test, the test
seeks out the dominant impression
reasonably
created by
hearing or reading these words. In this case the words were orally
delivered in a speech and heard by its primary audience
only once.
The words were also broadcast to a wider audience.
Has there been a
contravention of section 10?
[8]
The utterances are a mix of allegations of fact and of
opinion. The utterances were, it can be inferred, aimed at rousing
the crowd
to endorse the respondent's opinions. The content and tenor
of the utterances were clearly intended to be hurtful towards the
applicant
and promote hatred of the applicant for the reasons
advanced in the speech. For the purposes of this judgment it will be
assumed
that every allegation of fact is false and every opinion
obnoxious and severely disparaging of the applicant. The question is,
however, whether the utterances go any further than that: are the
utterances discriminatory within the meaning and purpose of the
Equality Act?
[9]
Several issues were traversed in argument. Not all need to be
traversed in this judgment. There are two critical intertwined
arguments
advanced which dispose of the case.
9.1 First, the
complaint about the utterances should fail because the utterances do
not implicate any of the defined prohibited
grounds.
9.2 Second,
the utterances address the applicant as an individual and not a
member of a class or group of persons as categorised
in the defined
prohibited grounds.
[10]
The argument in support of the complaint invokes the race or
ethnicity of the applicant, an Indian South African, from among
the
defined prohibited grounds. It is conceded that the applicant's
Indian identity is not overtly expressed in the utterances
but the
argument is advanced that an anti-Indian bias is implied because of
the overall context in which the speech was delivered.
The
implication is said to be located in the allusion to the "cabal
that belongs to the UDF" of which the applicant was
alleged to
be a member. By reference to other sources, dealt with presently, it
is argued that it would have been well known that
this cabal was
composed solely of Indians. The fact of the cabal and its ethnic
composition, thus was known to the audience, composed
mostly of EFF
supporters, would therefore have been understood by them to be an
Indian cabal when the applicant was referred to
as a "cabal".
[11]
The
logic of, and the fact of, such a connection is refuted on behalf of
the respondent. The source relied upon, and cited in the
complaint,
is a passage from a blog by Floyd Shivambu published on 18 October
2018, about a month before the occasion of the impugned
utterances.
True enough, the Cabal was there referred to as "basically an
Indian cabal" whose alleged aim was to supress
African
leadership in the Mass Democratic Movement (MDM).
[4]
This allegation itself is derived from a report published two decades
ago and reputedly written by Mac Maharaj, an Indian, and
a leading
member of the ANC. It is common cause that the fact of such criticism
of the Cabal, inclusive of the applicant, has been
well known by
people supportive of the Liberation struggle and the otherwise
cryptic allusion in the speech thereto would have
been understood in
that context by the listeners. However, the remarks in the Shivambu
blog and in the initial report itself are
not condemnatory of Indian
South Africans
per
se.
Rather,
the remarks in the blog identify the cabal as being composed of
Indians who are alleged to have been racist towards Africans,
but
does not allege that Indians are, by reason of their ethnic identity,
racist nor is there a call to vilify Indians as a class.
[12]
In my view the contention that this context supports the
notion that the applicant,
qua
Indian, was being vilified is
not apparent, even within this context.
[13]
The imagery of the applicant as a "dog" of
White
monopoly Capital" is the sole allusion to race in the
utterances. The utilisation of the metaphor of a person being a "dog"
to portray a person as the instrument of an entity or social force to
which the "dog" does not truly belong but whose
interests
the dog in servile deference to such entity or social force promotes
is old hat The label was not invented by the respondent.
The label
"white monopoly capital" was coined more recently and is a
part of the jargonised sloganeering in contemporary
South African
political discourse. Its meaning is not necessarily stable. It
usually is taken to refer to the South African Big
Business
corporations which dominate economic activity in which White South
Africans are disproportionately represented, relative
to their
proportion of the total population a phenomenon which is inimical to
the interest of the masses of the population. What
is plain is that
it is a disparaging label and to associate a person with this
supposedly evil force is to encourage the hearers
to repudiate the
person so identified with it.
[14]
However, it is the applicant's personal alleged connivance
with this allegedly evil social force that is condemned. He,
personally,
is identified as an appropriate target to "hit"
in order to penetrate the defences of the evil social force and
expose
the movers and shakers within the force. Nothing is said or
implied in the utterances which implicates the applicant's own race
or ethnic identity. Read with other passages, it is plain that the
utterances sanctify a confrontation between, on the one hand,
anything reminiscent of White ascendancy as exemplified in the form
of Apartheid or of White Monopoly Capital, with which the applicant
is identified, and on the other hand, the people and their struggle
for true freedom. As obnoxious as such remarks about the applicant,
if untrue, may be, they do not fall within the compass of the
prohibited grounds.
[15]
The passages that speak to "hitting" the dog and the
"attack" on the applicant are plainly metaphorical.
[16]
. The allusion to "casualties" and the "loss of
life" engendered much controversy. The use of "casualties"
on its own might have been understood as metaphorical but for the
conjoining of "loss of life". Plainly the image conjured
is
of real physical injury. However, read as a whole, this literal
meaning is not the meaning a reasonable person would attribute
to the
utterances. The fair understanding of the passage is that whoever
challenges the applicant is at risk of injury owing to
the
applicant's "dirty tricks". It is plain that the allusion
to loss of life is a mere example of an extravagant juvenile
rant
stretching hyperbole to the extreme in the course of a demonstrably
demagogic speech. Its function was to proclaim the speaker
as brave
and steadfast in the face of any foe however mighty and that the
space to stand at his right hand is reserved only for
the sturdiest
of fellows. The dominant impression is that it is puerile
self-aggrandisement, not a threat to the applicant or anyone
else.
[17]
The
objectives of the Equality Act are to create measures to address the
injustices that result from social inequalities by combating
unfair
discrimination. Its enactment is to give flesh to section 9 of the
Constitution as required by section 9(4). In particular
section 9(3)
and (4) deal with discrimination on a list of grounds which the
definition of prohibited grounds in section 1 of the
Equality Act
replicates.
[5]
[18]
Sub-section (b) of the definition of prohibited grounds is a
catch-all to cover any unlisted ground. Were a person to be
discriminated
against on such an additional ground and the result
"undermines human dignity", such ground can be invoked to
bring the
discrimination with the compass of section 10. The
character of these "other grounds" must in my view be
understood to
eiusdem generis
with the list in (a). The
statute was enacted in 2000. Since then social awareness of forms of
discrimination not then recognised
has developed; an example might be
trans-·gender status, a social circumstance only recently
acknowledged. A notable omission
from the prohibited grounds is, not
unsurprisingly, political ideology: neither capitalists nor
socialists can complain about their
vilification as a class by
invoking this statute.
[19]
The significance of these considerations is that the effect of
an utterance on a particular person which vilifies that person, but
does not vilify that person on the ground of one or another personal
attribute, as defined, is not the subject matter of Section
10.
[20]
In my view, the attack on the applicant in the utterances was
personal in nature only.
[21]
In the result, the application falls to be dismissed.
The costs: the
evolution of the case and ancillary issues relevant thereto
[22]
An ancillary matter to decide is the costs to be borne in the
matter. To do this it is necessary to deal briefly with the evolution
of the litigation.
[23]
The complaint was laid initially in the Magistrates' Court
sitting
qua
Equality Court. The matter was set down to be
heard. At that stage, by consent, that court made an order
transferring the matter
to the High Court sitting
qua
Equality
Court. Upon such transfer, the matter was case-managed to the
hearing. At the initial case management meeting several procedural
and substantive aspects were canvassed. As a result, the parties
agreed that the matter would be heard on the papers and a directive
was made to that effect. Furthermore, directives were made about the
further preparatory requirements. In short, this resulted
in the
complaint which was initially made against the respondent, and his
colleague Floyd Shivambu, in respect of a series of utterances
being
revised. This was, for convenience, done in a replying affidavit, the
effect of which was to abandon the complaint against
Shivambu in its
entirety and to restrict the complaint to the respondent's remarks
cited above. The respondent responded thereto
by asserting that a
vast portion of the affidavit of Shivambu and three documents annexed
thereto were incorporated by reference
into the respondent's defence.
[24]
This stance provoked an application to strike out these
inclusions on, principally, the grounds that they were irrelevant.
The three
inclusions were a report of the Inspector -General of
Intelligence of31 October 2014, (IGI report), the "Report of the
Commission
on the cabal" of 14 March 1990 in its form as found
on the O'Malley Archives website, (the Cabal report), and the so
called
"Sikhakane report" of 5 November 2014.
[25]
Of these reports, the IGI report stood in a distinctive
category in that it was a document admittedly classified secret that
had
been, allegedly, improperly leaked into the public domain. To
deal with this document as a special case, the application to strike
it out was heard in a preliminary hearing. The application was
dismissed and the costs reserved for the main hearing for
determination.
[26]
When dismissing the application I undertook to provide reasons
later. I do so now. Although the decision to hear this issue
separately
was to address the secret classification question, the
applicant advanced three grounds why it should be struck out:
26.1
The document was classified secret
26.2
The document was irrelevant
26.3
The document was prejudicial to the applicant who would be
obliged to "engage" with its contents.
[27]
The secret classification point was advanced with reference to
an affidavit made by the Minister of State Security in other
litigation
where, similarly, its striking out was being contested.
The applicant replicated the Minister's affidavit and added no facts
to
the grounds thus presented.
[28]
The decision of the Constitutional Court in
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services, In Re:
Masetla v President, RSA
&
Another
2008
(5) SA 31
(CC)
at [53]-[56] dictates how a court approaches such a matter. In short,
the Court is required to determine the propriety of
a release of a
top secret document to the public and is not bound by the Minister's
opinion or its classification. The contending
values of national
security on the one hand and a right to information on the other hand
must be balanced. The Constitutional Court
held thus:
"[53] In my
view, the mere fact that documents in a court record carry a
classification does not oust the jurisdiction of a
court to decide
whether they should be protected from disclosure to the media and
public. We were not referred to, and I could
not find, any
legislative provision on the classification and protection of
information on grounds of national security or any
other authority
which purports to oust the jurisdiction of a court over any document
which forms part of a ,court record. As I
have said above, different
considerations may very well apply where the request to disclose
classified intelligence documents occurs
in any context other than
where the documents have been placed before a court by a party to the
proceedings and thus form part
of the court record. In that event, a
court will always have the power to regulate the proceedings before
it because it is clothed
by s 173 of the Constitution with an
inherent power to regulate its own process, taking into·
account what is in the interests
of justice.
53
[54] I agree with
the submission made by Independent Newspapers that ordinarily, the
starting point is that court proceedings and
so too court records
must be open to the public. . A mere classification of a document
within a court record as 'confidential'
or 'secret' or even 'top
secret' under the operative intelligence legislation or the mere
ipse
dixit
of the minister concerned does not place such documents
beyond the reach of the courts. Once the documents are placed before
a court,
they are susceptible to its scrutiny and direction as to
whether the public should be granted or denied access.
[55] It follows that
where a government official objects to disclosure of a part of the
record before a court on grounds of national
security, the court is
properly seized with the matter and is obliged to consider all
relevant circumstances and to decide whether
it is in the interests
of justice for the documents to be kept secret and away from any
other parties, the media or the public.
This forms part of a court's
inherent power to regulate its own process that flows from s 173 of
the Constitution. In my view,
a court in that position should give
due weight both to the right to open justice and to the obligation of
the State to pursue
national security within the context of all
relevant factors. As in the present matter, it would not be concerned
with a statute
or other law of general application as the basis for
restricting the disclosure of the material. In deciding whether
documents
ought to be disclosed or not, a court will have regard to
all germane factors which include the nature of the proceedings; the
extent and character of the materials sought to be kept confidential;
the connection of the information to national security; the
grounds
advanced for claiming disclosure or for refusing it; whether the
information is already in the public domain and if so,
in what
circumstances it reached the public domain; for how long and to what
extent it has been in the public domain; and, finally,
the impact of
the disclosure or non-disclosure on the ultimate fairness of the
proceedings before a court. These factors are neither
comprehensive
nor dispositive of the enquiry.
[56] However, in the
final analysis, a court should be alive to the fact that it is
confronted by competing constitutional claims.
The one claim is for
open justice and the other relates to the government's obligation to
pursue national security. Because the
contested documents form part
of the court record, a court is obliged, in its own right, to examine
the documents concerned in
order to ensure that it impairs as little
as possible the other constitutional interests at stake whilst
striking a harmonious
balance between the two or more competing
claims."
[29]
A reading of the report and of the Minister's rationale for
excluding it from the public domain reveal that the rationale is
wholly
unfounded. The burden of the Minister's perspective is that
agents of the security agencies may be compromised. No agents'
identities
are disclosed. The persons described are not secret
operatives in the least. Moreover, at the time the document was
attached to
Shivambu' s affidavit, the document was already in the
public domain and had been the subject of media reports. Any
confidentiality
claimed for the document is futile.
[30]
The upshot is that no sound reason exists why its contents
could usefully or appropriately be suppressed.
[31]
As to the issue of relevance to the pleaded case it was inappropriate
to decide, in an interlocutory application, whether that
proposition
was correct, because in the absence of a consideration of the merits
of the arguments advanced in the main case, such
a conclusion could
not properly be reached. Potentially, the respondent could have drawn
on the contents to offer, whether meritoriously
or otherwise, for an
argument. (As it turned out neither party had need to refer to it at
all, which is the true mark of its valuelessness.)
[32]
As to the fear that the applicant would be prejudiced by having to
deal with the allegations of fact in the report, the notion
was
misconceived. As conceded in the argument in the interlocutory
hearing, the respondent sought to rely on the existence of the
report, not the truth of its co tents. Its existence was not the
subject of any possible cogent dispute.
[33]
In the result, the interlocutory application was dismissed. I return
to the appropriate costs order hereafter.
[34]
The other three strike-out applications stood over to be dealt with
in the main hearing.
[35]
After the IGI strike-out application had been dismissed, the attorney
for the respondent wrote to request an oral hearing to
afford the
opportunity to cross-examine the applicant on the contents of the
reports. The applicant objected thereto. This difference
of opinion
was resolved by a ruling I made after considering the correspondence.
I ruled thus:
1.
"I have noted the correspondence of 9 and 11 October 2019
regarding the views expressed about future conduct of this matter
and
given consideration to the submissions therein. The key proposition
is that because a document survived an application to strike
it out a
proper basis now exists to present oral evidence to the court.
2.
A directive was given at the first case management conference
that the matter would proceed on affidavit. The parties were then
agreed on such a procedure. I am unpersuaded that the reason offered
for the request to change that directive to allow an oral hearing
has
any merit. Accordingly the decision that the matter proceed on
affidavit shall not be changed: the matter will proceed as directed.
3.
The parties have already filed the papers they have sought to
rely upon. Heads of argument are due. The parties are directed to
fulfil their obligations to enable the hearing to take place, as
scheduled, on 24 October 2019.
4.
Given various remarks made, some tangentially, in the course
of this matter it seems appropriate to give further directions about
the forthcoming hearing:
4.1
This matter is not about the actual or alleged defamation of
the applicant. The enquiry shall therefore not concern itself with
issues pertinent thereto.
4.2
The question before the Equality court is plainly and simply
whether or not the utterances (which are common cause) contravened
Section 10, read with section 12 of the Equality Act.
4.3
The test prescribed for a contravention of section 10 is
whether such utterances "could reasonably be construed to
demonstrate
a clear intention" to have the prescribed
consequences.
4.4
Arguments which go beyond addressing that issue are
superfluous and shall not be entertained."
[36]
At the main hearing the applicant persisted with the applications to
strike out the passages in Shivambu's affidavit and the
remaining
documents, but addressed no argument beyond the perfunctory
submissions in the heads of argument which were filed.
[37]
As alluded to, the IOI report was not referred to in argument.
Also, the Sikhakane report was not referred to in argument. The
applicant
sought to refer to certain citations in the initial
complaint from Shivambu' s blog to sustain the contention that
"Cabal"
was understood to be an Indian cabal, but persisted
with the notion that the source material relied on by Shivambu, ie
the Cabal
report, for his allegations should be excluded. This is a
plainly unsustainable contention, even if the fact that the cabal
report
had been in the public domain for twenty years is ignored.
[38]
The documents were allegedly pertinent to Shivambu' s defence
and when the complaint against him was abandoned they become
superfluous.
The respondent's choice in his further answering
affidavit to persist with the incorporation of passages from
Shivambu's defence
resurrected their potential relevance. In the
result, however, they were of no assistance to his case at all.
[39]
The upshot is that any energy spent on the strike out
applications was a waste. The culpability for this waste must
be·borne
by the applicant. The costs of the interlocutory
application must be borne by the applicant. The costs implications of
remaining
strike-out applications were lost in the wash of the main
hearing and I do not make any specific order in respect of them.
[40]
The respondent has been successful in the main application. He is
entitled to the costs absent any sound reason to suggest
otherwise.
The litigation is plainly a dimension of a political contestation.
When politicians choose to utilise the courts to
conduct their
campaigns and draw on the resources of the courts, it should not be
supposed that such resources can be utilised
without consequences.
All litigants must know that they risk an adverse costs order if they
fail. Despite the fact that the utterances
were indeed hateful and
aimed at engendering hatred against the applicant, the applicant has
failed to bring his understandable
grievances within the compass of
the Equality Act. In these circumstances, the applicant ought
nevertheless to bear the costs.
The Order
1. The Application
is dismissed with costs, including the costs of two counsel.
2. The costs of the
interlocutory application shall be borne by the applicant, including
the costs of two counsel.
___________________
ROLAND SUTHERLAND
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Date
of hearing: 30 September 2019 and 24 October 2019
Date
of judgment: 31 October 2019
For
the Applicant: Advs M le Roux and J Chanza (interlocutory
application)
Advs
NH Maenetje SC, M le Roux and J Chanza (main application)
Instructed
by: Malatji & Co Attorneys
For
the Respondent: Advs TN Ngcukaitobi and J Mitchell (interlocutory
application) Advs TN Ngcukaitobi and K Premhid (main application)
Instructed
by: Ian Levitt Attorneys
For
the
Amicus Curiae:
Adv MM Ka-Siboto
Instructed
by: Freedom of Expression Institute-Law Clinic
[1]
The
Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000
.
[2]
Section 12
provides for exceptions, but as none were cogently
implicated in this controversy it can be ignored.
[3]
The SCA in Masuku & Another v SAHRC
2019 (2) SA 194
(SCA)
addressed the relationship between section 16(1) of the Constitution
and Section 10 of the Equality Act and concluded that
the
disjuncture was problematic. Ultimately, at the invitation of the
respondent in that matter the controversy was decided on
the basis
of section 16(1) and the implications of an application of section
10 were evaded. This decision is subject to a pending
appeal before
the Constitutional Court. The Constitutional Court inMoyo v Minister
of Police & Others CCT 174/18 & CCT
178/18 (22 October 2019)
considered the impact of section 16(1) of the Constitution on
section l(b) of the
Intimidation Act 72 of 1982
and concluded that
section 16(1)
had to trump the overreach of section l(b).
[4]
The allusion to cabal that belongs to the UDF (United Democratic
Front) and the allusion to the cabal being in the MOM 1s to
the same
thing. The MDM emerged as the successor to the UDF upon it being
banned by the Apartheid State.
[5]
Section 9 of the Constitution:
(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. To
promote the achievement of equality, legislative
and other measures
designed to protect or advance persons, or categories of persons,
disadvantaged by unfair discrimination may
be taken.
(3) The state may
not 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.
(4) No person may
unfairly discriminate directly or indirectly against anyone on one
or more grounds in terms of subsection (3).
National legislation
must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination
on one or more of the grounds listed in subsection (3) is unfair
unless it is established that the discrimination
is fair.