Under s. 5 (1) the Act binds the State and all persons but does not apply where the Employment Equity Act 1998 applies.

The Act contains a number of provisions for the prevention and prohibition of unfair discrimination and for the promotion of non-discrimination. "Discrimination" is defined widely and includes any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly imposes burdens, obligations or disadvantage on or withholds benefits, opportunities or advantages from, any person on prohibited grounds which include gender and sex. Discrimination on the grounds of family responsibility or status or marital status are not specifically covered, but there is provision in s.34 for the Equality Review Committee to provide are report on the inclusion of these grounds as "prohibited grounds"' under the Act.

Under s.6, the State and all persons must not unfairly discriminate against another person. In relation to gender, s. 8 specifically prohibits unfair discrimination and lists a number of non-exhaustive grounds of prohibited discrimination which include:

1. Preventing women from inheriting family property.

2. Traditional, customary or religious practice, which undermines equality between women and men.

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

4. Discrimination on the ground of pregnancy.

5. Limiting women’s access to social services or benefits, such as health, education and social security.

6. The denial of access to opportunities, including access to services or contractual opportunities for rendering services, or failing to take steps to reasonably accommodate the needs of such persons.

7. Systemic inequality of access to opportunities by women as a result of the sexual division of labour.

Unfair discrimination is not defined, but s.14 lists a number of factors to be taken into account when determining fairness or unfairness. Section 29 also provides for the Schedule to the Act to set out some practices to illustrate and emphasise some practices which are or may be unfair, that are widespread and that need to be addressed. In relation to labour and employment, these illustrative practices include:

1. Creating artificial barriers to equal access to employment opportunities by using recruitment and selection procedures.

2. Applying human resource utilisation, development, promotion and retention practices which unfairly discriminate against persons from groups identified by the prohibited grounds.

3. Failing to respect the principle of equal pay for equal work.

4. Perpetuating disproportionate income differentials deriving from past unfair discrimination.

Affirmative action would be permitted by s.14(1) which provides that it is not unfair discrimination to take measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination. Section 13 provides that the burden of proof, once a prima facie case of discrimination has been established is on the person against whom an allegation of unfair discrimination has been made. Also, if the discrimination is shown to have occurred on a "prohibited ground" then the person against whom the allegation has been made will have the burden of proving the fairness of the discrimination.

Sections 10 and 11 of the Act also prohibit harassment, hate speech and the dissemination and publication of information that unfairly discriminates. "Harassment" is defined as unwanted conduct which is persistent or serious and

• demeans, humiliates or creates a hostile or intimidating environment or is

• calculated to induce submission by actual or threatened adverse consequences

• and which is related to grounds which include sex and gender.

Section 20 provides for proceedings under the Act by individuals, interest groups, the South African Human Rights Commission and the Commission for Gender Equality. These are heard by Magistrates’ and High Courts acting as "equality courts" under the Act. These courts have a number of powers under s.21, which includes interim orders, damages, restraining orders and orders to make available specific opportunities and privileges that have been unfairly denied.

A number of provisions of the Act deal with the promotion of equality. Under s. 24, a duty to promote equality applies to both the State and all persons. More specifically, under s. 25 the duty of the State includes awareness raising, development and implementation of equality programs and action plans, legislation, codes of practice, guidelines, and training. All government Ministers must also implement measures, within available resources, which are aimed at the achievement of equality in their areas of responsibility, including by preparing and implementing equality plans. These equality plans must be submitted to the South African Human Rights Commission which must consult with the Commission on Gender Equality when dealing with the plans.

In addition, under s. 28(3), State and public institutions have a duty to eliminate discrimination (on grounds which include gender) and to promote equality in respect gender. This may also require the audit and amendment of laws, policies and practices and the adoption of action plans.

Under s. 28, if it is proved in the prosecution of any offence that unfair discrimination on certain grounds, which include gender, played a part in the commission of the offence, this must be regarded as an aggravating circumstance for the purposes of sentence.