Guidance on Interpreting the Law

Sexual harassment legislation should include a directive for liberal interpretation by courts to effectuate the purpose of the legislation. Drafters may also wish to include a severability clause to ensure that if any part of the legislation is found to be invalid or inapplicable, all other aspects of the legislation should remain in effect.


South African law provides guidance relative to legal interpretation and management of cases brought under its equality legislation:

Interpretation of Act

3. (1) Any person applying this Act must interpret its provisions to give effect to--

(a) the Constitution, the provisions of which include the promotion of equality through legislative and other measures designed to protect or advance persons disadvantaged by past and present unfair discrimination;

(b) the Preamble, the objects and guiding principles of this Act, thereby fulfilling the spirit, purport and objects of this Act.

(2) Any person interpreting this Act may be mindful of--

(a) any relevant law or code of practice in terms of a law;

(b) international law, particularly the international agreements referred to in section 2 and customary international law;

(c) comparable foreign law.

(3) Any person applying or interpreting this Act must take into account the context of the dispute and the purpose of this Act.

Guiding principles

4. (1) In the adjudication of any proceedings which are instituted in terms of or under this Act, the following principles should apply:

(a) The expeditious and informal processing of cases, which facilitate participation by the parties to the proceedings;

(b) access to justice to all persons in relevant judicial and other dispute resolution forums;

(c) the use of rules of procedure in terms of section 19 and criteria to facilitate participation;

(d) the use of corrective or restorative measures in conjunction with measures of a deterrent nature;

(e) the development of special skills and capacity for persons applying this Act in order to ensure effective implementation and administration thereof.

(2) In the application of this Act the following should be recognised and taken into account:

(a) The existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of past and present unfair discrimination, brought about by colonialism, the apartheid system and patriarchy; and

(b) the need to take measures at all levels to eliminate such discrimination and inequalities.

See: Promotion of Equality and Prevention of Unfair Discrimination Act, Ch. 1.


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