ON OCTOBER 17, we examined some of the vital provisions in the Equal Opportunity Act Chap 22:03 that govern how the commission handles complaints.

Recall that the act prohibits discrimination in the areas of employment, education, the provision of goods and services, and the provision of accommodation, where someone has been subjected to differential and less-favourable treatment because of any one of seven personal and inherent characteristics known as status grounds; these are their race, their ethnicity, their sex, their religion, their origin, their marital status, and any disability they may have.

The act provides for a mechanism by which members of the public who have been subjected to this discrimination can lodge complaints with the commission.

In the previous article, we noted that a complaint must be lodged within six months from the date of the alleged act of discrimination, but the commission can accept a complaint outside of this window only in 'exceptional circumstances.'

If you lodge your complaint within six months, then you are within time and there is nothing more to consider. However, if you find yourself outside of the six-month window, you are required to show "exceptional circumstances" before the commission can treat with it.

WHAT DOES

THIS MEAN?

The act does not define what are exceptional circumstances. Around the same time that the act was passed in 1999, Parliament passed another piece of legislation, the Judicial Review Act [Chap 7:08] in 2000.

This act also provided that an application for judicial review must be filed in a specified time (three months) but said that the court can receive a claim outside of this deadline if there is 'good reason.'

This is significant because both these acts were drafted around the same time, but the drafters chose to use different language in stating what was the criteria for accepting claims filed out of time.

Therefore, they must have intended two different things. Put very simply, the criteria of "good reason" in judicial review claims is not the same as "exceptional circumstances" in in equal opportunity complaints.

Exceptional circumstances must be more than just 'good reason' as "exceptional" connotes a higher threshold than "good." It must refer to something unique and peculiar. For example, in South Africa, section. 60(11)(a) of their Criminal Procedure Act required a person accused of murder who was seeking bail to show on a balance of probabilities that exceptional circumstances existed which required their release in the interests of justice.

The court was asked to interpret what this meant in the 2010 case of Mazibuko & Another v The State. Judge Rall said, 'It seems to me that 'exceptional' can firstly denote the rarity of something (ie the infrequency with which something occurs) as in "It is exceptional to find a nocturnal animal walking around during the day."

Secondly, it can denote the extent or degree to w