Commentary on Sections Part 1: The Commission for Equality and Human Rights Section 21: Unlawful act notice
74.Section 21 makes provision for the CEHR to issue an unlawful act notice after an investigation confirming an unlawful act has taken place.
75.Subsection (1) permits the CEHR to issue an unlawful act notice in circumstances where it has conducted an investigation and is satisfied that the party investigated has committed an unlawful act, as defined in section 34. Under subsection (2) an unlawful act notice must set out the unlawful act and the legislative provision by virtue of which the act is unlawful. Subsection (3) requires the CEHR to include in the notice details of the appeal procedure against the notice, the scope for a subsequent investigation into the subject’s compliance with the notice and the scope for the CEHR to apply to a court for an injunction or interdict under section 24 if it thinks the unlawful act is continuing. Under subsection (4) the CEHR may include within the notice a provision requiring the recipient to prepare an action plan (as provided for in section 22) setting out how the unlawful act will cease or not be repeated. It allows the CEHR to recommend action that the person served the notice should take. Subsection (5) sets out the basis on which a person may appeal against an unlawful act notice and subsection (6) enables a court or tribunal to affirm, annul or vary a notice or requirement under it and includes the power to make an order for costs.