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[2015] ZAWCHC 195
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Hendricks v Transnet Second Defined Benefit Fund and Others, In re: Adendolf and Others v Transnet Second Defined Benefit Fund and Others (EC04/14 , EC08/14) [2015] ZAWCHC 195 (9 December 2015)
IN THE EQUALITY COURT
OF SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
In the matter between:
CASE NO: EC04/14
DATE: 9 DECEMBER 2015
REPORTABLE
JACOBUS
HENDRICKS
...................................................................................................
Complainant
And
SEM ADENDOLF & 95
OTHERS
...................................................................................
Complainants
CASE NO: EC08/14
v
TRANSNET SECOND DEFINED BENEFIT
FUND
...................................................
1st
Respondent
TRANSPORT PENSION
FUND
...................................................................................
2nd
Respondent
TRANSNET
LIMITED
..................................................................................................
3rd
Respondent
MINISTER OF PUBLIC
ENTERPRISES
...................................................................
4th
Respondent
MINISTER OF
FINANCE
.............................................................................................
5th
Respondent
PRESIDENT OF THE REPUBLIC OF
SA
..................................................................
6th
Respondent
METROPOLITAN RETIREMENT
ADMINISTRATORS (PTY) LIMITED
..........
7th
Respondent
TRANSNET
SUB-FUND
................................................................................................
8th
Respondent
SOUTH AFRICAN AIRWAYS
SUB-FUND
.................................................................
9th
Respondent
PASSENGER RAIL AGENCY OF SOUTH
AFRICA SUB-FUND
..........................
10th
Respondent
Coram: Yekiso J
Dates of Hearing: 18 & 19 June
2015, 17 September 2015
Date of Judgment: 9 December 2015
Summary:
Provisions of the Promotion of Equality
& Prevention of Unfair Discrimination Act, 4 of 2000: It never
was intended that the
provisions thereof as also section 8 of the
Interim Constitution and, later, section 9 of the Constitution of the
Republic of South
Africa be retrospective or retroactive.
Causes of action that arose prior to
the coming into operation of the Interim Constitution and the
Constitution of the Republic
of South Africa, 1996 fall outside the
jurisdiction of the Equality Court established in terms of section 16
of the Equality Act.
JUDGMENT
YEKISO, J
[1] On 9 June 2014, Jacobus Hendricks
instituted proceedings out of this court under case number EC04/2014
against the first respondent
and nine other respondents. Shortly
thereafter S E M Adendolf and 95 other complainants instituted
separate proceedings in this
court under case number EC08/2014,
similarly against the first respondent and the same nine other
respondents cited in the matter
under case number EC04/2015.
[2] The relief sought in both sets of
proceedings is set out in the particulars of complaint of each one of
the complainants.
The relief sought relates to damages allegedly
suffered arising from an alleged breach, by the third respondent, of
each complainant’s
right not to be unfairly discriminated
against; that each complainant was unfairly and unlawfully deprived
of full pension benefits
or a severance package to which each one of
them was entitled but for the discriminatory practice complained of;
that each one
of the complainants is entitled to pension benefits or
a severance package equal to that offered to comparable “white”
employees of the third respondent; that each one of the complainants
has been unjustifiably impoverished, subjected to undue hardship,
socially diminished, has suffered an impairment of their dignity,
self-esteem and mental tranquillity in breach of their right
to
dignity in terms of both the common law and section 10 of the
Constitution of the Republic of South Africa, 1996; each complaint
culminates in a claim for a globular amount of R500 000.00 which
amount each one of the complainants alleges the third respondent
is
liable to compensate each one of them.
[3] At the directions meeting, held on
26 March 2015, and by agreement between the parties, Baartman J made
an order that the complaints
launched under case numbers EC04/2014
and EC08/2014 be consolidated; that the following points of law be
determined separately
and prior to any determination of the merits
and quantum of the complaints, these being:
[3.1.] the jurisdiction of this court
to adjudicate the complaints, including, if necessary, the question
as to whether the
Promotion of Equality and Prevention of Unfair
Discrimination Act, 4 of 2000
applies retrospectively;
[3.2.] whether the complaints have
since become prescribed;
[3.3.] the locus standi of the
complainants; and
[3.4.] the question as to whether the
complainants have disclosed a cause of action arising from the issues
complained about.
[4] The matter was argued before me on
17 September 2015. After hearing argument I reserved judgment. In
the paragraphs which
follow, which are preceded by a brief factual
background to the issues involved, is my judgment in the issues
raised.
FACTUAL BACKGROUND
[5] The common denominator between all
the complainants in both sets of the proceedings is that up until
1993 the complainants were
previously employed by Transnet, the third
respondent in these proceedings. At the time they were so employed
they were members
of Transnet Second Defined Benefit Fund, same being
a pension fund established in terms of section 14B of the Transnet
Pension
Fund Act, 1990. The Transnet Second Defined Benefit Fund is
a successor-in-title to the benefits fund established in terms of
section 2 of the Railways & Harbours Pensions Act, 1971; and
section 2 of the Railways and Harbours Pension Fund Non Whites
Act,
1974. The latter pension fund was, in turn, succeeded by the
Transport Pension Fund established in terms of section 2 of
the
Transnet Pension Fund Act, 1990.
[6] The complainants’ complaints
are founded upon substantially the same issues, in that each one of
them, during their term
of employment with the third respondent, had
been unfairly discriminated against on the basis of race or the
colour of their skin.
The basis of their complaint is that during
or about 1993, upon taking early retirement from their employment
with the third
respondent, they became entitled to pension benefits
or voluntary severance packages calculated on the basis of a formula
which
at the time used race as a determining factor.
[7] The further basis of the
complainants’ complaint is that the pension benefits and
voluntary severance packages paid out
to the employees of the third
respondent who were classified as “white” in terms of the
apartheid era legislation,
and whose employment category and length
of service were comparable to those of the complainants amounted to,
on average, 90% more
than that offered to each complainant.
[8] In the ultimate analysis the
complainants seek damages from the third to sixth respondents,
jointly and severally the one paying
the other to be absolved, for
payment of the difference between the amount of the pension benefits
or voluntary severance packages
that they were actually paid and the
amount which they contend they should have received but for the
unfair discrimination.
THE COMPLAINANTS’ CAUSE OF
ACTION
[9] In both these sets of matters,
which were consolidated by the order of Baartman J on 26 March 2015,
all the complainants, except
in the instance of Dirk Ambross and
Abram Apies, whose claims appear to have arisen after 16 June 2003,
the complainants allege
that their claims arose during or about 1993.
All those complainants, with the exception of Ambross and Apies,
left the third
respondent’s employ during 1993. The
complainants allege in their particulars of complaint that on leaving
the third respondent’s
employ they each received a pension
benefit or a voluntary severance package that was discriminatory
based on race because it differed
from what their white counterparts
received. This allegation runs through all these matters except the
two I have already referred
to.
[10] The basis of their claims is
paraphrased in paragraphs 11, 14 and 15 of their particulars of
complaint. This allegation, which
is replicated in every one of
these cases, except for the dates being different, reads as follows:
“Up until his early retirement on
or about 1993, the complainant had been in the employ of Transnet for
a period of 32 years
during which time the complainant was a member
of the Transnet Pension Fund, and before that its
predecessor-in-title.”
[11] A further allegation which appears
to constitute a further bases of the cause of action, contained in
paragraph 14 of the particulars
of complaint, reads as follows:
“Pension benefits and/or
severance packages paid out to employees of Transnet who were
classified white in terms of apartheid
era legislation and whose
employment category and length of service were substantially
comparable to complainants, amounted to
an average of 90% more than
that offered to the complainants.”
[12] The thread of the complaint runs
through to paragraph 15 of the particulars of complaint which reads
as follows:
“The aforesaid distinction drawn
between the complainant and white employees of Transnet was
irrational, unreasonable, unjustified
and racist and can only be
accounted for on the basis of it being unfair discrimination based on
race or colour as envisaged by
section 9(3) and 9(4) of the
Constitution and thus unlawful.”
[13] There is no evidence on the papers
before me to suggest that the basis of the complainants’
complaint relate to ongoing
pension payments. To me, it seems, all
the complaints relate to a once-off payment which occurred in or
about 1993 and which was
discriminatory on the basis as pleaded by
each complainant. A reference to section 9(3) and 9(4) in paragraph
15 of the particulars
of complaint is a reference to the equality
clause located in section 9 of the Constitution of the Republic of
South Africa, 1996
(“the Constitution”) and the national
legislation contemplated in subsection (4) thereof.
OPPOSITION TO THE RELIEF SOUGHT
[14] The respondents oppose the relief
sought by the complainants. This they do on the basis that the
complainants’ causes
of action, if any, arose during or about
1993. A reference to section 9(4) of the Constitution is a clear
indication that all
the complainants have brought their claims in
terms of the Promotion of Equality & Prevention of Unfair
Discrimination Act,
4 of 2000 (“the Equality Act”). The
Equality Act is the national legislation contemplated in section 9(4)
of the Constitution.
The respondents contend that the Equality Act
came into operation on 16 June 2003 and that there is no provision in
that piece
of legislation which makes its application retrospective
to a date prior to 16 June 2003. In the absence of a provision in
the
Equality Act that provides for the retrospective application of
the Equality Act, this court does not have the requisite jurisdiction
to adjudicate upon claims which arose prior to the enactment and the
coming into operation of the Equality Act.
[15] The relief sought is further
opposed on the basis that the complainants have explicitly based
their claims on the provisions
of section 9 of the Constitution.
That being so, the complainants have failed to establish any basis in
law upon which their claims
may be adjudicated by any court of
competent jurisdiction in that they have failed to bring their claims
either within the realms
of the Constitution of the Republic of South
Africa, 1993 (“the Interim Constitution”) or the
Constitution of the Republic
of South Africa, 1996. This is
because, so it is contended on behalf of the respondents, the claims,
in all instances, are alleged
to have arisen in 1993. The Interim
Constitution came into operation on 27 April 1994. The equality
provisions in both the interim
and the final Constitution, save those
provisions that relate to land dispossession, are not retrospective
in their application,
so the contention goes.
[16] With regards to retrospective
application of any law it is trite that under the common law there is
a presumption against
retrospectivity. Based on this presumption it
is presumed that a statute does not operate retrospectively, unless a
contrary intention
is indicated, either expressly or by clear
implication. This principle was confirmed by the Constitutional
Court in S & Another
v Acting Regional Magistrate, Boksburg,
Venter & Another
2012 (1) BCLR 5
(CC) at [16] where the
Constitutional Court reaffirmed the presumption against
retrospectivity unless a contrary intention is manifest,
either
expressly or by clear implication.
[17] The basis of the complainants’
complaint seems to be based on the alleged violation of their right
to equality, in that
the third respondent, in the determination of
their pension benefit or severance package, unfairly discriminated
against them on
the basis of their race or colour of their skin.
That conduct, so the complainants aver in their particulars of
complaint, constitutes
a violation of their right to equality as was
provided for, initially, in section 8 of the Interim Constitution
and, currently,
in section 9 of the Constitution.
[18] Section 8 of the Interim
Constitution, which has since been repealed, provided as follows in
sub-sections (1) and (2) under
the heading “Equality”:
“(1) Every person shall have the
right to equality before the law and to equal protection of the law.
(2) No person shall be unfairly
discriminated against, directly or indirectly, and, without
derogating from the generality of this
provision, on one or more of
the following grounds in particular: race, gender, sex, ethnic or
social origin, colour, sexual orientation,
age, disability, religion,
conscience, belief, culture or language.”
[19] The right not to be discriminated
against was thus, initially, contained in section 8(2) of the Interim
Constitution. Sub-section
(1) thereof commenced with the words
“Every person shall have the right”. Section 8(2)
commenced with the words “No
person shall be unfairly
discriminated against …”. Both these sub-sections did
not speak of the past. They were
clearly forward-looking
provisions, in that they made provision for future conduct as opposed
to addressing past conduct.
[20] The only provision in the equality
clause in the Interim Constitution which addressed past conduct was
sub-section (3)(b).
It provided as follows:
“3(b) Every person or community
dispossessed of rights in land before the commencement of this
Constitution under any law
which would have been inconsistent with
subsection (2) had that subsection been in operation at the time of
the dispossession,
shall be entitled to claim restitution of such
rights subject to and in accordance with sections 121, 122 and 123.”
The reason for inclusion of this clause
in the Interim Constitution was obviously to address the land
restitution projects in this
country and to re-order ownership of
land. The measure was clearly intended to render land distribution
of the past, which otherwise
was lawful, albeit immoral, to more
acceptable land distribution patterns.
[21] The provisions of the equality
clause in the final Constitution are very much similar to those of
the Interim Constitution
except that the equality clause in the final
Constitution does not address the land redistribution question. This
is understandable
as the Land Restitution Act had already been
enacted when the final Constitution was adopted by the Constitutional
Assembly.
But what is significant in the equality clause is section
9(4) which provides that national legislation must be enacted to
prevent
or prohibit unfair discrimination. This then brings us to the
Equality Act.
THE EQUALITY ACT
[22] In response to the directive
contained in section 9(4) of the Constitution, the National Assembly
passed a law in the form
of Promotion of Equality & Prevention of
Unfair Discrimination Act, 4 of 2000 (“the Equality Act”).
That piece
of legislation was assented to on 2 February 2000 and
came into operation on 16 June 2003. The head note preceding the
preamble
thereto reads as follows:
“To give effect to section 9 read
with item 23(1) of Schedule 6 to the Constitution of the Republic of
South Africa, 1996
so as to prevent and prohibit unfair
discrimination and harassment; to promote equality and eliminate
unfair discrimination; to
prevent and prohibit hate speech; and to
provide for matters connected therewith.”
[23] The Equality Courts, and presiding
officers presiding in the Equality courts, are established in terms
of section 16 of the
Equality Act. Section 16 of the Equality Act,
under the heading “Equality courts and presiding officers”,
provides
as follows in sub-section (1)(a) and (b) thereof:
“(1) For the purposes of this
Act, but subject to section 31-
(a) every High Court is an equality
court for the area of its jurisdiction;
(b) any judge may, subject to
sub-section (2), be designated in writing by the Judge-President as a
presiding officer of the equality
court of the area in respect of
which he or she is a judge.”
[24] Thus, this court sits as an
Equality court established in terms of section 16 of the Equality
Act. It does not have inherent
jurisdiction such as a High Court or
any Superior Court would have. As the head note preceding the
preamble, cited in paragraph
[22] of this judgment, clearly
indicates, the legislation in terms of which the equality courts are
established is to give effect
to section 9, read with item 23(1) to
the Constitution. Thus, its jurisdiction is to be found in the four
corners of the Equality
Act. It is thus, so to speak, a creature of
that statute. Its jurisdiction is limited to causes of action which
arose after the
Equality Act came into operation unless it is clear,
either expressly or by clear implication, that its jurisdiction
extends to
causes of action which arose prior to its establishment.
[25] There are several indicators in
the Equality Act which tend to suggest that its application was not
intended to be retrospective.
Such indicators are evident in the
definition section, in particular, the definition of the concept
“discrimination”.
Discrimination is defined as follows
in the definition section:
“’discrimination’
means any act or omission, including a policy, law, rule, practice,
condition or situation which
directly or indirectly –
(a) imposes burdens, obligations or
disadvantage on; or
(b) withholds benefits, opportunities
or advantages from, any person on or more of the prohibited grounds.”
[26] The underlined words are couched
in the present tense which, in itself, is a pointer that the
legislation is a forward-looking
instrument. Thus, discrimination is
couched in the present tense for a very good reason, the reason being
that it is a forward-looking
provision. There are several other
indicators in the Equality Act which clearly indicate that its
provisions were intended to
be prospective, as opposed to being
retrospective, as for an example, phrases such as “neither the
state nor any person may
unfairly discriminate against any person”
as set out in section 6; “no person may unfairly discriminate
against any
person” as set out in section 7; “no person
may unfairly discriminate against any person” as set out in
section
8. All these indicators, which are couched in the present
tense and are clearly forward-looking, are clear indications that the
Equality Act was not intended to be retroactive.The Equality Act,
therefore, cannot be the basis for causes of action which arose
before it came into operation.
[27] In Maharaj v National Horseracing
Authority of Southern Africa
2008 (4) SA 59
(N) at [58] – [59]
the Kwazulu Natal division of the high court, sitting as a court of
appeal in a decision from the Equality
Court, held as follows:
“The legislature could never have
intended that the equality courts take up causes which arose prior to
their establishment.
There is no indication in the
Act itself of this. Indeed, the
indications are that it is to operate prospectively.
As indicated above, the appellant calls
upon us to find that the legal effect of the conduct he relies on
brands the respondent
as an organisation which is guilty of
institutional race discrimination. In my opinion, an equality court
is not competent to adjudicate
on or grant relief in respect of
conduct that occurred prior to the Act coming into operation.”
[28] Mr Botha, who appeared for the
complainants, makes a point in his submissions and in argument before
me, that the fundamental
rights set out in the
Bill of Rights are rights that have
existed all the time. They are rights with which each person was
born. Mr Botha goes further
to make a point that the Constitution,
as well as its predecessor in the form of an Interim Constitution,
does not purport to create
a right against unfair discrimination.
The Constitution, so the submission goes, merely seeks to entrench
such a right. He goes
further to make a point that even before the
advent of the constitutional democracy, natural justice, the rule of
law, and all
those notions of fairness and justice, have been
recognised as underpinning our common law before the advent of
constitutional
democracy, relying on authorities such as R v Mogobaya
1928 TPD 234
; In re Dube
1979 (3) SA 820
(N) 821F-G; and S v Adams
1979 (4) SA 793
(T) at 801A to advance this proposition.
[29] The high water mark of Mr Botha’s
submissions is that, in the light of the legal position as espoused
in the preceding
paragraph and the authorities there relied upon, it
follows that the Equality court merely serves as an instrument to
promote the
enforcement of the right against unfair discrimination
and that its competence is not merely limited to the present or the
future.
The establishment of the Equality court, so the submission
goes, was also intended to be an enforcement instrument for past
violations
of rights to equality. In support of this proposition,
Mr Botha relies on the authority of National Coalition for Gay &
Lesbian
Equality v The Minister of Justice
1999 (1) SA 6
(CC) paras
[61] and [62] where the Constitutional Court made the following
observation:
“Particularly in a country such
as South Africa, persons belonging to certain categories have
suffered considerable unfair
discrimination in the past. It is
insufficient for the Constitution merely to ensure, through its Bill
of Rights, that statutory
provisions which have caused such unfair
discrimination in the past are eliminated. Past unfair
discrimination frequently has
ongoing negative consequences, the
continuation of which is not halted immediately when the initial
causes thereof are eliminated,
and unless remedied, may continue for
a substantial time and even indefinitely. Like justice, equality
delayed is equality denied.
… We could refer to such equality
as remedial or restitutionary equality.”
[30] In my view, Mr Botha misses the
point. I think the passage he relies upon in National Coalition for
Gay & Lesbian Equality
addresses issues such as the declaration
as unconstitutional the then common law offence of sodomy; the common
law offence of commission
of an unnatural sexual act to the extent
that it criminalised acts committed by a man or between men which, if
committed by a woman
or between women or between a man and a woman,
would constitute an offence; section 20A of the Sexual Offences Act,
23 of 1957;
the inclusion of sodomy as an item in Schedule 1 to the
Criminal Procedure Act, 51 of 1977
; and the inclusion of sodomy as an
item in the Schedule to the Security Officers Act, 92 of 1987. At
the time the constitutional
challenge was launched on the
constitutionality of those legal instruments, unfair discrimination,
based on the common law and
the aforementioned statutory provisions,
was on-going and would only cease once the legal measures complained
of would have been
declared unconstitutional.
[31] As I have pointed out elsewhere in
this judgment, I do not understand the complainants’ complaint
to relate to on-going
pension payments but, rather, to once-off
payments which occurred sometime during 1993. These payments were,
ostensibly, made
on the basis of discriminatory legislation such as
Railways & Harbours Pension Fund Non White Act, 1974. That
piece of legislation,
although clearly discriminatory even on the
basis of its citation, was valid in the context of the parliamentary
sovereignty regime
which was in place at the time. But, as the
Constitutional Court has pointed out in authorities such as Du
Plessis & Others
v De Klerk & Another
[1996] ZACC 10
;
1996 (5) BCLR 658
(CC);
S v Mhlungu
[1995] ZACC 4
;
1995 (7) BCLR 793
(CC) both the Interim Constitution and
the final Constitution and, ultimately, the Equality Act do not
purport to make invalid
what was valid or invalid what was valid
prior to the enactment and coming into operation of the
aforementioned legislative instruments.
Measures such as those that
were intended to address skewed land dispossessions and affirmative
action measures contemplated section
9(2) of the Constitution do not
confer general jurisdiction on the courts to remedy injustices of the
past. The framers of both
the interim and the final Constitution
and, ultimately, the Equality Act, had to, for the sake of the
future, draw the line and
move on into the future except in those
limited instances of unfair discrimination dealt with either
expressly or by clear implication.\
[32] There is a category of
complainants whose claims arose after 27 April 1994, the day the
Interim Constitution came into force
but before 4 February 1997, the
day the final Constitution came into operation. Those claims would
have had to be dealt with in
terms of the equality clause in the
Interim Constitution.
[33] I do not, at this stage of these
proceedings, understand that I am called upon to determine the merits
and the demerits of
the complaint of each complainant. That will be
a call for a court of competent jurisdiction to make. What I
understand I am
called upon to determine is the question as to
whether, sitting as an Equality court, I have jurisdiction to
adjudicate on cause
of action that arose before the coming into
operation of the Constitution of the Republic of South Africa, 1993;
the Constitution
of the Republic of South Africa, 1996; and,
ultimately, the Promotion of Equality & Prevention of Unfair
Discrimination Act,
4 of 2000 which came into operation on 16 June
2003. I have already held that all the aforementioned legislative
instruments were
not intended to be retrospective. The causes of
action, in the instance of this matter, arose during or about 1993.
It therefore
follows that, sitting as the Equality court, I do not
have jurisdiction to adjudicate on the complainants’ claims
that may
have arisen on or about 1993.
[34] In the result, the order I make,
in the form of a declaration, is the following:
(1) Except in the instance of Dirk
Ambross and Abram Apies, whose claims arose after 16 June 2003, this
court does not have jurisdiction
in respect of all those claims that
had arisen on or about 1993 and in between 27 April 1994 and 4
February 1997;
(2) There shall be no order as to
costs.
N J Yekiso
Judge of the Equality Court
Counsel for Complainants: Adv M
Botha
Attorneys: Avontuur & Associates
(Oudtshoorn)
Counsel for 1st, 2nd & 7th Adv
I Jamie SC
Respondent: Adv M Adhikari
Attorneys: Werksmans
Counsel for 3rd Respondent: Adv A
Kantor
Adv L Sidaki
Attorneys: Dentons
Counsel for 4th & 6th Adv S
Witten
Respondents Attorneys : State
Attorney
Counsel for 5th Respondent : Adv
Khumalo
Attorneys