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[2014] ZAGPJHC 334
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Qwelane v Minister of Justice And Constitutional development and Another (36314/13) [2014] ZAGPJHC 334; 2015 (2) SA 493 (GJ) (21 November 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, JOHANNESBURG)
CASE
NO: 36314/13
DATE:
21 NOVEMBER 2014
In the matter
between
DUBULA JONATHAN
QWELANE
...................................................
APPLICANT
And
MINISTER OF
JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
................................................................
FIRST
RESPONDENT
SOUTH AFRICAN
HUMAN RIGHTS
COMMISSION
.............................................................
SECOND
RESPONDENT
FREEDOM OF
EXPRESSION INSTITUTE
..................
FIRST
AMICUS CURIAE
PSYCHOLOGICAL
SOCIETY OF SOUTH AFRICA
....
SECOND AMICUS
CURIAE
High Court -
Practice and Procedure – power of High Court to order
consolidation of high court proceedings based on constitutional
challenge and equality court proceedings for hearing before high
court judge in dual capacity - Equality Court sitting as high
court
does not have power to transfer a matter to High Court in capacity as
High Court - Uniform Rule of Court 11 regulating consolidation
on
High court - in absence of procedural enactment or rule s 173 of
Constitution applicable -considerations arising – convenience
-
rule of practice by Constitutional Court concerning adjudication of
constitutional issues – held: all issues to be resolved
before
determination of constitutional challenge - consolidation of
proceedings ordered - costs of application costs in consolidated
proceedings.
J U
D G M E N T
VAN OOSTEN J:
[1] This application
concerns the novel question whether it is competent for a judge of
the High Court to hear equality court proceedings
and high court
proceedings based on a constitutional challenge in one consolidated
case, in the dual capacity of high court judge
and duly designated
equality court judge.
[2] The litigation
between the parties commenced in December 2009 when the second
respondent (the SAHRC) instituted proceedings
in terms of s 20(1)(f)
of the Promotion of Equality and Prevention of Unfair Discrimination
Act 4 of 2000 (the Equality Act) against
the applicant and Media 24
Holdings (Pty) Ltd (Media 24) in the Equality Court, sitting in the
Magistrate’s Court, Johannesburg.
The complaint lodged by the
SAHRC is that the contents of a newspaper article, written by the
applicant and published by Media
24 on 20 July 2008, amounted to hate
speech against and harassment of homosexuals, as contemplated in ss
10 and 11 of the Equality
Act read with s (9)(4) and s 16(2) of the
Constitution. The applicant filed an opposing affidavit in which,
apart from six in limine
defences, and as one of four defences on the
relief sought against him, a constitutional challenge to ss 10(1) and
11 of the Equality
Act is raised. The SAHRC delivered a replying
affidavit and the applicant thereafter, on 1 June 2012, filed an
application for
the stay of the equality court proceedings pending
determination of the constitutional challenge by the High Court. The
equality
court proceedings were on 11 September 2012, by consent of
all parties, transferred to the High Court and the application for
the
stay of the equality court proceedings was withdrawn.
[3] On 27 September
2013 and pursuant to directions issued by Mayat J at a directions
hearing of the Equality Court in terms of
regulation 10(5) framed
under the Equality Act, the applicant delivered founding papers in
the constitutional challenge proceedings
against the present
respondents (the third and fourth respondents were admitted as amici
curiae in the equality court proceedings)
(the constitutional
challenge). The relief sought is firstly, for an order declaring s
10(1) read with ss 12 and 1, and s 11, read
with s 1 of the Equality
Act unconstitutional, in particular being inconsistent with the right
of freedom of expression enshrined
in s 16 of the Constitution and,
secondly, for the stay of the equality court proceedings pending
finalisation of the constitutional
challenge by the High Court. A
full set of affidavits was filed and a date for the hearing of the
constitutional challenge was
allocated by the Deputy Judge President.
At a pre-trial conference held on 5 September 2014, the SAHRC noted
its intention to launch
a counter-application for consolidation of
the equality court proceedings and the constitutional challenge,
which it did on 16
September 2014. This is the application presently
before me. The application is supported by the first respondent but
opposed by
the applicant. In its heads of argument the first amicus
has adopted a similar view to that of the applicant but no further
arguments
were advanced at the hearing. The second amicus abides the
decision of the court.
[4] A further
pre-trial conference was held before me and it was agreed by all
parties that the consolidation application would
be finalised first
and that the proceedings to follow consequent upon the order in the
consolidation application, would be heard
on a date to be allocated
by the Judge President.
[5] The Equality
Court, established in terms of s 16 of the Equality Act, has been
described as ‘a special animal’ that
could in modern
language also be described as ‘a special purpose vehicle’
(per Navsa JA in Manong and Associates (Pty)
Ltd v Department of
Roads and Transport, Eastern Cape and others (No 2)
2009 (6) SA 589
(SCA) para 57). It is now well settled that the Equality Court is a
creature of statute deriving its powers from its empowering
statute,
the Equality Act and that it exists separately and distinct from the
High Court (See Manong & Associates (Pty) Ltd
v Department of
Roads and Transport, Eastern Cape and another (no 1)
2009 (6) SA 574
(SCA)). In the present scenario the Equality Court has exclusive
jurisdiction in respect of the relief sought in the proceedings
before it whereas the constitutional challenge can be adjudicated
only by the High Court (cf Minister of Environmental Affairs
and
Tourism v George and others
2007 (3) SA 62
(SCA) ([2006] SCA 57 (RSA)
para 12-13). In the normal course the proceedings would have
continued as parallel proceedings before
two distinct courts.
[6] The first issue
requiring determination is whether this court is empowered to order
the consolidation of the proceedings as
sought in this application.
The High Court sitting as an Equality Court, it was held in George
(para 14), does not have the power
to transfer a matter to itself in
its capacity as High Court. As for the High Court, Uniform Rule of
Court 11 provides for consolidation
of actions before that court. In
the absence of enabling statutory provisions or rules providing for a
consolidation of the proceedings
we are now concerned with, it is
necessary to consider the provisions of s 173 of the Constitution,
which confers on high courts
the inherent power to protect and
regulate their own process and to develop the common law, taking into
account the interests of
justice. The nature and content of the power
accorded to the courts under s 173 have been considered and
pronounced on in a number
of Constitutional Court judgments. It
suffices for present purposes to refer to South African Broadcasting
Corp Ltd v National
Director of Public Prosecutions and Others
[2006] ZACC 15
;
2007
(1) SA 523
(CC)
(2007 (2) BCLR 167
(CC)) para [90], in which Moseneke
DCJ held that s 173 vests in the judiciary the authority to uphold,
to protect and to fulfill
the judicial function of administering
justice in a regular, orderly and effective manner within its
jurisdiction. It is a power
that should be exercised sparingly and in
exceptional cases only having taken into account the interests of
justice in a manner
consistent with the Constitution (see S v Thunzi
and another
2011 (3) BCLR 281
(CC) ([2010] ZACC 12)).
[7] The purpose of
consolidation of actions before the High Court is to provide for a
single hearing of substantially similar issues
in order to avoid a
multiplicity of trials. In regard to the present position the
procedural impasse I have referred to, discloses
a lacuna giving rise
to an extraordinary situation which in my view, warrants this court
to invoke the power provided for in terms
of s 173. In the exercise
of the power to regulate the process for the purpose of consolidating
the proceedings, I am alive to
the requirements that it must accord
with the Constitution and, as far as possible, with the procedure in
the consolidation of
actions, ordinarily followed by high courts as
provided for in Uniform Rule of Court 11 (S v Pennington and others
1997 (4) SA 1076
(CC)
(1997 (1) BCLR 1413
;
[1997] ZACC 10)
para
22–23; Parbhoo and others v Getz NO and another
1997 (4) SA
1095
(CC)
(1997 BCLR 1337
(CC); Phillips and Others v National
Director of Public Prosecutions
2006 (1) SA 505
(CC)
(2006 (2) BCLR
274
(CC);
[2005] ZACC 15)
para 48).
[8] Counsel for the
applicant contended that consolidation of the proceedings would
result in establishing a ‘super court’,
which would
transcend the jurisdiction of both the Equality Court and the High
Court. I am unable to agree. In George Cameron JA,
writing for the
court, paved the way for consolidation of such proceedings, in
remarking:
‘…[T]he
question of double jurisdiction this case raises is not unique, and
is likely to arise in every case brought
under the Equality Act: and
there is no reason why those who have interrelated remedies under the
equality statute and other legislation
should not be entitled to
pursue their remedies in parallel proceedings before the high court
in its capacity as an equality court,
and the high court in its
ordinary capacity.’
and, therefore, so
the learned Judge of Appeal concluded:
‘Given that
the problem of concurrency will inevitably recur, the most productive
and expeditious way of achieving efficiency
would seem to lie in the
matter being referred to the same high court judge who, in his
capacity as an equality court judge, is
presiding in that court.’
(See also Dean of
the Law Faculty University of the North West and others v Masisi
2014
(6) SA 61
(SCA) para 11).
The notion of a
‘super court’ adjudicating the consolidated proceedings,
in my view, is illusory. The characteristics
of the proceedings,
although consolidated, remain unaltered. The pre-trial procedures in
respect of both would by the time the
hearing takes place, have been
finalised. Consolidation affects the hearing only which will now take
place before a single judge,
in the dual capacity I have referred to.
There is no magic to the consolidated hearing: although heard
together the presiding judge
will adjudicate the issues in each case
within the parameters of the powers as specified in the applicable
legislation, rules and
procedures. All the evidence the parties wish
to present on all the issues will be led and arguments advanced with
the only difference
that it will be confined to one hearing. The
unique characteristics of the proceedings therefore remain intact
without compromising
the rules, procedures and powers of each of the
courts.
[9] The paramount
test in regard to consolidation of actions in terms of Uniform Rule
of Court 11 is convenience (cf Mpotsha v Road
Accident Fund and
another
2000 (4) SA 696
(C) 700I-701B). In the exercise of the
court’s wide discretion within the context of convenience,
considerations such as
similarity of the factual and legal issues,
expedience, fairness to the parties, absence of prejudice and saving
in costs are taken
into account (Erasmus Superior Court Practice
B1-98A; Harms Civil Procedure in the Supreme Court B-109). In
addressing the requirement
of convenience, all conceivable outcomes
of the proceedings not only in the court of first instance, but also
thereafter in the
Constitutional Court or even in the Supreme Court
of Appeal, were analysed and tossed around in argument in support of
the opposing
views. The exercise, in my view, is speculative, of no
value and is best discarded.
[10] In the
circumstances of this case the requirement of convenience falls to be
considered in the light of the general rule of
practice laid down by
the Constitutional Court that, where possible, cases should be
decided without reaching a constitutional
issue (S v Mhlungu and
others
[1995] ZACC 4
;
1995 (3) SA 867
(CC)
(1995 (2) SACR 277
;
1995 (7) BCLR 793
(CC)). Counsel for the applicant contended that the constitutional
challenge should be heard first, for the reason that, if successful,
it may render the remaining issues moot. The contention flouts the
rule of practice I have referred to and must for this reason
alone
fail. But, there is a further ground militating against affording
such procedural antecedence to the constitutional challenge:
it has
by now become clear that evidence will be led in the constitutional
challenge proceedings. In this regard another admonition
by the
Constitutional Court comes to the fore: constitutional challenges in
the abstract are to be avoided (Savoi and others v
National Director
of Public Prosecutions and another
2014 (5) SA 317
(CC) ([2014] ZACC
5) para 9-13). In view of the far-reaching implications attaching to
constitutional decisions, the precise facts
to which the
constitutional challenge is to be applied must be established (Prince
v President of the Law Society of the Cape of
Good Hope and others
2001 (2) SA 388
(CC)
(2001 (2) BCLR 133
(CC);
[2000] ZACC 28)
para
22; Ex Parte Minister of Safety and Security: In re S v Walters
2002
(4) SA 613
(CC)
(2002 (7) BCLR 663
(CC);
[2002] ZACC 6)
para 65).
Finally, the applicant, as I have already alluded to, has raised a
number of defences to the complaint against him. The
ambit of the
SAHRC’s complaint moreover, extends beyond the prohibitions
referred to in the impugned provisions of the Equality
Act. The
determination of the constitutional challenge accordingly, can and
should be kept in abeyance until resolution of all
other issues
(Walters para 67). For all these reasons the application is well
founded and accordingly must succeed.
[11] In the result
the following order is made:
1. The equality
court proceedings and the constitutional challenge proceedings are
consolidated for hearing before a single judge
sitting as Equality
Court and as High Court.
2. The costs of the
application for consolidation shall be costs in the consolidated
proceedings.
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
COUNSEL FOR
APPLICANT ADV CC BESTER
ADV K
SERAFINO-DOOLEY
ADV J
MITCHELL
APPLICANT’S
ATTORNEYS JURGENS BEKKER ATTORNEYS
COUNSEL FOR FIRST
RESPONDENT ADV NH MAENETJE SC
ADV K MHANGO
FIRST
RESPONDENT’S ATTORNEYS THE STATE ATTORNEY
COUNSEL FOR
SECOND RESPONDENT ADV T NGCUKAITOBI
(HEADS OF
ARGUMENT PREPARED BY ADV J BRICKHILL)
SECOND
RESPONDENT’S ATTORNEYS BOWMAN GILFILLAN
COUNSEL FOR FIRST
AMICUS CURIAE ADV SE MAYET
COUNSEL FOR
SECOND AMICUS
CURIAE ADV C
STEINBERG
ADV M
COURTENAY
DATE OF
HEARING 13 NOVEMBER 2014
DATE OF
JUDGMENT 21 NOVEMBER 2014