About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2022
>>
[2022] ZAMPMBHC 1
|
|
S.P.M obo S v King's School - White River and Others (A22/2021; EQ1/2019) [2022] ZAMPMBHC 1 (13 January 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA (MAIN SEAT)
CASE
NUMBER: A22/2021
COURT
A QUO CASE NUMBER: EQ1/2019
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: NO
REVISED
13.01.2022
In
the matter between:-
S[....]
P[....] M[....]
Obo
S (MINOR
CHILD)
Appellant
and
KING’S
SCHOOL - WHITE
RIVER
First Respondent
MARICK
COETZEE
Second Respondent
COMMISSION
FOR GENDER EQUALITY
Amicus Curiae
JUDGMENT
GREYLING-COETZER
AJ
INTRODUCTION
[1]
This is an appeal against the whole of the
judgment and order handed down by Magistrate W Baloyi, sitting as an
Equality Court (“the
court
a
quo
”
).
[2]
The court
a
quo
was faced with an application for
absolution from the instance at the end of the appellant’s case
(complainant in the court
a quo
,
herein referred to as “the appellant”). The appeal
follows upon the appellant’s criticism of the court
a
quo
in granting the first- and second
respondents’ application for absolution and finding that the
appellant had not made out
a
prima facie
case of discrimination as required by Section
13(1) of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of
2000 (“PEPUDA”).
[3]
The central issue in this appeal is whether
the court
a quo
correctly
applied the test in respect of an absolution from the instance at the
end of the appellant’s case.
BACKGROUND
[4]
The appellant’s minor daughter (cited
as “S” and referred to as such herein) commenced her
studies at
KING’S SCHOOL - WHITE
RIVER
(herein referred
“
the
school”) during January 2019. During May of the same year, the
appellant who resides in Gauteng was called to the school
for an
urgent meeting with the appellant in order to discuss S. At this
meeting the appellant was shown a letter written by S wherein
she
discloses her sexual orientation and that she is dating a girl. The
appellant was requested by the second respondent to take
S home with
her. It was intimated that such conduct cannot be allowed at the
school.
[5]
Upon an enquiry as to whether S was
suspended or expelled, the second respondent replied no, but she
needs to go with the appellant
as she need motherly love, to heal.
The second respondent advised that she would assist with a transfer
letter for S to enable
the appellant to find a school close to where
they lived.
[6]
The appellant was informed that S’s
class test marks could be used to make up her final exam mark in June
2019 or she could
complete her June exams (Term 2) from 7 June 2019
on her own pace. The suggested date of 7 June 2019 was the day after
the school
had already closed and thus in the absence of the other
learners to avoid victimization.
[7]
The reason that the school requested that S
be fetched from school was demonstrated to be that S wants her mother
to take care of
her and lover her and that she is dating another
girl.
[8]
The aforesaid events resulted in the
appellant approaching the Equality Court (the court
a
quo
) in terms of Section 20 of PEPUDA.
In terms of the governing regulations affidavits were exchanged and
the matter proceeded to
a hearing where oral evidence on behalf of
the appellant was received. On closing of the appellants case the
respondents sought
absolution from the instance.
[9]
It is unclear from the record whether a
directions hearing as contemplated in Regulation 10 was held. The
respondents did however
file discovery affidavits together with
copies of the documents so discovered.
PROCEEDINGS
IN THE EQUALITY COURT
[10]
The proceedings and process followed in an
Equality Court differs substantially from those which apply in the
ordinary civil courts.
The Regulations governing the conduct of
proceedings in the Equality Court have their own scheme, which impact
on what serves as
evidence before such a court.
[11]
The
guiding principles are that proceedings before a Equality Court are
expeditious, more informal, intend to be conducted in a
conducive
environment and guided by the Regulations dealing with the conduct of
the direction hearing.
[1]
[12]
The
proceedings of the enquiry must, as far as possible, be interpreted
in a manner that gives effect to the guiding principles
contemplated
in Section 4 of the Act.
[2]
Section 4 provides that:-
“
(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.”
[13]
Proceedings
are commenced by a complainant by filed a notice which substantially
accords with Form 2. The latter requires of a complainant
to state
the nature of the complaint, how it has affected the complainant,
annex documents substantiating the complaint and the
relief sought.
From 2
[3]
requires that it be
attested do before a commissioners of oaths, thereby enjoying the
status of an affidavit.
[14]
A
respondent is then notified in terms of Form 3
[4]
and invited to respond to the allegations and submit information.
This is normally and in
casu
done by the respondents filing an affidavit.
[15]
The
clerk of the Equality Court then refers the matter to the presiding
officer, who, if he or she does not refer the matter to
another
forum, will in terms of decide if the matter will be heard in court.
The clerk is then required to assign a date for the
direction
hearing
[5]
. Thereafter,
depending on the outcome of the direction hearing, the matter will be
set down for hearing where oral evidence are
received.
[6]
[16]
The relevance and effect of aforementioned
is that when the court
a quo
adjudicated the application for absolution, the court had received
facts from the evidence in the appellant’s Form 2 and
through
the oral evidence led. The court at that stage had also received
facts from the respondents opposing affidavit and discovered
documents. Its thus
sui generis
,
and
practically
a
hybrid of trial and motion proceedings.
[17]
This is a situation a presiding officer
would ordinarily no be faced with in ordinary civil court. Although
guided by the procedural
regulations and objectives of PEPUDA, a
presiding officer in the Equality Court is also required to be alive
to the fact the proceedings
are a hybrid. Particularly, when called
upon to adjudicate an absolution from the instance application.
[18]
A ordinary civil court presiding officer
would only face an absolution of the instance application in trial
proceedings. By implication
the court will normally only have heard
the oral evidence of the plaintiff when adjudicating the absolution
from the instance application.
There is some instances where
affidavits might be part of the evidence presented or been referred
to in cross-examination but the
only evidence received and to
considered would be that adduced on behalf of the plaintiff.
APPROACH
IN COURT A QUO
[19]
The court
a
quo
commenting that it is a two stage
process, and “
who alleges must
prove
”, approached the
application from the premise of that set out in Section 13 of PEPUDA.
Section 13 states:-
“
13
Burden of proof
(1)
If the complainant makes out a prima
facie case of discrimination –
(a)
the respondent must prove, on the
facts before the court, that the discrimination did not take place as
alleged; or
(b)
the respondent must prove that the
conduct is not based on one or more of the prohibited grounds
.”
[20]
The court
a
quo
found that based on the totality of
the evidence (being the filed affidavits with attached documents,
oral evidence by the appellant
and Mrs Makhumba, and the contents of
Exhibit “B”, “C” and “D”) “
it
cannot be found that the second respondent directly or indirectly
discriminated against the learned child S.
”
[21]
The court
a
quo
was seemingly not alive to the
hybrid nature of the hearing. The absolution of the instance
application was adjudicated by considering
the evidence of both the
appellant and the respondents. This much is clear in the recordal
made in the reason for the judgement,
such as:
“
Both
the complainant and respondents’ affidavits are evidence before
court
…
After due
consideration of the totality of the evidence being: the filled
affidavits with attached documents, oral evidence by complainant
and
Ms Makhumba and the contents of exhibit B, C and D…”
[22]
The specifically had regard to the evidence
of the respondents when the schools code of conduct was dealt with
which formed part
of the respondents affidavit and discovered
documents.
ABSOLUTION
FROM THE INSTANCE
[23]
In
considering the application for absolution, the court
a
quo
was required to apply the test as to whether there is evidence upon
which a court (applying its mind reasonably to such evidence)
could
or might (not should, nor ought to) find for the
plaintiff/complainant.
[7]
The
court
a
quo
had to clear its mind of all the facts placed before it in the
respondents’ opposing affidavit and discovered documents.
[24]
In terms of Section 1 of PEPUDA
“
discrimination
”
is defined as follows:-
“
[it]
means any act of 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 one or more of the prohibited
grounds
.”
[25]
“
Prohibited grounds
”
are defined as:-
“
(a)
race; gender, sex, pregnancy, marital status, ethnic or social
origin, colour; sexual orientation, age, disability,
religion,
conscience, belief, culture, language and birth; or
(b)
any other ground where discrimination based on that other ground -
(i)
causes or perpetuates systemic disadvantages;
(ii)
undermines human dignity; or
(iii)
adversely affects the equal enjoyment of a person’s rights and
freedoms in a serious manner
that is comparable to discrimination on
a ground in paragraph (a).
”
[26]
What the appellant thus had to show was
that S was treated different to other learners based on or as a
result of her sexual orientation.
[27]
In summation, the evidence disclose that,
the appellant was informed to ‘take S away’ from school.
It is clear the taking
meant that S should not attend the school any
more. The appellant was so informed pursuant to the content of the
letter becoming
known. The content disclosed S’s sexual
orientation. By the instruction to take S away from school, S was not
allowed to
complete her June exams together with other learners, but
provided with the option write it during school holidays.
[28]
Differently
put, if not for the content of the letter S would seemingly been
allowed to remain at the school and complete her examinations
together with the other learners. This in my view demonstrates that S
was treated differently that other learners due to her sexual
orientation to survive absolution and the court could or might find
in favour of the appellant.
[8]
and the appeal must succeed.
DE
NOVO BEFORE A DIFFERENT PRESIDING OFFICER
[29]
It bears mention that in addition, the
appellant, in her heads of argument, seeks that the matter ought to
be referred back to the
Magistrate’s Court sitting as an
Equality Court, to be heard afresh (
de
novo
). The appellant further contended
that the matter ought not to be heard by the court
a
quo
, but that it should preside before
a different magistrate.
[30]
There is no justification before this court
for an order that the matter should commence
de
novo
, and/or before a different
magistrate.
[31]
In the premises the following order is
proposed:-
1.
The appeal is upheld with costs.
2.
The order of the Equality Court
a
quo
is set aside and replaced with the
following order:-
“
The
application for absolution is refused.”
3.
The matter is referred back to the Equality
Court
a quo
to proceed with the trial.
4.
The clerk of the Equality Court is directed
to assign a date of hearing for the matter to proceed as per 3 above.
D
GREYLING-COETZER
Acting
Judge of the High Court of South Africa
I
agree and it is so ordered
B
A MASHILE
Judge
of the High Court of South Africa
DATE
OF HEARING:
15 October 2021
DATE
OF JUDGMENT:
13 January 2022
FOR THE
APPELLANT:
South African Human Rights Commission
E-mail:
smlombo@sahrc.org.za
Ref: mp/2021/0059
FOR
THE RESPONDENTS:
Lunenberg & Jansen van Vuuren Inc
E-mail:
rbell@ljattorneys.co.za
Ref: ajbell/WWRTJE12/0079
FOR
AMICUS CURIAE:
Commission for Gender Equality
E-mail:
Lesetsa@cge.org.za
1]
Regulation
10(1) and 10(3) of the
Regulations
made in terms of section 30 of the PEPUDA published in government
notice no. r. 764 of 13 June 2003 (government gazette
no. 25065)
(here after referred to as “the Regulations”)
[2]
Regulation
10(2)
[3]
Regulation
6(1)
[4]
Regulation
6(2)
[5]
Regulation
6(5)
[6]
In
terms of regulation 10(8) such evidence is received pursuant to
administering of the oath.
[7]
Claude
Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409G-H
[8]
De
Klerk v Absa Bank Ltd
2003 (4) SA 315
(SCA)