Manong and Associates (Pty) Ltd v Eastern Cape Department of Roads and Transport & Others (369/08) [2009] ZASCA 50; 2009 (6) SA 589 (SCA) ; [2009] 3 All SA 528 (SCA) (25 May 2009)

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Manong and Associates (Pty) Ltd v Eastern Cape Department of Roads and Transport & Others (369/08) [2009] ZASCA 50; 2009 (6) SA 589 (SCA) ; [2009] 3 All SA 528 (SCA) (25 May 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 369/08
MANONG
AND ASSOCIATES (PTY) LTD Appellant
and
EASTERN
CAPE DEPARTMENT OF ROADS
AND
TRANSPORT
1
st
Respondent
THE
NATIONAL TREASURY 2
nd
Respondent
HAWKINS
HAWKINS OSBORNE 3
rd
Respondent
KWEZI
V3 ENGINEERS 4
th
Respondent
ILISO
NINHAM SHAND JOINT VENTURE 5
th
Respondent
________________________________________________________________
Neutral citation:
Manong
v Eastern Cape Department of Roads and Transport & others
(369/08)
[2009] ZASCA 50
(25 May 2009)
CORAM:
Navsa,
Brand, Jafta, Ponnan JJA and Bosielo AJA
HEARD:
5
May 2009
DELIVERED:
25
May 2009
CORRECTED:
SUMMARY: Principle
of legality ─ powers of Equality Court ─ consideration of
provisions of the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
─ Equality Court not a High Court ─
powers exercised in terms of the Act ─ restricted to dealing with
specified complaints
─ procedures in terms of Equality Act not
followed ─ matter remitted.
________________________________________________________________
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
High
Court, Bhisho (Froneman J sitting as court of first instance).
1. The appeal is upheld.
2. The order of the court below is set
aside in its entirety and the matter is remitted to the Equality
Court for it to be dealt
with in terms of the provisions of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000
.
3. No order is made as to costs of
appeal at this stage. The parties are invited, if so advised, to
apply to this court upon the
final resolution of their dispute for an
order in this regard.
________________________________________________________________
JUDGMENT
________________________________________________________________
NAVSA JA (Brand, Jafta, Ponnan JJA and
Bosielo AJA concurring):
Introduction
[1] At the heart of this appeal is the
principle of legality, an incident of the rule of law.
1
This appeal concerns the jurisdiction and powers of the Equality
Court established in terms of s 16 of the Promotion of Equality
and
Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act).
Background
[2] During July 2007 the first
respondent, the Eastern Cape Department of Roads and Transport (the
ECDRT), invited tenders for the
design and construction of three
provincial roads in an area under its jurisdiction. In August 2007,
the appellant, Manong and
Associates (Pty) Ltd (Manong), a company
that conducts business nationally as consulting civil, structural and
developmental engineers
responded to the invitation. In December 2007
Manong was disqualified during the first part of a two-phase tender
evaluation process
due to not scoring the minimum required points for
functionality.
[3] Manong considered that it was
unlawfully disqualified and in February 2008, as a matter of urgency,
instituted proceedings,
purportedly in the Equality Court in Bhisho,
seeking relief in two parts.
2
In the first part, Manong sought a temporary interdict preventing the
ECDRT from: (a) taking further steps to evaluate any of the
other
tenders and; (b) awarding the tenders to any one of the other
tenderers. Manong also sought an order compelling the ECDRT
to
furnish certain documentation.
[4] At the time that the proceedings
were instituted, Manong was unaware that the tenders had already been
awarded to three of the
tenderers.
[5] Manong sought the orders set out
in para 3 pending determination of an application for final relief in
the following terms:
(i) to set aside a decision of the
ECDRT to disqualify from further consideration Manong’s tender for
the relevant works;
(ii) to review, correct and set aside
the award of the tenders to successful bidders;
(iii) declaring the contracts
resulting from the allocation of tenders to be null and void;
(iv) declaring the procedure followed
in awarding the tenders to be inconsistent with s 217 of the
Constitution and unfairly discriminatory
under the Equality Act;
(v) A direction that the first and
second respondent’s procurement procedures and practices should
undergo an audit in a manner
to be prescribed.
[6] The matter came before Froneman J,
who, in a judgment in relation to the interim relief sought, said the
following:
‘
Because of the
expedited time limits contained in the order below the application
should be determined finally at the next hearing.
I therefore do not
consider that any temporary interdict is called for, because if the
application is successful it will still
be possible to undo the
effects of any wrongful award of the tenders. The respondents are in
any event now aware that the award
of the tenders are under attack
and they will not be able to rely on any steps taken with that
knowledge to prevent the final relief
if such relief is in the end
merited.’
[7] Froneman J made the following
interim orders:
‘
1. The application is
postponed to 20 March 2008.
2. [Manong] must ensure
that the full application papers, including this judgment, be served
by the sheriff on (1) Hawkins Hawkins
Osborne Africa; (2) Kwezi V3
Engineers; and (3) Iliso Ninham Shand Joint Venture
3
(“the other respondents”) in terms of rule 4 of the High Court
rules by 6 March 2008, and proof of such service must be

delivered to the Registrar of the High Court, Bhisho, by 12 noon on 7
March 2008.
3. The first respondent
is ordered to deliver the full records of the proceedings in respect
of the tenders for the Dimbaza Road
Project, the Maluti to Qachas Nek
Road project; and the St. Barnabas Hospital to Hluleka Nature Reserve
Road project,
4
including the documentation referred to in paragraph 6.1 and 6.2 of
the Notice of Motion, to the Registrar of the High Court, Bhisho,
by
12 noon on 7 March 2008.
4. [Manong] may, if it
chooses to do so, deliver further supplementary affidavits, but only
in response to new material arising
from the delivery of the said
records, by 12 noon on 12 March 2008.
5. The first and second
respondents may, if they choose to do so, deliver their opposing
affidavits on the main application by 12
noon on 17 March 2008.
6. The other respondents
referred to in paragraph 2 above, must file an intention to oppose by
12 noon on 11 March 2008 and may,
if they choose to do so, deliver
their opposing affidavits on the main application by 12 noon on 17
March 2008.
7. [Manong] may file
final replying affidavits by 12 noon on 19 March 2008.
8. The costs of the
application thus far are reserved for decision on final determination
of the application.’
[8] The matter proceeded to a hearing
on the main relief sought, referred to in para 5 above.
[9]
The
second respondent, the National Treasury, was cited as a second
respondent by Manong because, in terms of the Public Management

Finance Act 1 of 1999, it is empowered to prescribe tender
regulations and practices. It is, however, common cause that the
ECDRT
conducted the tender process in question in terms of
regulations prescribed by the Provincial rather than the National
Treasury.
[10] The three successful tenderers
did not participate in the proceedings and chose to abide the court’s
decision. The Managing
Director of Manong, Mr Mongezi Stanley
Manong, appeared in person on behalf of his company both before the
court below as
also at the hearing of this appeal.
[11] Manong’s principal complaint is
that the ECDRT tender process is unfair under the Equality Act
because it amounted to indirect
discrimination against previously
disadvantaged individuals. The discrimination is said to arise from
the requirement that a bidder
must have a history of at least seven
years’ involvement in similar projects and that the technical
members of its staff must
have a minimum prescribed level of
specialist engineering experience. Manong contended that these
requirements effectively excluded
previously disadvantaged persons or
groups, who historically did not have an opportunity to develop that
experience. In the present
circumstances it meant that black
engineers, either individually, or as a group, were excluded from
commercial participation in
public works initiated by the ECDRT.
5
Manong is wholly Black-owned. It appears that many of its key
personnel are also Black persons.
[12] In addition, Manong contended
that the procurement process was flawed because it lacked
transparency, was not cost-effective,
6
was contrary to legislation and the Constitution, and that its early
disqualification was actuated by improper motives on the part
of
officials flowing from its refusal to provide ‘kick-backs’.
[13] The ECDRT and the treasury
opposed the main relief sought on the basis first, that the Equality
Court did not have the power
to grant relief in the form of
administrative review. Second, that the correct procedures under the
Equality Act had not been followed
and third, that there was no
substance in the complaints of unfair discrimination and the
unlawfulness of the procurement process.
[14] Froneman J, presumably because
of the basis of opposition of the first and second respondents,
because the notice of motion
was couched in terms conventionally used
in review applications in the High Court and because the relief
sought was based on grounds
that included some of the grounds for
judicial review of administrative action set out in the Promotion of
Administrative Justice
Act 3 of 2000 (PAJA), immediately proceeded to
consider whether the Equality Court had ‘review jurisdiction’.
7
The learned judge had regard to ss 16 and 31 of the Equality Act
8
and concluded that equality courts are not ‘separate courts of “a
status similar to either the High Courts or the Magistrates’

Courts” in terms of s 166
(e)
of the Constitution.’
9
He went on to state:
‘
Unlike the explicit
provisions establishing the Labour Court, Competition Appeal Court
and Land Claims Court, there is no explicit
attempt in the Equality
Act to establish a separate court in terms of the provisions of s
166
(e)
of the Constitution, nor is there provision for the separate
appointment of judges and judicial officers in accordance with the

Constitution, as there are in those Acts.’
10
[15] The court below reasoned that the
judicial function exercised by judges and magistrates under the
Equality Act cannot be equated
to some ‘specialised legal skill
such as that required of someone determining, for example, a tax,
patent, competition or labour
dispute.’
11
It held that the achievement of equality, together with the other
values mentioned in s 1 of the Constitution, including dignity
and
freedom, was a fundamental value and that the interpretation and
application of the right to equality in terms of the Constitution
are
integral features of any adjudication on any given day in the courts
established under the Constitution.
12
[16] Froneman J considered that
although s 21 of the Equality Act did not provide for review powers,
an equality court located at
the High Court, dealing with an
adjudication dispute under the Equality Act, could exercise its High
Court powers of review. This
review power of the High Court, he
reasoned, was in terms of the common law and by virtue of it being a
superior court with judicial
authority under the Constitution. He
held as follows:
‘
[T]he equality
jurisdiction in terms of the Act would be exercised under High Court
judicial authority, which includes judicial
review.’
13
[17] For this conclusion the learned
judge relied on the decision of this court in
Minister
of Environmental Affairs and Tourism v George & others
.
14
In the passage relied upon, this court considered whether a High
Court was one of the
fora
to which a matter could be referred by a presiding officer of the
Equality Court in terms of s 20(3) of the Equality Act. The following

was said:
‘
It is true that s
20(3)
(a)
refers to “another . . . court”. But “court” clearly cannot
include a High Court when the equality court is itself a High
Court
sitting as an equality court. It may include a small claims court or
a magistrates’ court but is not necessary for us to
decide that
now. What is clear is that, in these circumstances, the High Court is
not intended.’
[18] After considering the aforesaid
passage, the learned judge said the following:
‘
The outcome of the
George
case in the Supreme Court of Appeal lends support to the approach
that when the High Court sits as an “equality court for the
area of
its jurisdiction” in terms of s 16(1)
(a)
of the Equality Act, it does so as a High Court with judicial
authority under the Constitution. The jurisdiction it exercises when

doing so is its own, as a High Court. There is, in my respectful
view, no separate “equality court” (either in the form of
a court
established under s 166
(e)
of the Constitution or as a tribunal without judicial authority under
the Constitution) with any separate jurisdiction of its own.
The High
Court sitting as an “equality court” sits as a High Court,
retaining its original jurisdiction as such, together with
any
expanded jurisdiction that may be conferred upon it in terms of the
provisions of the Equality Act.’
15
[19] Re-emphasising that viewpoint
Froneman J stated:
‘
Perhaps it would be
conducive to clarity to talk of the High Court exercising “equality
court jurisdiction” under the Equality
Act rather than the
“equality court” having that jurisdiction. Use of the term
“jurisdiction” in that sense would denote
that the High Court has
jurisdiction to determine the cause of action brought before it which
is based on the provisions of the
Equality Act.’
16
[20] The learned judge went further:
‘
If used in that sense
it would mean that there should be no obstacle to single proceedings
being brought in the High Court, based
on a cause of action under the
provisions of the Equality Act, as well as on any other cause of
action over which the High Court
would normally have jurisdiction.’
17
He did not consider that the less
formal procedures of the Equality Court militated against a
combination of issues being brought
in the Equality Court.
18
[21] Dealing with the view of the
first and second respondents that the proper procedures envisaged by
the Equality Act had not
been followed, Froneman J held that there
was no substance to it. In his view, an enquiry in terms of s 21(1)
of the Equality Act
could take many forms, some formal, others less
so.
19
His attitude was that the directions he had given for the further
conduct of the matter, namely, those set out in the interim order

referred to earlier in this judgment, were sufficient. He recorded
that the hearing before him on the main application had proceeded
in
a formal manner employed in ordinary High Court applications.
[22] Froneman J then turned to
consider the merits of the main application and took into account the
first respondent’s defences.
At para 32 of the judgment, he records
that Manong did not ask for the matter to be referred to oral
evidence on any specific aspect.
He considered the ECDRT’s
answering affidavits to be the complete response to Manong’s
complaints. He held that the two-phase
tender process was practical,
cost-effective and transparent. The learned judge held that
corruption and an improper motive to
exclude Manong had not been
proved.
[23] In respect of the complaint of
indirect discrimination flowing from the requirements of experience
and functional expertise,
the learned judge took the view that a
prior roster system of preferential allocation to previously
disadvantaged persons provided
for the possibility of obtaining
practical experience. He held that the requirements of practical
experience and functional experience
in the present procurement
policy are rationally connected to the unobjectionable goals of
providing safe and durable roads to
the public without wasting public
money.
20
[24] The following part of the
judgment is important:
21
‘
There is no indication
before me that there are no previously disadvantaged groups or
persons sufficiently experienced and qualified
to satisfy the
functional requirements in the procurement policy. Indeed, the
complainant itself appears to fit this profile in
general terms. I
cannot hold that a reasonable decision-maker could not have reached
the conclusion that the policy is fair and
reasonable.’
[25] In the result, Froneman J
dismissed the application with costs, such costs to include the costs
of two counsel. The present
appeal against that order and Froneman
J’s judgment is
with the leave of the court below. The National Treasury was not a
party to the appeal.
The law
[26] The first
issue to be dealt with is whether the court below was correct in its
characterisation of the Equality Court. Allied
to this is the
question of its jurisdiction and powers
vis
à vis
the High Court. In order to answer this question it is necessary to
understand the purpose and scheme of the Equality Act.
[27] Section
9(2) of the Constitution, after recording that equality includes the
full and equal enjoyment of all rights and freedoms,
provides that to
promote the achievement of equality, legislative and other measures
designed to protect or advance persons, or
categories of persons,
disadvantaged by unfair discrimination may be adopted. The Equality
Act is legislation to that effect.
[28]
Section
2 sets out the objects of the Equality Act as follows:
‘
(a)
to enact legislation required by section 9 of the Constitution;
(b)
to
give effect to the letter and spirit of the Constitution, in
particular─
(i) the equal enjoyment
of all rights and freedoms by every person
(ii) the promotion of
equality;
(iii) the values of
non-racialism and non-sexism contained in section 1 of the
Constitution;
(iv) the prevention of
unfair discrimination and protection of human dignity as
contemplated in sections 9 and 10 of the Constitution;
(v) the prohibition of
advocacy of hatred, based on race, ethnicity, gender or religion,
that constitutes incitement to cause
harm as contemplated in section
16(2)
(c)
of the Constitution and section 12 of this Act;
(c)
to
provide for measures to facilitate the eradication of unfair
discrimination, hate speech and harassment, particularly on the

grounds of race, gender and disability;
(d)
to
provide for procedures for the determination of circumstances under
which discrimination is unfair;
(e)
to
provide for measures to educate the public and raise public awareness
on the importance of promoting equality and overcoming
unfair
discrimination, hate speech and harassment;
(f)
to
provide remedies for victims of unfair discrimination, hate speech
and harassment and persons whose right to equality has been

infringed;
(g)
to
set out measures to advance persons disadvantaged by unfair
discrimination;
(h)
to
facilitate further compliance with international law obligations…’
[29] As will
become apparent, in due course, the Equality Court is important in
meeting these objectives and in particular to determine
whether
discrimination has occurred and if so, whether it is unfair.
[30] Section 16,
under the heading ‘Equality courts and presiding officers’,
establishes equality courts. The relevant parts
22
of s 16 read as follows:
‘
(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 subsection (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;
(c)
…
(d)
…
(2) Only
a judge … who has completed a training course as a presiding
officer of an equality court─
(a)
before
the date of commencement of section 31; or
(b)
as
contemplated in section 31(4),
and
whose name has been included on the list contemplated in subsection
(4)
(a)
,
may be designated as such in terms of subsection (1).
(3) The
Judges President … must─
(a)
take
all reasonable steps within available resources to designate at least
one presiding officer for each equality court within
his or her area
of jurisdiction; and
(b)
without
delay, inform the Director-General of the Department of any judge …
who has completed a training course as contemplated
in section 31(4)
and (5) or who has been designated in terms of subsection (1).
(4) The
Director-General of the Department must compile and keep a list of
every judge … who has─
(a)
completed
a training course as contemplated in section 31(4) and (5); or
(b)
been
designated as a presiding officer of an equality court in terms of
subsection (1).
(5) A
presiding officer
must
perform the functions and duties and exercise the powers assigned to
or conferred on him or her
under this Act or any other law.’ (My emphasis).
[31] In s 4(1)
of the Equality Act, under the heading ‘Guiding principles’, the
following is stated:
‘
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.’ (My emphasis).
[32] Section 17 provides for the
appointment of clerks of equality courts to assist the court to which
they are attached to perform
prescribed functions. Section 20
provides for the institution of proceedings in terms of or under the
Equality Act. Section 20(1)
provides that any person may act in
his/her own interest or on behalf of persons who are unable to do so
themselves or as a member
of or in the interest of a group or class
of persons. Furthermore, a person may act in the public interest.
Section 20(1) also
entitles associations to act in the interest of
their members and provides that the Human Rights Commission or the
Commission for
Gender Equality may institute proceedings in the
Equality Court.
[33] It is
important to have regard to s 19(1) of the Equality Act, which
provides that Magistrates’ and High Court rules apply,
with the
necessary changes required by the context, to equality courts in so
far as these provisions relate to ─
‘
(a)
the
appointment and functions of officers;
(b)
the
issue and service of process;
(c)
the
execution of judgments or orders;
(d)
the
imposition of penalties for non-compliance with orders of court, for
obstruction of execution of judgments or orders, and
for contempt of
court;
(e)
jurisdiction,
subject to subsection (3),
23
and
in so far as no other provision has been made in the regulations
under section 30 of this Act.’
24
[34] In terms of s 20(2), a person
wishing to institute proceedings in the Equality Court is obliged to
notify the clerk of the
court, in the prescribed manner, of its
intention to do so. The clerk, in turn, is obliged to refer the
matter to a presiding officer
of the Equality Court in question who
must decide whether the matter should be dealt with by the Equality
Court or whether it should
be referred to ‘another appropriate
institution, body, court, tribunal or other forum’, which, in the
view of the presiding
officer can deal more appropriately with the
matter in terms of that alternative forum’s powers and functions.
25
[35] If the decision is that the
Equality Court should hear the matter,
26
the clerk of the Equality Court must assign a date for the hearing of
the matter. In making a decision as to the appropriate forum
the
presiding officer ‘must’ take all relevant factors into account,
including those listed in s 20(4), which includes the
needs and
wishes of the parties, particularly of the complainant.
[36] I interpose to record that
regulations have been promulgated regulating the procedures to be
followed in connection with an
enquiry in terms of the Equality Act.
The relevant regulations will be dealt with in the next four
paragraphs.
[37] Insofar as the regulations deal
with the institution of proceedings they largely echo the provisions
of the Equality Act. Importantly,
the regulations provide that if the
matter needs to be heard in the Equality Court the presiding officer
‘must refer the matter
to the clerk who must, within three days
after such referral assign a date for the directions hearing’ and
inform the complainant
of that date.
27
Regulation 8 provides for witnesses to be subpoenaed and for
compelling documentary evidence. Regulation 10 (1) states that the

enquiry must be conducted in an expeditious and informal manner,
which facilitates and promotes participation by the parties.
Regulation 10 (3) provides that the proceedings should, where
possible and appropriate, be conducted in an environment conducive
to
participation by the parties.
[38] At a directions hearing the
presiding officer ‘must give directions in respect of the conduct
of the proceedings as he or
she deems fit.’
28
After hearing the parties the presiding officer may make an order in
respect of a range of issues, including discovery, interrogatories,

admissions, the limiting of disputes, the joinder of parties,
amicus
curiae
interventions, the
filing of affidavits, the giving of further particulars, the time and
place of future hearings, procedures to
be followed in respect of
urgent matters and the giving of evidence at the hearing, including
whether evidence of witnesses is
to be given orally or by affidavit
or both.
29
[39] Regulation 10 (5)(d) is
noteworthy. It provides that in order to give effect to the guiding
principles contemplated in s 4
of the Equality Act, and in dealing
with how the enquiry is to be conducted, the presiding officer ‘must,
as far as possible,
follow the legislation governing the procedures
in the court in which the proceedings were instituted, with
appropriate changes
for the
purpose of supplementing this regulation
where necessary, but may in the interest of justice and if no-one is
prejudiced deviate from these procedures after hearing the
views of
the parties to the proceedings.’ (My emphasis).
[40] Regulation 10 (7) states that,
‘save as is otherwise provided for in these regulations, the law of
evidence, including the
law relating to competency and
compellability, as applicable in civil proceedings, applies in
respect of an enquiry: Provided that
in the application of the law of
evidence, fairness, the right to equality and the interest of justice
should, as far as possible,
prevail over mere technicalities.’
[41] I return to deal with further
provisions of the Equality Act. Section 21 sets out the powers and
functions of the equality
court. Section 21(1) reads as follows:
‘
The equality court
before which proceedings are instituted in terms of or under this Act
must hold an enquiry in the prescribed
manner and determine whether
unfair discrimination, hate speech or harassment, as the case may be,
has taken place, as alleged.’
[42] After holding an enquiry the
court may make any of the orders set out in s 21(2). For present
purposes the following are
important:
‘
(a)
an
interim order;
(b)
a
declaratory order;
(c)
…
(d)
an
order for the payment of any damages …
(e)
…
(f)
an
order restraining unfair discriminatory practices or directing that
specific steps be taken to stop the unfair discrimination,
…;
(g)
an
order to make specific opportunities and privileges unfairly denied
in the circumstances, available to the complainant …;
(h)
an
order for the implementation of special measures to address the
unfair discrimination …;
(i)
an
order directing the reasonable accommodation of a group or class of
persons…;
(j)
…
(k)
an
order requiring … an audit of specific policies or practices …;
(l)
…
(m)
a
directive requiring … regular progress reports …;
(n)
…
(o)
an
appropriate order of costs …;
(p)
an
order to comply with any provisions of the Act.’
[43] Interestingly, the Equality Court
may, in terms of s 21(4), during or after an enquiry refer any
proceedings before it to any
relevant constitutional institution or
appropriate body for mediation, conciliation or negotiation.
[44] In terms of s 21(5), the court
‘has all ancillary powers necessary or reasonably incidental to the
performance of its functions
and the exercise of its powers,
including the power to grant interlocutory orders or interdicts.’
[45] Section 13 deals with the burden
of proof when the Equality Court determines a complaint. It provides
that if a complainant
has made out a prima facie case of
discrimination, the respondent must prove that it did not take place,
or that it was not based
on one or more of the prohibited grounds,
which includes race.
30
Furthermore, if discrimination has taken place on a prohibited
ground, then it is deemed unfair, unless the respondent proves that

it is fair.
31
[46] A complaint may, of course, be
premised on any of the grounds set out in ss 6 to 12. These sections
prohibit unfair discrimination
in general and then specifically on
grounds of race, gender and disability. Section 10 prohibits hate
speech. Section 11 prohibits
harassment and s 12 prohibits the
dissemination and publication of information that unfairly
discriminates.
[47] Section 14 sets out the many
factors that must be taken into account in determining whether the
discrimination is fair. These
include the context, whether the
discrimination reasonably and justifiably differentiates between
persons according to objectively
determinable criteria, intrinsic to
the activity concerned. Some of the other factors are; whether the
discrimination is systematic,
has a legitimate purpose and to what
extent it achieves its purpose.
[48] Section 31 of the Equality Act,
on which the court below relied for its conclusion that the Equality
Court was not a separate
court, deserves attention. Section 31(2)
makes further provision for the designation and appointment of
presiding officers and
clerks of the Equality Court. Section 31(4)
obliges the Chief Justice, in consultation with the Judicial Service
Commission and
the Magistrates Commission, to develop the content of
training courses with the view to building ‘a dedicated and
experienced
pool of trained and
specialised
presiding officers
, for
purposes of presiding in court proceedings as contemplated in this
Act, …’. (My emphasis).
[49] Section 31(6) obliges the
Director-General of the Department of Justice and Constitutional
Development to develop and implement
a training course for clerks of
equality courts with the view to building ‘a dedicated and
experienced pool of trained and
specialised
clerks
, for purposes of
performing their functions and duties as contemplated in this Act,
…’. (My emphasis).
[50] If anything, these provisions
point in the opposite direction to the conclusions reached by the
court below ─ the establishment
of a dedicated and specialised
court.
[51] Before concluding this
examination of the provisions of the Equality Act, it is necessary to
note the provisions of s 5(2)
of the Act, which provides as follows:
‘
If any conflict
relating to a matter dealt with in this Act arises between this Act
and the provisions of any other law, other than
the Constitution or
an Act of Parliament expressly amending this Act, the provisions of
this Act must prevail.’
[52] If one reads the preamble to the
Equality Act and considers the provisions set out above, it is clear
that the legislature
intended to promote the restructuring and
transformation of our society and institutions, away from the deeply
imbedded systematic
inequalities and unfair discrimination that still
prevail, and to affect practices and attitudes that undermine the
best aspirations
of our constitutional democracy.
[53] It is abundantly clear that the
Equality Court was established in order to provide easy access to
justice and to enable even
the most disadvantaged individuals or
communities to walk off the street, as it were, into the portals of
the Equality Court to
seek speedy redress against unfair
discrimination, through less formal procedures.
[54] In my view, Froneman J erred in
stating that when the High Court sits as an Equality Court it does so
as a High Court with
all the powers and trappings of that court,
including having jurisdiction in respect of causes beyond those
stipulated in the Equality
Act.
32
[55] As stated
above, the reasoning of the court below is as follows: Equality is a
fundamental constitutional value that underlies
all adjudication
under the Constitution. Equality is an integral feature of any
adjudication in the High Court on any given day.
When judges
adjudicate disputes under the Equality Act, it is the High Court
itself with all its attendant powers that is exercising
equality
jurisdiction.
[56] This view
loses sight of the fact that when they are fulfilling their
obligations and exercising the powers of their office
as judges in
their everyday adjudication, they do so within the powers that they
have as set out in the Constitution, the common
law and the statutes
that specifically apply to them. They also do so in terms of the
requirements of the substantive law which
they apply under the
umbrella of the Constitution. It is clear that any person who is the
victim of racial or other discrimination
is not precluded from
asserting his or her right to equality as provided for in s 9 of the
Constitution by the institution of proceedings
in the ordinary course
in a High Court. The matter will then be dealt with by the High
Court, following the terms of its empowering
statute and its
processes and rules.
[57] The
Equality Court is a special animal. In modern language one could
describe it as ‘a special purpose vehicle.’ As stated
above, it
was clearly designed and structured to ensure speedy access to
judicial redress by persons complaining of unfair discrimination.
The
infrastructure of magistrates’ and high courts are to be utilised.
Selected and ‘specially trained’ magistrates and judges
are
appointed
33
to preside at the seats of their existing respective courts and in
relation to a geographical area encompassing the territorial
areas of
jurisdiction of those courts. In my view, the difference sought to be
drawn by Froneman J, between the legislative structure
of the
equality court and other specialist courts is fallacious.
[58] The legislation establishing some
of those courts is instructive. It is dealt with in the paragraphs
that follow.
[59] In terms of
s 8
of the
Patents
Act 57 of 1978
, the Judge President of the North Gauteng High Court
designates one or more judges of that division as commissioner of
patents
to exercise the powers and perform the duties conferred or
imposed by the Act. The general powers of the commissioner are set
out
in s 17 which states that the commissioner shall have ‘such
powers and jurisdiction as a single judge has in a civil action

before a provincial division of the High Court having jurisdiction at
the place where the proceedings before the commissioner are
held,
including the appellate power referred to in s 75.’ ‘Jurisdiction’
under the
Patents Act is
clearly limited to hearing matters properly
brought in terms of the
Patents Act. The
seat of the court is in
Pretoria but hearings may be held at another place. There can hardly
be talk of other causes of action
or alternative relief in
proceedings before the commissioner.
[60]
Section 36
of the
Competition Act
89 of 1998
established the Competition Appeal Court (CAC). It is a
court contemplated in s 166
(e)
of the Constitution, with a status similar to that of a high court.
In terms of s 36(1)
(b)
it has jurisdiction throughout the Republic. It consists of at least
three judges appointed by the President on the advice of the
Judicial
Services Commission, each of whom must be a judge of the High Court.
The jurisdiction of the CAC is limited to reviewing
decisions of the
Competition Tribunal or considering appeals from it. The CAC can only
deal with such matters as are provided for
by that Act. The
Competition Act provides
, amongst others, for the control and
evaluation of restrictive practises and to prevent the abuse of
dominant positions. It thus
implicates to a degree, the notion of
equality within the commercial world.
[61] Section 83 of the Income Tax Act
58 of 1962 established the Tax Court, which consists of a judge of
the High Court, an accountant
and a representative of the commercial
community. The Judge President of the provincial division of the High
Court having jurisdiction
in the area in which the Tax Court is to
hear an appeal is situated, may, where the subject of the dispute
exceeds a particular
amount or where the parties have agreed thereto,
direct that the appeal shall consist of three judges of the High
Court. The powers
of the Tax Court are set out in s 83(13) of the
Income Tax Act. In the Income Tax Act the fact that judges preside
does not give
them jurisdiction beyond that conferred by the Act.
There is no prospect of other causes of action. Tax courts are
located within
High Court precincts and this is because of
infrastructure and geography.
[62] Outside of the provisions of the
Equality Act, high courts and magistrates’ courts continue, on a
daily basis, to uphold
the fundamental values of our Constitution
within the parameters of their powers. The Equality Court is an added
tool to promote
the transformation of our society in realisation of
our best aspirations. It is a separate and distinct court with powers
specified
in its empowering statute.
[63] As can be seen from the scheme of
the Equality Act, dealt with extensively above, the Equality Court
has its own rules and
procedures, both in terms of the Equality Act
and the regulations framed thereunder. The provisions of the
Magistrates’ Courts Act 32 of 1944
and the Supreme Court Act 59 of
1959 and the rules of the Magistrates’ Court and the High Court
play a limited part as provided
for in s 19(1) of the Equality Act
and regulation 10 (5)(d), the provisions of which are set out in
paras 33 and 39 above. The
statutory provisions and regulations apply
in respect of the aspects set out in s 19(1)
(a)
to
(e)
and only insofar as no other provision has been made in the
regulations under the Equality Act and for the purpose of
supplementing
them.
[64] Section 19(1)
(e)
,
in stating that those provisions and rules apply in respect of
jurisdiction must, in the scheme of things, mean territorial
jurisdiction.
Earlier in this judgment the provisions of s 19(3)
of the Equality Act were referred to. That subsection, it will be
recalled,
states that a magistrates’ court sitting as an equality
court is not precluded from making orders contemplated in the Act
which
exceed its monetary jurisdiction subject to confirmation by a
judge of the High Court having jurisdiction.
This
provision is understandable. The legislature, it appears, was intent
on ensuring that when an equality court matter was being
heard at the
seat of a magistrates’ court a party against whom a complaint was
lodged was precluded from raising the monetary
limit as a
jurisdictional point. As pointed out earlier in the judgment, this in
itself distinguishes magistrates’ courts from
equality courts.
The
substantive jurisdictional bases for the institution of proceedings
are set out in ss 6 to 12 of the Act. These sections prohibit

specified unfair discrimination and other conduct. Section 21
provides extensive remedies and sets out the powers of the Equality

Court.
[65] High courts have inherent power
to protect and regulate their own process.
34
Equality courts do not. The provisions of the Supreme Court Act and
the Uniform rules do not provide for this inherent power and
can
therefore not be sourced through the Equality Act. The Equality Court
has only those powers and functions set out in the Equality
Act.
[66] Froneman J criticised the
exclusive use in the Equality Court of select judges who had
completed a training course. He questioned
the constitutionality of
that exclusivity without deciding it. He did not, however, see that
as a bar to the conclusions reached
by him.
[67] As can be seen from what appears
above, judges in the equality court are appointed to preside in that
court by the Judge President,
and only after such judge has completed
a training course. If the Equality Court is truly the High Court
under a different name,
as concluded by the learned judge, then there
can be no justification for limiting the judicial officers entitled
to hear equality
court matters. It is to be noted that judges who
preside in the High Court and who hear matters in that court
implicating s 9 of
the Constitution are not required to have
completed a specific training course. It is, of course, ironic that
Equality Court matters
cannot be heard by all High Court judges.
[68] Legislation could have been
constructed or amended to provide for indigent communities or persons
or associations or institutions
representing the public interest to
bring unfair discrimination complaints in the High Court under a
simplified procedure that
would have been informal, cheap and speedy.
If it was felt that High Court judges required sensitivity or
diversity training to
enable a better understanding of the variety of
complaints that would be presented, that could have been done. That,
however, was
not the structure resorted to by the legislature. We are
constrained to interpret and apply the Equality Act.
[69] The passage in
George
,
a decision of this court, on which the court below relied was
obiter
.
In that case, this court was dealing with facts clearly
distinguishable from those in the present case and was not required
to
confront the issue resolved in this appeal. In any event, for the
reasons set out above, the conclusions on which Froneman J relied

cannot be supported.
[70] For all these reasons I conclude
that Froneman J erred in his characterisation of the Equality Court.
In my view, the error
in his reasoning was prompted because he was
asked to consider, at the outset, whether the Equality Court had
‘review’ jurisdiction.
It was the wrong question, which
inevitably led to the wrong conclusion.
[71] The correct question was to ask
whether Manong’s complaint fell within the purview of the Equality
Act. Clearly it did. The
next step was to look at the powers and
functions of the Equality Court referred to above. In the event of
the complaint being
sustained, any one of the orders set out in s
21
(f)
to
(i)
was competent. That an order by the Equality Court might have the
same effect as an order made by a high court on review, is merely

coincidental.
[72] The attempts to typify or
categorise the proceedings brought by Manong is what led to the
confusion. Labels are less important
than substance. In respect of
Manong’s principal complaint, the Equality Court clearly had
jurisdiction. In the event of the
success of that complaint there
would have been nothing further to adjudicate. However, in the light
of the conclusions reached
as set out above, it needs to be stated
that only complaints or ‘causes of action’ provided for by the
Equality Act are susceptible
to adjudication by the Equality Court.
That court was set up for a particular purpose. Other causes of
action are accommodated
in other appropriate
fora
.
The Equality Court was especially set up to deal with unfair
discrimination and the other issues provided for by ss 10 to 12 of

the Equality Act, as described above.
[73] It is now necessary to consider
whether the court below, in determining that the ECDRT’s policy was
not unfair, acted appropriately
in terms of the Equality Act.
[74] It is common cause that the
prescribed procedure for the institution of proceedings in the
Equality Court was not followed.
Mr Manong submitted that given the
urgency of the matter, he was entitled to resort to an urgent
application in conventional form.
Counsel for the ECDRT did not
contend that there was any prejudice. It is an aspect that we need
not address any further.
[75] It is apparent from Froneman J’s
judgment that he completed a training course as required by the
Equality Act. It also appears
that he came to preside in the matter
coincidentally.
[76] It is common cause that, prior to
the hearing on the merits of the complaint, no consideration was
given to whether the matter
could be best dealt with elsewhere.
Furthermore, there was no directions hearing as required by
regulation 10 and therefore none
of the issues set out in regulation
10 (5)(c) (referred to in para 38 above) were considered.
[77] The guiding principles set out in
s 4 of the Equality Act, particularly that concerning the
facilitation of participation by
the parties to the proceedings, were
ignored. In terms of regulation 10 (5)(c), a presiding officer may
make an order in respect
of further conduct of proceedings ‘after
hearing the views of the parties’. This was not done in the present
case. Froneman
J, as referred to in para 21 above, thought that his
mero motu
direction concerning the filing of further affidavits was sufficient.
It was not.
[78] This approach meant that the
burden of proof provision set out in s 13 of the Equality Act
(referred to in para 45 above) was
not considered, nor, in
consequence, were the provisions of s 14 of the Equality Act.
35
The complaint was finally adjudicated on the basis of the
Plascon-Evans
rule.
36
[79] As will be demonstrated below, by
reference to the available information, there were issues related to
the complaint concerning
systematic discrimination by the ECDRT that
required further exploration.
[80] Ironically, in the court below,
it was the ECDRT which complained that the proper procedures of the
Equality Act were not complied
with. Before us, Mr Manong raised this
complaint and submitted that he had not had a proper enquiry. It is
this turn of events
that underlies the order in relation to costs
that will follow.
[81] Mr Manong, although an engineer,
is a lay person as far as the law is concerned. It was for the court
below to ensure compliance
with and adherence to the provisions of
the Equality Act and the related regulations. As stated above,
Froneman J stated that Mr
Manong had not applied for a referral to
oral evidence. This approach is at odds with the scheme and purpose
of the Equality Act.
[82] In order to demonstrate some of
the issues that were unexplored because of the ordinary motion court
procedure that was followed,
and also to show that Froneman J’s
conclusions, without all the facts, were premature, it is
regrettably, necessary to deal,
in some detail, with what emerged
from the affidavits, including the bid requirements. I proceed to do
so.
[83] Bidders had to provide details of
similar projects carried out in South Africa in the past seven years.
Similar projects relate
to the design or rehabilitation of bitumen
roads with a minimum project length of ten kilometers. A maximum of
ten points is awarded
under this category. Furthermore, it is
essential that the bidder provides suitably qualified personnel to
carry out the work.
[84] A maximum of 31 points is awarded
for key personnel, dependent on the experience and professional
qualifications of key staff
members. Four points are available for
what appears to be a professional registration (NQF registration). A
maximum of five points
is also awarded to firms who hold specified
management certificates.
[85] Thus, for prior work and
professional experience a maximum of 50 points can be scored.
[86] The following are regarded as key
personnel:
(a) Project Manager;
(b) Road Design Engineer;
(c) Pavement/Materials Engineer;
(d) Bridge Design Engineer.
[87] According to the ECDRT, Manong
was allocated two points for each of three similar projects currently
in progress or carried
out in the past seven years. Although Manong’s
project manager Mr Raath has extensive experience it relates to
projects outside
of South Africa and Manong therefore received no
points for his experience. In this regard it received zero out of ten
points.
In respect of the remaining key personnel it received maximum
points. It did not receive any points for quality management
certificates
as they did not exist. It received full points for NQF
certificates that had been applied for but not obtained.
[88] Under functionality a total of
100 points can be scored, comprising the 50 points referred to above
and 50 points for Methodology,
an aspect we need not be concerned
with.
[89] Manong received 66 points under
functionality, thus failing to score the minimum of 75 points out of
100. What is clear is
that Manong’s limited number of prior similar
projects and Mr Raath’s non-qualification made a substantial
difference in the
allocation of points. It materially affected the
decision to disqualify Manong. So too did the lack of the specified
management
certificates.
[90] Froneman J, with respect,
concluded rather too easily, that the prior roster system provided
sufficient opportunity for developing
the minimum required
experience. This was an aspect that was not fully explored.
Furthermore, his conclusion that there are no
indications that Manong
and other similar players in the field are not sufficiently
experienced and qualified to satisfy the functional
requirements of
the bid, is problematical. First, he did not consider whether other
previously disadvantaged individuals or engineering
firms should be
joined. There is no evidence about how many previously disadvantaged
individuals or firms are interested or actively
involved in bidding
for ECDRT contracts. No evidence was presented concerning the profile
of previously disadvantaged engineers
or firms that operate in South
Africa or who are actively interested in public contracts. No
evidence was presented about why seven
years was chosen as the
appropriate minimum requirement as opposed, to say, any other number
of years. Manong asserts without challenge,
that it had successfully
completed other engineering projects for the ECDRT.
[91] In dealing with the issues
referred to above the evidential onus provision may be implicated. As
stated above, it was not even
considered. In the light of the
aforesaid background, it is clear that Froneman J’s conclusions in
relation to the complaint
ought to have been more guarded.
[92] Every reasonable person would
share the court below’s concerns that our roads should be safe and
durable and constructed
by persons who are technically proficient.
This, however, does not obviate the need to properly establish
whether the systematic
exclusion alleged is unfair. A proper enquiry
should reach a decision that will ensure that these concerns are
addressed.
[93] Counsel for the ECDRT and Mr
Manong agreed that, in the light of Froneman J’s non-consideration
of imperative provisions
of the Equality Act and regulations, the
order made by the court below is liable to be set aside and that we
should remit the matter
for it to be dealt with in accordance with
the provisions of the Equality Act.
[94] There is one further aspect that
requires attention. In its heads of argument, the ECDRT submitted
that the court below did
not have territorial jurisdiction, because
neither it nor the National Treasury were within the area of
jurisdiction of that court
and furthermore, that ‘the cause of
action’ did not arise within the court’s area of jurisdiction.
Although counsel for the
ECDRT did not have instructions to abandon
the jurisdiction point he quite correctly did not address us on this
aspect. The impugned
policy applies throughout the province and the
jurisdiction point raised by the ECDRT is entirely without merit.
[95] In light of the above, the
following order is made:
1. The appeal is upheld.
2. The order of the court below is set
aside in its entirety and the matter is remitted to the Equality
Court for it to be dealt
with in terms of the provisions of the
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000.
3. No order is made as to costs of
appeal at this stage. The parties are invited, if so advised, to
apply to this court upon the
final resolution of their dispute for an
order in this regard.
______________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: M S Manong
Instructed
by
Messrs
Potelwa & Co King William’s Town
E
G Cooper & Majiedt Inc Bloemfontein
For
Respondent: R G Buchanan SC
T
M Ntsaluba
Instructed
by
The
State Attorney King William’s Town
The
State Attorney Bloemfontein
1
In
Fedsure Life Assurance
Ltd v Greater Johannesburg TMC
[1998] ZACC 17
;
1999
(1) SA 374
(CC) at para 56 the following appears:
‘
[I]t
is a fundamental principle of the rule of law, recognised widely,
that the exercise of public power is only legitimate where
lawful.
The rule of law ─ to the extent at least that it expresses this
principle of legality ─ is generally understood to
be a
fundamental principle of constitutional law.’
2
Proceedings were instituted by way of notice of motion, accompanied
by supporting affidavits in the form usually employed in
high court
applications.
3
These three entities were the successful tenderers.
4
These three projects were the subject of the tender process.
5
The complaint is premised on s 7
(c)
which prohibits unfair racial discrimination including:
‘
The
exclusion of persons of a particular race group under any rule or
practice that appears to be legitimate but which is actually
aimed
at maintaining exclusive control by a particular race group.’
It
may also be covered by s 7
(e)
which prohibits unfair racial discrimination including:
‘
The
denial of access to opportunities, including access to services or
contractual opportunities for rendering services for consideration,

or failing to take steps to reasonably accommodate the needs of such
persons.’
In
its founding affidavit, Manong refers to s 29 of the Equality Act
which incorporates a schedule which contains an Illustrative
list of
unfair practices in certain sectors which are unfair and are
widespread and which need to be addressed. That list encompasses
the
sector in which Manong operates and its complaint.
6
The factual underpinning in respect of Manong’s complaint
concerning cost-effectiveness is that the two-phase tender process,

in terms of which a technical envelope is first opened and its
contents scrutinised and evaluated, before a financial envelope
is
proceeded to, lacks transparency and increases costs. In terms of
the process one has to qualify by attaining a minimum of
75 points
for functionality in terms of the technical aspect of the bid before
the financial aspects are considered.
7
The judgment of the court below is reported as
Manong
& Associates (Pty) Ltd v Department of Roads & Transport,
Eastern Cape, and others
(No 2)
2008 (6) SA 434
EqC.
8
The relevant provisions of s 16 are set out in para 30 below.
Section 31 is dealt with in paras 48 to 50 below.
9
Section 166
(e)
of the Constitution under the heading ‘Judicial system’,
provides:
‘
The
courts are –
(a)
…
(b)
…
(c)
…
(d)
…
(e)
any other court established or recognised in terms of an Act of
Parliament, including any court of a status similar to either
the
High Court or the Magistrates’ Courts.’
10
Para 10 at 439E-G.
11
Para 13 at 441A-B.
12
Para 13 at 441B-D.
13
Para 14 at 442A-B.
14
2007 (3) SA 62
(SCA) para 10 at 69B.
15
Para 16 at 442D-F.
16
Para 18 at 443B-C.
17
Para 18 at 443C-D.
18
Para 19 at 443E-444D.
19
Section
21(1) is dealt with later. See paras 41-44 and 63. As will become
apparent the problem arises not only in relation to
the enquiry
itself but to the process leading up to it.
20
Para 34 at 449F-H.
21
Para 34 at 449G-I.
22
References to Magistrates’ Courts have been omitted.
23
Section 19(3) provides that a magistrates’ court sitting as an
equality court is not precluded from making orders contemplated
in
the Act which exceed its monetary jurisdiction. When it does so, its
order will be subject to confirmation by a judge of the
High Court
having jurisdiction. That in itself serves to distinguish a
magistrates’ court sitting in its capacity as such from
an
equality court sitting at the seat of a magistrates’ court ─ in
this regard see the discussion later in this judgment
from para 52
to 71.
24
Section 30(1) allows for the Minister to make regulations relating
to, amongst other things, the procedures to be followed at
or in
connection with an enquiry in terms of the Act, including the manner
in which proceedings must be instituted, the referral
of matters
contemplated in s 20 and the hearing of urgent matters. The Minister
is also empowered to make regulations concerning
the right of
appearance in court and the attendance of witnesses. The regulations
are dealt with later in this judgment.
25
Section 20(3)
(a)
.
26
Section 20(3)
(b)
.
27
Regulation 6 (5).
28
Regulation 10 (5)(b).
29
Regulation 10 (5)(c).
30
Sections 13(1)
(a)
and
(b)
.
31
Section 13(2)
(b)
.
32
Sections 6 to 12.
33
This is an aspect which Froneman J considered constitutionally
questionable and criticised. It is an aspect which is dealt with

later in this judgment.
34
See s 173 of the Constitution.
35
See para 47 above.
36
Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A).