Manong & Associates (Pty) Ltd v Department of Roads & Transport, Eastern Cape Province and Another (331/08) [2009] ZASCA 59; 2009 (6) SA 574 (SCA) ; [2009] 4 All SA 1 (SCA) (29 May 2009)

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[2009] ZASCA 59
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Manong & Associates (Pty) Ltd v Department of Roads & Transport, Eastern Cape Province and Another (331/08) [2009] ZASCA 59; 2009 (6) SA 574 (SCA) ; [2009] 4 All SA 1 (SCA) (29 May 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 331/08
MANONG
& ASSOCIATES (PTY
)
LTD Appellant
and
DEPARTMENT OF ROADS & TRANSPORT,
EASTERN
CAPE PROVINCE 1
st
Respondent
NATIONAL
TREASURY 2
nd
Respondent
Neutral
citation:
Manong
v Department of Roads & Transport, Eastern Cape Province
(331/08)
[2009] ZASCA 59
(
29
May 2009)
Coram:
FARLAM,
NUGENT, VAN HEERDEN, MLAMBO JJA and KROON AJA
Heard:
4
MAY 2009
Delivered:
29
MAY 2009
Updat
ed:
Summary:
Promotion
of Equality and Prevention of Unfair Discrimination Act 4 of 2000
–
jurisdiction – High Court sitting as an equality court not a High
Court
─
extent of jurisdiction of equality court to grant relief in respect
of administrative action allegedly invalid on the grounds that
it
amounted to unfair discrimination.
___________________________________________________________
ORDER
___________________________________________________________
On
appeal from:
High
Court, Bhisho (Pillay J sitting as an equality court):
The
appeal is upheld with costs, subject to 2.
The
costs of the record on appeal will be restricted to the costs of two
volumes
.
The order of the court a quo
dismissing the application with costs is set aside.
The
matter is remitted to the court a quo for adjudication in terms of
the provisions of the
Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000
, and the making of an appropriate costs
order.
___________________________________________________________
JUDGMENT
___________________________________________________________
KROON
AJA (FARLAM, NUGENT, VAN HEERDEN
and
MLAMBO JJA
concurring):
INTRODUCTION
[1] This is an appeal from a judgment
of the Bhisho High Court, sitting as an equality court,
1
in which Pillay J upheld a contention by the respondents that the
court had no jurisdiction to review administrative action or
to
adjudicate constitutional issues, and accordingly non-suited the
appellant. The appeal is with the leave of Pillay J.
[2] The learned judge addressed the
questions referred to in the preceding paragraph because those were
the issues that were canvassed
in argument before him. As will appear
later in this judgment, however, whether the equality court has
jurisdiction ‘to review
administrative action’ or ‘to
adjudicate constitutional issues’ (meaning, presumably, to rule
upon constitutional rights)
were not the questions to be resolved:
the correct question was whether the equality court had jurisdiction
in terms of the Promotion
of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (the Equality Act), the statute that
established the equality
court, to grant the relief sought by the
appellant.
BACKGROUND
[3] The appellant, an engineering
company, instituted application proceedings in the court a quo in
which it cited the Department
of Roads and Transport, Eastern Cape
Province as the first respondent (the Department) and the National
Treasury as the second
respondent (the Treasury).
[4] In essence, the appellant’s
complaints related to the allocation of tenders by the Department for
the upgrading of a number
of roads in the province. It contended that
the tender process (the Bid Rules prescribed by the Department, in
particular clause
24 of these rules) was unfair as envisaged in the
Equality Act, read with the Constitution, because it amounted to
indirect discrimination
against previously disadvantaged persons.
[5] The appellant instituted the
application as a matter of urgency, initially seeking relief in two
parts. (The proceedings were
instituted by way of notice of motion,
accompanied by a supporting affidavit in the form usually employed in
High Court applications.)
Part A sought interim relief (in
particular, an order interdicting the Department from processing the
tenders received by it for
the upgrading of the roads in question)
pending the determination of the relief sought in Part B of the
notice of motion.
[6] That relief was the following:
(a) the review, correction and
setting aside of the decision to disqualify from further
consideration the appellant’s tenders
for the upgrading of the
roads in question;
(b) the review, correction and setting
aside of any award of tenders to successful bidders;
(c) a declarator that any contract
concluded pursuant to the award of tenders to any other tenderer was
null and void;
(d) a declarator that the procedure
followed pursuant to the Bid Rules by the Department to disqualify
the appellant was inconsistent
with the provisions of s 217 of the
Constitution,
2
alternatively that clause 9.4 of the Practice Note issued by the
Treasury, in terms of which the Bid Rules were made, is inconsistent

with the provisions of the said section;
(e) a declarator that the procedure
followed to disqualify the appellant’s tenders was unfairly
discriminatory as envisaged in
the Equality Act;
(f) an order directing that the
respondents undergo such audit of their procurement procedures and
practices as the court may direct.
[7] The proceedings in respect of Part
A came before Van Zyl J. He refused the application for interim
relief and postponed the
application for the relief in Part B of the
notice of motion
sine die
.
An application for leave to appeal against the refusal of the
interim relief was dismissed and the matter was referred to the
clerk
of the equality court with the direction that a date be assigned for
the holding of a directions hearing as envisaged in
regulations 6 and
10 of the regulations issued in terms of s 30 of the Equality Act.
Leave to appeal against the dismissal of
the interim relief sought
was similarly refused by this Court.
[8] The directions hearing was
presided over by Ebrahim J. It was agreed that the Department would
file the record of the proceedings
in respect of the adjudication of
the bids, in terms of Uniform Rule 53(1)(b). This was duly done.
[9] Prior to the hearing before Pillay
J for the determination of the relief set out in Part B of the notice
of motion the respondents
(which had filed no opposing affidavits)
filed a notice in terms of Uniform Rule 6(5)(d)(iii) which read as
follows:
‘
PLEASE
TAKE NOTICE THAT the First and Second Respondents intend to raise
questions of law only which [are] set forth hereunder:
-
1. The
Honourable Court does not have jurisdiction to entertain the
application for review as sought by the Applicant;
2 The
Applicant, on its papers, does not make out a case for the
Respondents to answer; and
3. Consequently,
the application ought to be dismissed with costs.’
THE COURSE OF THE PROCEEDINGS BEFORE
THE EQUALITY COURT
[10] The judgment of Pillay J
3
recorded that when Mr Ntsaluba (who appeared for the respondents)
started to argue first, as per an agreement between the parties,
he
‘strung a second string to his bow by adding the further point that
the court did not have jurisdiction to deal with issues
of
constitutionality’.
The
learned judge thereupon noted that it was clear that if the
respondents succeeded in their contention that the court lacked

jurisdiction to review the administrative decisions of the
respondents and/or to decide issues of constitutionality, the matter

would end there. If they were not successful in that contention then
the merits (which Pillay J said stood uncontested) would
have to be
addressed. In the circumstances, it was convenient to deal first
with the jurisdictional issue(s).
[11] It appears from the above
comments that the parties agreed that the argument would initially
canvass the contentions raised
by the respondents on the issues
relating to the jurisdiction of the court, to be followed by judgment
on those issues. If judgment
were given in favour of the
respondents, the dismissal of the appellant’s application would
follow. If judgment were given in
favour of the appellant, the
parties would then present argument on the merits, to be followed by
judgment on the issues that arose
on the merits. Mr Masuku, who
appeared for the appellant in the court a quo as well as in this
Court, confirmed that that was
the course agreed upon between the
parties.
RELEVANT STATUTORY PROVISIONS
[12] Further relevant sections of the
Constitution are the following:
(a)
‘9
Equality
(1) Everyone
is equal before the law and has the right to equal protection and
benefit of the law.
Equality
includes the full and equal enjoyment of all rights and freedoms.
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 taken.
The
state may not unfairly discriminate directly or indirectly against
anyone
on one or more grounds, including race, gender, sex, pregnancy,
marital status, ethnic or social origin, colour, sexual

orientation, age, disability, religion, conscience, belief,
culture, language and birth.
No
person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3).
National
legislation
must be enacted to prevent or prohibit unfair discrimination.
Discrimination
on one or more of the grounds listed in subsection (3) is
unfair
unless it is established that the discrimination is fair.’
(b)
’33
Just administrative action
(1)
Everyone
has the right to administrative action that is lawful, reasonable
and procedurally fair.
Everyone
whose rights have been adversely affected by administrative action
has the right to be given written reasons.
National
legislation must be enacted to give effect to these rights, and
must─
provide
for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal;
impose
a duty on the state to give effect to the rights in subsections
(1) and (2); and promote an efficient administration.’
(c) ‘166
Judicial System
The
courts are ─
(a) the
Constitutional Court;
(b) the
Supreme Court of Appeal;
(c) the
High Courts, including any high court of appeal that may be
established by an Act of Parliament to hear appeals from
High
Courts;
(d) the
Magistrates’ Courts; and
(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 Courts or the Magistrates’ Courts.’
(d)
‘169
High
Courts
A
High Court may decide –
(a)
any Constitutional matter except a matter that –
(i) only
the Constitutional Court may decide; or
(ii) is
assigned by an Act of Parliament to another court of
a
status similar to a High Court; and
any
other matter not assigned to another court by an Act of
Parliament.’
[13] The Equality Act
(a) The objectives of the Equality Act
were set out in
Minister of
Environmental Affairs and Tourism v George and Others
4
as follows:
‘
[3]
The equality court is established by s 16 of the Equality Act, which
was enacted in fulfilment of the Constitution's central equality

clause. The statute's objects are to give effect to the letter and
spirit of the Constitution's equality promise and to provide

practical measures to facilitate the eradication of unfair
discrimination, hate speech and gender and other forms of harassment

(s 2). The Act proscribes unfair discrimination on 'prohibited
grounds', which are broadly defined (ss 6 - 12, read with s 1),
and
vests equality courts with extensive procedural and remedial powers
in complaints of unfair discrimination (s 21).
'9 Equality     (1)     Everyone is
equal before the law and has the right to equal
protection and
benefit of the law.     (2)
Equality includes the full and equal enjoyment of
all rights and
freedoms. 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 taken.
(3)
The State may not unfairly discriminate
directly or indirectly against anyone on one or more grounds,
including race, gender, sex,
pregnancy, marital status, ethnic or
social origin, colour, sexual orientation, age, disability, religion,
conscience, belief,
culture, language and birth.
(4)
No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds in terms
of ss (3).
National legislation must be enacted to prevent or prohibit unfair
discrimination.
(5)
Discrimination on one or more of the grounds
listed in ss (3) is unfair unless it is established that the

discrimination is fair.'
[4]
The
purpose of these innovations is to create enhanced institutional
mechanisms through which victims of unfair discrimination
and
inequality can obtain redress for the wrongs against them. The
equality court is not a wholly novel structure, but is a High
Court
or a designated magistrates' court. Apart from the specific powers
the statute confers, the only distinction is that the
presiding
Judges or magistrates must have undergone “social context training”
(s 31(4)(a), read with s 16(2)). Subject
to the availability of
a presiding officer and one or more clerks, every High Court is, for
the area of its jurisdiction, an equality
court, and the Judge
President may designate any Judge who has completed a training course
a presiding officer of the equality
court (s 16(1)(a), (b) and
16(2)). The Minister for Justice and Constitutional Development must
also designate magistrates' courts
as equality courts (s 16(1)(c)).’
(Footnotes omitted).
The Act binds the State and all
persons (s 5).
Section 16 reads
inter alia 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’.
(Paragraph (c) deals with the
designation of magistrates’ courts as equality courts by the
Minister of Justice and Constitutional
Development.)
‘
(2) Only
a judge, magistrate or additional magistrate 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).
. . . .
(5) A
presidin
g
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.’
S
ection
21 of the Act provides
inter
alia
as
follows:
‘(1) 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.
(2) After
holding an inquiry, the court may make an appropriate order in the
circumstances, including –
.
. . .
(b) a
declaratory order;
.
. . .
(f) an
order restraining unfair discriminatory practices or 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 in
question;
(h) an
order for the implementation of special measures to address the
unfair discrimination . . . in question;
.
. . .
(k) an
order requiring the respondent to undergo an audit of specific
policies or practices as determined by the court;
.
. . .
(o) an
appropriate order of costs against any party to the proceedings;
(p) an
order to comply with any provision of the Act.
.
. . .
(3) An
order made by an equality court in terms of or under this Act has the
effect of an order of the said court made in a civil
action, where
appropriate.
.
. . .
(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.’
[14] The Promotion of Administrative
Justice Act 3 of 2000 (PAJA) constitutes the national legislation
envisaged in s 33 of the
Constitution
5
and its objectives are the achievement of the purposes identified in
that section.
THE JUDGMENT OF THE EQUALITY COURT
[15] Pillay J held that it was
unnecessary to decide whether the application of the prescribed Bid
Rules gave rise to discrimination.
He adopted that attitude in the
light of the conclusion reached by him on the issue of whether the
equality court had jurisdiction
to issue the orders sought by the
appellant, a question he answered in the negative. He did so on a
two-fold basis: the equality
court did not have jurisdiction to
decide constitutional matters nor to review, correct and set aside
administrative action.
[16] It was noted that, in order to
determine whether the application of the Bid Rules resulted in
discrimination, it would be necessary
to determine whether the rules
passed constitutional muster. A distinction was, however, drawn on
this score between the High
Court and the equality court. While
s 169 of the Constitution
6
empowers the High Court to decide constitutional matters (with
certain exceptions) neither the Constitution nor the provisions
of s
21 of the Equality Act
7
give the equality court that jurisdiction.
[17] The learned Judge further held
that the Equality Act did not accord jurisdiction to the equality
court to review the administrative
action in question. Section 21(1)
of the Act empowers the court to determine whether unfair
discrimination (or hate speech or
harassment) has taken place. Its
powers were clearly restricted to these aspects. The remedies
provided for in s 21(2) do not
include the review of administrative
action.
[18] In reaching his conclusion the
learned judge rejected the argument that because the High Court was
sitting as an equality court
it was clothed with the High Court’s
jurisdiction. The argument, so it was held, overlooked essential
differences between the
two courts. The objectives of the Equality
Act, as set out in s 2 thereof, read with s 9 of the Constitution,
defined the parameters
within which the equality court operates.
OTHER DECISIONS
[19] In
Manong
& Associates (Pty) Ltd v City of Cape Town
8
it was held (per Moosa J)
9
that the equality court does not have jurisdiction per se to review
matters covered by PAJA. It can only enquire into the matter
if the
cause of action is founded on unfair discrimination. In that event
the court or tribunal which has jurisdiction to review
matters of
administrative action will have concurrent jurisdiction with the
equality court. Thus, where a public tender has not
been allocated
to a particular service provider on the grounds of unfair
discrimination, either or both courts could be approached
for relief.
The relief sought in either court would differ. Section 8 of PAJA
sets out the remedies a court or tribunal, in proceedings
for
judicial review of administrative action, is competent to grant.
Section 21(2)
10
of the Equality Act sets out the remedies that the equality court is
competent to grant.
[20] The argument that s 21(5) of the
Equality Act
11
accords the equality court the power of judicial review under PAJA
was rejected. The additional powers provided for in the subsection

must be read in the context of s 21(1) and (2) of the Act which
empower the equality court to hold ‘an inquiry in the prescribed

manner and determine whether unfair discrimination, hate speech or
harassment, as the case may be, has taken place, as alleged,’
and
make an appropriate order, including the remedies set out in the
subparagraphs of s 21(2). The additional powers are
accordingly
not to be extended beyond what is necessary or reasonably incidental
to the powers and functions of the equality court.
12
[21] The learned judge accordingly
concluded as follows:
‘
[T]he
equality court has jurisdiction to enquire into and review matters
pertaining to complaints of unfair discrimination under
[the Equality
Act], but is precluded from doing so under PAJA. Nothing, however,
prevents the equality court from enquiring into
whether any
administrative action constitutes unfair discrimination or not and
granting the necessary relief in terms of [the Equality
Act].’
13
[22] The issue of the equality court’s
jurisdiction
to
review administrative
action again arose in
Manong
& Associates (Pty) Ltd v Department of Roads and Transport,
Eastern Cape, and Others
(No 2).
14
The relevant issues in that case were similar to those that arise in
the present matter.
[23] Froneman J was persuaded that the
conclusion reached by Pillay J was wrong and he dissented therefrom.
He held inter alia
as follows:
‘
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 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 these acts.’
15
[24] He
went on to state:
’
If
the intention was that an “equality court” would merely be an
independent and impartial tribunal to have effective power
to enforce
the breach of its provisions by administrative review under PAJA, it
would have been necessary to include administrative
review as part of
its powers and functions under s 21. The fact that this was not done
is in my judgment a clear indication that
it was never intended to be
such a tribunal, but that the equality jurisdiction in terms of the
Act would be exercised under High
Court judicial authority, which
includes judicial review.’
16
[25] Paragraph 16 of the judgment
reads as follows:
‘
[16]
The outcome of the
George
case
in the Supreme Court of Appeal
17
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.’ (Footnotes omitted).
[26] In the view of the learned judge
the fact that the Equality Act provided for less formal procedures to
be followed in the equality
court did not militate against a
combination of issues being adjudicated in the equality court.
18
[27] The learned judge further
recorded
19
that he had not lost sight of the reference in
George
to ‘parallel proceedings’ in the High Court and the equality
court or the comments in that case that certain of the relief
sought
by the complainants lay ‘solely within the jurisdiction of the
equality court’ and that ‘some of the relief can be
adjudicated
only by the High Court’.
20
In the view of the learned judge, however, these comments should be
read in the context of the issue raised in that case, namely
whether
an equality court may refer a matter to the High Court under s
20(3)(a) of the Equality Act. So read, the comments emphasised
that
a High Court sitting as en equality court may have extended
jurisdiction conferred upon it by the Equality Act.
ASSESSMENT
[2
8] In
my judgment, the equality court does have jurisdiction to entertain
the relief sought by the appellant in the instant matter:
as will be
shown below such jurisdiction is accorded to the equality court by
the provisions of the Equality Act.
[29] The
first aspect requiring consideration is the position of the equality
court (when the High Court sits as such) vis-a-vis
the High Court.
[3
0] I
am unable to align myself with the approach of Froneman
J
in
Manong
(2)
21
that
there is no separate equality court and that the High Court sitting
as an equality court is one court sitting in two capacities:
both as
a High Court (with the jurisdiction of that Court) and as an equality
court (with the extended jurisdiction conferred by
the Equality Act).
In this regard I refer to the comprehensive discussion of this issue
by Navsa JA in
Manong
v Eastern Cape Department of Roads and Transport and others
,
22
paras [26]-[71].
[31] I would add the following. While
it is so that s 16(1) of the Equality Act
23
provides that each High Court is an equality court for its area of
jurisdiction, that provision does not, however, mean that the

equality court is a High Court
─
in any sense and
specifically in the sense that it enjoys the original jurisdiction
that a High Court has. The High Courts are the
courts referred to in
s 166(c) of the Constitution.
24
The equality court is a court as envisaged in s 166(e),
25
ie a court established or recognized in terms of an Act of
Parliament, including any court of a status similar to that of either

the High Courts or the Magistrates’ Courts. It is therefore a
statutorily created court (much as the court of the Commissioner
of
Patents or the Special Income Tax Court). It follows that its powers
are to be found in, and are confined to those conferred
by, the
statute creating it. It may be added that s 166(e) does not empower
Parliament to create another forum which can sit and
function
as
a High Court
and a statute
which purported to do so would be constitutionally offensive against
what the Constitution has, in s 166(c), declared
are High Courts.
[32] The jurisdiction to review
administrative action in terms of the provisions of PAJA reposes in
the High Courts, which exercise
their original jurisdiction in that
regard. In that the equality court is not a High Court, and therefore
does not enjoy such original
jurisdiction, and in that the Equality
Act does not otherwise provide that the court has jurisdiction to
review administrative
action under PAJA, it does not have
jurisdiction under that Act.
[33] As already stated, however, that
is not the question to be asked in the present matter and the
negative answer to that question
is neither here nor there. The
correct question is whether in terms of the Equality Act the equality
court has jurisdiction to
entertain the relief sought by the
appellant. As shown below, that question falls to be answered
affirmatively. That the grant
of portions of that relief might, on
analysis, from a practical point of view, have the same effect as an
order made by the High
Court on review is purely co-incidental.
[34] Equality courts are vested with
extensive procedural and remedial powers in complaints of unfair
discrimination and the jurisdiction
and powers that the Equality Act
confers on equality courts are wide (subject thereto that, insofar as
is relevant for present
purposes, the equality court is confined to
adjudicating alleged discrimination). The specific powers conferred
on an equality
court by s 21(2) of the Act
26
(which are to be read with the ancillary powers provided for in s
21(5)
27
)
are wide enough to embrace adjudication of the relief in question.
[35] As regards constitutional
matters, the question again is not whether the equality court has
jurisdiction ‘to adjudicate constitutional
matters’ (again,
presumably meaning to rule upon constitutional rights), but what is
the extent of the jurisdiction given to
the equality court by the
Equality Act and whether that jurisdiction would embrace the grant of
the relief sought by the appellant.
That question I have already
answered in the affirmative. To the extent that any order granted by
the equality court has, from
a practical point of view, the same
effect as an order by the High Court on a constitutional matter, that
again would be merely
co-incidental.
[36] The above conclusions accord with
the purpose and objectives of the Equality Act which is aimed at
giving equality courts wide
powers to redress inequality and
discrimination.
IS THE APPEAL MOOT?
[37] Mr Buchanan (who appeared with Mr
Ntsaluba
for
the respondents) submitted that the appeal had become moot and that
accordingly in terms of s 21A(1) of the Supreme Court
Act 59 of
1959
28
this Court should dismiss the appeal in that an order upholding the
appeal would have no practical effect or result. In essence,
the
submission was based on the fact, as it was stated to be, that
performance in terms of the contracts awarded to the successful

tenderers for the upgrade of the roads in question has already been
completed. In addition, however, counsel sought to suggest
that the
matter was moot because there was a further appeal on this Court’s
roll for this term (ie the appeal is against Froneman
J’s judgment
in
Manong (2)
29
)
in which the parties are the same (further parties joined in the
proceedings at the instance of the court a quo in
Manong
(2)
did not enter the lists
and abided the court’s decision) and the issues on the merits are
on all fours with those in the present
matter.
[38] There are a number of answers to
the argument. First, the issue whether the court a quo erred in
dismissing the appellant’s
application remains for decision in the
present appeal. Second, as counsel in fact conceded during argument,
at least prayer 4
of the appellant’s notice of motion (paraphrased
above
30
)
refers to relief which is not moot. Third, this Court has a
discretion whether or not to dismiss an appeal on the grounds that
an
order upholding the appeal would have no practical effect or result.
It would be in the public interest for the judgment in
the present
matter to pronounce on the extent of the jurisdiction of the equality
court (notwithstanding that the conclusion reached
in this judgment
is the same as that reached in the other appeal). It is accordingly
proper for this Court to entertain the appeal.
In the event of the
appeal being successful and a further order being made remitting the
matter to the court a quo for adjudication
of the relief sought by
the appellant, it would be open to the respondents to pursue whatever
defences they may be advised to raise.
The fact that the other appeal
was on this Court’s roll did not render the present appeal moot.
FINDING
[39] It follows from the conclusions
recorded in this judgment that the appeal must be upheld and the
order of the court a quo dismissing
the appellant’s application be
set aside.
[40] In his heads of argument counsel
for the appellant, Mr Masuku
,
urged upon us that if the conclusion set out above were to be
reached, it would be proper for this Court to dispose of the whole

matter by coming to the appellant’s aid and granting the orders
sought by it, instead of remitting the matter to the court a
quo. It
was pointed out that the respondent had not placed in dispute any of
the factual averments set out in the appellant’s
founding papers,
and it was submitted that a proper case for the grant of the orders
had been made out.
[41] The course proposed cannot,
however, be followed. The appellant was non-suited in the court a quo
on the grounds that the court
lacked jurisdiction in the matter
(which was the only issue addressed in that court), leave was sought
to appeal against
that
decision, such leave was granted and the appellant’s notice of
appeal was restricted to an attack on that decision (and in fact

further sought an order that the matter be remitted to the court a
quo for adjudication of the merits of the application). In any
event,
it would not be appropriate for this court to sit, as it were, as a
court of first instance. In the result counsel abandoned
the
submission and accepted that the proper course would be for the
matter to be remitted to the equality court for adjudication
of the
relief sought by the appellant.
COSTS OF APPLICATION FOR LEAVE TO
APPEAL
[42] In granting the application for
leave to appeal Pillay J ordered the respondents to pay the costs of
that application. The
proper order would have been that the costs of
the application be costs in the appeal. However, in view of the
conclusion reached
by this Court and the order set out below, there
is no need to alter the costs order made by Pillay J.
COSTS OF APPEAL
[43] Having achieved success in the
appeal the appellant is entitled to the costs of the appeal, subject
to what follows.
[44] The record on appeal comprises
eight volumes. Much of the record was unnecessary for the purposes of
the appeal. I refer, firstly,
to the copies of the documentation,
which was substantial, which had a bearing on the process followed in
the adjudication of the
tenders for the upgrade of the roads in
question. Counsel advised us from the Bar that this documentation was
included in the record
for the purposes of counsel’s argument that
this Court should grant it the substantive relief it sought in the
court a quo. As
already recorded above, that argument was
misconceived. I refer, secondly, to various other documents such as,
for example, copies
of the judgments of Van Zyl J on Part A of the
notion of motion and on the application for leave to appeal (which
were in fact
duplicated), the papers filed in respect of that
application, returns of service, and various notices filed.
[45] I consider that the exigencies of
the matter may be met by an order that the appellant’s costs of the
record on appeal be
restricted to the costs of two volumes.
ORDER
[46 ] The following order will
accordingly issue:
1. The appeal is upheld with costs,
subject to 2.
2. The appellant’s costs of the
record on appeal are restricted to the costs of two volumes.
3. The order of the court a quo
dismissing the application with costs is set aside.
4. The matter is remitted to the court
a quo for adjudication in terms of the provisions of the
Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000
, and
the making of an appropriate costs order.
________________________
F KROON
ACTING JUDGE OF APPEAL
For Appellant: T MASUKU
Instructed by:
NONGOGO, NUKU INC
CAPE TOWN
EG 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
The wording ‘High Court sitting as an equality court’ is used
for convenience: as will be shown later the High Court and
the
equality court are separate and discrete institutions.
2
S 217
provides as follows:
‘(1)
When an organ of state in the national, provincial or local sphere
of government, or any other institution identified
in national
legislation, contracts for goods or services, it must do so in
accordance with a system which is fair, equitable,
transparent,
competitive and cost-effective.
(2)
Subsection (1) does not prevent the organs of state or institutions
referred to in that subsection from implementing a procurement

policy providing for –
(a)
categories of preference in the allocation of contracts, and
(b)
the protection or advancement of persons, or categories of persons,
disadvantaged by unfair discrimination.
(3)
National legislation must prescribe a framework within which the
policy referred to in subsection (2) must be implemented.’
3
Reported at
2008 (6) SA 423
(EqC).
4
2007 (3) SA 62
(SCA) at 66.
5
Para [12](b) above.
6
Para [12](c) above.
7
Para [13](d) above.
8
2008 (2) SA 601
(C).
9
Para [4].
10
Para [13](d) above.
11
Ibid
.
12
Paras [7] and [8] of the judgment of Moosa J (note 8 above).
13
Para [9].
14
2008 (6) SA 434
(EqC).
15
Para [10].
16
Para [14].
17
Minister of Environmental
Affairs and Tourism v George
2007 (3) SA 62
(SCA) in which the issue was whether a High Court was
one of the
fora
to
which a matter could be referred by a presiding officer in a ‘High
Court sitting as an equality court’ in terms of s 20(3)
of the
Equality Act. In para [10] 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.’
18
Para [18].
19
Para [17].
20
George
paras [12] and [13].
21
Note 14 and
paras [22] to [24] above.
22
[2009] ZASCA 50
, on appeal from the decision of Froneman J, handed
down on 25 May 2009.
23
Para
[13](c) above.
24
Para
[12](c) above.
25
Ibid
.
26
Para
[13](d) above.
27
Ibid
.
28
The section provides as follows:
‘
When
at the hearing of any civil appeal to the Appellate Division or any
Provincial or Local Division of the Supreme Court the
issues are of
such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed
on this
ground alone.’
29
Para [30] and note 22 above.
30
Para [6](d) above.