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[2017] ZAKZPHC 47
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Maharaj v Gold Circle (Pty) Ltd (AR616/16) [2017] ZAKZPHC 47; [2018] 1 All SA 760 (KZP) (23 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR616/16
REPORTABLE
In
the matter between:
MR
ANIL B
MAHARAJ Appellant
and
GOLD
CIRCLE (PTY)
LTD Respondent
Coram:
Seegobin J and Balton J
ORDER
1. The appeal is upheld and the ruling of the court
a
quo
is set aside.
2. The matter is remitted back to the Equality Court,
Durban, to commence
de novo
before a different presiding
officer.
3. The respondent is ordered to pay the appellant’s
costs of appeal, such costs to include the costs of counsel.
JUDGMENT
SEEGOBIN
J (Balton J concurring)
INTRODUCTION
[1]
“Justice’, according to Aristotle, ‘belongs not
only to the general virtue of Moral Justice, but also to the
principle of Equality: that is to say, to that kind of Justice which
is displayed in the form of Equitable Fairness.”
[1]
Justice is also the legal or philosophical theory by which fairness
is administered. There can, however, be no justice if
the structures
set up to administer it behave in a manner which is manifestly
unfair. As the facts in this matter will show, the
proceedings in the
court
a quo
were
anything but fair.
[2]
This is an appeal against a ruling in the Magistrates Court, Durban,
sitting as an Equality Court, in terms of the Promotion
of Equality
and Prevention of Unfair Discrimination Act 4 of 2000 (‘the
Equality Act’). In terms of the ruling, the
learned magistrate,
Mr G H van Rooyen, effectively dismissed a complaint of unfair
discrimination based on race brought by the
appellant, Mr A B
Maharaj, against the respondent, Gold Circle (Pty) Ltd. The ruling
was made pursuant to a plea of
res judicata
raised by the
first respondent at a directions hearing convened by the court in
terms of the regulations promulgated regulating
the procedures to be
followed in connection with an enquiry in terms of the Equality Act.
At the heart of this appeal and the ruling
made by the learned
magistrate lies the issue of fairness.
LEGISLATIVE
CONTENT
[3]
There are various pieces of legislation to which reference will be
made in this judgment. The first of course is the Equality
Act
referred to above and the applicable regulations promulgated
thereunder. The second is the Constitution of the Republic of
South
Africa, 1996 (‘the Constitution’) and the third is the
KwaZulu-Natal Gaming and Betting Act, 8 of 2010 (‘The
KwaZulu-Natal Act’).
BACKGROUND
[4]
The appellant, Mr Maharaj, is a South African citizen by birth.
Although a member of the Indian population he is also part of
a
broader classification of citizens in this country who are commonly
referred to as ‘Black’ (African, Indian and Coloured).
As
a member of this category of persons Mr Maharaj is also considered to
be a historically disadvantaged individual or HDI as the
term is
referred to in various pieces of legislation including the
KwaZulu-Natal Gaming and Betting Act referred to above.
[5]
It would not be wrong to describe Mr Maharaj as a racehorse trainer
by profession, after all it is in this industry that he
spent the
better part of his life trying to earn a living. By all accounts his
foray into this industry has not been an easy one:
[2]
It began in 1989 when he first applied to the Jockey Club of South
Africa to be admitted as a horse trainer. The Jockey Club turned
down
his application – it reasoned that it would ‘be setting a
precedent because of the appellant’s skin colour’.
In the
apartheid era and given how people of colour were discriminated
against by the authorities, the Jockey Club may have felt
justified
by its decision. That decision undoubtedly was not only
discriminatory it was also hurtful. It was this decision that
prompted Mr Maharaj to leave the country for Australia where he was
allowed to work in the horse racing industry.
[6]
After the advent of democracy in this country in 1994 Mr Maharaj
returned to South Africa in about 1997. He once again applied
for a
licence to the National Horseracing Authority of Southern Africa
(NHA), the authority in charge of horseracing in the country.
Once
again his path into the industry was not a smooth one with
inter
alia
the KwaZulu-Natal stewards voting against the grant of a
licence. It also transpired that his licence and letter of
acknowledgment
was initially mysteriously ‘mislaid’. His
licence was granted only after intervention by the head executive
steward
of the NHA at the time. That intervention however, entailed
that Mr Maharaj was obliged to sit for an examination.
[7]
Despite being issued with a licence, Mr Maharaj experienced undue
hardship in the horseracing establishment. Initially his training
establishment was outside the Summerveld Training Centre. The
respondent who managed the training centre at first refused to lease
him boxes to house his horses. He was subsequently able to lease 14
boxes at Summerveld from the respondent. The respondent is
in control
of and manages the stables at Summerveld.
[8]
In 2002 Mr Maharaj’s trainer’s licence was suspended for
five (5) years by the NHA arising out of two incidents
of assault
which he committed at work against a person of the White race. The
altercations in question involved the issue of race.
Mr Maharaj was
escorted off the premises and was forced to make arrangements for the
transfer of the horses he was training to
other trainers. This
arrangement went on for about three (3) months in which time he was
charged a rental of R11 000-00 for
the leasing of the stabling
boxes from the respondent.
[9]
Upon expiry of his suspension in 2007, Mr Maharaj once again applied
for stabling facilities from the respondent. The respondent
denied
him the use of such facilities. It provided no reasons for its
decision. Mr Maharaj was convinced that he was being punished
twice
for the offences he committed and that he was being racially
discriminated against by the respondent. He held this view because
other trainers of the White group, who were also involved in acts of
assault or other unlawful conduct, continued to be accorded
the
privilege of holding stabling facilities with the respondent. These
facilities, according to Mr Maharaj, were never withdrawn
or denied
to such members, even after they were found guilty of unlawful
behaviour.
[10]
In light of the above Mr Maharaj lodged a complaint with the Equality
Court under case number 42/2008 (the 2008 case). That
complaint was
dismissed with costs. Mr Maharaj’s appeal against that finding
to the High Court under case number AR514/2008
(the appeal judgment)
was dismissed. An application for leave to appeal further was
refused.
[11]
In 2013 Mr Maharaj lodged a further complaint of unfair
discrimination based on race with the Equality Court. The
KwaZulu-Natal
Gambling Board was cited as the first respondent, the
Premier of KwaZulu-Natal as the second respondent and the respondent
herein
as the third respondent. The matter was heard by the learned
magistrate, Mr M S Motala who, without hearing any evidence in the
matter, ruled that the court had no jurisdiction in terms of section
20(3) of the Equality Act to deal with the matter.
[12]
On 13 January 2016 Mr Maharaj again applied in writing to the
respondent for stabling facilities at its Summerveld facility.
On 22
January 2016 the respondent’s attorneys, Barkers, wrote to Mr
Maharaj informing him that the respondent was unable
to accede to his
request for the reasons set out in their letter.
[13]
On receipt of the above letter Mr Maharaj lodged a complaint of
unfair discrimination based on race in the Equality Court,
Durban,
under case number 09/2016 (the 2016 case). At a directions hearing
the learned magistrate Mr van Rooyen directed that the
parties
provide facts on affidavit that will be relied upon to establish
their respective cases.
[14]
On the adjourned date, Mr Maharaj duly filed his affidavit in which
he confined his case to five (5) specific grounds which
he intended
to raise at the hearing. The respondent did not file an affidavit as
directed by the court. Instead it filed a statement
in which it
raised a plea of
res judicata
. The Equality Court thereafter
proceeded to deal with the matter solely on the plea of
res
judicata
in the form of
issue estoppel
. Without hearing
any evidence on the grounds raised by Mr Maharaj in his affidavit the
court ruled that the matter was indeed
res judicata
.
[15]
This appeal is against that decision. The order sought is one setting
aside the decision of the Equality Court with costs and
remitting the
matter to that court for the leading of evidence before a different
presiding officer.
[16]
Before dealing with the proceedings as they unfolded before the
learned magistrate Mr van Rooyen, it is necessary to consider
the
broad framework and objectives of the Equality Act
[3]
as well as the KwaZulu-Natal Gaming and Betting Act,
supra
.
THE
EQUALITY ACT
[17]
The Equality Act was enacted pursuant to the provisions of section 9
of the Constitution which deals with the issue of equality,
being one
of the fundamental rights enshrined in the Bill of Rights (Chapter
Two). Section 9 of the Constitution provides as follows:
‘
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 any one on one or more grounds in terms of
subsection (3)
National legislation must be enacted to prevent or
prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed
in subsection (3) is unfair unless it is established that the
discrimination
is fair.’
[18]
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…’
[19]
The Equality Court is aimed at these objectives and in particular in
determining whether discrimination has occurred and if
so, whether it
is unfair.
[20]
Section 16, under the heading ‘Equality courts and presiding
officers’, establishes equality courts. The relevant
parts of s
16 previously read as follows:
[4]
‘
(1) For the purposes of this Act, but subject to
section 31 ─
…
(2) Only a judge,
magistrate or additional magistrate who has completed a training
course as a presiding officer of an equality
court─
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) …
(4) The Director-General of the Department must compile
and keep a list of every judge, magistrate and additional magistrate
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).
(c)
(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).
[21]
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).
[22]
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.
[23]
Section19(1) of the Equality Act provides that the 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;
(f) jurisdiction, subject to subsection (3), and in so
far as no other provision has been made in the regulations under
section
30 of this Act.’
[24]
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]
If the decision is that the Equality Court should hear the matter,
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.
[26]
Regulations have been promulgated regulating the procedures to be
followed in connection with an enquiry in terms of the Equality
Act.
The relevant regulations are the following:
26.1 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. 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. (my emphasis)
26.2 At a directions hearing the presiding officer
‘must give directions in respect of the conduct of the
proceedings
as he or she deems fit. 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.
26.3 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).
26.4 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
. (my emphasis)
[27]
Returning to the 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.’
[28]
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.’
[29]
In terms of s 21(4), during or after an enquiry a court may refer any
proceedings before it to any relevant constitutional
institution or
appropriate body for mediation, conciliation or negotiation.
[30]
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.’
[31]
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. Furthermore, if
discrimination has taken place on a prohibited ground, then it is
deemed unfair,
unless the respondent proves that it is fair.
[32]
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.
[33]
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. (my
emphasis)
[34]
As pointed out by Navsa JA in
Manong, supra
(para 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
’. (my emphasis)
[35]
He further points out that (para 53)
‘
[i]t 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.’
[36]
From the above, it is clear that the proceedings in the Equality
Court are less formal and provide for convenient and easy
access in
order to correct an act of discrimination and to seek redress in
respect thereof.
[37]
Before leaving this broad framework and objectives of the Equality
Act, it is important to have regard to certain specific
definitions
as well as certain other provision which apply to the complainant
herein and the complaint lodged by him in the Equality
Court.
37.1 The relevant definitions in section 1 of Chapter 1
are the following:
“
discrimination” means any act or omission,
including a policy, law, rule, practice, condition or situation which
directly
or indirectly –
(a) imposes burdens, obligations or disadvantages on; or
(b) withholds benefits, opportunities or advantages
from, any person on one or more of the prohibited grounds;
“
equality” includes the full and equal
enjoyment of rights and freedoms as contemplated in the Constitution
and includes
de jure
and
de facto
equality and also
equality in terms of outcomes;
“
prohibited grounds” are –
(a) Race, gender, sex, pregnancy, marital status, ethnic
or social origin, colour, sexual orientation, age, disability,
religion,
conscience, belief, culture, language and birth; or
(b) Any other ground where discrimination based on
that other ground –
(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a
person’s rights and freedoms in a serious manner that is
comparable to discrimination
on a ground in paragraph (a).
37.2 Section 3 deals with the interpretation of the Act
and provides as follows:
“
3. Interpretation of Act –
(1) Any person applying this Act must interpret its
provisions to give effect to –
(a) The Constitution, the provisions of which include
the promotion of equality through legislative and other measures
designed
to protect or advance persons disadvantaged by past and
present unfair discrimination;
(b) the Preample, the objects and guiding principles of
this Act, thereby fulfilling the spirit, purport and objects of this
Act.
(2). Any person interpreting this Act may be mindful of
–
(a) any relevant law or code of practice in terms of a
law;
(b) international law, particularly the international
agreements referred to in section 2 and customary international law;
(c) comparable foreign law;
(3)
Any person applying or interpreting this Act must
take into account the context of the dispute and the purpose of this
Act
.” (my emphasis)
37.3Section 7 deals with the prohibition of unfair
discrimination on ground of race and provides as follows:
“
7. Prohibition of unfair discrimination on ground
of race –
Subject to section 6, no person may unfairly
discriminate against any person on the ground of race, including –
(a) the dissemination of any propaganda or idea, which
propounds the racial superiority or inferiority of any person,
including
incitement to, or participation in, any form of racial
violence;
(b) the engagement in any activity which is intended to
promote, or has the effect of promoting, exclusivity, based on race;
(c) 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;
(d) the provision or continued provision of inferior
services to any racial group, compared to those of another racial
group;
(e) 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.”
THE
KWAZULU-NATAL GAMING AND BETTING ACT
[38]
The KwaZulu-Natal Gaming and Betting Act is a progressive piece of
legislation which came into operation in December 2010.
Apart from
providing for the regulation of gaming, horse racing and betting in
the Province, it also provides for the establishment
of a Gaming and
Betting Board in Chapter 2, the objects of which are set out in
section 6, the relevant parts of which read as
follows:
‘
6. Objects of Board.—
(1) The objects of the Board are to—
(a)…
(b)…
(c) promote opportunities for historically disadvantaged
persons to participate in the horse racing and betting industries in
the
capacity of any of the persons required to be licensed or
registered in terms of section 89, 94, 103, 110 or 111;
(d) increase the ownership stakes of historically
disadvantaged persons in the horse racing and betting industries;
(e) develop appreciation for and knowledge of horse
racing amongst all communities, particularly those comprised of
historically
disadvantaged persons; and
(f)…
(2) For purposes of this section, a person is
historically disadvantaged if that person is—
(a) a natural person, who before the Constitution of the
Republic of South Africa Act, 1993 (Act 200 of 1993), came into
operation,
was disadvantaged by unfair discrimination on the basis of
race, gender, disability, sexual orientation or religion; or
(b) …
(3) The responsible Member of the Executive Council may
issue directives to the Board relating to the objects of the Board
contemplated
in subsection (1) (c), (d), (e) and (f).’
GOLD
CIRCLE’S LICENCE CONDITIONS
[39]
As far as Gold Circle is concerned it holds a licence to conduct
horseracing, a sporting event or other event or contingency
in terms
of the KwaZulu-Natal Gaming and Betting Act. The terms and conditions
of its licence are set out in various schedules.
Clause (a) of
Schedule C provides that the licenced racecourse must be established
and operated in accordance with all applicable
laws, including the
National Gambling Act 7 of 2004
and the regulations promulgated
thereunder, the KwaZulu-Natal Gaming and Betting Act 8 of 2010 and
the regulations promulgated
and the rules made thereunder, and the
terms and conditions of the licence and directions given by the
KwaZulu-Natal Gaming and
Betting Board from time to time.
[40]
Gold Circle is also obliged in terms of its licence conditions to
adhere to the transformation goals contained therein. For
instance,
by 30 June 2013 Gold Circle was to have at least 24% effective Black
membership/ownership/ shareholding, by 31 December
2013 it was
required to increase this figure to 26% and within a period of the
next five (5) years (as from date of its licence),
at least 40% of
senior and middle managers were required to be Black. Most
importantly, in terms of Schedule 5 of its licence conditions,
Gold
Circle was obliged to comply fully with the transformation minimum
standards and/or guidelines adopted by the Board in respect
of the
horseracing and betting industry. Additionally, in terms of its
licence conditions, Gold Circle was obliged, from time to
time, to
submit to the Board proof of progress relating to these matters. I
mention all of this purely to illustrate that quite
apart from the
other business which the Board is required to conduct in terms of the
Act, transformation of the horseracing and
betting industry in this
Province is an important objective which it seeks to achieve.
PROCEEDINGS
BEFORE THE EQUALITY COURT (2016 case)
[41]
As mentioned already, Mr Maharaj appeared before the Equality Court
presided over by Mr G H van Rooyen, on 25 May 2016. At
that stage Mr
Maharaj was unrepresented while Gold Circle was represented by
counsel, Mr Boulle, both in the court
a quo
and at the appeal
hearing before us on 30 August 2016.
[42]
At the commencement of this judgment I alluded to the fact that the
proceedings in the court
a quo
were anything but fair. This
was largely due to the manner in which the learned magistrate
conducted himself at the time. The record
shows that the learned
magistrate was simply not prepared to allow Mr Maharaj to place his
case before the court. From the outset
the learned magistrate adopted
a bombastic and belligerent attitude; he was extremely impatient and
off-handish to the point of
being rude. He displayed his impatience
by badgering Mr Maharaj and continuously interrupted him as he
attempted to present his
case. Inasmuch as Mr Maharaj sought to
persuade him that he was required to listen to the evidence which he
intended adducing,
the learned magistrate flatly refused to allow him
to do so. A most disturbing feature of the learned magistrate’s
utterances
is that he made it obvious, perhaps unintentionally, that
he had no time to read through all the papers thus indicating, quite
explicitly and unashamedly, that he was not adequately prepared to
hear the matter.
[43]
The result of all this was that Mr Maharaj was left in quite a
helpless situation. His attempts to convince the learned magistrate
that the nature of the evidence he intended calling was not only new
but was also directly related to the issue of race and the
objections
raised by the respondent, were futile. This attitude by the learned
magistrate meant that Mr Maharaj was not even allowed
to establish a
prima facie
case. The record indicates that in the course of
the exchange between the learned magistrate and Mr Maharaj, Mr Boulle
informed
the court that the matter was
res judicata
(as far as
the respondent was concerned) and that the matter could only be
adjudicated upon on any new evidence presented by Mr
Maharaj.
[44]
The following exchange between the learned magistrate and Mr Maharaj
at page 23 of the record provides some insight into the
learned
magistrate’s attitude and his reluctance to deal with the
matter:
“
COURT
I don’t want to deal with
matters that has already been dealt with. I can’t.
MR MAHARAJ
These matters has never been heard by
any Court.
COURT
No, there is only one matter, there is no
other matters, there is only one matter and this is the application.
MR MAHARAJ
I understand that, but whatever is put
herein these papers has never been dealt with by any other Court,
Appeal Court of High Court,
so the Equality Act, Your Worship …
[intervention]
COURT
I haven’t had time to look at this.
MR MAHARAJ
… gives me the right to talk
about anything from 2003, 16 June 2003 … [intervention]
COURT
No, no, no, no.
MR MAHARAJ
…the advent of the Equality
Act.
COURT
No, no, no, unfortunately that doesn’t
happen, no, that is not how it works, maybe you – that’s
why I said you
are welcome to go and see a legal representative,
because that is no how it works, I have now repeated myself and will
repeat myself
until you get tired of me, we are dealing with the
specific matter where this complaint was made on the 13
th
of – or this request was made on 13 January and it was refused
on 22 January, it is this application … [intervention]
MR MAHARAJ
Mm.
COURT
… that has been refused on the
basis of unfair discrimination based on race.
MR MAHARAJ
So … [intervention]
COURT
It has nothing to do with what happened in
2003.”
[45]
The record is replete with similar exchanges right from the
commencement of the proceedings. At some stage Mr Boulle informed
the
learned magistrate (page 28) that ‘obviously if there is new
evidence then obviously the complainant is perfectly entitled
to
raise it …’ While Mr Maharaj insisted that the five (5)
points he raised and on which he intended calling evidence
were in
fact new, the court
a quo
eventually directed, at the instance
of Mr Boulle, that both parties should deliver affidavits in the
matter. The hearing was adjourned
for this purpose. As I pointed out
already, while Mr Maharaj complied with the directive made by the
court
a quo
and delivered his affidavit, the respondent did
not. Instead it filed a statement in which it raised its plea of
res
judicata
.
[46]
On the adjourned date of 15 June 2016 Mr Maharaj, who was still
unrepresented, took issue with the respondent’s failure
to
deliver its affidavit as previously directed by the court. On this
occasion and contrary to his earlier view regarding the filing
of
affidavits, Mr Boulle was now of the opinion that there was no need
for the respondent to file an affidavit but that if Mr Maharaj
insisted on an affidavit they were prepared to hand up an affidavit
from the respondent confirming that a special plea was raised.
Faced
with this legal issue as well as the respondent’s heads of
argument and bundle of authorities Mr Maharaj considered
that he is
required time to prepare. The matter was thereafter postponed to 19
July 2016. On this date Mr Maharaj informed the
court that in view of
the legal issue raised and his inability to deal with same, he sought
the assistance of an attorney, Mr Lalbahadur,
who was prepared to
assist him but was not available at that stage. For this reason the
matter was once again postponed to 26 August
2016.
[47]
When the mater resumed on 26 August 2016 Mr Lalbahadur placed himself
on record for Mr Maharaj and without more Mr Boulle commenced
his
argument on the plea of
res judicata
in the form of
issue
estoppel
. In his argument Mr Boulle dealt with each of the five
(5) grounds relied upon by Mr Maharaj, contending that none of them
constituted
new evidence which required consideration by the court.
Mr Boulle contended that the same issue had been raised and
determined
in previous proceedings and that there was no need for the
court to embark on a further enquiry.
[48]
In response Mr Lalbahadur submitted that the 2016 complaint was based
entirely on new evidence which was relevant and material
to the issue
before the court. He emphasised that there was a need for the court
to hear the evidence before making a determination
on the issue of
res
judicata
. He further emphasised that the ‘moral’
issue raised by the respondent no longer applied as Mr Maharaj had
rehabilitated
himself by undergoing psychological counselling
over a prolonged period. This was new evidence which was never
tendered before.
As for the ‘commercial’ reason (
viz
that Mr Maharaj was a bad debtor) advanced by the respondent, it was
pointed out that this no longer applied as Mr Maharaj was
in the
process of liquidating the debt owing to Gold Circle. Mr Lalbahadur
went on to contend that while there may be some issues
that were
already determined there were also new issues which required
determination and that Mr Maharaj should at least be afforded
the
opportunity of calling such evidence. Needless to say that request
was not acceded to with the learned magistrate proceeding
to dismiss
the complaint on the plea of
res judicata
.
MR
MAHARAJ’S FIVE (5) POINTS OF COMPLAINT
[49]
It is perhaps convenient at this stage to set out in summary form the
five (5) grounds relied on Mr Maharaj insofar as the
2016 complaint
was based. They are the following:
49.1 That the respondent failed to consider that he had
undergone psychological counselling in order to deal with his anger
issues.
49.2 That a fellow trainer of the white population
group, Charles Laird, had also committed an assault in March 2012
against a 60
year old Black employee of Gold Circle in the course of
his duties. Despite this Charles Laird continues to enjoy stabling
facilities
with the respondent.
49.3 That other White trainers from other provinces are
also accommodated by the respondent with stabling facilities while Mr
Maharaj
is excluded.
49.4 That White employees of the respondent holding
managerial positions such as M Nairac, D Furness and Gardiner were at
some stage
dismissed by the respondent but later re-employed.
49.5 That the respondent continues to transgress the
conditions of its licence requirements by failing to effect
transformation
in terms of the KwaZulu-Natal Gaming and Betting Act.
BEFORE
THIS COURT
[50]
Mr Moodley who appeared on behalf of Mr Maharaj at the appeal hearing
contended strongly that the court
a quo
simply erred in not
affording Mr Maharaj the opportunity of establishing his case on the
new evidence relating to the complaints
referred to above. He
submitted that the new evidence sought to be led was not subject to
the plea of
res judicata
as raised by the respondent, that the
causes of action giving rise to the 2016 case are different from
those canvassed in the 2008
case and that therefore the plea of
res
judicata
finds no application in the 2016 case. It was further
contended that the application of
issue estoppel
in
circumstances where the court failed to examine the factual basis of
the complaint based on new evidence, would create severe
hardship and
result in unfairness and inequity. I will in due course have regard
to the nature of the evidence which formed the
basis of Mr Maharaj’s
complaint before the court
a quo
.
[51]
Mr Boulle, while initially trying to defend the ruling of the court
a
quo
and the respondent’s position, was eventually
constrained to concede that some of the grounds relied on by Mr
Maharaj were
in fact not previously adjudicated upon. On this basis
he accepted, correctly in my view that such issues would have to be
fully
ventilated and for that purpose the matter would have to be
remitted back to the court
a quo
for a proper hearing.
FINDINGS
[52]
I have already dealt with the learned magistrate’s attitude
towards Mr Maharaj when proceedings commenced before him
on 25 May
2016. I have traversed this in some detail above. There is no point
in saying anything more on this aspect other than
to say that it
fills one with a sense of disquiet. What the learned magistrate
appeared to have forgotten completely is the fact
that he was sitting
as an Equality Court in which he was ordinarily required to approach
the complaint before him with some sensitivity
and with a measure of
dignity. He failed to appreciate that complaints that generally serve
before the Equality Courts have all
to do with unfair discrimination,
hurt feelings, lost opportunities and a loss of dignity and respect
arising out of one or more
of the prohibited grounds referred to in
Chapter 2 of the Equality Act. He failed to appreciate that the
proceedings in such courts
are less formalistic allowing for hearings
to take place expeditiously and to facilitate the full participation
of all parties
concerned. Ultimately he failed to allow Mr Maharaj
the opportunity to present his case before him. It is not clear why
the learned
magistrate adopted this attitude. Perhaps he was really
not fully prepared to hear the matter as he so often alluded to on
record.
Perhaps he was not really prepared to listen to a matter
involving a sensitive topic such as race. Or perhaps he did not
receive
the requisite training to deal with matters of this nature.
Whatever the position, I hold that his attitude rendered the
proceedings
unfair from the start and on this basis alone the matter
should be remitted to start afresh before a different judicial
officer.
[53]
Turning to the nature of the evidence that Mr Maharaj sought to lead,
Mr Boulle quite fairly and correctly, in my view, accepted
that the
evidence concerning Mr Maharaj’s psychological counselling and
his efforts to deal with his anger issues, is relevant
insofar as it
goes to establishing that he has redeemed himself and is a changed
person. The expert evidence he intends calling
is that of Professor A
E Gangat, a Specialist Psychiatrist, and Dr Meriam Motala, a Clinical
Psychologist. In my view, Mr Maharaj
should not be restricted to
these experts only and should be allowed to call any other evidence
on this issue should it be necessary.
This evidence is also relevant
to overcome one of the objections raised by the respondent regarding
his application for membership,
namely, the objection based on the
so-called ‘moral issue’ which the respondent continues to
throw into his face.
[54]
The nature of the second piece of evidence that Mr Maharaj intends
leading relates to the so-called ‘second Laird assault’
incident which occurred in 2012, well after the 2008 case and the
appeal that followed. This evidence is not only new but it is
also
relevant to the issue before the Equality Court. It must be borne in
mind that the appellant was suspended for a period of
five (5) years
for his assaults in 2002 while
prima facie
it appears that
Laird on the other hand was merely given a slap on the wrist. This
evidence would also establish whether the respondent
has
differentiated between Laird and Mr Maharaj on racial grounds by
continuing to provide stabling facilities to Laird while denying
such
opportunity to Mr Maharaj.
[55]
The third category of evidence relates to other white trainers from
outside the province who enjoy stabling facilities with
the
respondent while Mr Maharaj continues to be denied same. Once again,
this evidence may be relevant to show that the respondent
denies such
facilities to Mr Maharaj on racial grounds.
[56]
The fourth category of evidence relates to the re-employment of
certain white officials of the respondent. This evidence, while
strictly not relevant to the issue before the Equality Court is
nonetheless relevant insofar as the transformation goals set by
the
Board in terms of the KwaZulu-Natal Gaming and Betting Act are
concerned. According to Mr Maharaj the issue of re-employment
of
these officials was never raised or addressed in any of his previous
complaints which served before the Equality Court.
[57]
The fifth category of evidence also relates to the transformation
goals which are required to be met by the respondent in terms
of the
conditions set by the Board and which attach to the respondent’s
licence.
[58]
It bears mentioning that apart from the so-called moral issue which
the respondent continues to rely on for denying Mr Maharaj
stabling
facilities, the other reason is what it refers to as a ‘commercial
reason’. The respondent continues to raise
this as a reason to
show that Mr Maharaj is a bad debtor in that he still owes the
respondent moneys in respect of stabling facilities
previously held
by him. The evidence on record, however, suggests that by arrangement
with the respondent Mr Maharaj continues
to pay them R100,00 per
month and is in fact slightly ahead with his payments in this regard.
Perhaps it would be necessary for
him to satisfy the Equality Court
that the commercial reason advanced by the respondent in its letter
of 22 January 2016 is not
the real reason why he continues being
denied stabling facilities. In any event, I consider that the
respondent is obliged to assist
Black trainers such as Mr Maharaj
through its ‘transformation fund’ established in terms of
the KwaZulu-Natal Gaming
and Betting Act. Should the evidence
establish that Mr Maharaj as a previously disadvantaged individual
does in fact qualify for
such financial assistance, the commercial
reasons raised by the respondent could fall by the wayside.
[59]
All in all, I consider that the 2016 complaint lodged by Mr Maharaj
is based largely on a new cause of action which requires
adjudication
by the Equality Court. In my view, the Court is thus obliged to hear
the evidence before hastily concluding whether
a plea of
res
judicata
based on
issue estoppel
really finds application.
[60]
It must be borne in mind that Mr Maharaj’s complaint is
grounded in section 7 of the Equality Act which deals exclusively
with unfair discrimination on grounds of race. Sections 7(c) and (e)
make it clear that racial discrimination based on exclusivity
and the
denial of access to opportunities is unlawful. Of particular
importance in this regard is the denial of contractual opportunities
specified in s7(e).
[61]
Sections 4(i)(a) and 4(i)(b) specifically provide that cases brought
before the Equality Court must be determined expeditiously
and
informally. Paramount to these provisions is the issue of access to
justice in the form of access to a court. In this respect
as well the
court
a quo
erred in finding that the issues raised by Mr
Maharaj were traversed in previous litigation, without first hearing
the evidence.
Section 3(3) of the Act requires a presiding officer to
take into account the context of the dispute for purposes of the Act.
In
the present matter the context of the dispute raised by Mr Maharaj
can only be determined in light of the evidence that is called.
CONCLUDING
REMARKS
[62]
By all accounts this is a rather sad case. Inasmuch as it is a case
of one man’s pursuit of justice and the right to
engage in
economic activity of his choice in a country that guarantees such a
right, it is also symptomatic of the plight of thousands
of other
people in this country, mainly Black, who struggle on a daily basis
for justice, equality and more importantly, the right
to earn a
living.
[63]
As I pointed out earlier, Mr Maharaj’s battle to enter the
horseracing industry in this country started in 1989. Having
been
denied that opportunity by the Jockey Club because of the colour of
his skin, he was forced to leave the country to pursue
his passion in
Australia. Returning to the country in 1997 after the dismantling of
apartheid he could have been forgiven for believing
that his struggle
to enter the local industry would now be a smooth one. It was clearly
not. Fifteen (15) years on and after seeing
out his five (5) year
suspension in 2007, his battle to re-enter the industry continues
unabated. This is mainly due to the position
adopted by the
respondent which is in charge of horseracing in this Province. While
the respondent may seek to maintain that it
is a private company and
is entitled to act as it pleases, it should be reminded that it
operates under the auspices of the KwaZulu-Natal
Gaming and Betting
Act and the terms and conditions which are attached to its licence by
the Board. This being the case, it is
required by law, to give effect
to the transformation goals entrenched in the KwaZulu-Natal Gaming
and Betting Act and the rights
enshrined in the Constitution. By
continuously raising the so-called ‘moral’ and
‘commercial’ reasons for
excluding Mr Maharaj from the
industry the respondent shows that it is simply not prepared to
change.
[64]
I accordingly conclude that justice will be served if this matter is
remitted back to the Equality Court to commence
de novo
before
a different presiding officer. Mr Maharaj should be entitled to lead
whatever relevant evidence he wishes to relating to
the 2016
complaint. It goes without saying that the respondent will be
entitled to lead such evidence at it considers necessary
to prove, on
the facts before the court, that the discrimination that Mr Maharaj
alleges did not take place. As far as the issue
of costs is concerned
I hold that Mr Maharaj has been substantially successful in this
appeal and there is accordingly no reason
why he should not be
entitled to his costs.
ORDER
[65]
The order I make is the following:
65.1 The appeal is upheld and the ruling of the court
a
quo
is set aside.
65.2 The matter is remitted back to the Equality court,
Durban, to commence
de novo
before a different presiding
officer.
65.3 The respondent is ordered to pay the appellant’s
costs of appeal, such costs to include the costs of Counsel.
_________________
SEEGOBIN
J
I
agree.
_________________
BALTON
J
COUNSEL
FOR THE APPELLANT: Mr S Moodley
(Instructed
by Narain Naidoo & Associates)
COUNSEL
FOR THE RESPONDENT: Mr Boulle
(Instructed
by Barkers Attorneys)
DATE
OF HEARING: 23 September 2017
DATE
OF JUDGMENT: 17 September 2017
[1]
Anton-Hermann
Chroust and David L. Osborn, Aristotle's Conception of Justice,
(1942) 17 Notre Dame L. Rev.129, 134.
[2]
These background facts appear from two other judgments of this court
involving Mr Maharaj, namely (a)
Maharaj
v National Horseracing Authority of Southern Africa
2008 (4) SA 59
(NPD), and (b)
Maharaj
v Gold Circle (Pty) Ltd
[2012]
ZAKZDHC
82.
[3]
The
broad purpose and scheme of the Equality Act have been dealt with
extensively by Navsa JA in
Manong
v Department of Road
(No. 2)
2009 (6) SA 589
(SCA). I can do no better than to borrow
therefrom.
[4]
It
is to be noted that section 16 has undergone significant amendments
from when the Act first came into effect, for instance,
subsections
(2) and (4) referred to above have since been deleted. These
sections were referred to above to illustrate the training
requirement of the presiding officers in such courts.