Minister of Environmental Affairs and Tourism v George and Others (437/05 , 437/05) [2006] ZASCA 57; 2007 (3) SA 62 (SCA) (18 May 2006)

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[2006] ZASCA 57
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Minister of Environmental Affairs and Tourism v George and Others (437/05 , 437/05) [2006] ZASCA 57; 2007 (3) SA 62 (SCA) (18 May 2006)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case no: 437/2005
REPORTABLE
In the appeal between:
MINISTER OF
ENVIRONMENTAL AFFAIRS AND TOURISM
Appellant
and
KENNETH GEORGE
First respondent
TRUSTEES OF THE
MASIFUNDISE DEVELOPMENT TRUST
Second respondent
JOHN SPAMI
NKUNZANA
Third respondent
JAPIE BRITS
Fourth
respondent
NORTON
DOWRIES
Fifth respondent
PETER
CORAIZIN
Sixth respondent
ARTISANAL FISHERS ASSOCIATION OF SOUTH AFRICA
Seventh respondent
Before: Harms, Zulman, Cameron, Lewis and Jafta JJA
Heard: Tuesday 2 May
2006
Judgment: Thursday 18 May 2006
Equality Court – power under
Promotion of Equality and
Prevention of Unfair Discrimination Act 4 of 2000
to refer case to
‘appropriate forum’ – court has discretion – when not
exercised, no ‘judgment or order’ capable of being
appealed –
leave to appeal against orders of equality court in any event
required
Neutral citation: Minister of Environmental Affairs and Tourism v
George [2006] SCA 57 (RSA)
JUDGMENT
_______________________________________________________
CAMERON JA:
The Minister of Environmental Affairs and Tourism (the Minister)
appeals against a refusal by a judge sitting in the equality court
in Cape Town to refer this case to the high court as a more
appropriate forum to hear it. In December 2004, the respondents,

individuals and organisations claiming to represent about 5000
artisanal fishers (the fishers), lodged simultaneous applications
in
the high court and in the equality court at Cape Town. (Artisanal
fishers are small-scale fishers who use traditional low-technology
methods to catch fish, not on a large commercial scale, but to make
a living through local sale or barter and to feed themselves
and
their families.) The fishers lodged a single set of papers in both
courts, claiming that the Minister had failed to provide
them with
just access to fishing rights, and seeking an order giving them
equitable access to marine resources. But they asked
that, before
their high court claims be considered, the equality court hold an
inquiry into their causes of action under the Promotion
of Equality
and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality
Act). The Minister sought to block this. He asked
the equality
court to refer the entire matter to the high court, but NC Erasmus J
refused;
1
hence this appeal, for which the Minister neither sought nor
obtained leave.
Before the appeal can be enrolled, the Minister requires condonation
for various procedural lapses, most signally the late filing
of his
notice of appeal. The respondent fishers dispute the explanation
the Minister proffers; and it is common cause that the
fate of the
condonation application turns on whether the merits of the appeal
are sound. But two factors render these deeply flawed:
(a) the
equality court’s refusal to refer the matter to the high court,
which entailed a discretionary decision entrusted to
it, did not
embody a judgment or order capable of being appealed, and the order
the Minister sought was incompetent; and (b) leave
is in any event
required for an appeal to lie from orders of the equality court.
(a) No appealable order; order Minister sought in any event
incompetent
The equality court is established by s 16 of the Equality Act, which
was enacted in fulfilment of the Constitution’s central
equality
clause.
2
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 (sections 6-12, read with s 1), and
vests
equality courts with extensive procedural and remedial powers in
complaints of unfair discrimination (s 21).
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 magistrate’s 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 (2)). The Minister for Justice and Constitutional
Development must also designate magistrates’ courts
as equality
courts (s 16(1)(c)).
The statute obliges an equality court before which proceedings are
instituted to hold an inquiry in the manner prescribed in the
regulations
3
and to ‘determine whether unfair discrimination has taken place as
alleged’ (s 21(1)). But when a complainant lodges an equality
complaint, the statute first obliges the equality court to determine
where the matter should best be heard. It requires the court
to –
‘
decide
whether the matter is to be heard in the equality court or whether it
should be referred to another appropriate institution,
body, court,
tribunal or other forum (hereafter referred to as an alternative
forum) which, in the presiding officer’s opinion,
can deal more
appropriately with the matter in terms of that alternative forum’s
powers and functions’ (s 20(3)(a)).
4
Before making a decision
to refer a matter to another forum, the statute obliges the presiding
officer to ‘take all relevant circumstances
into account’,
including the following:
‘
(a) The personal circumstances of the parties and
particularly the complainant;
(b) the
physical accessibility of any contemplated alternative forum;
(c) the needs
and wishes of the parties and particularly the complainant;
(d) the
nature of the intended proceedings and whether the outcome of the
proceedings could facilitate the development of judicial
precedent
and jurisprudence in this area of the law;
(e) the views of the appropriate functionary at any
contemplated alternative forum.’ (s 20(4))
Section 20(5)(a) provides that if the presiding officer decides to
refer the matter to an alternative forum, he or she must ‘make
an
order’ directing the clerk of the equality court to refer the
matter. What emerges signally from this statutory wording –
and
is fatal to the Minister’s appeal – is that the court makes an
order when re-directing a matter: but does not do so otherwise.
And
this is logical. For once a complaint of unfair discrimination is
properly before an equality court, the statute vests it
with
jurisdiction to hear the matter, and no further order is required to
render the court competent, nor is any order required
for it to
retain its competence.
By providing that the court may refer a matter to ‘another
appropriate institution’, the statute acknowledges not only the
potential intricacy of unfair discrimination claims, but the range
of other institutions that could afford appropriate assistance
in
resolving them. But the avenue so created, far from being intended
to deprive the equality court of its jurisdiction, is premised
on
its continuing jurisdiction, with the result that in cases of
non-referral no express order need be given.
If the alternative forum does not resolve the matter to the
satisfaction of either party, and either party so requests, the
alternative
forum must refer the matter back to the equality court
(s 20(8)). The equality court’s jurisdiction thus persists: the
redirection
entails only a conditional exploration of appropriate
institutional alternatives. Where there is no redirection, the
unavailing
application has no executive impact on the process, for
the presiding officer has declined to exercise the discretion to
redirect,
and the proceedings continue as before. Since in that
event no ‘judgment’ or ‘order’ is either necessary or
appropriate,
the Minister’s application stumbles on the first
criterion of appealability.
5
I would in any event add that the equality court’s decision
whether to redirect a matter entails a discretion with which this
court will interfere only when the equality court fails to exercise
it judicially.
6
Counsel for the Minister was invited, with reference to the
judgment in court below, to indicate what considerations NC Erasmus
J had misapplied, and what factors he had erroneously taken into
account, but was unable to suggest any basis for a case of
misdirection.
There is a further consideration. The Minister contended both
before us and in the equality court that the high court was a more
appropriate institution to hear the matter. But in my view such a
redirection would have been incapable, since the high court
did not
fall within the category of alternative fora to which the equality
court was in this case empowered to refer the matter.
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 magistrate’s court, but
it is not
necessary for us to decide that now. What is clear is that in these
circumstances a high court is not intended.
This appears most obviously from the ‘relevant circumstances’
the presiding officer must take into account in terms of s 20(4).

These include ‘the views of the appropriate functionary at any
contemplated alternative forum’ (s 20(4)(e)): it is neither
apparent who the ‘appropriate functionary’ in the case of a high
court would be nor, if it is a high court judge, how his or
her
views would be obtained. The entire process of conditional
exploratory referral is alien to the functioning of a high court.

It must therefore be concluded that the legislation does not
contemplate that a high court sitting as an equality court can refer
a matter to itself in another capacity.
The jurisdiction and powers that the statute confers on equality
courts is wide, and counsel for the Minister was obliged to concede
that at least some of the relief the fishers seek lies solely within
the jurisdiction of the equality court. The fishers conceded
that
all their claims arise from substantially the same facts, and that
they are all directed at substantially the same relief:
but they
pointed out that the claims are based on a range of different causes
of action. Some of the relief they seek the high
court has no
jurisdiction to consider or grant – most notably, their prayer for
an inquiry in terms of s 21(1) of the Equality
Act. The fact that
much of the other relief they seek could also be granted by the high
court does not detract from the equality
court’s jurisdiction, nor
is it a reason to deprive the fishers of the procedural benefits
they hope will accrue from proceeding
in the equality court.
Conversely, some of the relief the fishers seek can be adjudicated
only by the high court – for instance their claims based on
constitutional provisions other than equality, such as those
conferring a right to choose a trade or occupation (Bill of Rights
s
22) and access to socio-economic rights (Bill of Rights s 27). But
this again does not entail that the equality court cannot
first (or
concurrently) adjudicate upon the claims that are properly before
it.
I conclude that the scheme of the Equality Act does not envisage an
appealable order when a presiding officer decides against referring
a matter to another forum, and that the referral to the high court
the Minister sought was in any event incompetent because the
high
court sitting as an equality court cannot refer a matter to itself
in the former capacity. The appeal therefore founders
at the first
hurdle.
Leave to appeal in any event required for appeal to lie from
equality court decision
The Minister seeks to appeal directly to this court, without having
sought or obtained leave. He says that s 23(1) of the Equality
Act
grants him an untrammelled right of appeal. This provides that ‘Any
person aggrieved by any order made by an equality court
in terms of
or under this Act may … appeal against such order to the High
Court having jurisdiction or the Supreme Court of Appeal,
as the
case may be.’ In conjunction with this, counsel for the Minister
pointed out, the regulations indicate merely that any
person wishing
to apply for leave to appeal against any order of the equality court
must, within fourteen days of the order, deliver
a notice of appeal
(reg 19).
But the Equality Act makes the provisions of the Supreme Court Act
59 of 1959, and the rules under it, applicable ‘with the necessary
changes required by the context’ to (amongst other matters)
questions of ‘jurisdiction’ (s 19(1)(e)). And the Supreme Court
Act provides in general terms that no appeal shall lie against a
judgment or order of the court of a provincial or local division
of
the high court in any civil proceedings (or against any judgment or
order of that court given on appeal to it) unless leave
to appeal is
granted (s 20(4)). This court’s jurisdiction to hear appeals from
the high court (and, with the necessary changes,
the high court
sitting as an equality court) is conditioned by the provisions of
the Supreme Court Act.
7
The effect of these provisions is therefore that no appeal lies
against a judgment or order of the high court sitting as an equality
court in any civil proceedings unless leave to appeal is granted.
The appeal is for this additional reason incompetent.
‘
Expeditious and informal processing of cases’
It is finally apposite to make some observations on the course these
proceedings have taken. As NC Erasmus J pointed out, the
question
of double jurisdiction this case raises is not unique, and is likely
to arise in every case brought under the Equality
Act: and there is
no reason why those who have interrelated remedies under the
equality statute and other legislation should not
be entitled to
pursue their remedies in parallel proceedings before the high court
in its capacity as an equality court, and the
high court in its
ordinary capacity.
8
One of the Equality Act’s ‘guiding principles’, which is to be
applied in the adjudication of any proceedings instituted
under the
Act, is the ‘expeditious and informal processing of cases’ (s
4(1)(a)). In addition, the statute requires that the
regulations
under it relating to procedure must, as far as possible, ensure that
the application of the Act is ‘simple, fair
and affordable’ (s
30(5)). It is ironical, to say the least, that the fishers’
attempt to invoke the benefits they conceive
will flow to them from
the establishment of the equality courts has produced a procedural
mire which has cost both sides considerable
expenditure of time and
money and effort. The Minister based his argument that the matter
should be referred to the high court
on the fact that the equality
court does not have jurisdiction over the bulk of the relief the
fishers seek, and on the contention
that their claims are both
premature (given the pending re-allocation of fishing rights) and a
‘disguised and belated review’
(regarding allocations that have
run their course). As counsel for the fishers pointed out, if the
Minister is correct in these
submissions, the equality court will in
due course non-suit the fishers. But what the Minister cannot do is
to deny them their
day in that court. They are entitled to claim
the assistance and protection the legislature afforded litigants who
wish to press
equality claims when it enacted the Equality Act.
The fishers, for their part, say that they instituted parallel
proceedings in the high court and the equality court with the
express
intention of ‘achieving cost efficiency and through
synchronicity between the two procedures’. Given that the problem
of concurrency
will inevitably recur, the most productive and
expeditious way of achieving efficiency would seem to lie in the
matter being referred
to the same high court judge who, in his
capacity as an equality court judge, is presiding in that court.
ORDER
The application for condonation is refused with costs.
The appeal is struck from the roll with costs.
E CAMERON
JUDGE OF
APPEAL
CONCUR:
HARMS JA
ZULMAN JA
LEWIS JA
JAFTA JA
1
George
v Minister of Environmental Affairs and Tourism
2005 (6) SA 297
(EqC).
2
Equality
9 (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 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.’
3
GN
R764, Government Gazette 25065 of 13 June 2003. Reg 10 deals with
the powers and functions of an equality court. Reg 10(1)
provides
that the inquiry ‘must be conducted in an expeditious and informal
manner which facilitates and promotes participation
by the parties’.
Reg 10 (3) provides the proceedings ‘should, where possible and
appropriate, be conducted in an environment
conducive to
participation by the parties’.
4
Reg
6(4) of the regulations promulgated in terms of s 30 of the Equality
Act (GN R 764, GG 25065 of 13 June 2003) requires the presiding
officer in the equality court, within seven days after receiving the
documentation relating to the matter, to decide ‘whether
the
matter is to be heard in the court or whether it should be referred
to an alternative forum’.
5
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A) 531B-C.
6
Ex
parte Neethling
1951 (4) SA 331
(A) 335D-F, per Greenberg JA: ‘Can it be said in the present case
that the Court a quo exercised its discretion capriciously
or upon a
wrong principle, that it has not brought its unbiased judgment to
bear on the question or has not acted for substantial
reasons?’;
LTC Harms
Civil Procedure in the Superior Courts
(1990, with
updates) para C1.39.
7
New
Clicks South Africa (Pty) Ltd v Minister of Health
2005
(3) SA 238
(SCA) para 22.
8
2005
(6) SA 297
(EqC) para 27.