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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: EC 09/2021
In the matter between:
C[...] P[...] Applicant
and
CLARISSA VENTER First Respondent
SCHOOL GOVERNING BODY FOR SANS SOUCI
GIRLS HIGH SCHOOL Second Respondent
MEC FOR EDUCATION, WESTERN CAPE Third Respondent
MINISTER OF THE DEPARTMENT OF BASIC EDUCATION Fourth Respondent
Coram: Justice J Cloete
Heard: 16 and 17 April 2024
Delivered electronically: 8 May 2024
JUDGMENT
CLOETE J:
Introduction
[1] On 5 February 2019 an incident occurred in the Grade 9 Afrikaans class at
Sans Souci Girls High School where the applicant was a learner and the first
respondent her teacher. That there was a physical altercation is not in
dispute, although exactly what happened, and why, has not yet been finally
determined.
[2] On 8 October 2021 (after withdrawing an Equality Court application in the
Wynberg Magistrate’s Court) the applicant launched the current application in
the Equality Court (Western Cape Division) in which she claimed a
combination of relief from such court ‘sitting as both Equality Court and High
Court’. Put differently, she approached the Equality Court on the basis that it
was permitted, without separate and parallel proceedings having been
instituted in the High Court, to entertain and determine some of t he relief
which, it is common cause, an Equality Court cannot grant, in particular
various declaratory orders based squarely on the Constitution (the “High
Court relief”).
[3] These were for orders declaring: (a) clause 10 of the school’s code of conduct
to be inconsistent with the Constitution and unlawful; (b) that the third and
fourth respondents (the MEC and Minister) have a duty to intervene where a
learner’s constitutionally protected rights are violated within the school
environment; and (c) that the alleged refusal by the MEC and/or Western
Cape Education Department to intervene in the particular circumstances of
the matter was inconsistent with the MEC’s constitutional d uties and/or
functions and/or obligations.
[4] In what I will refer to as the “Equality Court relief” the applicant claimed:
(a) declaratory orders that the school’s code of conduct unfairly discriminates
insofar as it prohibits learners ‘even among themselves ’ from speaking
languages other than English within the school premises, and that the MEC
and/or Western Cape Education Department have a duty to intervene where a
learner is subjected to disciplinary proceedings by the school without due
process being followed; (b) damages of R100 000 as a result of harassment
in terms of s 11 of the Equality Act; 1 (c) damages of R100 000 for impairment
of dignity; (d) damages in an amount to be determined by the court for pain
and suffering; (e) damages of R100 000 for emotional and psychological
suffering; (f) damages of R100 000 for assault, alternatively crimen injuria
(both under the common law); (g) an unconditional written apology by each
respondent; and (h) an order for implementation of ‘special measures to
address the harassment suffered’ by the applicant at the school. Although not
apparent from the notice of motion or founding affidavit the applicant stated in
her replying affidavit that the damages claims were against all of the
respondents jointly and severally.
[5] In the first respondent’s answering affidavit she disputed that any of the relief
falls within the jurisdiction of the Equality Court since: (a) none of the alleged
conduct of which the applicant complains falls within the definition of
‘discrimination’ in the Equality Act; and (b) section 11 of the Equality Act refers
to ‘persistent’ harassment which did not occur.
[6] In its answering affidavits the second respondent (the school’s governing
body) squarely disputed that the applicant’s cause of action falls within the
Equality Act, inter alia since the alleged conduct of the first respondent is not
a ‘prohibited ground’ for purposes of that Act.
[7] The parties subsequently agreed to separate the issue of jurisdiction of the
Equality Court from the merits. The third and fourth respondents did not
participate in the jurisdiction hearing, which came before me. The applicant,
first and second respondents further agreed that the issues to be determined
on jurisdiction are as follows:
7.1 Whether in matters before the Equality Court where the relief sought
does not fall solely within the jurisdiction of that court, the Equality
1 Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
Court may sit as both a High Court and Equality Court despite the
absence of parallel proceedings in the High Court; and
7.2 Whether the alleged acts of harassment and discrimination relied upon
by the applicant fall within the ambit of the Equality Act.
The first issue: may an Equality Court sit as both a High Court and Equality
Court despite the absence of parallel proceedings in the High Court?
[8] It was submitted on behalf of the applicant that it is axiomatic in matters
before the Equality Court where the relief sought does not fall solely within the
jurisdiction of that court, the Equality Court may sit as both High Court and
Equality Court. It was argued that the assortment of relief claimed as a whole
is all based upon the same factual and contextual matrix arising from the
same event. Properly interpreted, s 20 of the Equality Act enables this court to
order at this stage that the relief sought under the Equality Act will be
determined by the court clothed with its Equality Court powers , and the
remaining relief by the same court clothed with its inherent jurisdiction sitting
as a High Court. In support of this argument the applicant relies on Minister of
Environment Affairs and Tourism v George and Others ;2 Qwelane v Minister
of Justice and Constitutional Development and Others;3 De Lange v Methodist
Church and Another;4 S v Neotel (Pty) Ltd ;5 and Nelson Mandela Foundation
Trust and Another v Afriforum NPC and Others .6 The gist of the applicant’s
argument is that to find otherwise would be placing form over substance.
[9] The first and second respondents advanced essentially the same argument in
support of their opposition. Relying on s 165 of the Constitution and Manong
& Associates (Pty) Ltd v Department of Roads and Transport, Eastern Cape
and Another 7 they submit that when a court sits as an Equality Court it is
neither a High Court (when it sits at High Court level) nor a Magistrate’s Court
(when it sits at magistrate’s court level). Accordingly an Equality Court is a
2 2007 (3) SA 62 (SCA).
3 2015 (2) SA 493 (GJ).
4 2016 (2) SA 1 (CC).
5 2019 (1) SA 622 (GJ).
6 2019 (6) SA 327 (GJ).
7 2009 (6) SA 589 (SCA).
separate court and cannot assume the jurisdiction of the High Court where
there are no parallel proceedings pending in the High Court capable of
consolidation. It is only where there are such proceedings pending, and they
are consolidated with the Equality Court proceedings, that a High Court can
preside over both simultaneously , wearing two hats as it were. The first and
second respondents also submit that the authorities relied upon by the
applicant do not support her argument. In turn the applicant conte nds that
Manong is distinguishable.
[10] I turn to consider the parties’ respective arguments. Section 20 of the Equality
Act deals with the institution of proceedings in terms of or under that Act . In
terms of s 20(3) a presiding officer of the Equality Court must decide whether
a matter instituted under the Act should be heard in the Equality Court or
referred to another ‘appropriate institution, body, court, tribunal or other
forum’. In terms of s 20(4) in making such a decision the presiding officer
must take all relevant circumstances into ac count, including for present
purposes ‘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’ in s 20(4)(d). As I understand the
applicant’s argument, it is this subsection upon which she relies.
[11] The difficulty I have with her submission is that s 20(4)(d) refers specifically to
the development of judicial precedent and jurisprudence in ‘this area of the
law’. When regard is had to the preamble of the Equality Act this can only be
a reference to giving effect to the law pertaining to s 9 of the Constitution (the
equality clause). As senior counsel for the applicant himself made clear, the
very reason why the prior Equality Court proceedings were withdrawn in the
magistrate’s court was because only a higher court may determine the other
declaratory relief sought by the applicant under the Constitution. In my view
s 20(4)(d) cannot be interpreted in such a way as to mean that the
consideration of legal issues other than those arising within the context of s 9
should be taken into account when a presiding officer in the Equality Court
exercises the discretion contemplated in the subsection . The applicant’s
reliance thereon thus does not assist her.
[12] This is not to say that where the relief sought (based on equality law) can also
competently be granted by a High Court this detracts from the jurisdiction of
the Equality Court. As was held in George upon which the applicant relies:
‘[12] 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.
[13] 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.’
[13] Two provisions in the Equality Act need to be emphasised. First, s 3(3)
stipulates that ‘[a]ny person applying or interpreting this Act must take into
account the context of the dispute and the purpose of this Act ’. Second, in
terms of s 4(2) ‘[i]f any conflict relating to a matter dealt with in this Act arises
between this Act and the provisions of any other law, other than the
Constitution or an Act of Parliament expressly amending this Act, the
provisions of this Act must prevail.’ (my emphasis). And in George8 it was also
held that:
‘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…
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.’ (my emphasis)
[14] To put this into perspective it is necessary to quote at some length from
Manong. Before doing so I deal briefly with the relevant facts in that case and
the findings of the court a quo. The appellant had been disqualified during a
tender process due to scoring below the minimum points required for
functionality. It considered this to have occurred unlawfully and launched
urgent proceedings in the Equality Court for an interim interdict pending the
determination of final relief in the form of a review, an order declaring the
tender process to be inconsistent with s 217 of the Constitution, and a
direction that the first and second respondents’ procurement practices and
procedures should undergo an audit in a manner to be prescribed. The first
and second respondents opposed the main relief inter alia on the basis that
the Equality Court did not have the power to grant relief in the form of
administrative review.
[15] Having found that an Equality Court is not a separate court of a status similar
to either the High Court or Magistrate’s Court, and although s 21 of the
Equality Act does not provide for review powers, the court a quo held that an
Equality Court located at the High Court dealing with an adjudication dispute
8 At paras [10] and [11].
under the Equality Act could nonetheless exercise its High Court powers of
review. The learned Judge reasoned that the High Court power to review was
in terms of the common law as well as being a superior court with judicial
authority under the Constitution. In reaching this conclusion the learned Judge
relied on George, stating that:
‘The outcome of the George case in the Supreme Court of Appeal
lends support to the approach that when the High Court sits as an
“equality court for the area of its jurisdiction” in terms of s 16(1)(a) of
the Equality Act, it does so as a High Court with judicial authority under
the Constitution. The jurisdiction it exercises when doing so is its own,
as a High Court. There is, in my respectful view, no separate “equality
court” (either in the form of a court established under s 166(4) 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…
Perhaps it would be conducive to clarify to talk of the High Court
exercising “equality court jurisdiction” under the Equality Act rather than
the “equality court” having that jurisdiction. Use of the term “jurisdiction”
in that sense would denote that the High Court has jurisdiction to
determine the cause of action brought before it which is based on the
provisions of the Equality Act…
If used in that sense it would mean that there should be no obstacle to
single proceedings being brought in the High Court, based on a cause
of action under the provisions of the Equality Act, as well as any other
cause of action over which the High Court would normally have
jurisdiction.’9
9 Manong & Associates (Pty) Ltd v Department of Roads & Transport, Eastern Cape, and Others
(No. 2) 2008 (6) SA 434 EqC at paras [16] and [18].
[16] After considering the scheme of the Equality Act 10 the Supreme Court of
Appeal disagreed with the court a quo. It held that:
‘[54] In my view, Froneman J erred in stating that when the High
Court sits as an Equality Court it does so as a High Court with all the
powers and trappings of that court, including having jurisdiction in
respect of causes beyond those stipulated in the Equality Act.
[55] As stated above, the reasoning of the court below is as follows:
Equality is a fundamental constitutional value that underlies all
adjudication under the Constitution. Equality is an integral feature of
any adjudication in the High Court on any given day. When judges
adjudicate disputes under the Equality Act, it is the High Court itself
with all its attendant powers that is exercising equality jurisdiction.
[56] This view loses sight of the fact that when they are fulfilling their
obligations and exercising the powers of their office as judges in their
everyday adjudication, they do so within the powers that they have as
set out in the Constitution, the common law and the statutes that
specifically apply to them. They also do so in terms of the requirements
of the substantive law which they apply under the umbrella of the
Constitution. It is clear that any person who is the victim of racial or
other discrimination is not precluded from asserting his or her right to
equality as provided for in s 9 of the Constitution by the institution of
proceedings in the ordinary course in a High Court. The matter will then
be dealt with by the High Court, following the terms of its empowering
statute and its processes and rules.
[57] The Equality Court is a special animal. In modern language one
could describe it as ‘a special purpose vehicle.’ As stated above, it was
clearly designed and structured to ensure speedy access to judicial
redress by persons complaining of unfair discrimination. The
10 At paras [26] to [51].
infrastructure of magistrates’ and high courts are to be utilised.
Selected and ‘specially trained’ magistrates and judges are appointed
to preside at the seats of their existing respective courts and in relation
to a geographical area encompassing the territorial areas of jurisdiction
of those courts...
[62] Outside of the provisions of the Equality Act, high courts and
magistrates’ courts continue, on a daily basis, to uphold the
fundamental values of our Constitution within the parameters of their
powers. The Equality Court is an added tool to promote the
transformation of our society in realisation of our best aspirations. It is a
separate and distinct court with powers specified in its empowering
statute.
[63] As can be seen from the scheme of the Equality Act, dealt with
extensively above, the Equality Court has its own rules and
procedures, both in terms of the Equality Act and the regulations
framed thereunder. The provisions of the Magistrates’ Courts Act 32 of
1944 and the Supreme Court Act 59 of 1959 and the rules of the
Magistrates’ Court and the High Court play a limited part as provided
for in s 19(1) of the Equality Act and regulation 10(5)(d), the provisions
of which are set out in paras 33 and 39 above. The statutory provisions
and regulations apply in respect of the aspects set out in s 19(1)(a) to
(e) and only insofar as no other provision has been made in the
regulations under the Equality Act and for the purpose of
supplementing them.
[64] Section 19(1)(e), in stating that those provisions and rules apply
in respect of jurisdiction must, in the scheme of things, mean territorial
jurisdiction. Earlier in this judgment the provisions of s 19(3) of the
Equality Act were referred to. That subsection, it will be recalled, states
that a magistrates’ court sitting as an equality court is not precluded
from making orders contemplated in the Act which exceed its monetary
jurisdiction subject to confirmation by a judge of the High Court having
jurisdiction. This provision is understandable. The legislature, it
appears, was intent on ensuring that when an equality court matter was
being heard at the seat of a magistrates’ court a party against whom a
complaint was lodged was precluded from raising the monetary limit as
a jurisdictional point. As pointed out earlier in the judgment, this in itself
distinguishes magistrates’ courts from equality courts. The substantive
jurisdictional bases for the institution of proceedings are set out in ss 6
to 12 of the Act. These sections prohibit specified unfair discrimination
and other conduct. Section 21 provides extensive remedies and sets
out the powers of the Equality Court.
[65] High courts have inherent power to protect and regulate their
own process. Equality courts do not. The provisions of the Supreme
Court Act and the Uniform rules do not provide for this inherent power
and can therefore not be sourced through the Equality Act. The
Equality Court has only those powers and functions set out in the
Equality Act…
[69] The passage in George, a decision of this court, on which the
court below relied was obiter. In that case, this court was dealing with
facts clearly distinguishable from those in the present case and was not
required to confront the issue resolved in this appeal. In any event, for
the reasons set out above, the conclusions on which Froneman J relied
cannot be supported.
[70] For all these reasons I conclude that Froneman J erred in his
characterisation of the Equality Court. In my view, the error in his
reasoning was prompted because he was asked to consider, at the
outset, whether the Equality Court had ‘review’ jurisdiction. It was the
wrong question, which inevitably led to the wrong conclusion.
[71] The correct question was to ask whether Manong’s complaint
fell within the purview of the Equality Act. Clearly it did. The next step
was to look at the powers and functions of the Equality Court referred
to above. In the event of the complaint being sustained, any one of the
orders set out in s 21(f) to (i) was competent. That an order by the
Equality Court might have the same effect as an order made by a high
court on review, is merely coincidental.
[72] The attempts to typify or categorise the proceedings brought by
Manong is what led to the confusion. Labels are less important than
substance. In respect of Manong’s principal complaint, the Equality
Court clearly had jurisdiction. In the event of the success of that
complaint there would have been nothing further to adjudicate.
However, in the light of the conclusions reached as set out above, it
needs to be stated that only complaints or ‘causes of action’ provided
for by the Equality Act are suscept ible to adjudication by the Equality
Court. That court was set up for a particular purpose. Other causes of
action are accommodated in other appropriate fora. The Equality Court
was especially set up to deal with unfair discrimination and the other
issues provided for by ss 10 to 12 of the Equality Act, as described
above.’
[17] I accept that in Manong the applicant only approached the Equality Court and
not the Equality Court sitting as both Equality Court and High Court as is the
case before me. I also accept that the applicant does not seek any review
relief (which is the basis upon which she sought to distinguish Manong). But I
do not believe that it makes any difference having regard to the reasoning of
the Supreme Court of Appeal. To my mind it is rather the applicant arguing
the same issue from a different angle.
[18] For sake of completeness I deal briefly with the other authorities upon which
she relies. In Qwelane there were parallel proceedings instituted in the
Equality Court and the High Court which were consolidated by agreement
before adjudication. In De Lange the Constitutional Court remarked that there
was much to be said, in a matter involving an Equality Act question and an
unrelated one, for allowing the same court (i.e. a single judge) to decide both
questions, sitting alternately as the Equality Court and the High Court, but in
the context of a consolidation of parallel proceedings; 11 in Neotel the court
consolidated the parallel proceedings (although the heading of the judgment
refers only to the Equality Court case), again before adjudication; and in
Nelson Mandela Foundation Trust one of the parties raised a constitutional
challenge to s 10 of the Equality Act with the court stating as follows:
‘[11] Once the SAHRC raised the constitutionality of section 10 of the
Equality Act, albeit in the alternative, the case required the Court
to sit both as an Equality Court and as a High Court. This is
despite the mistake that the SAHRC made inadvertently by
maintaining the heading in its Notice of Motion and Founding
Affidavit as “Equality Court”, whilst their papers were in all
material respects for the High Court. It is a mistake for which the
SAHRC formally apologised at the hearing, which apology I
accepted. The consolidated hearing , which I allowed, was both
convenient and ideal in the circumstances.’ (my emphasis)
[19] To the extent that I have misunderstood the court’s reasoning in Nelson
Mandela Foundation Trust it is in any event not binding on me (being the
decision of a single Judge in another Division), whereas I am of course bound
by Manong. Having carefully considered the respective arguments of the
parties involved at this stage, as well as the authorities to which I have
referred, I am unable to accept the applicant’s argument that an Equality
Court may sit as both a High Court and Equality Court despite the absence of
parallel proceedings in the High Court.
The second issue: do the alleged acts of harassment and discrimination relied
upon by the applicant fall within the ambit of the Equality Act?
[20] The applicant has framed her first complaint as being harassment which is
defined in s 1 of the Equality Act as follows:
11 See para [58] thereof.
‘… unwanted conduct which is persistent or serious and demeans,
humiliates or creates a hostile or intimidating environment or is
calculated to induce submission by actual or threatened adverse
consequences and which is related to –
(a) Sex, gender or sexual orientation; or
(b) A person’s membership or presumed membership of a group
identified by one or more of the prohibited grounds or a
characteristic associated with such group…’ (my emphasis)
[21] Of the ‘prohibited grounds’ two are race and language, and these are relied
upon by the applicant. Section 11 of the Equality Act stipulates that ‘[n]o
person may subject any person to harassment’. As previously stated the first
respondent submits that the applicant cannot rely on a complaint of
harassment since she bases her case squarely on a single incident which can
never amount to ‘persistent’ conduct. The first respondent is incorrect since
the definition of ‘harassment’ encompasses conduct that is either persistent or
serious.
[22] In her founding affidavit the applicant alleged that the first respondent’s
conduct which ultimately resulted in her slapping the applicant’s face was
harassment falling within the first part of the definition ‘and which is related to
my membership of a racial group and my use of [the isiXhosa] language’.
Save for this allegation , the founding affidavit is silent on any evidence to
support her claim that the first respondent’s conduct was related to her race
and use of language. In Nedbank Ltd and Another v Survé and Others 12 the
Supreme Court of Appeal held as follows:
[22] Of course, the respondents’ view or perception that it was being
discriminated against on the basis of race is not sufficient to establish a
prima facie case. Their case was expressly inferential. Consequently,
12 [2024] 1 All SA 615 (SCA).
they were required to adduce facts sufficient to satisfy the equality
court that the inference of unfair racial discrimination they sought to
draw from the facts was more plausible than the alternative inference
drawn from the facts averred by Nedbank in its defence to the
charge.13
[23] This means that the respondents had to show that:
(a) the other impugned companies, which had not had their accounts
closed, were ‘white companies’, whereas the respondents, which had
faced closure, were ‘black companies’;
(b) these two groups were similarly situated in all other respects apart
from race; and (c) the reason for this differential treatment was the race
of the companies.
Without this, a plausible inference could not be drawn that it was the
victim of unfair racial discrimination by Nedbank…’
[25] Effectively, the respondents’ case rested on no more than an
assumption of racial designation. That assumption was insufficient to
establish even a prima facie case that Nedbank had treated the
respondents, as black customers, differently from white customers…’
[23] It is common cause that it was at an advanced stage of the incident when the
applicant made a comment in isiXhosa which the first respondent did not
understand, since she is not proficient in the language. The significance of
this occurring at an advanced stage is that it did not spark the altercation.
According to the applicant what started it was the first respondent insulting the
class as a whole for the failure by most of them to bring their Afrikaans
textbooks to class. The applicant’s version is that she took umbr age at the
insults and this started the incident.
13 Referring to Cooper v Merchant Trade Finance Limited 2000 (3) SA 1009 (SCA) at para [7].
[24] The first respondent’s version is that the applicant, as had been the case in
the past, was not participating in the class at all and was actively disruptive.
She had also not done her homework and when reprimanded she became
insolent and aggressive. She also yet again broke a school rule that cell
phones are not allowed in class and refused to heed the first respondent’s
instruction to put it away, grabbing her cell phone and thus deliberately
provoking and disrespecting the first respondent in front of th e entire class.
The first respondent also alleges that it was classroom practice to speak and
respond in Afrikaans which is understood by all in the class, and the applicant
was not deprived of her right to use her language of choice (isiXhosa) while
class was not in session.
[25] In its answering affidavits the second respondent supported the first
respondent’s version pertaining to the applicant’s past behaviour. It alleges
that in August 2018 fifteen fellow learners provided statements related to the
applicant’s bullying behaviour, disrespect to fellow learners and educators and
in particular her disruption of classes. In September 2018 the applicant was
charged with the theft of a classmate’s tablet. She pleaded guilty to this
charge at a disciplinary hearing. In January 2019 the applicant was involved in
a physical fight with a classmate in class. This fight continued to the reception
area in full view of visitors, staff and other learners. The applicant was placed
on warning for this incident. She also regularly failed to do her homework and
was regularly late for school. She seldom had the necessary textbooks with
her. During 2018 she was absent from school for 55 days, even absenting
herself during examination times. She was referred to the school psychologist
and counsellor bu t refused to avail herself to them. The second respondent
alleges that:
‘From the aforesaid, it is clear that the Applicant is an insolent learner.
It follows that the incident that occurred on 5 February 2019 is merely
the… First Respondent’s reaction to the Applicant’s insolence and
nothing to do with unfair discrimination on the basis of racism…
[26] The second respondent also alleges that during 2017, apart from Afrikaans,
isiXhosa was introduced as an option for first additional language. Learners
could thus choose either Afrikaans or isiXhosa as their first additional
language (FAL). The applicant of her own volition elected to do Afrikaans
instead of isiXhosa. Apart from the FAL’s, all other classes are taught in
English as this is the language of teaching and learning at the school. The
second respondent is also an English Medium School. The second
respondent thus denied that the applicant was discriminated against, either on
the basis of race or language. In her replying affidavit, while alleging that the
first and second respondents attempted to justify the first respondent’s
behaviour due to provocation by the applicant, she did not deny any of the
factual allegations pertaining to her past behaviour or the complaints of other
learners, which, it is also common cause, are predominantly not members of
the white race.
[27] The applicant’s second complaint of discrimination based on language is that
the school’s code of conduct prohibits learners ‘even among themselves from
speaking languages other than English within the school premises’. This
allegation was demonstrated to be factually untrue. The second respondent
referred to clause 10 of its code of conduct which reads as follows:
‘Language
All classes except for First Additional language classes are conducted
in English. Thus, English must be spoken during these classes. Home
languages may only be used to enhance understanding and with
permission from the teacher. Pupils are permitted to speak their home
languages outside the classroom but we encourage pupils to practice
inclusivity. Home language use must not be used as a bullying tactic,
or to deliberately exclude or gossip about others.’ (my emphasis)
[28] The applicant did not dispute clause 10 of the school’s code of conduct in
reply. Accordingly, applying the principles laid down very recently in
Nedbank14 I am compelled to conclude that the applicant’s view or perception
that she was being discriminated against on the basis of race and language,
without laying any evidential basis, is not sufficient to establish a prima facie
case for purposes of s 13(1) of the Equality Act. Put differently, bare
allegations do not equate to establishing a prima facie case. It follows that the
alleged acts of harassment and discrimination relied upon by the applicant do
not fall within the ambit of the Equality Act, and the Equality Court lacks
jurisdiction.
Conclusion
[29] Given particularly the first issue for determination in this case, the applicant,
first and second respondents were all in agreement that, irrespective of the
outcome, no order should be made as to costs. Given that the third and fourth
respondents did not participate in this hearing it appears to me to be
appropriate that the same should apply to them.
[30] The following order is made:
1. The application is dismissed; and
2. Each party shall bear their own costs.
J I CLOETE
For applicant: Adv D Ntsebeza SC with Adv T Sidaki
Instructed by: Legal Aid South Africa (Ms R Carstens)
For first respondent: William Booth Attorneys (Mr W Booth) assisted by
Adv J Aspeling
For second respondent: M Esau & Assoc. (Mr M Esau)
For third and fourth respondents: Office of the State Attorney (Mr L Manuel)
14 See fn 12 above.