REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION JOHANNESBURG, SITTING AS THE
EQUALITY COURT )
Case No: EQ10 /2023
IN THE MATTER BETWEEN:
TUNI ERENS MADIMABE APPLICANT
AND
SINKISA CORNELIUS MOSITO 1st RESPONDE NT
HELLEN DITSHWENE 2nd RESPON DENT
JUDGMENT
SIWENDU J
DELETE WHICHEVER IS NOT APPLICABLE
) REPORTABLE: NO
) OF INTEREST TO OTHER JUDGES: NO
) REVISED
27.01.2025
DATE SIGNATURE
[1] This is an application brought in terms of the Promotion of Equality and
Prevention of Unfair Discrimination Act No 4 of 2000 (Equality Act), assigned
to this Court , sitting as the Equality Court (the Court) .
[2] The complainant, is M r Madimabe , (Mr Madimabe) as defined by the
Equality Act. The first respondent , Mr Sinkisa Cornelius Mosito (Mr Mosito) is
an attorney currently practising at Tlhaku Attorneys . He previously worked at
Chitoo Naran Attorneys . The r elevan ce of the change in Mr Mosito ’s
employment w ill be apparent l ater in the judgment. Mr Masito filed an opposing
affidavit seeking a dismissal of the complaint. The second respondent is Mrs
Hellen Di tshwene also known as “Granny.”
[3] Mr Madimabe appeared before the Court as an unrepresented litigant . The
genesis of his complaint stems from the Mphe -Bophelo Bakery and Brick
Community Project , a Co-operative initiated by Mr Madimabe , his wife and
members of the community of Maile . The second respondent, occupied a part of
the property , described as 64b Motseng Section Maile / Rooikraal , seemingly
with the consent of Mr Madimabe and the community.
[4] A disagreement ensued between the second respondent and Mr Madimabe ,
and a section of the community about her right to occupy and operate the
enterprise conducted on the property.
[5] Represented by Mr Mosito while then in the employ of Chitoo Naran
Attorneys, on 2 December 2019 , the second respo ndent applied and obtained a n
interim order before the Tlhabane court against Mr Madimabe in terms of the
Protection from Harassment Act,1 under Case No 469/2019. The interim order
was made final after the return date on 27 the January 2020. The record of
correspondence (including Mr Mosito ’s opposing affidavit ) reveals that a written
judgment in the matter was delivered on 15 May 2020 .
1 Act No 17 of 2011
[6] Mr Madimabe filed a complaint under the Equality Act and n otified the
Clerk of the Equality Court of his intention to institute proceedings against the
respondents in the manner prescribed2 by the Act . He alleged that:
i. Mr M osito assisted the second respondent to “rob us of our property ”
ii. The second respo ndent misrepresented that she was grant ed a legitimate
right to occupy the property by the “BDO ”
iii. When challenged the respo ndents failed to provide detail s of the names of
the person involved , hence the harassment order against him .
[7] In his replying affidavit dated 3 Oc tober 2023 , he states that the
respo ndents collude d to harass him using the Tlhabane Court to unfairly
discriminate against him. His application to set the judgement aside on 7 March
was never attended to .
[8] Section 21(1) of the Equality Act enjoins the Equality Court before which
proceedings are instituted to hold an inquiry in the prescribed manner and
determine whether unfair discrimination has taken place, as alleged .
[9] The Guiding Principles in S ection 4(1) (a) and (b) of the Equality Act, and
which state that:
"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.
[10] In line with the Guiding Principles, a fter considering, the record of the
complaint, the papers filed , and taking into account that Mr Madimabe was not
legally represented in respect of the complain t, on 22 April 2024, the Court
convened an inquiry with to ascertain nature of his complaint to determine
2 Section 20 ( 2)
whether it raises an “equality ” issue and or discrimination on the prohibited
grounds defined in the Act .3 , which to include:
[11] At the inquiry held on 22 April 2024, Mr Madimabe confirmed the
allegation that they were “robbed” of their property . He repeated the centre of the
complaint against Mr Mosito , namely that he assisted the second respondent “ to
rob us of our proper ty” and advised them that she was given the “(Mphe -Bophelo
project) “by the BOD which to date he has failed to give me their names. ”
[12] The record filed showed that o n 28 May 20 21, Mr Madimabe wrote to
Chitoo Naran attorneys , demanding informatio n pertaining to details of
instruction given to the attorneys by the second respondent.
[13] On 4 June 2021, Chitoo Naran Attorneys reiterated that the dispute about
the second respondent’s right to occupy the was ventilated at the hearing of the
Harassment Case the previous year. They refused further engagement s with him.
[14] Mr Madimabe turned to the Legal Practice Council (LPC) and lodged a
complaint against Mr Mosito . On 26 Jul y 2022 , the Investigation Committee of
Legal Practice Counc il dismissed the complaint and found that there was no
misconduct or unprofessional conduct in terms of Section 37.1 of the Legal
Practice Act 28 of 2014 read with Rule 40 by Mr Mosito and informed him of the
outcome.
[15] At the inquiry held on 22 April 2024 , the details of the discrimination and
or equality complaint remained elusive, and the nature of the discrimination or
equality issue raised unclear . Importantly, Mr Madimabe confir med that he:
i. appealed the decision Investigation Committee of the LPC. However, there
were no documents indicating an outcome had been made.
3 “…. 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 outcome.”
ii there were no documents on record pertaining to the appeal of the
Protection Order obtained against him .
[16] It appeared a prima facie case in terms of the Equality Act he had not made
out. Since Mr Madimabe was an unrepresented litigant, the Court i nformed him
that based on information before it, his remedy may well lie in an appeal against
the decision of the Magistrate to set aside the protection. However, it made no
determination or order to this effect , but instead directed him to:
i. Approach the Magistrate’s Court to ascertain whether it ha d a record in
respect of the protection order against him.
ii. Obtain information about the allegations of a depriv ation of the land
issue.
iii. Seek Legal Aid assistance so that a n Equality Case if any, could be
mounted on his behalf and thereafter.
iv. File the information referred to with th is Court’s Registrar after which a
final order will issue.
[16] Instea d of complying with the direction by the Court, Mr Madimabe filed
a complaint and a voluminous bundle of documents with the office of th e Deputy
Judge President (DJP) of the Division .
[17] In accordance with the Regulations, the presiding judge should decide
whether the matter is to be heard in the Equality Court or an alternative tribunal .
This judgment is confined to the information supporting the complaint under the
Equality Act.
[18] On 28 November 2024 , the Court reconvened the inquiry , heard
representations from Mr Madimabe . The nature of the complaint has not changed.
Instead, the additional documents filed on record reveal that:
i. He was represented by one Ms Matshidiso Kole the harassment case.
ii. On 27 November 2020 , he served a notice to appeal the protection order
and judgement by the Tlhabane court on the respondent .
iii. The decision to appeal the finding of the investigation committee of the
LPC in respect of the alleged un professional conduct against Mr Mosito
was pending .
iv. He a pproached the South African Human Rights Commission to lay a
complaint about the property .
v. In addition, he request ed the of assistance from the Royal Bafokeng
Administration.
vi. He also lodged a complaint with T ribal Court of the local area , alleging
that several people who are members of the community committed fraud
and or a misrep resentation regarding the property involving the second
respondent.
vii. The Tribal Court declined to deal with allegations of fraud against certain
individuals, recommending he lays a criminal charge against them with the
local police.
viii. He laid a charge of fraud against a several people who are members of the
community with the South African Police Services (SAPS ).
ix. Lodged a complaint against the court the Office of Protector . There is a
threat of a d efamation application against him.
[19] The purpose of the Equality Act is to prevent direct or indirect
discrimination of any person on prohibited grounds listed Section 1 (1) (a) and
(b). The facts in Mr Madimabe’s complaint do not raise an equality and or
discrimination issue or conduct on the prohibited grounds. There are other
remedies available to him in law to address the second respondent’s occupation
of the property other than a complaint to this Court.
[20] In the result , I make the following order:
a. The application is dismissed with no order as to costs.
______ _
NTY SIWENDU
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
JOHANEESBURG
This Judgment is handed down electronically by circulation to the Applicants’ Legal
Representative and the Respondent by email, publication on Case Lines. The date for the
handing down is deemed 28 January 2025
Date of appearance: 2 8 November 2024
Date Judgment delivered : 27 January 2025
Appearances:
For the Applicant: In person
For Respondents: Appearance not required by the Court