IN THE EQUALITY COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: No
1 0 February 2025
DATE SIGNATURE
CASE NO: 23910/2022
In the matter between:
ALFRED MOKODI TOA First Complainant
ALIMAG PHARMACIES (PTY) LTD Second Complainant
NTEBENG MOKODITOA Third Complainant
HUMPREY MOKODITOA Fourth Complainant
PHETOLO PHARMACY (PTY) LTD Fifth Complainant
HASANI MMOLA Sixth Complainant
MPHALANE PHARMACY (PTY) LTD Seventh Complainant
DONALD MASUBELELE Eigth Complainant
MOKHONDO PHARMACY (PTY) LTD Ninth Complainant
AND
COUNCIL FOR MEDICAL SCHEMES First Respondent
DISCOVERY HEALTH MEDICAL SCHEME Second Responden t
BONITAS MEDICAL SCHEME Third Respondent
MEDSCHEME ADMINISTRATOR Fourth Respondent
HOSMED MEDICAL SCHEME Fifth Respondent
THE SOUTH AFRICAN POLICE SERVICES Sixth Respondent
MEDICAL SCHEME (POLMED)
MEDICAL SCHEMES (GEMS) Seventh Respondent
DR. BOJOSHI O.S. MOLOABI Eight Respondent
THE MINISTER OF HEALTH Ninth Respondent
THE MINISTER OF PUBLIC SERVICES Tenth Respondent
AND ADMINISTRATION
MS ANITA DU TOIT Eleventh Respondent
GILDENHUYS MALATJI INC Twelve Respondent
This judgment is issued by the Judges whose names are reflected herein
and is submitted electronically to the parties/t heir legal representatives by
email. The judgment is further uploaded to the electronic file of this matter
on CaseLines by the Senior Judge ’s secretary. The date of this ju dgment is
deemed to be 10 February 2025.
_____________________________ ______________________________
RULING
_____________________________ ______________________________
COLLIS J
INTRODUCTION
1] In the present matter the Complainants approache d the Equality Court
for relief contending that they have been discriminated against on the basis
of race.
2] In Manong1 the Supreme Court formulated the role of the Equality Court
as follows :
‘It is abundantly clear that the Equality Court was established in order to
provide easy access to justice and to enable even the most disadvantag ed
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. ’
3] The Equality Court itself is established by section 16 of PEPUDA which
states that every High Court “is an equality court for the area of its
jurisdiction. ” Section 23 of the Act provides for the High Court to sit in
appeal against any decision of the Equality Court. The powers an d functions
of the Equality Court are restricted to those conferred upon it by PEPUDA.
4] The Act itself prohibits unfair discrimination on a number of identified
grounds such as, amongst others, race, gender, sex, sexual orientation,
disability or age ( identified grounds). It allows a person who claims to be a
victim of such discrimination to approach the Equality Court for relief.
1 Manong and Associates (Pty) Ltd v Department of Roads and Transport, Eastern
Cape and Others [2009] ZASCA 50; 2009 (6) SA 589 (SCA); [2009] 3 All SA 528
(SCA) para 53.
5] In Afriforum NPC v Nelson Mandela Foundation Trust and Others it was
held:
“[24] The Equality Court is a specialised co urt with expedited rules
and an informal procedure. It applies different evidential thresholds
to that of a high court.13 The object of the Equality Act is to make
the Equality Court as accessible as possible. The formal,adversarial
court process of other courts, which are often costly and potentially
intimidating, have no place in the Equality Court. Proceedings may
be instituted by any person acting in their own interest or any person
acting on behalf of another who cannot act in their own name. The
Regul ations made under the Equality Act prescribe the procedures to
be followed at an inquiry, and create an informal court system which
places substance above form or technicality. ”
6] PEPUDA obliges an equality court in which proceedings are instituted to
hold an inquiry in the manner prescribed in the regulations and to
“determine whether unfair discrimination, hate speech or harassment . . .
has taken place, as alleged ” and nothing more. ”
BACKGROUND
7] The present matter thus far has been littered with procedural challenges.
Not only on the part on the Complainants, but also on the part of the
Administration in its failure to assist and guide the Complainants regarding
precisely with what the Act envisage s.
8] Before this Court , the First Complainant complains that his medical aid
membership was terminated by the acts or omissions of GEMS through the
actions of the latter ’s principal pffoce, Dr Stanley Moloabi .2 Pursuant
thereto, litigation ensued including appeals to the Council for Medical
Schemes (CMS) , which ordered for his medical aid membership to be
restored .
9] In an attempt to obtain further legal redress , the complainants
approached the Equalit y Court around May of 2022, in order to lodged a
complaint of discrimination by the South African Medical Schemes. The
complainants sought a wide ranging and far -reaching relief against a
number of respondents.
10] At the time when the complaint was made, the official s at the Court
were not appointed Clerks of the Equality Court . This fact only came to my
attention much later when I engaged the Clerks of the Equality Court in
respect of their failure to advise the Complainants adequately on the
formulation of their complaint and procedure to be followed in terms of the
Act.
2 Sections 9(3) and 27 of the Constitution Act 108 of 1996.
11] Having gained knowledge of th ese omissions I first raised this issue
with the Deputy Judge President and thereafter with the Judge President of
this Division. Sometime thereafter the necessary steps were taken for the
training and subsequent appointment of the relevant officials as Clecks of
the Equality Court . This however took place much later after the Directions
Hearing had taken place, and it was for this reason that I deemed it prudent
at the time to correspond with the parties in order to canvass their views.
12] The respondents elected to respond to the Court ’s query and the
Complainants elected not to file a response hereto. I shall later return to
the responses so received.
THE ACT AND REGULATORY FRAMEWORK
13] Regulation 6(1) to 6(4) of the Regulations pub lished under the
Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
(“the Regulations ”) provide s as follows:
“6 Institution of proceedings
(1) A person, an association or a commission contemplated in section 20 of
the Act, wishin g to institute proceedings in terms of the Act, must notify
the clerk of his or her intention to do so on a form which corresponds
substantially with Form 2 of the Annexure.
(2) The clerk must within seven days after receipt of the notice referred to
in subregulation (1) -
(a) notify the respondent on a form which corresponds substantially with
Form 3 of the Annexure that proceedings have been instituted against him
or her; and
(b) invite the respondent, if he or she so wishes, to submit the information
contemplated in paragraph C of Form 3 of the Annexure in writing within
10 days of the receipt of such notice.
(3) The clerk must, within seven days after receipt of the response of the
respondent contemplated in subregulation (2)(b), submit a copy thereo f to
the complainant.
(4) The clerk must, within three days after the expiry of the period
contemplated in subregulation (2)(b), refer the matter to a presiding officer,
who must, within seven days after receiving the documentation relating to
the matter, decide whether the matter is to be heard in the court or whether
it should be referred to an alternative forum. ”
14] Section 19(1) of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (“the Equality Act ”) provides that :
“(1) Except as is otherwise provided in this Act, the provisions of the
Magistrates' Courts Act, 1944 (Act 32 of 1944), a nd the Supreme Court Act,
1959 (Act 59 of 1959), and of the rules made thereunder as well as the
rules made under the Rules Board for Courts of Law Act, 1985 (Act 107 of
1985), 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
obstructi on of execution of judgments or orders, and for contempt of court;
(e) 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. ”
15] Section 20(2) of the Equality Act prov ides that :
“(2) A person wishing to institute proceedings in terms of or under this Act
must, in the prescribed manner, notify the clerk of the equality court of
their intention to do so. ” The provisions of Regulation 6(1) to 6(4) of the
Regulations, sec tion 19(1) and section 20(2) are peremptory. The
complainants are required to institute proceedings in the prescribed
manner. Further more, the rules of this Court apply in relation to the issue
and service of process, except as otherwise provided for in th e Equality Act.
16] In a number of decisions , it has been held that l egal proceedings that
have not been properly instituted and served, are null and void ab initio .
(See: Mutebwa v Mutebwa 2001 (2) SA 193 (TkH) at par [23]; Dada v Dada
1977 (2) SA 287 (T) at 288C – D)
17] Regulation 12 (1) and (2) of the Regulations further states that :
“(1) No court fees are payable in respect of the institution of proceedings
in the court.
(2) Each party bears his or her own costs unless the presiding officer directs
otherwise. ”
DIRECTIONS HEARING
18] A directions hearing is conducted by a High Court in terms of regulation
10(5) of the Regulations relating to the promotion of equality and
prevention of unfair discrimination3 (“the Regulations ”). The purpose of the
directions hearing is to resolve matters of an administrative or procedural
nature in respect of the inquiry.4
19] At the directions hearing held on the 14th September 2022, the
Respondents had indicated that the complain ants failed to comply with
section 20(2) of the Equality Act which states that “Any person wishing to
instituting the proceedings in terms of or under this Act must, in the
prescribed manner, notify the clerk of the Equality Court of their intention
to do so. ”
20] At the same hearing I indicated to the complainant s that the y have not
specified on their Form 2 documents that they are taking either an oath or
affirmation and that same would need to be rectified to have evidentiary
value before this Court. At the same hearing it was also ruled that the Fi rst
Complainant was not allowed to represent the 6th and 8th applicants on
the Form 2 documents. As the se complainants were absent during the
proceedings . The matt er proceeded in their absence and without any
further participation on their part .
3 Regulations relating to the promotion of equality and prevention of unfair
discrimination GNR. 764 of 13 June 2003.
4 Regulation 10(5)(a) of the Regulations.
21] Form 2 promulgated in terms of the Regulations initiates proceedings
in the Equality Court, while Form 3 ensures that the institution of
proceedings comes to the attention of the Respondents. It is only once a
Respondent(s) ha ve been served with a Form 3 will such Respondent be
permitted to file a n Ans wering affidavit in answer to the complaint which
he faces and it follows absen t such service of the Form 3, that a Respondent
would not be obliged to file an Answering Affidavit.
22] In Investec Property Fund Limited v Viker X (Pty) Ltd and Another,5 the
Court held:
“[9]. At the outset let me say that I associate myself entirely with the
following remarks by the court in the matter of Viljoen v Federated
Trust Ltd, 1971 (1) SA 750 (O):
‘The Rules of Court, which constitute the procedural machinery of the
Courts, are intended to expedite the business of the Courts.
Consequently , they will be interpreted and applied in a spirit which
will facilitate the work of the Courts and enable litigants to resolve
their differences in as speedy and inexpensive a m anner as possible ’.
[10]. ‘ It is a cornerstone of our legal system that a person is entitled
to notice of legal proceedings against such person ’. See Steinberg v
5 Investec Property Fund Limited v Viker X (Pty) Limited and Another [2016] ZAGP
JHC 108.
Cosmopolitan National Bank of Chicago, 1973 (3) SA 885 (RA) at
892B – C.”
23] If proceedings thus have begun without due notice to the defendant,
the subsequent proceedings are null and void, any judgment is of no force
and effect and may be disregarded without the necessity of a formal order
setting it aside. If a summons had not been served on a defendant, a
subsequent judgment may be set aside in terms of rule 42(1)(a). Mere
knowledge of issue of summons does not constitute service and cannot
relieve a plaintiff of the obligation to follow the prescribed rules. ”
24] The same sentiments expressed above in respect of action proceedings
are applicable when it come to proceedings initiated in the Equality Court .
25] It is for this reason that at the Directions hearing so held , the following
Directive was issued by the Court :
“25.1 The Clerk of the Equality Court is duly authorised to complete
separate Form 3’s in respect of all the respondents by no later than 10
October 2022.
25.2 The duly completed Form 3’s are to be served upon all the
Respondents by no lat er than 14 October 2022, and thereafter uploaded
onto Caselines.
25.3 Pursuant thereto, the Respondents are to file their Reply/Answering
Affidavits by no later than 11 November 2022.
25.4 The Complainants are directed to remove their Supplementary
Affidavit from Caselines by no later than 16h00 on 16 September 2022.”
26] The Directions hearing was thereafter adjourned for compliance with
the Directive s issued by this Court.
27] The Directives so issued were intended to regularise to a certain extent
the proceedings before me , and it was clear that the duly completed Form
3's are to be served upon all the Respondents by no later than 14 October
2022, and proof thereof uploaded onto Caselines. This Directive it should
be mentioned was duly complied with by the Clerk .
28] Thereafter and p ursuant to the Directive so issued by this Court, the
complainants without leave of the Court or even notification to this Court
proceeded to amend their Form 2 documents on 27 September 2022 and
attached to the se amended Form 2 documents a supplemented founding
affidavit dated 18 September 2022 . This was annex ed as an annexure . They
thereafter uplifted from the electronic Caselines profile of the matter the
initial Form 2 and Founding Affidavit fi led in support of their initial
complaint. This too they did so without leave of the Court, or permission
being sought from the Clerk of the Court. The initial founding affidavit is
substantial, comprising 143 pages, excluding annexures, and 1,095 pages
with annexures.
29] Notably the amended set of papers are materially different from the
original ones in that that the new founding affidavit contains new
allegations and the relief sought against the respondents and other persons
was amplified and/or altered.
30] The complainants contend that they are entitled to file the new affidavit
because the “proceedings ha ve not yet commenced. ”
31] This stance adopted by the complainants is simply wrong and further it
was im permissible for them to remove from the electronic profile of the
case the initial Form 2 , together with the Founding Affidavit and annexures
thereto . Having done so amounted to a tempering with a court file without
permission having been sought and it is frowned upon by this Court.
32] As previously mentioned , service of the Form 3 as directed by this Court
during the Directions Hearing , took place after some of the Respondents
had already filed their Answering affidavits . Thus, they did so prior to the
service of the Form 3 forms on them.
33] Notwithstanding that some of the Respondents had taken this
proce dural step to re ply to the initial complaint (in the f orm of an Answeri ng
Affidavit) , counsel for the complainants argued that there can be no
prejudice to the Respondents as they now were aware of the case that they
had to meet at the Equality Court as envisaged by the Form 2 affidavit filed
with the Honourable Court on the 27th day of September 202 2.. It was
contended further that it cannot be argued that the complainants did
something untoward or procedurally wrong.
34] The Respondents however in turn each had raised the pro cedural point
that in the absence of the Form 3 being served on them , this had the effect
that the proceedings were not properly instituted. The Directive s issued by
this Court sought to regularise the proceedings before this Court and once
service of the Form 3 had taken place, the parties would be given an
opportunity to exercise their right to oppose.
35] On 22 May 2023, I gave a further direction t o the respondents that
whomever wished to take issue with the complainants ’ actions as aforesaid
should submit their heads of argument to this Court by no later than 30
May 2023. Thereafter, a further Directions hearing was held on 5 June 2023.
ARGUMENTS ON BEHALF OF THE FIRST RESPONDENT
36] On behalf of the first respondent it was submitted that t he removal of
the original papers is irregular in the sense that it is not in accordance with
the applicable rules and was done without the leave or permission of the
above Court.
37] Further , that the replacement of the original papers effectively
constitutes an abandonment of the initial proceedings in which the
respondents, or some of them, ha d already reacted and deposed their
answering affidavits. Th erefore , the new papers signify the inst itution of
new proceedings taking into account that there are new allegations, and
the relief sought is amplified and altered therein . Otherwise the new papers
are to be considered strictly pro non scripto .
38] In addition , the argument was advanced that the institution of the new
proceedings do es not comply with the provisions of the PEPUDA and
applicable Regulations. More specifically section 20 (2) and (3) of PEPUDA
read with Regulation 6 of the Promotion of Equality and Prevention of Unfair
Discri mination (“the Regulations ”).
39] As the first respondent and some other respondents had already filed
lengthy answering affidavits a t a great cost given the allegations made in
the original founding affidavit , if the new founding affidavit was to be
allowed, the respondents would have to file yet the other answering
affidavits at an even greater cost. Accordingly, the first respondent had
argued that they will be seriously prejudiced if the new Notice of Motion,
founding affidavit and annexures were to be allowed as part of the initial
proceedings.
40] On the procedural point raised by the first respondent, I am of the view
that there is merit in this point . Consequently, the complainants are to be
ordered as I hereby do, to immediately upload the initial Form 2, original
Founding Affidavit and original annexures on the electronic profile of this
case.
41] In respect of the F irst Respondent and others who have since filed an
Answering affidavit before service of the Form 3 form , in order to mitigat e
any prejudice that they may suffer , these respondents will be allowed an
opportunity to file any supplementary affidavit pursuant to service of the
Form 3 on them.
42] The complainants having uplifted the initial complaint and having
amended it without leave of the Court, this after the Directions Hearing was
held, by so doing acted unprocedural ly. Any amendment to their Form 2
can only be made with leave of this Court and only once granted can an
amendment be effected. Absent such leave, it follows that the original Form
2, together with the original founding affidavit and annexures thereto , is
what the complainants ’ case would be premised upon.
ARGUMENTS ON BEHALF OF THE SECOND RESPONDENT
43] The second respondent also denies that it was served with the Form 3,
new Form 2, and new founding affidavit. It contend s that these documents
were simply uploaded to Caselines.
44] The Second Respondent (“DHMS ”) therefore seeks directions to
regularise the proceedings before this Court in light of the Complainants
having summarily and without complying with the Regulations or Uniform
Rules of Court, removed their Form 2, notice of motion, and founding
affidavit from Caselines, and have uploaded a new Form 2 and new
founding affida vit to Caselines.
45] As this Court has already ruled that the Complainants shoul d re-upload
the original Form 2 together with the original Founding Affidavit and
annexures , this respondent would likewise be gi ven an opportunity to file
either a supplementary Answering Affidavit where one already exists or file
its Answering Affidavit after this ruling.
ARGUMENTS ON BEHALF OF THE THIRD TO TWELVE RESPONDENTS
46] In respect of the above -mentioned respondents a similar argument was
raised in relation to the non -service of the initial complaint and the
subsequent unilateral removal of the complaint without permission.
47] In this regard the third respondent specifically assert s that:
“Bonitas has no record of having been served with a Form 3 subsequent to
the 15 September 2022 directive. No Form 3 appears to have been served
on Bonitas. ”
48] As all of the remainder of the respondents have now been served with
the Form 3 as directed by this Co urt, each one of them will be afforded an
opportunity to file an Answering Affidavit to the initial Form 2 and the initial
complaint.
49] The respondents having now been served with papers as directed by
this Court when regularis ing the proceedings , the interest of justice will
best be served when all parties are afforded an equal opportunity to present
their respective cases and access to court .
50] Thus, to repeat, where service of the papers had taken place before an
Answering Affidavit had been filed, such respondent (s) will now be given
an opportunity to respond by way of filing of an Answering Affidavit, and
where an Answering affidavit has already been filed before this Court ’s
directive had been issued, such Respondent will be given an o pportunity to
file a Supplementary Affidavit and all of this will be done in relation to the
initial complaint and not to an amended complaint which was pursued
without leave of this Court.
51] The election made to file either an Answering Affidavit or a
Supplementary Affidavit will have to be done by the date stipulated in this
ruling.
52] The Minister of Health being the Ninth Respondent had raised a point
in limine i.e. that t he complainant s are not asking for any relief against the
Minister of Health.
53] On behalf of the complainants it was submitted that certainly relief is
sought as against the Ninth Respondent as the Minister has a constitutional
mandate to oversee CMS which is a statutory body established by the
Medical Schemes Act (131 of 1998) to provide regulatory supervision of
private health financing through medical schemes.
54] As the g overnance of the Council is vested in a board appointed by the
Minister of Health, consisting of a Non -executive Chairman, Deputy
Chairman and 13 members , the conduct of CMS places the Minster at the
epicentre of its conduct.
55] It is for this reason that the argument by the complainant that no relief
is sought as against the Minister of Health was rejected by this court .
56] As regards the point so raised by the Ninth Respondent , I am of the
view would best be dealt with during the hearing and should stand over for
such hearing.
57] The Minister of Public Service and Administration is cited herein as the
Tenth Respondent and had raised the point of misjoinder. In this regard
counsel for the Complainants had argued that this point is without merit as
the respondent in terms of Section 195 [1] of the Constitution is enjoined
to ensure that public institutions be governed by the democratic values and
principles enshrined in our Constitution . Further, that public administration
must be broadly representative of the South African people, with
employment and personnel management practices based on ability,
objectivity, fairness, and the need to redress the imbalances of the past to
achieve broad representation.
58] Similarly, this point of misjoinder would best be dealt with a t the
hearing and should not be dealt with at the Directions hearing stage. This
way, all parties to the proceedings will be afforded an opportunity to
address this Court and even present evidence where necessary in support
of its preliminary point. This way all issued can be properly ventilated.
FAILU RE BY THE CLERK OF COURT TO HOLD AN APPOINTMENT AT THE
TIME WHEN THE CU RRENT PROCEEDINGS WERE INITIATED.
59] Before concluding one other issue raises a concern . As mentioned ,
during the course of my engagement with the Clerk of the Equality Court it
was brought to my attention that at the time when the proceedings in casu
commenced, the Clerk did not hold an appointment as is required in terms
of the Act.
60] Having been appraised of this fact, I first raised the issue with the
leadership of this Court, and thereafter steps were taken to rectify this
omission.
61] The Clerk of the Equality Court plays an essential administrative role.
Of importance in this regard is the appointment and designation of the Clerk
of the Equality Court in terms Section 17 of PEPUDA read with Regulation
3 (1) thereof. The section reads as follows:
“1(a) Subject subsection and the laws governing the public service,
the Director -General of the Department may, for every equality c ourt,
appoint or designate one or more officers in the Department, or may
appoint one or more persons in the prescribed manner and on the
prescribed conditions, as clerks of the equality court, who must
generally assist the court to which they are attached in the
performing of its functions and who must perform the functions as
prescribed.
(b) If a clerk of an equality court is for any reason unable to act as
such or if no clerk has been appointed or designated for any equality
court under paragraph (a), t he presiding officer concerned may,
despite subsection, designate any competent officer in the
Department to act as clerk for as long as the said clerk is unable to
act or until a clerk is appointed or designated under paragraph (a),
as the case may be. ” (My emphasis)
62] Sections 17 (2) and 31 emphasise that the Clerks of the Equality Court
must undergo training in order to perform their functions. The Regulations,
notably Regulation 2, 3 and 4, merely outline the administrative process
and requirements f or the appointment of Clerks of the Equality Court.
63] From the above , also taking into ccount the legislative provisions and
regulatory framework, it is clear that the appointed or designated clerks
perform the administrative functions in assisting the equality courts to
perform their core functions. These functions are amplified in the
Regulations to include the following:
(a) upon receipt of the notification contemplated in regulation 6(1),
open a file and number the matter with a consecutive number o f the
year;
(b) keep a register in which he or she records –
(i) the particulars of the parties involved in each matter;
(ii) the number of the matter referred to in paragraph (a);
(iii) the relief requested;
(iv) the date and the outcome of the inqu iry;
(v) the outcome of an appeal or review, if applicable; and
(vi) the particulars of the alternative forum to which the matter was
referred, the date of referral and the outcome of the matter if
applicable;
(c) mark every document received afterwards with such number
as assigned to the specific matter;
(d) file any documentation received on the appropriate file;
(e) assist to the best of his or her ability a person who is illiterate
or disabled with the completion of any document relating to the
proceedings in the court;
(f) if a person instituting proceedings is not represented or
assisted –
(i) inform the person of his or her right to representation; 6
(ii) inform the person of the assistance available to him or her by
constitutional institution s or other non -governmental organisations;
(iii) inform and explain to that person his or her rights and remedies
in terms of the Act to the best of his or her ability;
(iv) assist a person further by reading or explaining any
documentation to him or her; and
(v) explain the process and procedures relating to the attendance
of witnesses;
(g) perform the duties assigned to him or her in terms of these
regulations;
(h) subpoena a witness to attend the inquiry at the request of a
party or by direction of the court;
(i) inform a witness that he or she is entitled to witness fees and
ensure that a witness is assisted in this regard where necessary; and
(j) perform the duties of the clerk of a civil court insofar as it is
necessary to give effect to the provisions of the Act. ”6
64] Section 17 (1) (b) states that in the event that the clerk of the court is
not appointed nor designated, the presiding officer may designate any
officer even if such officer had not undergone training as contemplated in
terms of Section 31 of PEPUDA.
65] The omission of an appointment of the Clerk was also brought to the
attention of the parties calling for their input. Not all parties made input but
the gist of what was relayed to this Court is that the proceedings should
continue as if the Clerk had indeed been duly appointed a Clerk of the
Equality Court at the time when the proceedings commenced. The position
has since been rectifie d, and the Clerk now holds an appointment as a Clerk
of the Equality Court. I am in agreement with the sentiments expressed
by some of the parties as this is in line with the tenor of the PEPUDA Act
and its attendant Regulations which envisages informal Court proceedings
and places substance above form and technicality.
6 1 Reg ulation 5 of the Regulations published in Government Notice R. 764 of 13
June 2003 (Government Gazette No. 25065) .
COSTS
66] In relation to costs a ll parties before Court sought costs against one
another on the pr ocedural points raised pursuant to the Directions hearing
being held .
67] Given the nature of a Directions Hearing and the ultimate ruling herein
made by this Court , in the exercise of my discretion I am of the view that
the most prudent order as to costs at this stage, is to reserve the issue of
costs.
ORDER:
68] In the result the following order is made:
68.1 The Complainants are directed to upload the original Form 2 dated 23
April 2022, onto Caselines on or before 24 February 2025 ;
68.2 The Complainants are directed to upload the original founding affidavit
onto Caselines on or before 24 February 2025 ;
68.3 The Complainants are directed to remove the new Form 2 from
Caselines on or before 24 February 2025;
68.4 The Complainants are directed to remove the new founding affidavit
dated 18 September 2022 from Caselines on or before 24 February 2025;
68.5 The Clerk of the Equality Court is directed to uploa d proof of service
of Form 3 on all the Respondents by no later than 24 February 2025.
68.6 Following the uploading of the initial Form 2 , all the respondents
before Court are permitted if they elect to do so, to file either a
Supplementa ry Answering Affidavit or an Answering Affidavit as the case
may be by no later than 10 March 2025.
68.6 The complainants must file their replying affidavits to the affidavits
filed in terms of paragraph 64.5 above, to the extent necessary, within 15
days of delivery of the said answering affidavits;
68.7 In order to regulate the further conduct of these pro ceedings, the
parties are to present themselves for a virtual Case Management meeting
on 15 April 2025 at 17h00.
68.8 Costs reserved.
C COLLIS
PRESIDING OFFICER
EQUALITY COURT
GAUTENG DIVISION , PRETORIA
APPEARANCE S
Counsel for the 1st, 3rd, 6th and 8th Complainants: Adv. M. Kufa
Adv.M. T shivhashe
Instructed by Machaba Attorneys
Counsel for the First Respondent : Adv. D.E . Matlatle
Instructed By: Diale Magashoa Attorneys
Counsel for th e Second Respondent: Adv. K . Tsatsawane SC
Adv. C. Avidion
■-■
Instructed By: Knowles Husain Lindsay Inc.
Counsel for the 3rd, 7th, 8th, 11th and 12th Respondents: Adv. E. Kromhout
Adv. K. Moloisane
Instructed By: GMI Attorneys
Counsel for the 9th Respondent: Adv.M.D. Mohlamonyane S C
Instructed By: Office of The State Attorney,
Pretoria
Counsel for the 10th Respondent: Adv. J. Mnisi
Instructed By: Office of The State Attorney,
Pretoria
Date of Hearing: 22 May 2023, 5 June 2023,
Septembe r 2023 and
18 August 202 34
Judgment Reserved: 18 August 202 34
Date of Judgment: 10 Febr uary 2025