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[2006] ZAEQC 4
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Sewshanker v Rydalvale Primary School and Others (77/2005) [2006] ZAEQC 4 (2 February 2006)
IN THE EQUALITY COURT FOR
THE DISTRICT OF DURBAN
HELD
AT DURBAN
CASE NO: 77/2005
DATE:02/02/2006
In
the matter between
S
SEWSHANKER
..............................................................................................
COMPLAINANT
And
RYDALVALE
PRIMARY SCHOOL
AND
NINE OTHERS
…....................................................................................
RESPONDENTS
REASONS
FOR RULINGS
TO:THE
STATE ATTORNEY (KZN) THIRD FLOOR SANGRO HOUSE 417 SMITH STREET DURBAN
(FIRST
RESPONDENT'S ATTORNEY: FOR COLLECTION) SIR/MADAM
KINDLY
TAKE NOTICE THAT the Reasons for Judgment are filed, subsequent to
the Request dated 9 December 2005 and latterly to the
Application for
Condonation granted on 20 January 2006.
INTRODUCTION
On
11 November 2005 when the matter came before me for the Directions
Hearing, Ms Pillay who appeared on behalf of First Respondent
and Mr
Bedram, who appeared for the Second, Third and Fourth Respondents
raised two Special Defences in limine.
These
refated to Jurisdiction and Res Judicata. Upon hearing argument and
also responses that the court invited from Messrs Kader
and
Junkeepersad, the court dismissed both Special Defences.
The
Directions Hearing was then consensually adjourned to 5 December
2005.
Prior
to this date, Ms Pillay gave notice of an interlocutory Application
in terms of Rule 19(5)(b) that purported to request the
Reasons for
the Court's Ruling on 11 November 2005.
This
Notice was found to be irregular in that it was not provided for in
the Equality Act or Regulations to the Act and the Court
directed
that if Reasons were being requested, this was to be done in
accordance with the provisions of Rule 51 of the Magistrates
Court
Act that would have to preceded by an Application for Condonation.
The
latter Application was consented to on 20 January 2006, and I now
furnish the Reasons envisaged by Rule 51.
REASONS
Ms
Pillay and Mr Bedhram argued in favour of the special defences raised
whilst Mr Kader opposed the submissions and Mr Junkeepersad
exercised
more of a Watching Brief.
JURISDICTION
Ms
Pillay argued firstly that section 2(c), with its emphasis on race,
gender and disability, effectively ousted the present complaint
that
was not founded on any of these grounds.
The
court found that he provisions of section 2(c), the Objects of the
Act, are merely informative and do not assist the court either
in
interpreting the Act or in the adjudication process. The Objects
should be read with the Preamble to the Act as these explain
that
segment further.
Ms
Pillay, supported again by Mr Bedhram then moved that there were
alternative avenues of relief open to the complainant, inter
alia,
internal procedures, governing body policy, departmental intervention
and civil proceedings, that ought to have been exhausted.
The
court, in this regard found that the complaint, untested by evidence
as it is, on a prima facie level falls under the jurisdiction
of this
court, despite any other relief that is open to complainant. The
court is respectful of the provisions of section 34 of
the
Constitution, that govern Access to Courts and the court will be slow
to interfere with this constitutional right.
The
civil court proceedings suggested in the alternative (supra) is also
addressed. Section 5 of the Act provides, in brief, that
where there
is any conflict between this Act and any other Act (except thr
Constitution or any Act of Parliament amending this
Act) the
provisions of this Act must prevail.
Even
if it can be said that the Magistrates Court Act could apply, its
application cannot oust the application of this Act and cannot
prevail against it.
The
provisions of section 6 of the Act further frustrate the argument in
favour of interpreting the provisions of section 2 as barring
the
complainant from accessing this court.
Section
6 reads:
"Neither
the State nor any person may unfairly discriminate against any other
person"
Since
section 6 refers to refers to "discriminate" regard must be
had to the definition of "Discrimination"
as defined is
section 1, that in turn refers to the definition of "Prohibited
Grounds" also in section.
The
definition of the prohibited grounds, particularly under subsection
(b) thereof, is sufficiently expansive to accommodate the
present
complaint. So for this reason too, the complaint is properly before
this Court.
The
special defence that this court is not clothed with jurisdiction must
fail for these reasons.
RES
JUDICATA
It
appeared from the record that this complaint was earlier lodged with
the Senior Magistrate at the Verulam Law Court who did not
entertain
it. This is noted by way of an endorsement on the complaint.
This
court does not know the mind of that presiding officer as his reasons
are not noted. In any event, this court has no power
to review his
decision, even if these were apparent.
The
complaint was brought to the attention of this presiding officer in
accordance with the provisions of section 20(3)(a) and it
has been
entertained on its own merits as prescribed under that section. This
court is not bound by the first court's endorsement.
In
any event, it clear that a formal hearing into the merits of the
complaint has not been convened and these still stand to be
adjudicated.
I
also turn to Mr Bedhram's submission that the present address of
complainant is not the address that appears on the earlier complaint
and that the court should surmise duplicity on the complainant's
part, with the distinct objective of having a second bite at the
cherry, so to speak.
This
submission does not find my favour for the following reasons:
*There
is no evidence before me to arrive at the conclusion that the
complainant is wilfully using an address of convenience. For
any
court to come to this conclusion it would have to make a finding on
the basis of evidence before it.
•
The complaint is made
under oath and the court accepts the complainant's bona fides, until
the contrary is proved.
For
all these reasons, this special defence too, is dismissed.
G
L ABRAHAMS: PRESIDING OFFICER
2
FEBRUARY 2006 .
PLEASE
NOTE: Any person who is dissatisfied by an order made by the Equality
Court may appeal against such order in the required
manner and time
to either the High Court or the Supreme Court ofAppeai, as the case
may be. An appeal can also be made directly
to the Constitutional
Court. In terms of Regulation 19(1) any person wishing to appeal
against any order made by the court as contemplated
in section 23( 1)
of the Act, must within 14 days of such order being made, deliver a
notice of appeal to the clerk and to the
complainant or the
respondent as the case maybe. (See Regulation 19 relating to the
Promotion of Equality and Prevention of Unfair Discrimination Act
2000
)