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[2007] ZAEQC 4
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Joubert v Adriaanse (16/2006) [2007] ZAEQC 4 (14 May 2007)
IN
THE EQUALITY COURT FOR THE DISTRICT
OF
DURBAN HELD AT DURBAN
EQUALITY
CASE NUMBER: 16/2006
DATE:
14/05/2007
In
the matter between:
NAVAMONEY
JOUBERT
:.......................................................................................
Complainant
AND
GLEN
ADRIAANSE
.................................................................................................
Respondent
JUDGEMENT
THE
COMPLAINT
The
complaint as set out on Form 2 may be summarized as follows:
1.
The complaint is brought against the respondent, the chair of the
Body Corporate of Rydal Mount.
2.
The Complainant is a flat owner of Rydal Mount who complains that
Telkom telephone lines were granted to other flat owners and
that she
was excluded on the basis that the other owners were Whites and that
she is an Indian female.
3.
She approached the court to compel the respondent to provide her with
a Telkom telephone line and not to place any restrictions
on Telkom
in providing this service.
4.
She particularly mentioned Dick Morton as being one of the recipients
who has no restrictions placed on his application and whose
line was
subsequently installed.
FORMULATION
OF THE COMPLAINT
Since
the complainant avers discrimination on the fact that she is an
Indian female, the complaint then falls to be dealt with as
discrimintion on the bases of race and gender.
THE
PRE-TRIAL ISSUES
The
respondent filed an opposing affidavit that was supported by two
other affidavits, namely by Rashida Moosa and Isaac Ismael.
The
thrust of these affidavits was that the alleged discrimination was
denied.
Prior
to the hearing it transpired that complainant was to call witnesses
who no longer resided in Durban. Respondent indicated
that he had
three potential witnesses including, one Madurai Pillay who did not
depose to an affidavit.
THE
COMPLAINANTS EVIDENCE
Complainant
testified on her own behalf to the following facts:
1.
She conducted a letting business from her flat and this necessitated
the installation of a telephone line.
2.
There had previously been a communication system whereby all
telephone calls were channelled through a central switchboard. This
was discontinued when it was discovered that the switchboard was
being operated without a license.
3.
There then arose the need for an alternative telephone system. She
became aware that other flat owners were being allocated Telkom
lines
and she then filed her own application.
4.
When Telkom technicians called to effect the installation she was not
present however, she testified that she learnt that the
technicians
were refused access into the building. At first she testified that
the respondent banned them, then she subsequently
changed this
version to the effect that it was the respondent's mother, who was
also a trustee, who instructed the security guard
not to allow the
technicians access.
5.
She made the point that the others who received the Telkom lines were
all White and some engaged in the same type of business
she was
involved in. This indicated to her that the trustees, particularly
the chairperson actively wanted to prevent her from
receiving her
line and herein lay the perceived discrimination.
6.
Complaint also called Richard Moortan. He testified that he and
complainant were always on good terms and when he heard of her
difficulties in obtaining a Telkom line, he offered to assist her as
far as he could in his personal capacity and as a trustee.
7.
At no stage was this offer taken up and lie assumed that she had
abandoned her application.
8.
Thereafter she called her husband to testify. He confirmed the train
of events that led to the present complaint.
9.
In addition, he testified that he was never directly involved with
the central issues around the complaint. Rather he was instrumental
in bringing the unlicensed switchboard to the attention of the
relevant authorities and for having this facility terminated. He
added nothing material to the complaint.
10.
There was an ancillary complaint relating to the complainant's name
being placed on a notice board indicating that she was in
arears with
her levy payments and she sought an order from the court to force the
respondent to remove her name and in its place
to place a written
apology. The court finds that this aspect is unrelated to the main
complaint and is a matter that ought to have
been dealt with directly
with the Board of Trustees.
THE
RESPONDENT'S EVIDENCE
Initially,
respondent indicated that he would call the three witnesses mentioned
earlier and potentially also his wife. He abandoned
all his witnesses
and testified.
He
testified as follows:
1.
He had been the chairperson of the Body Corporate for a number of
years and throughout he acted with the Board of Trustees as
a
collective and he never took decisions arbitrainly on his own. There
were occasions relating to day to day issues to which individual
trustees would make spontaneous decisions, however these would always
be transmitted to the Board.
2.
He denied all the allegations in the complaint and stated that there
were one hundred and seventy flat owners who individually
had the
option of applying for Telkom lines without restrictions been placed
on Telkom technicians.
3.
During 2005 when the switchboard was closed, only two Hat owners had
direct telephone lines namely, Mr Moorton and a Mr McLean.
These
lines were allocated to them even before the closure of the
switchboard and the Body Corporate had nothing to do with the
installation.
THE
COURT'S APPROACH
The
court must follow the test for establishing discrimination as set out
in Section 13 of the Equality Act. This section requires
a
complainant to present a credible complaint that fits in with the
Acts definition of discrimination.
Discrimination
is defined as "any act or omission, including a policy, law,
rule, practice, condition or situation which directly
or indirectly:
[a]
imposes burdens, obligations or disadvantage on; or
[b]
witholds benefits, opportunities or advantages on any person, on one
or more of the grounds of discrimination".
The
court must therefore find that the complaint as outlined meets with
this basic requirement and if so, the court must then find
that
either the discrimination did not take place or that there were
reasonable grounds for it.
THE
COURT'S FINDING
On
the complainant's own version, the court makes the following
findings:
1.
Complainant's own witness, Moortan contradicted her evidence.
2.
Her own evidence of Telkom being barred was based on hear say and if
this was in fact so, she could have called on the assistance
of
Moortan that she did not do.
3.
The only two other owners who had Telkom lines received these without
any knowledge of or assistance from the respondent.
4.
She acknowledged that Mrs Opperman, a White occupant also applied
during 2005 for a Telkom line that Telkom refused without any
intervention by the Body Corporate. Race therefore was not a
consideration.
5.
The inadequacies in the complaint therefore do not call for an answer
from the respondent.
THE
COURT'S FINDING |A] ON THE MERITS
The
complainant has failed to substantiate her complaint by way of
evidence and has therefore failed to meet the requirements of
Section
13 of the Act.
The
court therefore dismisses her complaint as against the respondent in
his personal capacity and even if it were brought against
him in his
representative capacity, it still does not have any merit.
[15]
ONCOSTS
The
court has a wide discretion in the award of costs.
The
court is of the view that although the complaint failed, possibly
through a misunderstanding of the requirements for success,
the court
does not find that complainant brought it in bad faith.
The
court therefore orders that each party pays its own costs.
Dated
at DURBAN on 14 MAY 2007.
G
L ABRAHAMS
ADDITIONAL
MAGISTRATE: DURBAN
EXPLANATION OF THE RIGHT
TO APPEAL OR REVIEW THE DECISION
OF
THE COURT
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 of Appeal, as the case
maybe. 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 may be. (See Regulation 19 relating to the
Promotion of Equality and Prevention of Unfair Discrimination Act
2000
)