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[2024] ZAEQC 5
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Liberty Fighters Network v Core Computer Business (Pty) Ltd and Others (24942+3/2022) [2024] ZAEQC 5 (12 August 2024)
IN
THE EQUALITY COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 24942+3/2022
REPORTABLE:
NO
OF INTEREST TO OTHER
JUDGES:
NO
REVISED:
NO
Date: 12 August 2024
Signature:
In
the matter between:
LIBERTY
FIGHTERS NETWORK
Applicant
And
THE
CORE COMPUTER BUSINESS (PTY) LTD
1
st
Respondent
ZA
ONLINE STORE (PTY)
LTD
2
nd
Respondent
UNIVERSITY
OF JOHANNESBURG
3
rd
Respondent
JUDGMENT
NYATHI
J
A.
INTRODUCTION
[1]
These are
two applications by the applicant against the respondents brought
before the Equality Court sitting within this division,
which is a
specialised court drawing its powers from the Promotion of Equality
and Prevention of Unfair Discrimination Act (“PEPUDA”).
[1]
[2]
The
complainant is Liberty Fighters Network, a ‘voluntary
association’ without gain, otherwise referred to as a
universitas
,
with perpetual succession and existence separate from its founding
members, ability to own assets in its own name and which can
sue or
be sued its own name as well’.
[2]
[3]
The complainant is acting as the representative of employees of the
respondents. The first
respondent is Core Computer Business (Pty)
Ltd, and the second respondent is ZA Online Store (Pty) Ltd. The
third respondents are
the University of Johannesburg, an institution
of higher learning. This respondent was initially cited in a separate
application
which has since been joined herein by agreement of the
parties since the cause of action and relief sought are basically the
same.
[4]
The applicant, on behalf of its members, is challenging the COVID-19
mandatory Vaccination
Policy implemented by the respondents,
complaining that it contravenes the Equality Act and the Consumer Act
on the basis that
it discriminates against its members and the
public. The applicant calls upon the court to review and set aside
the policy, because
it amounts to harassment and unfair
discrimination, as well as an award for damages.
[5]
The applicant seeks more specifically, the following relief:
5.1
An order declaring the
respondents’ mandatory Vaccination Policy ("the Policy”)
discriminatory and/ or harassment;
5.2
Reviewing and setting aside
the Policy;
5.3
Certifying a class action
against the respondents;
5.4
Compensation for damages
suffered by the applicant and other parties who fall within the
identifiable group described in Annexure
A to the referral form; and
ordering the respondents to cease the alleged discrimination and/or
harassment complained of in Annexure
A.
B.
THE FACTS
[6]
The respondents implemented a mandatory COVID-19 vaccination policy
propelled by the Disaster
Management Act and its regulations,
promulgated by the Minister of Employment and Labour, published in
the government gazette,
which endorsed the policy of mandatory
COVID-19 vaccination within the workplace.
[7]
Mandatory, as the word suggests, is required by law, making it final
and fully enforceable
in nature.
[8]
The bone of
contention raised by the complainant is that the policy is used as a
weapon of harassment and discrimination. In the
sense that, should
some or other members of complainant refused to get vaccinated, thus
failing to provide medical proof of vaccination;
alternatively,
failing to subject themselves to regular Covid-19 tests, at their own
expense, they will be subjected to one or
other occupational
detriment as the complainant has put in its papers. The complainant
avers that such conduct constitutes forced
medical intervention by
way of coercion, intimidation and harassment.
[3]
[9]
The parties agreed that the preliminary objections should be heard
and determined before
the merits. To this end, the Court made an
order by agreement between the parties for the filing of affidavits
and written submissions.
Further, the applicant stated in open court,
with no objection by UJ, that Annexure A to the J693 Form will stand
as its founding
affidavit for purposes of adjudicating the
preliminary objections.
[10]
Furthermore, the parties agreed that the two applications would be
argued together since the facts and circumstances
are common cause.
[11]
The University of Johannesburg (“
UJ”
) denies the
merits of the applicant’s assertion that its Covid Vaccination
Policy fails to comply with the
Equality Act
and the Consumer
Protection Act 68 of 2008 (“
Consumer Act”
).
C.
POINTS
IN LIMINE:
[12]
The respondents raised points
in limine
, namely,
12.1
Mr
Reyno de Beer – who is the signatory of the complainant, and
essentially their “legal representative” has failed
to
prove his authority to institute proceedings on behalf of the alleged
universitas.
[4]
12.2
That the Equality Court has
no jurisdiction to hear this application; and
12.3
Non-joinder of the Ministers
responsible for the roll-out of the vaccine protocol in the country.
12.4
The applicant has not
presented any case for the certification of the application as a
class action lawsuit. The applicant has no
locus
standi
to represent who
it seeks to represent in said class action.
12.5
The application is moot; the
applicant has failed to disclose a cause of action before the court.
[13]
The above points will be dealt with hereunder in sequence.
No
Authority
[14]
It is an
established procedure that authority to represent another in court
should have a legal basis such as a power of attorney,
a corporate
resolution, an individual affidavit attesting to that fact or a
cession agreement. Such authority must be alleged and
proved.
[5]
[15]
Mr de Beer
has filed the complaint on behalf of the LFN but has not provided any
discernible evidence to found and support his authority
to institute
and prosecute the complaint. The purported letter of the association,
dated 7 March 2022 - annexed to the complaint
— does not show
(i) who took the decision, (ii) the quorum required to make the
decision, (iii) whether the alleged quorum
validly passed the
resolution, and (iv) the advisors consulted.
[6]
[16]
While the
Constitution of the LFN in section 38(1)(e) may afford the President
the power “
at
any reasonable time [to] institute or defend legal proceedings”
[7]
,
this
does not inherently prove authority in this case. This provision can
never have the effect of empowering the president of the
LFN with
unfettered power to act on behalf of its members and the general
public interest as is the case here.
[17]
The conclusion on this aspect is that Mr. de Beer has no legal
authority to represent the public interest.
No
Jurisdiction
[18]
In any application the founding affidavit, in this case Annexure A to
the J693 form, should plead the necessary
facts to establish the
forum’s jurisdiction. The Constitutional Court has held that:
Jurisdiction is
determined on the basis of the pleadings ... In the event of the
court’s jurisdiction being challenged at
the outset (in
limine), the applicant's pleadings are the determinative factor. They
contain the legal basis of the claim under
which the applicant has
chosen to invoke the court's competence. While the pleadings —
including, in motion proceedings,
not only the formal terminology of
the notice of motion, but also the contents of the supporting
affidavits — must be interpreted
to establish what the legal
basis of the applicant's claim is, it is not for the court to say
that the facts asserted by the applicant
would also sustain another
claim, cognisable only in another court."
[8]
[19]
The
Equality Court’s subject-matter jurisdiction is prescribed by
legislation. The Equality Act/PEPUDA empowers the Equality
Court to
adjudicate complaints of (i) unfair discrimination on a prohibited
ground, (ii) hate speech. and (iii) harassment.
[9]
Other pieces of legislation may also afford the Equality Court
jurisdiction to hear certain types of complaints. For example, the
Consumer Act empowers the Equality Court to hear allegations of
discriminatory practices in terms of contraventions of chapter
two
(sections 8 to 10) of the Consumer Act. The Equality Court thus does
not have jurisdiction to hear other types of cases.
[20]
Quite notably, section 5(3) of the Equality Act provides that it
“
does not apply to any person to whom and to the extent to
which the Employment Equity Act, 1999, applies”.
[21]
The Employment Equity Act in turn provides:
“
Application
of this Act
4.
(1) Chapter II of this Act applies to all employees and employers.
49.
Jurisdiction of Labour Court
The Labour Court has
exclusive jurisdiction to determine any dispute about the
interpretation or application of this Act, except
where this Act
provides otherwise.”
[22]
As regards
the employees/former employees of the first and second respondents
the applicant states that they were either terminated/terminated
constructively.
[10]
This
description brings the matter squarely within the ambit of the Labour
Relations Act and resultantly in the realm of the CCMA
and the Labour
Court forums.
[23]
From the above it is clear that the matter was brought to a wrong
forum.
[24]
The applicant seems also to allege that the Disaster Management Act
and its regulations are unlawful. Clearly,
the Equality Court does
not have jurisdiction to determine the validity of the Disaster
Management Act and its regulations.
[25]
The conclusion therefore, is that this Equality Court is not imbued
with jurisdiction to hear this application.
Non-joinder
[26]
In so far
as the applicant seeks to impugn the DMA and its regulations, the
respondents raise the point of non-joinder. The applicant
has not
joined the
cabinet
minister
responsible
for the DMA and its regulations in this application.
[11]
This constitutes a material non-joinder. (emphasis added).
[27]
In
Amalgamated
Engineering Union v Minister of Labour
[12]
the Appellate Division held that courts are precluded from making an
order against a party with a direct and substantial interest
in such
order or where the order to be made cannot be implemented or enforced
without prejudicing such party, unless such party
has been joined to
the proceedings.
[28]
The point
in limine
succeeds and the application fails on this
score.
Certification
of a class action:
[29]
The complainant requires the court to certify class action, as it is
purportedly representing a group or
class of people, which it refers
to as its members. In addition to that point, the court is called to
determine whether the complainant
has
locus standi
to bring an
application on behalf of a group of people.
[30]
In South Africa, class actions follow a two-stage process. The first
stage is the certification application
which requires that, before a
class action may be instituted, a potential plaintiff (who will
represent the class action) must
obtain permission from the court
through motion procedure to institute such a class action, resulting
in the certification of the
class. After certification, the trial
action commences.
[31]
In
Mukadam
v Pioneer Foods (Pty) Ltd
[13]
the Constitutional Court confirmed that the test for certification is
whether it is in the interest of justice to certify a class.
In
determining whether it is in the interest of justice, a court must
consider all relevant factors, including whether (i) the
class has
identifiable members which can be identified with objective criteria;
(ii) the class has a cause of action that has a
triable issue, which
in novel claims must allege sufficient facts showing that a new claim
must be recognised; (iii) the claims
of the members of the class must
raise common issues of fact or law; and (iv) the representatives in
whose name the class action
would be brought must be identified,
which includes assessing whether the representative has funds
necessary for litigation."
[14]
[32]
Unterhalter
J (as he then was) in
De
Bryn v Steinhof
[15]
held that:
“…
In
essence, if the cause of action upon which the class action relies
cannot survive an exception, there is no triable issue. And
if the
evidence available and potentially available will not make out
a prima facie case, then there are no triable issues
of
fact.”
[33]
The quest for certification is not according to proper procedure. It
is just part of a conglomerate of an
attack on the subject-matter
which I find hard to fathom.
[34]
This point in
limine
too must succeed.
Mootness
[35]
All
Covid-19 restrictions have been lifted throughout the Republic of
South Africa on 22 June 2022. The UJ suspended the Vaccination
Policy
on 24 June 2022.
[16]
There is
therefore no live controversy before this court.
[36]
In
Solidariteit
Helpende Hand NPC and Others v Minister of Cooperative Governance and
Traditional Affairs
[17]
the
Supreme Court of Appeal confirmed a High Court decision to dismiss an
application similar to the current one challenging
the DMA and its
regulations on religious gatherings where the
impugned
regulations were long since repealed and no longer in force before
the adjudication of the matter in the high court and
in the court of
appeal. The SCA held that the High Court had no discretion to
determine a matter which is moot, the appeal was
moot in turn and
there was no need to deal with the merits.
[37]
The SCA stated more fully that:
“
The
general principle is that a matter is moot when a court’s
judgment will have no practical effect on the parties. This
usually occurs where there is no longer an existing or live
controversy between the parties. A court should refrain from
making rulings on such matters, as the court’s decision will
merely amount to an advisory opinion on the identified legal
questions, which are abstract, academic or hypothetical and have no
direct effect; one of the reasons for that rule being
that a
court’s purpose is to adjudicate existing legal disputes and
its scarce resources should not be wasted away on abstract
questions
of law. In
President
of the Republic of South Africa v Democratic Alliance
, the
Constitutional Court cautioned that ‘courts should be loath to
fulfil an advisory role, particularly for the benefit
of those who
have dependable advice abundantly available to them and in
circumstances where no actual purpose would be served by
that
decision…”. [Footnotes omitted]
[18]
[38]
The applicant argues that the issue is not moot and advances two
reasons:
38.1
First, the applicant submits
that the "policy was only suspended, but not revoked" and
can be "implemented again".
The distinction between
suspending and revoking the policy is a difference without any
material distinction for the purposes of
deciding whether the matter
is moot. While UJ may lift the suspension if circumstances require,
it is also true that UJ would have
been with its right to
re-promulgate the Policy had it been revoked (rather than suspended)
if UJ believed the circumstances warranted
such an outcome. The fact
remains that the Policy is not in effect, and, as such, the applicant
will not obtain any tangible relief
should it be successful. The
purpose of the Equality Court is not to hear abstract and academic
cases.
38.2
Second, the applicant
submits that its matter cannot be considered moot because the
Equality Court is "required to certify
a class action which
would direct the procedure of instituting a claim against UJ.”
But this cannot save the application
from its mootness. As set out
above, applicant has followed the incorrect process for certification
and has failed to set out any
factors why it would be in the
interests of justice to certify a class action.
[39]
It follows that on this point
in
limine
as well, the
application stands to be dismissed.
D.
COSTS
[40]
The general
rule is that costs should follow the event. They are awarded in the
court’s discretion. Constitutional litigation
present special
circumstances such as the instances elucidated in the
Biowatch
matter.
[19]
Nothing suggest
that this matter presents such circumstances.
[41]
In
Gold
Fields Limited v Motley Rice LLC, In re: Nkala v Harmony Gold Mining
Company Limited
[20]
,
Mojapelo DJP dealt at length with costs in an application related to
certification and joinder of a party to litigation. His findings
are
of guidance in this matter.
E.
ORDER
[42]
In the result, the following order is made:
[43]
The application is dismissed with costs.
____________________
J.S.
NYATHI
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Judgment: 12 August 2024
Date
of hearing: 03 April 2023
On
behalf of the Applicant: Mr Ryno de Beer
Liberty
Fighters Network
On
behalf of the First and Second Respondent: Adv. R. Itzkin
Duly
instructed by: ENS Africa Inc
On
behalf of the Third Respondents: Adv. M Dafel
Duly
instructed by: Lawtons Africa Attorneys.
Delivery
:
This judgment was handed down electronically by circulation to the
parties' legal representatives by email and uploaded on the
CaseLines
electronic platform. The date for hand-down is deemed to be 12 August
2024.
[1]
Promotion of Equality and Prevention of Unfair Discrimination Act 4
of 2000
.
[2]
Summarized statement of complaint para 17.
[3]
Summarised statement of complaint para 38.
[4]
Summarised
statement of complaint para 17.
[5]
Sandton Civic Precinct (Pty) Ltd v City of Johannesburg
[2008] ZASCA 104
;
2009 (1) SA
317
(SCA) para 15;
Eskom
v Soweto City Council
1992
(2) SA 703 (W).
[6]
Complaint,
Annexure B.
[7]
Replying Affidavit, p012-15.
[8]
Gcaba
v Minister for Safety and Security
2010 (1) SA 238(CC)
para 75.
[9]
Equality
Act, s 21(1) (The equality court before which proceedings are
instituted in terms of this Act must hold an inquiry in
the
prescribed manner and determine whether
unfair
discrimination hate speech or harassment
,
as the case may be, has taken place, as alleged).
[10]
Summarised
statement para 22.
[11]
See
Rule 10A of the Uniform Rules of Court.
Van
der Merwe v Road Accident Fund
[2006] ZACC 4
;
2006 (4) SA 230
(CC) para 7
[12]
1949
(3) SA 637 (A).
[13]
2013
(5) SA 89 (CC).
[14]
Mukadam,
supra, paras 15-18.
[15]
De
Bryn v Steinhof International Holdings N.V. and Others (29290/2018)
[2020] ZAGPJHC 145;
2022 (1) SA 442
(GJ) (26 June 2020) ,
Para
13.
[16]
Supplementary Answering Affidavit, para 7. Annexure A to the
Supplementary Affidavit.
[17]
[1]
[2023] ZASCA 35
(31 March 2023).
[18]
Solidariteit,
supra, para 12.
[19]
Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC).
[20]
Gold Fields Limited and Others v Motley Rice LLC, In re: Nkala v
Harmony Gold Mining Company Limited and Others (48226/12) [2015]
ZAGPJHC 62;
2015 (4) SA 299
(GJ);
[2015] 2 All SA 686
(GJ) (19 March
2015)