THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case no: 084/2021
In the matter between:
DE LA REY, PIETER JACOBUS FIRST APPELLANT
and
PH DE LA REY FAMILY TRUST FIRST RESPONDENT
CHRIS DE LA REY TRUST SECOND RESPONDENT
KOOS DE LA REY TRUST THIRD RESPONDENT
MARITA SCHOLTZ TRUST FOURTH RESPONDENT
JACO DE LA REY KINDERTRUST FIFTH RESPONDENT
MARIANNE HILL TRUST SIXTH RESPONDENT
DE LA REY, CHRISTIAAN, N.O. SEVENTH RESPONDENT
DE LA REY CHRISTIAAN EIGHTH RESPONDENT
FERREIRA, DAWID, N.O. (in his representative
Capacities as trustee of the 1st, 2nd,3rd and 5th
Respondents) NINTH RESPONDENT
FERREIRA, DAWID TENTH RESPONDENT
DE LA REY, ANNA BOUWER, N.O. (in her
representative capacities as trustee
of the 1st,2nd,3rd and 5th Respondents) ELEVENTH RESPONDENT
DE LA REY, ANNA BOUWER TWELFTH RESPONDENT
SCHOLTZ, MARITA THIRTEENTH RESPONDENT
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HILL, MARIANNE FOURTEENTH RESPONDENT
VAN DEN BERG, GERT PETRUS JOHANNES FIFTEENTH RESPONDENT
BOAKE INCORPORATED SIXTEENTH RESPONDENT
BOAKE, BRUCE DENNIS SEVENTEENTH RESPONDENT
MASTER OF THE HIGH COURT, PRETORIA EIGHTEENTH RESPONDENT
Neutral citation: De la Rey, Pieter J acobus v PH de la Rey Family Trust and
Others (084/2021) [2023] ZASCA 48 (11 April 2023)
Coram: Ponnan ADP and Saldulker, Gorven, Mabindla-Boqwana and Matojane
JJA
Heard: 9 March 2023
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives via e-mail, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down are deemed to be
delivered on 11 April 2023.
Summary: Equality Legislation – whether the Equality Court had jurisdi ction,
complainant making out no case that he had been discriminated against as defined or
intended in the Equality Act – Equality Court’s conclusion that it lacked jurisdiction
cannot be faulted.
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___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from : The Equality Court, Gauteng Division of the High Court , Pretoria
(Van Nieuwenhuizen J, sitting as court of first instance).
The appeal is dismissed with costs, such costs to include those of two counsel where
so employed.
___________________________________________________________________
JUDGMENT
______________._____________________________________________________
Saldulker JA (Ponnan ADP and Gorven, Mabind la-Boqwana and Matojane JJA
concurring):
[1] This appeal emanates from a complaint that was instituted before the Equality
Court. The appellant’s complaint or rather the most intelligible approximation thereof
is one of ‘discrimination’ under the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000 (the Equality Act). It arises from the manner in which he
was allegedly treated differently when compared to his other family members in the
process of the distribution of his grandfather’s estate.
[2] The appellant, Mr Pieter Jacobus De la Re y, is the grandson of Mr P H de la
Rey (the grandfather). In his lifetime, the grandfather, who passed away on 31 August
1997, concluded a last will and testament, in terms of which he, inter alia, caused the
first respondent, the P H De la Rey Family trust (the family trust) to be created. The
beneficiaries in equal shares were the grandfather’s three children, one of whom was
the appellant’s father, Mr Jacobus (Koos) H De la Rey. The other two are Christiaan
de la Rey (the eighth respondent) and Marita Scholtz (the thirteenth respondent). The
appellant’s father passed away on 28 July 1999, rendering the appellant and his sister,
Marianne Hill (the fourteenth respondent) as substituting beneficiaries in terms of the
trust deed. In 1999, the trustees of the family trust resolved to create further trusts ,
namely the Chris de la Rey trust, the Koos de la Rey trust and the Marita Scholtz trust
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(the second, third and fourth respondents respectively). There were three different
categories of respondents: (a) the members of the de la Rey family and their trusts -
the first to fifteen th respondents fall into this category; (b) persons or entities merely
involved as service providers with those in category (a) – the sixteenth and
seventeenth respondents fall into that category; and, (c) the Master of the High Court,
Pretoria, against whom no relief was sought. The proceedings were withdrawn against
the sixteenth and seventeenth respondents.
[3] The appellant instituted proceedings against the respondents in the e quality
court under the Equality Act . The complaint was supported by an affidavit and
annexures in excess of 200 pages. As best as one can discern from the complaint, it
seems to be contended that the vesting date of the family trust should have been
during 2001 and that the conduct of the trustees meant that the appellant did not
receive t he inheritance to which, in his view, he was entitled personally, to the
exclusion, it must be said, of his children. Although several grounds were sought to be
advanced, in the debate before this court the case came to be confined to one of
discrimination. The appellant alleged that he had ‘been discrimi nated against . . .
against my rights by birth and my de jure and/or de facto full and equal and/or eventual
full and equal enjoyment in terms of the outcome of my rights by birth and/or freedom
to my inheritance(s) . . .’
Despite the voluminous complaint filed, the appellant did not properly substantiate the
basis on which this ground was raised in the context of an equality court application.
[4] Accompanying the particulars of complaint in the equality court, was a draft
order consisting of some 16 pages, almost all of which was plainly unintelligible.
Unsurprisingly, the respondents denied that the equality court had jurisdiction to hear
the matt er or to grant any of the relief sought. Subsequently, the appellant also
launched a virtually identical application for the same relief in the Gauteng High Court,
Pretoria. The appellant attempted to have the proceedings consolidated. However, De
Vos J ru led that the question of the jurisdiction of the equality court should be dealt
with first. After several further procedural skirmishes that are not presently relevant,
the matter came before Van Nieuwenhuizen J, in the equality court, who upheld the
respondents’ contentions that the equality court did not have jurisdiction to deal with
the appellant’s complaint. This appeal is with the leave of that court.
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[5] In terms of s 13 of the Equality Act, the appellant had the burden to make out a
prima facie case of discrimination. In that, he failed. It is important to recognise that
not all differentiation would constitute discrimination . Unlike mere differentiation,
discrimination is differentiation on illegitimate grounds. 1 Discrimination is defined in s
1 of the Equality Act 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) withholds benefits, opportunities or advantages from any person on one or more of the
prohibited grounds.’
‘Prohibited grounds’, is defined in s 1 of the Equality Act, as follows:
‘(a) race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief, culture, language, birth and hiv/aids
status; or
(b) any other ground where discrimination based on that other ground-
(i) causes or perpetuates systemic disadvantage;
(ii) undermines human dignity; or
(iii) adversely affects the equal enjoyment of a person’s rights and freedoms in a serious
manner that is comparable to discrimination on a ground in paragraph (a)’
[6] The appellant’s complaint does not arise out of any ‘wrong’ that the Equality
Act, and thus the equality court, was created to address. It is simply that he did not
receive his due when entitled to same, because those in control wrongly chose not to
distribute those benefits to him. His complaint is thus indistinguishable from a plethora
of other civil cases that come before our high and magistrates’ courts daily. The
appellant is guilty of having cherry -picked certain words or phrases appearing in the
Equality Act to support the argument that his complaint falls within the scope and ambit
of the Equality Act. This, however, does not meet the criticism that the complaint is not
one envisaged by the Equality Act and is not why the equality court was created.
[7] The appellant asserts that he has been discrimi nated against, firstly, when
compared to his sister and secondly, when certain legal principles pertaining to the
1 Currie and De Waal Bill of Rights Handbook 9.4(a).
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interpretation of his grandfather’s trust deed is considered. But that ignores the fact
that the types of discrimination at which the Equality Act is aimed must be
discrimination on ‘one or more of the prohibited grounds’. The prohibited grounds fall
into two categories: (i) the specific grounds defined in subsection (a), none of which
save for birth are relied on by the appellant; and (ii) the generic grounds defined in
subsection (b). Before us, counsel was unable to point to any other ground
contemplated in (b). The appellant’s case thus came to rest on (a).
[8] The appellant made out no case that he was denied anything because of or
arising from his birth. On the contrary, it is by virtue of his birth that he became entitled
to benefit. It is really the manner in which he should receive those benefits that he
complains. In the premises, the appellant has obviously not been discriminated against
as defined or intended in the Equality Act. It follows that the equality court’s conclusion
that it lacked jurisdiction cannot be faulted.
[9] In the result, the following order is made:
The appeal is dismissed with costs, such costs to include those of two counsel where
so employed.
_______________________________
H K SALDULKER
JUDGE OF APPEAL
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Appearances
For appellant: T J Botha
Instructed by: Cilliers & Reynders Attorneys, Centurion
C/O Vanessa Graham Attorneys, Bloemfontein
For respondents J Roux SC (with CL Markram-Jooste)
1st,2nd,3rd,5th ,6th,7th,8th,9th,11th
and 12th
Instructed by: Delport Van Berg Inc, Pretoria
For 15th respondent: T A LL Potgieter SC
Instructed by: E Y Stuart Inc c/o, Pretoria
Mcintyre Van der Post INC, Bloemfontein