George and Others v Minister of Environmental Affairs and Tourism

• Jurisdiction: South Africa
• Judge: N C Erasmus J
• Judgment Date: 24 August 2005
• Citation: 2005 (6) SA 297 (EqC)
• Hearing Date: 11 April 2005
• Docket Number: EC 1/2005
• Counsel: W Kerfoot (with him S Kazee) for the applicants. A Schippers SC (with him P B J Farlam) for the respondent.
• Court: Equality Court

N C Erasmus J:

Introduction C

[1] Equality is a core value underpinning South Africa's constitutional democracy and, consequently, 'the role of the right to equality in our new dispensation cannot be overstated'. [1] The various components of the equality right are detailed in s 9 [2] of the Constitution. Section 9 provides that positive measures must be taken, D in the form of national legislation, to prevent or prohibit unfair discrimination and to promote the achievement of equality; hence the enactment of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (hereinafter referred to as the Equality Act). E

[2] The Equality Act binds the State and all persons. [3] The objects of the Equality Act are to enact legislation required by s 9 of the Bill of Rights and to give effect to the letter and spirit of the Constitution and, more particularly, the equal enjoyment of all rights and freedoms and the promotion of equality, and the prevention of unfair discrimination and protection of human dignity. Section 3(1) directs any person applying F the Equality Act to interpret its provisions to give effect to

'(a)

the Constitution, the provisions of which include the promotion of equality through legislative and other measures designed to protect or advance persons disadvantaged by past and present unfair discrimination; G

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(b)

the Preamble, the objects and guiding principles of this Act, thereby fulfilling the spirit, purport and objects of this A Act'. [4]

In addition, s 3(3) mandates that 'any person applying or interpreting this Act must take into account the context of the dispute and the purpose of this Act'.

[3] When interpreting the provisions of the Equality Act in order to give effect to the Constitution, regard should be had to the B words of Mohamed DP in Shabalala and Others v Attorney-General, Transvaal, and Another 1996 (1) SA 725 (CC) (1995 (12) BCLR 1593) at para [26]:

'(T)he Constitution is not simply some kind of statutory codification of an acceptable or legitimate past. It retains from the past only what is defensible and represents a radical and decisive C break from that part of the past which is unacceptable. It constitutes a decisive break from a culture of apartheid and racism to a constitutionally protected culture of openness and democracy and universal human rights for South Africans of all ages, classes and colours. There is a stark and dramatic contrast between the past in which South Africans were trapped, and the future on which the Constitution is premised. [5] The past was pervaded by inequality, authoritarianism and repression. The aspiration D of the future is based on what is ''justifiable in an open and democratic society based on freedom and equality''. It is premised on a legal culture of accountability and transparency.' [6]

[4] The importance of equality is a central theme of our constitutional jurisprudence: E

'There can be no doubt that the guarantee of equality lies at the very heart of the Constitution. It permeates and defines the ethos upon which the Constitution is premised. In the very first paragraph of the preamble it is declared that there is a ''. . . need to create a new order . . . in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms''.' [7] F

'The centrality of equality is understood by reference to it in various provisions of the Constitution and in many judgments of [the Constitutional] Court. Not only is the achievement of equality one of the founding values of the Constitution, s 9 of the Constitution also guarantees the achievement of substantive equality to ensure that the opportunity to enjoy the benefits of an egalitarian and non-sexist G society is available to all, including those who have been subjected to unfair discrimination in the past. Thus s 9(3) of the Constitution prohibits unfair discrimination by the State ''directly or indirectly against anyone'' on grounds which include race, gender and sex.' [8]

[5] One of the key elements of the Equality Act is the provision of enforcement mechanisms for the pursuit of complaints under the Act. H

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The central mechanisms for enforcement are the Equality Courts. Any person wishing to institute proceedings in terms of or under the A Equality Act must, in a prescribed manner, notify the clerk of the Equality Court of their intention to do so. [9]

Structure of the Equality Courts B

[6] Equality Courts are not separate Courts but are specialised Courts operating within the existing court structure. They are governed by the provisions of the Magistrates' Courts Act 32 of 1944 and the Supreme Court Act 59 of 1959, as well as the Rules made in terms of the Courts of Law Act 107 of 1985. [10] Section 16(1)(a) of the Equality Act provides that, subject to s 31, 'every magistrate's court and every High Court is an Equality C Court for the area of its jurisdiction'. However, because an Equality Court is not an ordinary High Court or magistrate's court, the Presiding Officers of these Courts must be designated as such. [11] A certain level of specialist training or knowledge of equality matters is required from the Presiding Officers and clerks of Equality Courts. In fact, in terms of s 31(1), the proviso to s 16(1)(a), no proceedings may be instituted D in any Equality Court unless

'(a)

a Presiding Officer is available who has been designated, by reason of his or her training, experience, expertise and suitability in the field of equality and human rights, and

(b)

one or more trained clerks are available'. E

[7] Therefore, claims under the Equality Act must be brought before an Equality Court. It is not a new Court but is a High Court or a designated magistrate's court. The Presiding Officers are Judges and magistrates. Their only distinction is that they are required, in terms of s 16(2) read with s 31(4), to have undergone 'social context F training' with a view to building 'a dedicated and experienced pool of trained and specialised Presiding Officers'. They are, in other words, Judges and magistrates who have been specially equipped to meet the needs of the accessible and user-friendly adjudication of equality claims. The parties in Equality Court proceedings are not required to file formal pleadings. Proceedings are instituted and defended with the minimum of formality in terms of s 20(2) and reg 6(1) to (3) read G with Forms 2 and 3.

[8] The Presiding Officer in the Equality Court must then decide, in

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terms of s 20(3) to (7) and reg 6(4) and (7) - (13), whether to refer the matter to an alternative forum or not. This is an A important part of the process because it is the part in issue before this Court. Applicants point out that, although the parties may be compelled to go to an alternative forum, nobody can be indefinitely excluded from the Equality Court against their will. Ultimately, the effect of s 2(8)(b) is that any of the parties to the proceedings can insist that the matter return to the Equality Court for B adjudication. Nobody can be compelled to accept a determination in another forum.

[9] Once the matter proceeds in the Equality Court, either because it is not referred to an alternative forum or has returned unresolved, an inquiry must be held in terms of s 21(1). The purpose C of the inquiry is to 'determine whether unfair discrimination, hate speech or harassment, as the case may be, has taken place, as alleged'. The rules that govern the inquiry are designed to be flexible and informal. They include the following: D

•

In terms of reg 6(5), (6) and (14), a directions hearing is held before the inquiry. The Presiding Officer exercises a wide discretion in terms of reg 10(5) to give directions designed 'to resolve matters of an administrative or procedural nature in respect of the inquiry'.

•

In terms of reg 10(1) to (3), the inquiry must be held expeditiously and informally and must give effect to the guiding E principles in s 4.

•

Regulation 10(10) makes it clear that the Presiding Officer must play an inquisitorial role in the inquiry.

[10] Moreover, s 20(9) of the Equality Act imposes a positive duty on the state 'as far as reasonably possible, [to] assist any person wishing to institute proceedings in terms of or under this F Act'. This means not only that the administrative functionaries of the Equality Court are obligated to assist the applicants, but also that the respondent is obliged to do so. He or she is not permitted to act in an obstructive way. The Act makes it clear that it is not open to the state to conduct itself in proceedings under the Equality Act as it might do in ordinary adversarial litigation. Instead, its conduct G should be directed at the achievement of justice and not a victory at any cost.

Guiding principles

[11] The fundamental principles guiding proceedings which are instituted under or in terms of the Equality Act appear to be directed H primarily at facilitating ease of access to justice for the victims of unfair discrimination and inequality. In accordance with s 4(1), the following principles should apply:

(a)

The expeditious and informal processing of cases, which facilitate participation by the parties to the I proceedings;

(b)

access to justice for all persons in relevant judicial and other dispute resolution forums;

(c)

the use of rules of procedure in terms of s 19 and criteria to facilitate participation; J

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(d)

the use of corrective or restorative measures in conjunction with measures of a deterrent nature; A

(e)

the development of special skills and capacity for persons applying this Act in order to ensure effective implementation and...