THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no: 437/2005
REPORTABLE

In the appeal between:

MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM

Appellant

and

KENNETH GEORGE

First respondent
TRUSTEES OF THE MASIFUNDISE DEVELOPMENT TRUST

Second respondent
JOHN SPAMI NKUNZANA

Third respondent
JAPIE BRITS

Fourth respondent
NORTON DOWRIES

Fifth respondent
PETER CORAIZIN

Sixth respondent
ARTISANAL FISHERS ASSOCIATION OF SOUTH AFRICA

Seventh respondent

Before:
Harms, Zulman, Cameron, Lewis and Jafta JJA
Heard:

Tuesday 2 May 2006
Judgment:
Thursday 18 May 2006

Equality Court – power under Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 to refer case to ‘appropriate
forum’ – court has discretion – when not exercised, no ‘judgment or
order’ capable of being appealed – leave to appeal against orders of
equality court in any event required

Neutral citation: Minister of Environmental Affairs and Tourism v
George [2006] SCA 57 (RSA)

JUDGMENT
_______________________________________________________

CAMERON JA:

[1] The Minister of Environmental Affairs and Tourism (the Minister)
appeals against a refusal by a judge sitting in the equality court in
Cape Town to refer this case to the high court as a more
appropriate forum to hear it.  In December 2004, the respondents,
individuals and organisations claiming to represent about 5000
artisanal fishers (the fishers), lodged simultaneous applications in
the high court and in the equality court at Cape Town.  (Artisanal
fishers are small-scale fishers who use traditional low-technology
methods to catch fish, not on a large commercial scale, but to
make a living through local sale or barter and to feed themselves
and their families.)  The fishers lodged a single set of papers in
both courts, claiming that the Minister had failed to provide them
with just access to fishing rights, and seeking an order giving
them equitable access to marine resources.  But they asked that,
before their high court claims be considered, the equality court
hold an inquiry into their causes of action under the Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000

(the Equality Act).  The Minister sought to block this.  He asked
the equality court to refer the entire matter to the high court, but
NC Erasmus J refused;1 hence this appeal, for which the Minister
neither sought nor obtained leave.
[2] Before the appeal can be enrolled, the Minister requires
condonation for various procedural lapses, most signally the late
filing of his notice of appeal.  The respondent fishers dispute the
explanation the Minister proffers; and it is common cause that the
fate of the condonation application turns on whether the merits of
the appeal are sound.  But two factors render these deeply
flawed: (a) the equality court’s refusal to refer the matter to the
high court, which entailed a discretionary decision entrusted to it,
did not embody a judgment or order capable of being appealed,
and the order the Minister sought was incompetent; and (b) leave
is in any event required for an appeal to lie from orders of the
equality court.

(a) No appealable order; order Minister sought in any event
incompetent

1 George v Minister of Environmental Affairs and Tourism 2005 (6) SA 297 (EqC).

[3] The equality court is established by s 16 of the Equality Act, which
was enacted in fulfilment of the Constitution’s central equality
clause.2  The statute’s objects are to give effect to the letter and
spirit of the Constitution’s equality promise and to provide
practical measures to facilitate the eradication of unfair
discrimination, hate speech and gender and other forms of
harassment (s 2).  The Act proscribes unfair discrimination on
‘prohibited grounds’, which are broadly defined (sections 6-12,
read with s 1), and vests equality courts with extensive procedural
and remedial powers in complaints of unfair discrimination (s 21).
[4] The purpose of these innovations is to create enhanced
institutional mechanisms through which victims of unfair
discrimination and inequality can obtain redress for the wrongs
against them.  The equality court is not a wholly novel structure,
but is a high court or a designated magistrate’s court.  Apart from

2 Equality 9 (1) Everyone is equal before the law and has the right to equal protection and benefit
of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms.  To promote the
achievement of equality, legislative and other measures designed to protect or advance persons,
or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more
grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour,
sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more
grounds in terms of subsection (3).  National legislation must be enacted to prevent or prohibit
unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is

the specific powers the statute confers, the only distinction is that
the presiding judges or magistrates must have undergone ‘social
context training’ (s 31(4)(a), read with s 16(2)).  Subject to the
availability of a presiding officer and one or more clerks, every
high court is for the area of its jurisdiction an equality court, and
the Judge President may designate any judge who has completed
a training course a presiding officer of the equality court (s
16(1)(a), (b) and (2)).  The Minister for Justice and Constitutional
Development must also designate magistrates’ courts as equality
courts (s 16(1)(c)).
[5] The statute obliges an equality court before which proceedings
are instituted to hold an inquiry in the manner prescribed in the
regulations3 and to ‘determine whether unfair discrimination has
taken place as alleged’ (s 21(1)).  But when a complainant lodges
an equality complaint, the statute first obliges the equality court to
determine where the matter should best be heard. It requires the
court to –

established that the discrimination is fair.’
3 GN R764, Government Gazette 25065 of 13 June 2003.  Reg 10 deals with the powers and
functions of an equality court.  Reg 10(1) provides that the inquiry ‘must be conducted in an
expeditious and informal manner which facilitates and promotes participation by the parties’.  Reg
10 (3) provides the proceedings ‘should, where possible and appropriate, be conducted in an
environment conducive to participation by the parties’.

‘decide whether the matter is to be heard in the equality court or whether it
should be referred to another appropriate institution, body, court, tribunal or
other forum (hereafter referred to as an alternative forum) which, in the
presiding officer’s opinion, can deal more appropriately with the matter in
terms of that alternative forum’s powers and functions’ (s 20(3)(a)).4
Before making a decision to refer a matter to another forum, the
statute obliges the presiding officer to ‘take all relevant
circumstances into account’, including the following:
‘(a) The personal circumstances of the parties and particularly the
complainant;
(b) the physical accessibility of any contemplated alternative forum;
(c) the needs and wishes of the parties and particularly the complainant;
(d) the nature of the intended proceedings and whether the outcome of the
proceedings could facilitate the development of judicial precedent and
jurisprudence in this area of the law;
(e) the views of the appropriate functionary at any contemplated alternative
forum.’ (s 20(4))
[6] Section 20(5)(a) provides that if the presiding officer decides to
refer the matter to an alternative forum, he or she must ‘make an
order’ directing the clerk of the equality court to refer the matter.

4 Reg 6(4) of the regulations promulgated in terms of s 30 of the Equality Act (GN R 764, GG
25065 of 13 June 2003) requires the presiding officer in the equality court, within seven days after
receiving the documentation relating to the matter, to decide ‘whether the matter is to be heard in
the court or whether it should be referred to an alternative forum’.

What emerges signally from this statutory wording – and is fatal to
the Minister’s appeal – is that the court makes an order when re-
directing a matter: but does not do so otherwise.  And this is
logical.  For once a complaint of unfair discrimination is properly
before an equality court, the statute vests it with jurisdiction to
hear the matter, and no further order is required to render the
court competent, nor is any order required for it to retain its
competence.
[7] By providing that the court may refer a matter to ‘another
appropriate institution’, the statute acknowledges not only the
potential intricacy of unfair discrimination claims, but the range of
other institutions that could afford appropriate assistance in
resolving them.  But the avenue so created, far from being
intended to deprive the equality court of its jurisdiction, is
premised on its continuing jurisdiction, with the result that in cases
of non-referral no express order need be given.
[8] If the alternative forum does not resolve the matter to the
satisfaction of either party, and either party so requests, the
alternative forum must refer the matter back to the equality court
(s 20(8)).  The equality court’s jurisdiction thus persists: the

redirection entails only a conditional exploration of appropriate
institutional alternatives.  Where there is no redirection, the
unavailing application has no executive impact on the process, for
the presiding officer has declined to exercise the discretion to
redirect, and the proceedings continue as before.  Since in that
event no ‘judgment’ or ‘order’ is either necessary or appropriate,
the Minister’s application stumbles on the first criterion of
appealability.5
[9] I would in any event add that the equality court’s decision whether
to redirect a matter entails a discretion with which this court will
interfere only when the equality court fails to exercise it judicially.6
Counsel for the Minister was invited, with reference to the
judgment in court below, to indicate what considerations NC
Erasmus J had misapplied, and what factors he had erroneously
taken into account, but was unable to suggest any basis for a
case of misdirection.

5 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) 531B-C.
6 Ex parte Neethling 1951 (4) SA 331 (A) 335D-F, per Greenberg JA: ‘Can it be said in the
present case that the Court a quo exercised its discretion capriciously or upon a wrong principle,
that it has not brought its unbiased judgment to bear on the question or has not acted for
substantial reasons?’; LTC Harms Civil Procedure in the Superior Courts (1990, with updates)
para C1.39.

[10] There is a further consideration.  The Minister contended both
before us and in the equality court that the high court was a more
appropriate institution to hear the matter.  But in my view such a
redirection would have been incapable, since the high court did
not fall within the category of alternative fora to which the equality
court was in this case empowered to refer the matter.  It is true
that s 20(3)(a) refers to ‘another … court’.  But ‘court’ clearly
cannot include a high court when the equality court is itself a high
court sitting as an equality court.  It may include a small claims
court, or a magistrate’s court, but it is not necessary for us to
decide that now.  What is clear is that in these circumstances a
high court is not intended.
[11] This appears most obviously from the ‘relevant circumstances’
the presiding officer must take into account in terms of s 20(4).
These include ‘the views of the appropriate functionary at any
contemplated alternative forum’ (s 20(4)(e)): it is neither apparent
who the ‘appropriate functionary’ in the case of a high court would
be nor, if it is a high court judge, how his or her views would be
obtained.  The entire process of conditional exploratory referral is
alien to the functioning of a high court.  It must therefore be

concluded that the legislation does not contemplate that a high
court sitting as an equality court can refer a matter to itself in
another capacity.
[12] The jurisdiction and powers that the statute confers on equality
courts is wide, and counsel for the Minister was obliged to
concede that at least some of the relief the fishers seek lies solely
within the jurisdiction of the equality court.  The fishers conceded
that all their claims arise from substantially the same facts, and
that they are all directed at substantially the same relief: but they
pointed out that the claims are based on a range of different
causes of action.  Some of the relief they seek the high court has
no jurisdiction to consider or grant – most notably, their prayer for
an inquiry in terms of s 21(1) of the Equality Act.  The fact that
much of the other relief they seek could also be granted by the
high court does not detract from the equality court’s jurisdiction,
nor is it a reason to deprive the fishers of the procedural benefits
they hope will accrue from proceeding in the equality court.
[13] Conversely, some of the relief the fishers seek can be
adjudicated only by the high court – for instance their claims
based on constitutional provisions other than equality, such as

those conferring a right to choose a trade or occupation (Bill of
Rights s 22) and access to socio-economic rights (Bill of Rights s
27).  But this again does not entail that the equality court cannot
first (or concurrently) adjudicate upon the claims that are properly
before it.
[14] I conclude that the scheme of the Equality Act does not
envisage an appealable order when a presiding officer decides
against referring a matter to another forum, and that the referral to
the high court the Minister sought was in any event incompetent
because the high court sitting as an equality court cannot refer a
matter to itself in the former capacity.  The appeal therefore
founders at the first hurdle.

Leave to appeal in any event required for appeal to lie from
equality court decision
[15] The Minister seeks to appeal directly to this court, without
having sought or obtained leave.  He says that s 23(1) of the
Equality Act grants him an untrammelled right of appeal.  This
provides that ‘Any person aggrieved by any order made by an
equality court in terms of or under this Act may … appeal against

such order to the High Court having jurisdiction or the Supreme
Court of Appeal, as the case may be.’  In conjunction with this,
counsel for the Minister pointed out, the regulations indicate
merely that any person wishing to apply for leave to appeal
against any order of the equality court must, within fourteen days
of the order, deliver a notice of appeal (reg 19).
[16] But the Equality Act makes the provisions of the Supreme Court
Act 59 of 1959, and the rules under it, applicable ‘with the
necessary changes required by the context’ to (amongst other
matters) questions of ‘jurisdiction’ (s 19(1)(e)).  And the Supreme
Court Act provides in general terms that no appeal shall lie
against a judgment or order of the court of a provincial or local
division of the high court in any civil proceedings (or against any
judgment or order of that court given on appeal to it) unless leave
to appeal is granted (s 20(4)).  This court’s jurisdiction to hear
appeals from the high court (and, with the necessary changes, the
high court sitting as an equality court) is conditioned by the
provisions of the Supreme Court Act.7  The effect of these
provisions is therefore that no appeal lies against a judgment or

7 New Clicks South Africa (Pty) Ltd v Minister of Health 2005 (3) SA 238 (SCA) para 22.

order of the high court sitting as an equality court in any civil
proceedings unless leave to appeal is granted.  The appeal is for
this additional reason incompetent.

‘Expeditious and informal processing of cases’
[17] It is finally apposite to make some observations on the course
these proceedings have taken.  As NC Erasmus J pointed out, the
question of double jurisdiction this case raises is not unique, and
is likely to arise in every case brought under the Equality Act: and
there is no reason why those who have interrelated remedies
under the equality statute and other legislation should not be
entitled to pursue their remedies in parallel proceedings before
the high court in its capacity as an equality court, and the high
court in its ordinary capacity.8
[18] One of the Equality Act’s ‘guiding principles’, which is to be
applied in the adjudication of any proceedings instituted under the
Act, is the ‘expeditious and informal processing of cases’ (s
4(1)(a)).  In addition, the statute requires that the regulations
under it relating to procedure must, as far as possible, ensure that

8 2005 (6) SA 297 (EqC) para 27.

the application of the Act is ‘simple, fair and affordable’ (s 30(5)).
It is ironical, to say the least, that the fishers’ attempt to invoke the
benefits they conceive will flow to them from the establishment of
the equality courts has produced a procedural mire which has
cost both sides considerable expenditure of time and money and
effort.  The Minister based his argument that the matter should be
referred to the high court on the fact that the equality court does
not have jurisdiction over the bulk of the relief the fishers seek,
and on the contention that their claims are both premature (given
the pending re-allocation of fishing rights) and a ‘disguised and
belated review’ (regarding allocations that have run their course).
As counsel for the fishers pointed out, if the Minister is correct in
these submissions, the equality court will in due course non-suit
the fishers.  But what the Minister cannot do is to deny them their
day in that court.  They are entitled to claim the assistance and
protection the legislature afforded litigants who wish to press
equality claims when it enacted the Equality Act.
[19] The fishers, for their part, say that they instituted parallel
proceedings in the high court and the equality court with the
express intention of ‘achieving cost efficiency and through

synchronicity between the two procedures’.  Given that the
problem of concurrency will inevitably recur, the most productive
and expeditious way of achieving efficiency would seem to lie in
the matter being referred to the same high court judge who, in his
capacity as an equality court judge, is presiding in that court.

ORDER
1. The application for condonation is refused with costs.
2. The appeal is struck from the roll with costs.

E CAMERON

JUDGE OF APPEAL

CONCUR:
HARMS JA
ZULMAN JA
LEWIS JA
JAFTA JA