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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: A420/06

DATE: 18/10/2007

In the matter between:

MORNé STRYDOM Appellant

And

BETHUEL CHILOANE Respondent

JUDGMENT

HARTZENBERG, J

[1] The respondent instituted action against the appellant in the Equality Court for the district of Praktiseer in terms of section 20 of the Promotion of Equality and Prevention of Unfair Discrimination Act, No 4 of 2000 (“PEPUDA”). His complaint was formulated as follows:

"I am employed by the Lebowa Platinum Mines at Atok section as a belt attendant.

I am a shop steward for the section where I am placed.

On 06/07/2004 we went to the office of Mr Morne Strydom (mine captain) to attend a meeting. The purpose of the meeting was to discuss matters pertaining to the "off" procedures.

We did not reach an agreement with Mr Morne Strydom over the changing of the off procedures. Apparently he got angry.

He said the following words in Fanakalo to me:

Translated in English as follows:

'Look here! All the baboons are wanted on duty this weekend. No one will be off duty.

You must always be in the know that those baboons that will not be on duty this weekend will be dismissed by Monday.

This baboon-government of yours will provide you with some jobs.'

I was in the company of Mr Frans Moloto and Mr Samuel Mpaketsane when the incident occurred.

I was offended and insulted by his harsh words as I considered them to be discriminatory. I lodged a complaint against him in the Human Resources office but the matter was not solved according to my satisfaction hence I was advised by my legal representative to approach the Equality Court for alternative relief."

[2] The appellant filed an answering affidavit in which he denied having uttered the alleged words. In the affidavit and by way of a special defence he challenged the jurisdiction of the Equality Court. He maintains that the correct forum to deal with this matter is the Labour Court and in terms of the Employment Equity Act, No. 55/1998 (“the EEA”). His argument was that both the appellant and the respondent are employees as defined in section 1 of the EEA. The definition reads:

“ … Any person other than an independent contractor who-

1. works for another person .. and who receives, or is entitled to receive, any remuneration;”

He points out that section 4(1) of the EEA provides that the EEA applies to all employees and employers and relies on section 5(3) of PEPUDA which provides:

“This Act does not apply to any person to whom and to the extent to which the Employment Equity Act, 1998 (Act 55 of 1998), applies.”

[3] This aspect was argued before the magistrate. He held that indeed there are matters which have been reserved for decision by a Labour Court in terms of the EEA and not by the Equality Court. He found that what was complained of in this matter was "hate speech" and that the EEA does not provide for determination of such issues.

[4] The appellant appeals against that decision. In the matter of Ndlovu v Santam Ltd, 2006 (2) SA 239 (SCA) the Supreme Court of Appeal held that such a decision is appealable and indeed held that a magistrate’s decision to dismiss such a special plea was correct. The basis of the decision is that if the special plea was the only defence the plaintiff would have been entitled to judgment upon the special plea being dismissed. There is no attack against the appeal being heard by this court.

[5] The appellant argues that the provisions of section 6 of the EEA are wide enough to allow the Labour Court to deal with this matter. Section 6 provides:

"6. Prohibition of Unfair Discrimination

(1) No person may unfairly discriminate directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth."

[6] The appellant contends that this matter is justiciable in the Labour Court because it has to do with racial discrimination in the workplace. The appellant relies on the aforesaid section 6 of the EEA read with sections 49 and 50. The argument is that in terms of section 6 the Labour Court has jurisdiction to deal with matters involving racial discrimination; that section 49 gives exclusive jurisdiction to the Labour Court to determine disputes of interpretation or application of the EEA and that section 50 sets out the powers which the Labour Court has when adjudicating matters. In terms of section 50(1)(d) and (e) the Labour Court is entitled to award compensation or damages. If indeed that argument is correct that would put an end to the matter. The respondent on the other hand contends that the magistrate in the first place had to decide what to do with the matter and that that entailed that he had to decide what the nature of the complaint was and how the complaint was to be dealt with and in the process whether the Equality Court had jurisdiction to deal with the matter.

[7] Section 20(3) (a) and (b) of the Act read as follows:

"(3)(a) The clerk of the equality court must, within the prescribed period of receiving such notification, refer the matter to a presiding officer of the equality court in question, who must, within the prescribed period, 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.

(b) If the presiding officer decides that the matter is to be heard in the equality court, the presiding officer must refer the matter to the clerk of the equality court who must within the prescribed period of such referral assign a date of hearing of the matter."

[8] The Supreme Court of Appeal had occasion to consider the effect of section 20(3)(a) of the Act in Minister of Environmental Affairs and Tourism v George and Others, 2007 (3) SA 62 (SCA). In paragraph 5 of his judgment on p. 67 Cameron JA observed as follows:

"(5) The statute obliges an equality court before which proceedings are instituted to hold an inquiry in the manner prescribed in the regulations 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

'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)) ..."

[9] Both the Act and the EEA were enacted because of the provisions of sections 9(3) and 9(4) of the Constitution. Section 9(3) provides that the State may not unfairly discriminate against anybody on various grounds and section 9(4) prohibits anybody from discriminating against anyone else on the grounds mentioned in section 9(3) and provides further that national legislation is to be enacted to prevent or prohibit unfair discrimination. The EEA is designed to promote equity in the workplace. The preamble to it recognizes disparities in employment, occupation and income in the national labour market and that there are disparities which cannot be redressed by repealing discriminatory laws only and indicates that the EEA is enacted, amongst other objectives, to promote equality, to eliminate discrimination in employment, to ensure implementation of employment equity and to achieve a workforce representative of the people. Chapter II deals with the prohibition against unfair discrimination and Chapter III deals with affirmative action. The objects of PEPUDA are “to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters therewith”

[10] In my view the question to be decided is what the statement, complained of, in this case really constitutes. The respondent and his colleagues to whom the appellant spoke are belt operators in the mine. They were unhappy with their shifts over week-ends. The respondent, a shop steward, complained to the mining engineer, the appellant, when the words were allegedly uttered. I accept that when the words were uttered, by the appellant, a white man, of and concerning the respondent, a black man, they had a racial connotation and a discriminatory import. Lebowa Platinum Mines Ltd v Hill [1998] 7 BLR 666 (LAC.) In my view it follows that the complaint of the respondent against his employer, the mine, falls within the ambit of section 6 of the EEA.

[11] The respondent approached the Labour Court with his complaint against the employer and with his claim that the appellant be dismissed. That is not what he complains of in the Equality Court. His claim in the Equality Court is not against the employer but against his co-employee, the appellant. He states that “I was offended and insulted by his harsh words” In the Equality Court the relief to which he is entitled is contained in section 21 of PEPUDA. He is clearly not entitled to an order, and the Equality Court is not empowered to make such an order, against the employer, who is not a party to the proceedings, to dismiss or to take other action against the appellant.

[12] It has in my view correctly been conceded on behalf of the appellant that there is no bar against the respondent instituting action against the appellant for redress based on a claim of injuria, in an ordinary court. If that is correct then in principle I can think of no reason why the respondent would not have been entitled to claim from his co-employee relief, which does not fall within the ambit of the EEA, in the Equality Court. The magistrate, in terms of section 20(3) of the Act, had to decide what the complaint really constituted. He had section 10 of PEPUDA in mind. It reads:

"(1) Subject to the proviso in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to-

(a) be hurtful;

(b) be harmful or to incite harm;

(c) promote or propagate hatred."

[13] In Mangope v Asmal and Another, 1997 (4) SA 277 (T), at 286 J – 287A, the view was expressed that if a person is called a baboon, when severely criticized, the purpose is to indicate that he is base and of extremely low intelligence. It was also stated that it can be inferred from the use of the word, in the circumstances, that the person mentioned is of subhuman intelligence and not worthy of being described as a human being. It follows that the person described as a baboon in those circumstances may rightfully perceive them to be hurtful.

[14] The magistrate was accordingly not wrong to find that the words complained of fall within the definition of “hate speech” as defined in section 10 of PEPUDA. The question however is whether he was right to conclude that, as a result, it falls outside the scope of matters that must be dealt with by the Labour Court in terms of the EEA. On the strength of the reasoning in the decision in Lebowa Platinum Mines Ltd. v Hills, supra it has to be concluded that the words complained of are racially discriminatory in terms of section 6 of the EEA. There is therefore no reason why the respondent could not institute action against the appellant in the Labour Court. As a matter of fact there does not seem to be a reason why he could not have instituted proceedings against both the employer and the appellant claiming different relief against the two defendants in the same action.

[15] On the other hand it is so that the words complained of also fall within the definition of “hate speech”. If the matter was to proceed in the Equality Court, and it was found that the appellant indeed uttered those words, an order in terms of section 21 of PEPUDA could be made against him. In stead of an order for damages in terms of section 21(2)(d) the court could order the appellant to make an unconditional apology in terms of section 21(2)(j) or order him to undergo an audit as contemplated in section 21(2)(k). In the circumstances the respondent is quite entitled to ask why he cannot proceed with his action against the employer in the Labour Court and with his action against the appellant in the Equality Court.

[16] The answer to that question in my view lies therein that racially discriminatory conduct is more serious than hate speech, but that the hate speech is one of the elements of the discriminatory conduct. Assault with intent to do grievous bodily harm is an offence but one of its elements is conduct that would also be enough to constitute common assault. The insult of a person in front of others may be of such a nature that an action for defamation lies, but, if that is so, a fortiore an action for injuria lies. Moreover, in my view, if the respondent’s action was brought in the Labour Court that court can achieve the same remedies than what the Equality Court can achieve. In terms of sections 50(1) (d) and (e) of the EEA it can award damages or compensation and if the matter is consolidated with the claim against the employer it can, in terms of section 50 (2) (c) of the EEA, compel the employer to cause the appellant to apologize or to undergo a course or audit. If it had been referred to it by the Equality Court it could refer it back to the Equality Court in terms of section 20(8) of PEPUDA.

[17] Where the conduct constitutes the more serious of more than one complaint, and that conduct falls within the ambit of section 6 of the EEA the correct forum to deal with the matter is the EEA. It follows then that the magistrate was wrong to hold that the Equality Court had jurisdiction. But even if I am wrong and there is a possibility of dual jurisdiction it seems to me that the magistrate should have heeded to the provisions of section 49 of the EEA and recognized that the Labour Court has exclusive jurisdiction to decide the question of jurisdiction. He should, in terms of section 20 of PEPUDA, have referred the matter to the Labour Court. The result would have been that the whole dispute that was argued before him would not have been before him at all. The argument was dealt with by the wrong forum. The appeal, accordingly, has to succeed, and the magistrate’s decision that the Equality Court has jurisdiction to deal with the matter is to be set aside. In my view the matter must be referred back to the Magistrate so that he can refer it to the Labour Court.

[18] It must be evident from what has been said hereinbefore that it was not at all clear exactly how and where the respondent was to proceed against the appellant. This is one of those matters where it would be fair not to make any order as to costs.

The following order is made:

1. The appeal succeeds.

2. The decision of the court a quo that it had jurisdiction to deal with the matter is set aside and the matter is referred back to it so that it can refer it to the Labour Court.

3. No order as to costs is made.

W J HARTZENBERG

JUDGE OF THE HIGH COURT

I agree.

K MAKHAFOLA

ACTING JUDGE OF THE HIGH COURT

Heard on: October 2007

Representation:

For the appellant

Appearance: adv C van der Walt

Attorneys for the appellant: c/o Adams & Adams, Hatfield, PRETORIA

For the respondent

Appearance: adv L M malan.

Attorneys: K D Maimane Attorney, BRYANSTON

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