REPORTABLE					CASE NO AR 237/2007

IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

In the matter between

ANIL B. MAHARAJ			Appellant
				(Complainant in the Court a quo)

and

THE NATIONAL HORSERACING AUTHORITY
OF SOUTHERN AFRICA		Respondent
				Plaintiff in the Court a quo)

									Delivered :
									January 2008

J U D G M E N T

LEVINSOHN DJP :
[1]	On the 10th May 2006 the appellant attested to an affidavit in support of a complaint in the Equality Court.   He averred that he is a horseracing trainer who in November 2002 had been suspended by the respondent from practising his calling as a trainer for a period of five years.   He had written to the respondent to be reinstated but the respondent denied his request.
[2]	He now approached the Equality Court on the footing that he was a victim of unfair discrimination on the grounds of his race.   He also alleged that he had been harassed within the meaning of the Equality Act.
[3]	In support of his case he annexed a statement which is annexure “E” (page 19, volume 1).   Annexure “E” is a lengthy document setting forth events and incidents which occurred from 1989 upon his return from Australia.   It commences with his application for a trainer’s licence in 1989.   According to him at that stage his licence was refused and he returned to Australia where he successfully obtained a licence.
[4]	In 1997 he returned to South Africa and once again applied for a licence.   This time his licence was granted, apparently after intervention by the head executive steward of the respondent.   However after intervention by the local executive he was obliged to sit for an examination.   He alleges that he felt ridiculed and demeaned as a result of this.
[5]	Initially his training establishment was outside Summerveld Training Centre.   He said that Gold Circle, the company which manages the training centre could not give him boxes there to house his horses.   He points to the hardships that he suffered as a result of being outside the establishment.   He also alleges that he had to pay fees to train his horses on the Summerveld track.   Other white trainers, according to him, were not obliged to do so.
[6]	He alleged that there was clearly a conspiracy to keep so-called black trainers like himself out of Summerveld because some white trainers who started their operations after him were given boxes and they had in fact jumped the queue.
[7]	The appellant recounted some of the difficulties that he had experienced at Summerveld including the occasion when he was apparently evicted from boxes that he possessed which resulted in apparently successful spoliation proceedings being brought by him.
[8]	The appellant in the course of his narrative mentions an incident where he was charged by the stipendiary stewards and fined R6 000.   On appeal before a tribunal presided over by Judge Leon his appeal was dismissed.
[9]	The appellant also refers to incidents concerning his horse “His Nibs”.   He complained of unfair treatment at the hands of the handicapper.   He was forced to race his horse in Bloemfontein to shed its maiden. 
[10]	The appellant also recounted an incident which occurred at Summerveld Training Establishment in regard to a horse called “Count Pushkin” which he had purchased at the yearling sales.   That horse displayed defects which entitled the appellant to cancel the sale.   He obtained the necessary veterinary certificates and informed the Thoroughbred Breeders’ Association which had sold the horse that he would return it.
[11]	After he had notified the Thoroughbred Breeders’ Association he was visited by a member of the Jockey Club, one G. B. Davies.   Davies was accompanied by Mr Arendse, an ex-policeman who was the investigating officer for the Jockey Club in Natal.   According to the appellant both Davies and Arendse adopted a threatening and abusive attitude towards him.
[12]	Following upon this the appellant lodged a formal complaint against these two persons.   According to him the inquiry was presided over by Judge Shearer.   Judge Shearer acquitted both Davies and Arendse of any wrongdoing.
[13]	The appellant mentioned a variety of other incidents including threats and abuse by white trainers, jockeys riding his horses contrary to instructions, and a jockey who was committed to ride his horse taking a ride on another horse.   His protests about this were in vain.
[14]	The appellant also complained that he was abused by a white owner in the parade ring.   It appears that this white owner’s horse had lost an objection against the appellant’s horse in a particular race.   He apparently racially abused the appellant who lodged a charge.   According to the appellant he was charged instead and received a two-year suspension.
[15]	A further incident at Summerveld occurred when a steward attempted to serve a notice on the appellant.   There was an incident which resulted in him being charged and, as he put it, the Jockey Club “sent two heavyweight apartheid–hanging judges: Justice Shearer and Leon to dish out sentences to me of a suspension of another two years.   Nothing was done to Arendse.”
[16]	The appellant then gave an account of his hearing before a tribunal constituted by the respondent and chaired by Mr D. Beasley SC, an advocate from Johannesburg which culminated in November 2002 with his suspension for a period of five years.   The charges before the tribunal resulted from incidents which occurred at the Greyville Race Course involving an ex-jockey called Gadsby and Arendse, once again.   It was alleged that the appellant had assaulted Gadsby near the stewards’ board room at the Greyville Race Course and had assaulted Arendse in the parade ring.   According to the appellant’s initial statement the hearing was “a kangaroo tribunal”.   The tribunal warned him off for five years as mentioned at the commencement of this judgment.  
[17]	The appellant’s main complaint it seems to me is that the punishment meted out to him was in stark contrast to that meted out, or not meted out, to white trainers who had in the appellant’s view committed more or less the same transgressions.   The appellant mentioned an incident where a trainer called Colin Lee assaulted a groom and received a two-year suspension.   Two months thereafter the appellant alleged Lee had committed another act of assault.   The Jockey Club declined to do anything about this because it was felt that if Lee was convicted he would lose his licence altogether.   Against that background the sentence meted out to him (the appellant) was in his words “purely racist”.
[18]	A further incident mentioned by the appellant relates to a Mr Mike Bass, a trainer from Cape Town who also according to the appellant assaulted his groom.   
[19]	Mention was made also of the conduct of a Johannesburg trainer, a Mr Mike de Kock, who according to the appellant “was found guilty of doping his horses on at least five occasions but no action was taken”.   This person had threatened to assault the stewards when they came to inspect and examine his stables.   He chased them away.   For this conduct he was given according to the appellant a very light sentence.
[20]	Then there was the incident of a Mr Ralph Smout who according to the appellant shot a groom in the back but was still retained in his position as the manager of the Summerveld training complex.   
[21]	The respondent in reply to the appellant’s case delivered an affidavit.  I find it unnecessary to summarise that affidavit apart from mentioning that the respondent emphasises that it is a voluntary association and it is charged with the duty of controlling horseracing in South Africa.  The appellant was at all material times bound by its rules and regulations.
[22]	The respondent recounts a number of occasions when the appellant was charged before its disciplinary tribunals culminating in the one where he was suspended for five years.
[23]	The hearing before the Durban Equality Court commenced on 11th September 2006 before the presiding officer Ms Moolman.   The appellant was represented by an attorney, Mr Reddy.   At the commencement Mr Reddy delivered an opening address in which he set out the appellant’s case.   
[24]	It is convenient to quote excerpts from this opening address.
	“Mr Maharaj will testify before you.   He will lead evidence relating to the history of his involvement in the horseracing industry and he will lead evidence about what he contends is the systematic levels of discrimination against him over a period of time which related to a number of issues.”
	…….
	“The matter concerns largely evidence that will be placed before you relating to Mr Maharaj’s experiences which is submitted are entirely relevant to an assessment of issue of the alleged racism on the part of the respondent, its conduct and its approach.   The evidence will also be led that in the past during the course of disciplinary inquiries that have been held or inquiries into conduct, rather, that were held by the respondent that the respondent clearly indicated that there was, as it alleged, a complete breakdown in the relationship between The Authority and Mr Maharaj.”
	………
	“It will be argued during these proceedings that the respondent’s conduct, when viewed in its totality, illustrates that Mr Maharaj as complainant was treated differently.   He was the subject of unequal treatment.   He was the subject of unfair discrimination.” 
[25]	The respondent was represented by a Mr Roodt who also made a brief opening address.   In the course of that address he handed in as an exhibit the record of the disciplinary inquiry into the appellant’s conduct at Greyville Race Course on 6th July 2002.
[26]	Roodt pointed out that this inquiry lasted seven days.   It was presided over by senior counsel.   A senior advocate from the Durban Bar was a member of this tribunal as well as a stipendiary steward.   Mr Roodt said that action was taken against the appellant not because of his race but because of his complete disregard of the rules and regulations of the respondent.
[27]	Thereafter the appellant entered the witness box and testified at length.   In the main his testimony relates to the matters which I have attempted to summarise above.   I find it unnecessary to summarise the oral testimony.
[28]	At the conclusion of the evidence the respondent’s representative moved for an order which in effect was one of absolution from the instance.   He argued in the first place that having regard to the date of commencement of he Equality Act and given that the events and incidents mentioned by the appellant which gave rise to his cause of action all occurred before the commencement of the Act his claim for relief in terms of the Equality Act is incompetent.   Secondly, and in the alternative it was argued that the appellant had not established a prima facie case.
[29]	The presiding officer delivered her ruling on 2nd March 2007.   The point in limine relating to the retrospective operation of the Act was upheld.   The presiding officer went on to deal also with the second submission and agreed that a prima facie case had not been established.
[30]	The appellant appeals against these rulings.   
[31]	In a comprehensive and thorough argument counsel for the appellant has submitted that the presiding officer erred in making the aforesaid findings.   In very broad outline counsel’s submissions are that the well-known principles applicable to retrospective legislation are not applicable in casu.   The Constitution of the Republic of South Africa both in its interim and final form entrenched equality rights and more particularly the right not to be discriminated against on the grounds of race.   Notwithstanding that the legislation which the Constitution envisaged, took effect some years later that did not detract from the fact that at all material times the appellant enjoyed the rights entrenched in the Constitution including the equality rights aforesaid.   With the advent of the Equality Court legislation he was entitled to invoke the mechanisms created by that Act notwithstanding that that legislation came into effect on a date well after the events which the appellant had alluded to.
[32]	Section 9 of the Constitution of the Republic of South Africa of 1996 states : -
	“(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 established that the discrimination is fair.”
	(My emphasis)
[33]	Section 23(1) of Schedule 6 to the Constitution reads : -
	“(1)	National legislation envisaged in sections 9(4), 32(2) and 33(3) of the new Constitution must be enacted within three years of the date on which the new Constitution took effect”
[34]	The legislation envisaged by section 9 of the Constitution was passed on 2nd February 2000 and was called “The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000”. (“The Act”).
[35]	In the preamble to the Act the legislature notes that the Act endeavours “to facilitate the transition to a democratic society, united in its diversity, marked by human relations that are caring and compassionate, and guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom.”
[36]	The scheme of the Act is as follows.   In Chapter 1 the objects of the Act are set forth which includes the legislation required by section 9 of the Constitution and to give effect to the letter and spirit of the Constitution, in particular the promotion of equality and the values of non-racialism and non-sexism, the prevention of unfair discrimination, the protection of human dignity and the prohibition of hatred based on race, ethnicity, gender or religion.   A further object of the Act is to provide for procedures for the determination of circumstances under which discrimination is unfair and importantly also to provide remedies for victims of unfair discrimination, hate speech and harassment and persons whose rights to equality have been infringed (section 2(f).   Then follow certain guidelines in regard to interpretation of the Act as well as guiding principles.
[37]	Chapter 2 in sections 6 to 12 deals with the prevention, prohibition and elimination of unfair discrimination, hate speech and harassment.   Notably section 6 provides that neither the State nor any person may unfairly discriminate against any person.   Section 7 prohibits unfair discrimination on the grounds of race, section 8 unfair discrimination on the grounds of gender, while section 9 prohibits unfair discrimination on the grounds of disability.   Sections 10, 11 and 12 prohibit hate speech, harassment and the dissemination and publication of information that unfairly discriminates.
[38]	Chapter 3 deals with the issues of burden of proof and determination of fairness and unfairness.
[39]	Chapter 4 creates the equality courts.  Importantly section 21 sets forth the powers and functions of the equality court.   The equality court is enjoined to hold an inquiry and determine whether unfair discrimination, hate speech or harassment as the case may be has taken place as alleged (section 21(1)).   Certain wide-ranging powers are conferred upon the equality court in terms of section 21(2) of the Act.   
[40]	Because of its importance I will set these out in full : -
	“(2)	After holding an inquiry, the court may make an appropriate order in the circumstances, including-
	(a)	an interim order;
	(b)	a declaratory order;
	(c)	an order making a settlement between the parties to the proceedings an order of court;
	(d)	an order for the payment of any damages in respect of any proven financial loss, including future loss, or in respect of impairment of dignity, pain and suffering or emotional and psychological suffering, as a result of the unfair discrimination, hate speech or harassment in question;
	(e)	after hearing the views of the parties or, in the absence of the respondent, the views of the complainant in the matter, an order for the payment of damages in the form of an award to an appropriate body or organisation;
	(f)	an order restraining unfair discriminatory practices or directing that specific steps be taken to stop the unfair discrimination, hate speech or harassment;
	(g)	an order to make specific opportunities and privileges unfairly denied in the circumstances, available to the complainant in question;
	(h)	an order for the implementation of special measures to address the unfair discrimination, hate speech or harassment in question;
	(i)	an order directing the reasonable accommodation of a group or class of persons by the respondent;
	(j)	an order that an unconditional apology be made;
	(k)	an order requiring the respondent to undergo an audit of specific policies or practices as determined by the court;
	(l)	an appropriate order of a deterrent nature, including the recommendation to the appropriate authority, to suspend or revoke the licence of a person;
	(m)	a directive requiring the respondent to make regular progress reports to the court or to the relevant constitutional institution regarding the implementation of the court's order;
	(n)	an order directing the clerk of the equality court to submit the matter to the Director of Public Prosecutions having jurisdiction for the possible institution of criminal proceedings in terms of the common law or relevant legislation;
	(o)	an appropriate order of costs against any party to the proceedings;
	(p)	an order to comply with any provision of the Act.
(3)	An order made by an equality court in terms of or under this Act has the effect of an order of the said court made in a civil action, where appropriate.”
[41]	I should perhaps highlight the provisions of section 21(2)(d) which empowers the court to make an order for the payment of damages arising from financial loss, impairment of dignity, pain and suffering or emotional and psychological suffering as a result of unfair discrimination, hate speech or harassment.
[42]	To sum up then the Act in giving effect to the Constitutional injunction creates the several prohibitions set forth above and at the same time constitutes a specialist court to adjudicate on these matters and to give appropriate relief.
[43]	As indicated the Act was assented to in February 2000.   Section 35 provides that it will come into operation on a date fixed by the President by proclamation in the Gazette.   Different dates may be fixed in respect of different provisions of the Act.
[44]	Indeed the Act came into operation in two phases.   Sections 1, 2, 3, 4(2), 5, 6, 29 (excluding subsection 2), 32, 33 and 34 commenced on 1st September 2000 whilst the remaining sections commenced on 16 June 2003.
[45]	It is evident that the key provisions of the Act were the establishment of the equality courts.   Thus section 16 provides for the establishment of the equality court and the designation of its presiding officers.   Section 31 provides for the implementation of the Act.   In my view there was really no point nor was any practical effect gained from the promulgation in 2000.   Clearly the various sections such as section 1 must be read with section 16.   As far as the provisions of section 4 (the guiding principles) are concerned these are really in a vacuum until the establishment of the equality court.
[46]	The coming into operation in 2003 of the various remaining sections brought about the following situation.   There was now a court specially designated to deal with issues of discrimination, hate speech and harassment.   A mechanism was created whereby a person could launch proceedings before that forum and more importantly, that person could obtain the relief specified in section 21 of the Act.   That section gives effect to section 2(f) : -
	“to provide remedies for victims of unfair discrimination, hate speech and harassment and persons whose right to equality has been infringed.”
[47]	Now it seems to me that proceedings instituted in terms of the Act before an equality court must be based on facts and circumstances that should demonstrate that a person has been guilty of any of the prohibited conduct set forth in the Act.   Furthermore the facts and circumstances averred must justify the relief sought.
[48]	In paragraph 6 of his affidavit attested in support of his complaint in the equality court the appellant averred : -
	“I seek the following relief : To be reinstated, public apology, to change rules to protect the disadvantaged against discrimination and to administer laws according to our Constitution.”
[49]	Subsequently the relief sought was amplified.   The appellant claimed (see page 1303, volume 12) the amount of 
	R5 670 169,00.   In respect of this claim the appellant alleged that he suffered loss as a result of his suspension.
[54]	In summary therefore the appellant’s cause of action in the proceedings before the equality court was based firstly on allegations of discrimination on the basis of race, hate speech and harassment.   The facts and circumstances giving rise to that occurred before November 2002.   His claim for monetary damages is based on what can only be an allegation that he was unlawfully suspended.
[55]	Although counsel for the appellant made the point in her heads of argument that the application for reinstatement in April 2006 occurred after the Act had come into force and somehow that was significant insofar as the issue of retrospectivity was concerned, I am of the view that the appellant’s case does not turn on that issue at all.   There is not a tittle of evidence nor indeed even a suggestion that the decision made in 2006 was discriminatory on the basis of race or any of the other prohibited grounds mentioned in the Act.   The appellant’s case was clearly based on what occurred before his suspension in November 2002.   Reverting back to his counsel’s opening address he obviously wanted the equality court to draw an inference from the cumulative effect of these facts and circumstances that the prohibited conduct had taken place.
[56]	It is self-evident that with the advent of the new constitutional dispensation every person who suffered a breach of his or her constitutional rights was entitled to approach a competent court for relief.   Section 38 of the Constitution provides :-
	“Enforcement of rights
	Anyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights. ……….”
[57]	That of course meant the existing courts as constituted in terms of the Constitution.   As far as relief is concerned, interdictory relief immediately comes to mind.   It has also been held that persons may claim constitutional damages arising from an infringement of one’s constitutional rights.   In Fose v Minister of Safety and Security 1997 (3) SA 786 CC at paragraph 60 Ackermann J said the following : -
	“Notwithstanding these differences, it seems to me that there is no reason in principle why 'appropriate relief' should not include an award of damages, where such an award is necessary to protect and enforce chap 3 rights.”
[58]	At paragraph 69 the learned judge of the Constitutional Court said : -
	“In our context an appropriate remedy must mean an effective remedy, for without effective remedies for breach, the values underlying and the right entrenched in the Constitution cannot properly be upheld or enhanced.   Particularly in a country where so few have the means to enforce their rights through the courts, it is essential that on those occasions when the legal process does establish that an infringement of an entrenched right has occurred, it be effectively vindicated.”
[59]	It follows that with the advent of the new constitutional dispensation any person including the appellant who believed that he or she had a cause of action could have moved the courts for relief.   The procedure followed to obtain that relief would be regulated by existing rules and practice.   It seems to me also that the laws of prescription would also come into play so that a person who was a victim of a constitutional breach would be required to launch his proceedings timeously and his/her cause of action could not be allowed to linger indefinitely. 
[60]	It is in my view wrong to suggest that prior to the coming into operation of the Act persons who suffered a breach of the equality rights entrenched in the Constitution were without a remedy.   The appellant’s case seems to be that if any breach of constitutional rights took place before the Act came into operation, that cause of action was to remain in abeyance until the equality courts came into operation and thereafter one could invoke that Act to obtain relief.
[61]If, for example, in 1997 a person of colour was refused access to a block of flats controlled by a shareblock company and it could be proved that the board of directors of that company had deliberately adopted a policy of “whites only”, could that victim of racial discrimination have waited until 2003 to institute proceedings in the equality court and to take advantage of the expanded remedies which that court could have granted when under normal circumstances his/her claim would have prescribed?
[62]	I am of the opinion that the legislature could never have intended that the equality courts take up causes which arose prior to their establishment.   There is no indication in the Act itself of this.   Indeed, the indications are that it is to operate prospectively.   In National Director of Public Prosecutions v Basson 2002 (1) SA 419 SCA at 426 Nugent AJA (as he then was) said the following : -
	“[11] There is a natural resistance to creating legal consequences for conduct only after the conduct has occurred.   As stated by Justice Scalia, concurring with the majority in Kaiser Aluminium and Chemical Corporation et al v Bonjorno et al 494 US 827 (1990) at 855: 
	'The principle that the legal effect of conduct should ordinarily be assessed under the law that existed when the conduct took place has timeless and universal human appeal. It was recognised by the Greeks . . . by the Romans . . . by English common law . . . and by the Code Napoleon.   It has long been a solid foundation of American Law. . . .' 
[12] That principle is also recognised by the law of this country in which there is a strong presumption against the retrospective operation of a statute: generally a statute will be construed as operating prospectively only unless the Legislature has clearly expressed a contrary intention (Genrec MEI (Pty) Ltd v Industrial Council for the Iron, Steel, Engineering, Metallurgical Industry and Others 1995 (1) SA 563 (A) at 572E - F).   Moreover, a statute that purports to create an offence (which was not at least an offence in international law) or to prescribe a punishment, with retrospective effect, will conflict with ss 35(3)(l) and (n) respectively of the Constitution and might be invalid unless it can be justified in terms of s 36(1).”
	(My emphasis).
[63]	The highlighted portion of the quote from Justice Scalia’s opinion is important in the context of this case.   As indicated above the appellant calls upon us to find that the legal effect of the conduct he relies on brands the respondent as an organisation which is guilty of institutional racial discrimination.   In my opinion an equality court is not competent to adjudicate on or grant relief in respect of conduct that occurred prior to the Act coming into operation.
[64]	In case it may be suggested that the creation of the equality courts simply created a procedural mechanism to enforce existing constitutional rights and in that respect the statute is one procedural in nature  and therefore could have retrospective effect, I refer to the case of Minister of Public Works v Haffejee NO 1996 (3) SA 745 AD.   In that case Marais JA dealt with the issue of the principle of retrospectivity in statutes of a procedural nature.   The learned judge of appeal said the following : -
	Now, although it has often been said that the presumption against statutory retrospectivity does not apply to procedural provisions, the realisation has grown that the distinction between procedural and substantive provisions cannot always be decisive in the context of statutory interpretation.   Thus, in Yew Bon Tew v Kenderaan Bas Mara [1982] 3 All ER 833 (PC) at 836b-d Lord Brightman said:
	'A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. There is however said to be an exception in the case of a statute which is purely procedural, because no person has a vested right in any particular course of procedure, but only a right to prosecute or defend a suit according to the rules for the conduct of an action for the time being prescribed.
	But these expressions “retrospective” and “procedural”, though useful in a particular context, are equivocal and therefore can be misleading.   A statute which is retrospective in relation to one aspect of a case (eg because it applies to a pre-statute cause of action) may at the same time be prospective in relation to another aspect of the same case (eg because it applies only to the post-statute commencement of proceedings to enforce that cause of action); and an Act which is procedural in one sense may in particular circumstances do far more than regulate the course of proceedings, because it may, on one interpretation, revive or destroy the cause of action itself.'
And at 839d-f:
	'Whether a statute has a retrospective effect cannot in all cases safely be decided by classifying the statute as procedural or substantive. . . . Their Lordships consider that the proper approach to the construction of . . . (an Act) . . . is not to decide what label to apply to it, procedural or otherwise, but to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations.'”
[65]	The learned judge of appeal summed up the effect of the Privy Council judgment which he quoted as follows : -
	“In other words, it does not follow that once an amending statute is characterised as regulating procedure it will always be interpreted as having retrospective effect.   It will depend upon its impact upon existing substantive rights and obligations.”
	The relief which the equality court can grant which I have set out in full above certainly expands the type of remedy that a victim of discrimination could have obtained before the Act came into operation – certainly an ordinary magistrate’s court or indeed High Court could not have granted the relief of that wide-ranging nature.
[66]	Using the words of Lord Brightman in the Yew Bon Tew case can it be said that the legislature in this Act intended to create new obligations or impose new duties or attach new disabilities in regard to events already past?    I think not.   In my view the presiding officer was correct.   It boils down to this:  that the equality court was not competent to grant the relief claimed by the appellant in regard to events which took place prior to the coming into operation of the Act.   The correct verdict in my view was to dismiss the appellant’s claim which is clearly within the competence of an equality court.   Having reached this conclusion I find it unnecessary to deal with the next leg of the case, namely whether the appellant indeed made out a prima facie case of discrimination.
[67]	It follows that the appeal is dismissed with costs.
GYANDA J :	I agree.

DATE OF JUDGMENT :			 	JANUARY 2008

DATE OF HEARING :					5 NOVEMBER 2007
COUNSEL FOR THE APPELLANT :	MS A. A. GABRIEL

INSTRUCTED BY :	JAY REDDY ATTORNEYS,
C/O GOVINDSAMY & PILLAY, PIETERMARITZBURG

COUNSEL FOR RESPONDENT :		MR T. W. BECKERLING SC WITH HIM MR G. J. NEL

INSTRUCTED BY :		BELL DEWAR & HALL
		C/O TATHAM WILKES, 
		PIETERMARITZBURG