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 AUTHORITYOF 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 & HALLC/O TATHAM

WILKES, PIETERMARITZBURG