REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
 (GAUTENG DIVISION,PRETORIA)
CASE NO: A778/2013
DATE: 10 JUNE 2014

In the matter between:
THE UNIVERSITY OF PRETORIA...................................................................................1st APPELLANT
COUNCIL OF THE UNIVERSITY OF PRETORIA.......................................................2nd APPELLANT
TUKSALUMNI ASSOCIATION.........................................................................................3rd APPELLANT
and
REGINALD SETHOLE LEGOABE.....................................................................................RESPONDENT
JUDGMENT
Heard on: 26  March 2014 
Handed down on: 10 June 2014
KUBUSHI,J
[1] On 31 July 2013 magistrate Thulare (sitting as a presiding officer in the equality court) granted an order in terms of s 20 (3) (a) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) that certain aspects of a complaint made by the respondent (complainant in the court a quo) against the appellants (respondents in the court a quo) be heard by the equality court.
[2] S 20 (3) (a) of the Equality Act stipulates that a presiding officer of the equality court concerned should decide whether a matter instituted in the equality court, should be heard in the equality court or whether it should be referred to another appropriate institution, body, court, tribunal or other 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.
[3] In this instance, the presiding officer decided that the matter should be heard in the equality court. The appellants have as a result launched an appeal against the magistrate’s decision and order. The main thrust of the appeal being that the equality court does not have the jurisdiction to hear and adjudicate this matter.
[4] The appeal emanates from a complaint filed by the respondent, Reginald Sethole Legoabe (Legoabe), in his capacity as the Executive Director of the Higher Education Transformation Network, a national alumni body representing alumni graduate members of the University of Pretoria, who laid a complaint with the equality court against the University of Pretoria (the University), TuksAlumni, the Council of the University of Pretoria (the Council), the Minister of Higher Education (the Minister) and one Willie Durand Spies (Spies).
[5] In terms of Notice to Respondent regarding Institution of Proceedings (the Notice) Legoabe set out the nature of his complaint as:
5.1 Lack of equality and diversity in representation of black alumni to serve on the University of Pretoria Council.
5.2 Lack of equality and diversity in representation of black alumni to serve on the Tubs AiumniBoorá.
5.3 Non-compliance by the University of Pretoria with the principles of the Education White Paper/Higher Education Act on transformation.
5.4 Non-compliance by the University of Pretoria with the Employment Equity Act.
[6] The relief Legoabe sought was set out in the Notice as:
6.1 Declaration of current alumniCouncW election process as invalid.
6.2 Declaration of disqualification of Mr Willem Spies as Council member.
6.3 Declaratory order against UP for compliance with the Employment Equity Act.
6.4 Declaration on invalidity of the University of Pretoria rules, policies and regulations not in line with Constitution.
[7] The reasons for the complaint were set out in the statement of facts as:
7.1 The institutional rules and the Statute of the University are inconsistent with the aspiration and the spirit of the Constitution of the Republic (Act 108 of 1996);
7.2 The University of Pretoria management has failed to give leadership on transformation and equity processes in terms of the Higher Education Act 101 of 1997 (the Higher Education Act), the Higher Education White Paper and the University of Pretoria Statute of 2012;
7.3 Black alumni of the University are being excluded from the activities of the University’s alumni body through the unfair processes used by the University and the TuksAfumni Board;
7.4 The University is not implementing the Employment Equity Act as it is supposed to in terms of legislation.
7.5 The University is implementing different salary bands for white and black employees.
7.6 There is an adverse organizational culture at the University that is skewed in favour of excluding blacks in the workplace;
7.7 The general acceptable elections norms, principles and rules were not followed with regards to the elections of the alumni to the university Council and the TuksAlumni respectively.
7.8 There exists a conflict of interest when Mr Willie Spies is to serve as both Tubs Alumni Chairperson of the Board and a candidate to serve on the UP Council.
7.9 The institutional rules and Statutes of the University are not in line with the mission and vision as well as current strategic plan of the University of Pretoria.
7.10 There exists a conflict of interest by Mr Willie Spies leading an organisation (Afriforum) that has an interest in Higher Education with the Higher Education Laws Amendment Act 21 of 2011 subsection 7, in particular.
[8] In the statement of fact Legoabe prayed that:
8.1 The UP Council reject, denounce and put aside the white male dominated alumni elections results to serve on the UP Council.
8.2 The UP Council do not endorse any alumni candidate to serve on the UP Council.
8.3 A declaratory order be issued to force the University of Pretoria to comply with the Employment Equity Act with timeframes attached;
8.4 A declaration of invalidity of the UP’s rules, policies and regulations that are not in line with the Constitution.
8.5 The Disbandment of the current Tubs Alumni Board due to non-representativity of all alumni oft the University.
8.6 A public apology by the University acknowledging failure to comply with the Constitution and Higher Education Act as amended.
8.9 Any other order deemed appropriate by the court.
[9] The University, the Council, the Tubs Alumni and Spies submitted in response to the said complaint of Legoabe that the equality court had no jurisdiction to entertain the complaint. The submission was based on the grounds that the complaint failed to disclose any unfair discrimination within the meaning of ss 6 to 12 of the Equality Act, as read with the definitions of ‘discrimination’ and ‘prohibited grounds’ in s 1 (1) of that Act. The Minister did not file any papers.
[10] At the hearing of the s 20 (3) (a) enquiry, Legoabe abandoned part of the complaint pertaining to the non-compliance by the University with the Employment Equity Act. When giving his decision the magistrate accepted those aspects of the claim abandoned by Legoabe. He also declined to find that there was a cause of action in respect of the Minister and Spies hence the two parties are not part of the appeal proceedings. Consequently, the magistrate declared the equality court to have jurisdiction to hear and determine Legoabe’s claim. The magistrate set out the complaints as follows:
10.1 that, the University of Pretoria, the Council of the University of Pretoria and/or Tubs Alumni Association are/is failing to take steps to reasonably accommodate the needs of Blacks, women and/or the disabled, in order to meet the need to redress the imbalances of the past to achieve broader representation.
10.2 that, Blacks, women and/or the disabled are excluded under any rule or practice that appear legitimate but which is actually aimed at maintaining exclusive control by a particular race group, gender or the abled bodied.
[11] The appellants now come before us on appeal against that order. Before us the University and the Council are represented by Adv Trengove SC and his junior Adv Makola, the TuksAlimni by Adv Engelbrecht and Legoabe by Adv Nkosi. Adv Nkosi informed us that he appears pro bono on behalf of Legoabe.
[12] All the appellants have raised the same grounds of appeal. Their contention is that the magistrate erred in directing that Legoabe’s complaint be heard by the equality court in that
12.1 Legoabe's complaint does not disclose any complaint of unfair discrimination within the meaning of ss 6 to 12 of the Equality Act, read with the definition of 電iscrimination� and 菟rohibited grounds� in s 1 (1) of the Equality Act; and
12.2 The second complaint referred by the magistrate to the equality court is not a complaint made by Legoabe but formulated by the magistrate without any factual basis.
[13] The respondent in his heads of argument without directly attacking the merits of the appeal is opposing the appeal on the basis of two points in limine namely, that:
13.1 the judgment of the presiding officer of the equality court in this instance is not appealable; and
13.2 the appeal was set-down prematurely in that the appellant failed to file and serve the transcribed record of the court a quo
I deal first with the points in limine
POINTS IN LIMINE
[14] It is my view that the points raised by Legoabe’s counsel in limine are flawed and that they should be rejected out of hand.
[15] In terms of s 23 (1) of the Equality Act, any person aggrieved by any order made by an equality court in terms of or under that Act may appeal against such order to the High Court having jurisdiction or the Supreme Court of Appeal, as the case may be.
[16] The rules and court proceedings for appeals are set out in s 19 of the Equality Act read with regulation 19 of the Regulations relating to the promotion of equality and prevention of unfair discrimination GNR 764 of 13 June 2003 (the Regulation). S19 (1) stipulates that the provisions of the Magistrates' Court Act, 1944 (Act No. 32 of 1944), and the Supreme Court Act, 1959 (Act No. 59 of 1959) (as it then read), and of the rules made thereunder as well as the rules made under the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985), apply with the necessary changes required by the context of the equality courts.
Does the Equality Court have jurisdiction?
[17] In as far as jurisdiction is concerned, s 83 (b) of the Magistrates’ Court Act stipulates that a party to a civil suit or proceeding in a court may appeal to the provincial or local division of the High Court having jurisdiction to hear the appeal, against any rule or order made in such suit or proceedings and having the effect of a final judgment.
[18] A plea of jurisdiction is what is referred to as a special plea. It is thus an established principle of our law that an order emanating from a special plea by its nature is not interlocutory but final in nature. It has been held in numerous judgments in our courts, and it is in my view, it is now trite, that a special plea of jurisdiction, like all special pleas, has a hallmark of a final judgment as it exists independently of the appellant痴 case and is therefore appealable. See Ndlovu v Santam Ltd1 and Steenhamp v SABC2.
[19] It is thus clear that a plea of jurisdiction is final in nature because it concerns not the elements of the claim, but the competence of the court to determine the claim. It can thus not be said to be interlocutory. When considering a plea of jurisdiction what is in issue is not the merits of the matter but the competency of the court to hear and determine the matter before it. Similarly in this instance what the magistrate had to determine was the competency of the equality court to hear and determine Legoabe’s complaint. On that basis 1 have to conclude that this point in limine stands to be dismissed.
Was the appeal prematurely prosecuted?
[20] As regards the point in iimine as to the appellants’ failure to file and serve the transcript of the record, my view is that it should be rejected as well. Regulation 19 (6) (a) requires the clerk of the equality court concerned to cause the record of proceedings at an inquiry to be transcribed if such proceedings were taken down or recorded in shorthand or by mechanical means. In terms of this regulation it is the clerk of the court’s responsibility to transcribe the record and not of the appellant. However, ordinarily, the duty would have been on the appellants in prosecuting the appeal to ensure that the transcribed record is before this court. It is common cause that in this instance the record was not transcribed and it is as a result not before us. It is however my view that, in this instance, it was not necessary that the record of the proceedings be transcribed and/or filed for purposes of this hearing. The issue before the magistrate was on a point of law, namely, jurisdiction, as such only arguments would have been proffered by the parties. The record would as a result consist of those arguments only. The issue before us is still the same as was argued before the magistrate and it is my view that the same arguments will be raised before us. Counsel has not advised us otherwise. It is thus my opinion that the issue on appeal ought to be decided without the record of the arguments from the court below.
THE MERITS
Argument by lrt and 2nd Appellants
[21] The main contention canvassed on the merits of the appeal in respect of these two appellants is that Legoabe’s complaint does not raise claims of unfair discrimination on the ground of race. Mr Trengove on behalf of the two appellants submits that the facts upon which Legoabe relies in his complaint are not clear but, the University has dealt with the underlying facts as best as it could and came to the conclusion that the complaints are unfounded and scurrilous. According to counsel, his clients do not dispute the merits of the complaint at this stage but the question is whether they fall within the jurisdiction of the equality court.
[22] Mr Trengove submits that s 7 of the Equality Act prohibits unfair discrimination against any person on the ground of race. In order to provide a full understanding of s 7, the section should be read together with the definition of “discrimination” and “prohibited grounds” in s 1 (1) of the Equality Act, so he argues. He asserts that the act complained of should as a result impose burdens, obligations or disadvantages on, or withhold benefits, opportunities or advantages from any person on the ground of race.
[23] Counsel’s further submission is that the basis of Legoabe’s complaint does not appear to raise claims of unfair discrimination on the ground of race and does not raise any other claims under ss 6 to 12 of the Equality Act. He submits also that it does not even appear from Legoabe’s complaint that either the University or the Council imposes burdens, obligations or disadvantages on, or withholds benefits, opportunities or advantages from, any person on the ground of race. His contention is that on this basis Legoabe’s claim should be referred to an alternative forum.
[24] Counsel’s other argument is that the respondent's claim goes beyond the jurisdiction of the equality court in that the complaint raised relates to matters relating to transformation in the workplace and thus falls within the scope of the Employment Equity Act. The Equality Act does not have any jurisdiction in relation to matters of transformation. He submits that transformation issues are specifically excluded from the Equality Act in ss 5 and 8 thereof. The Equality Act does not cover transformation issues for two reasons, namely
24.1 s 21 (1) of the Equality Act limits jurisdiction of the equality court to unfair discrimination, hate speech and harassment.
24.2 affirmative provisions in chapter 5 of the Equality Act are still in-operative.
In his opinion the complaints and the reasons advanced by Legoabe appear to be complaints of lack of transformation and should have been referred to the Labour Court.
[25] In respect of the magistrate’s findings and decision, counsel’s submission is that the second complaint referred by the magistrate to the equality court is of the magistrate’s own making and is not underpinned by any complaint made by Legoabe and should not be entertained by this court.
Argument by the 3rd Appellant
[26] The submission by the 3rd respondent’s counsel is that the analysis of the complaints found by the magistrate to fall within the jurisdiction of the equality court, reveals that they are ones concerned with outcome or result: what is observed by Legoabe is that, based on consideration of national race demographics, the black alumni of the University appear to be under-represented on the Board of Tufa Alumni, which as a result constitutes a lack of equality and diversity.
[27] Counsel contends that although the Equality Act is concerned with the promotion of equality, including equality outcomes, and the transition to a society that is ‘united in its diversity’, the absence of demographic race representation does not constitute an act of discrimination based on race as contemplated in the statute. What according to counsel is required before a court can assume jurisdiction, is discrimination, defined as an ‘act or omission, including a policy, law, rule, practice, condition or situation’ that imposes burdens, obligations or disadvantages on’ or ‘withholds benefits, opportunities or advantages from’ a person on the basis of one or more of the prohibited grounds.
[28] Counsel's further argument is that in the present instance, the facts on record make clear that the absence of ‘representivity’ on the Board of 'XutosAfumni is not to be ascribed to discrimination. The equality court, according to the 3rd respondent’s counsel, can only have jurisdiction if the alleged absence of representation of blacks alumni on the Board of 'Xu\xAiumni \% the consequence of discrimination as defined in the Equality Act. Her contention, as a result, is that there is no act or omission on the part of the TuksAlumni Board that has resulted in the absence of elected black members on the Tufa Alumni Board rather it appears that black alumni have not made themselves available for election to serve on the Board and/or eligible voters have not exercised their votes in favour of black alumni who have made themselves available for election, so the argument goes.
[29] Counsel submits further that the allegations made by Legoabe, and those relied on by the magistrate in coming to a decision that the equality court has jurisdiction took no account of the fact that the limited jurisdiction of that court prevented a general enquiry into questions of diversity and representivity in the absence of factual allegations tending to show discrimination that let to these outcomes.
Argument by the Respondent
[30] No heads of argument were filed by the respondent on the merits. The heads of argument filed were only in respect of the points in limine. The respondent’s counsel applied, from the bar, to be allowed to address us on the merits. Both counsel for the appellants did not object to the application and the application was thus granted.
[31] The contention by the respondent’s counsel is that the Council and the Board of the Tubs Alumni remain untransformed which situation leads to inequality. According to counsel there can never be equality where there is no transformation and as such the equality court has jurisdiction to hear and determine a complaint of inequality as raised by Legoabe.
[32] In my view the following sections of the Equality Act are relevant for the determination of the issue in question, namely:
“1. Definitions
(1) In this Act, unless the context indicates otherwise -
‘discrimination' means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly -
(a) imposes burdens, obligations or disadvantage on; or
(b) withholds benefits, opportunities or advantages from,
‘prohibited grounds” are
(a) race, gender, sex, pregnancy ...
(b) any other ground where discrimination based on that other ground -
(i) causes or perpetuates systemic disadvantages 
(ii) ...
(iii) adversely affects the equal enjoyment of a person's rights and freedoms in a serious manner that is comparable to discrimination on a ground in paragraph (a).
4 Guiding principles
(2) In the application of this Act the following should be recognised and taken into account:
(a) The existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of past and present unfair discrimination, brought about by colonialism, the apartheid system and patriarchy; and
(b) the need to take measures at the levels to eliminate such discrimination and inequalities.
7 Prohibition of unfair discrimination on ground of race
Subject to section 6, no person may unfairly discriminate against any person on the ground of race, including
(a)...
(b)...
(c) the exclusion of persons of a particular race group under any rule or practice that appears to be legitimate but which is actually aimed at maintaining exclusive control by a particular racial group.”
[33] The issue before us is whether the magistrate’s decision that the two complaints, namely, the first launched by Legoabe and the second formulated by the magistrate himself, be heard in the equality court is correct.
[34] I am in agreement with the contention by the appellants’ counsel that the second complaint formulated by the magistrate has no factual basis and stands to be rejected by this court. A complaint which does not emanate from the complainant in the matter cannot be entertained by the equality court. I however agree with the magistrate’s decision that the matter should be heard by the equality court, albeit on different reasons.
[35] Even though the merits of Legoabe’s complaint are not in issue in this appeal, however, for purposes of determining the jurisdiction of the equality court the legal basis of a complainant’s claim should be a determining factor. It is, therefore, important for this court, without delving into the merits of the matter, to consider the complaint in detail.
[36] I am in agreement with appellants’ counsel that the complaints raised by Legoabe in the Notice and as amplified by the reasons in the statement of fact are not quite clear and are difficult to follow. At the hearing of the appeal I indicated to the appellants’ counsel that it would be unfair to expect of Legoabe, being a lay person in respect of these proceedings as he were, to have drafted his complaint with the required clarity and particularity. Both counsel were amenable not to adopt a strict or technical approach in interpreting Legoabe’s complaint. Rather they were agreed that the complaint be approached with a measure of indulgence. This is the approach I intend to take in this judgment. As submitted by counsel for the University and the Council when interpreting the complaint I intend to take the reasons for the complaint into consideration.
[37] It is now settled law that claims brought under the Equality Act must be considered within the four comers of the Act and must be decided within its margins. See MEC of Education, Kwazulu-Natal  v Pillay.3
[38] In its guiding principles (s 4 thereof) the Equality Act enjoins the courts to recognise and take into account the existence of systemic discrimination and inequalities, particularly in respect of race, gender and disability in all spheres of life as a result of past and present unfair discrimination, brought about by colonialism, the apartheid system and patriarchy; and the need to take measures at all levels to eliminate such discrimination and inequalities.
[39] At this stage of the proceedings, it is my view that, it is not expected of a complainant to establish unfair discrimination. See Pretoria City Council v Walker4
It is only necessary to show discrimination as defined in the Equality Act, that is, the complainant need only establish the elements of discrimination, namely:
39.1 an act or omission that may be direct or indirect;
39.2 that imposes a burden or withholds a benefit;
39.3 on a prohibited ground.
[40] It is common cause that the third element, namely, ‘on a prohibited ground' is not in dispute. It is not in dispute that Legoabe’s complaint is based on a prohibited ground of race. In his complaint he states that there are more white male alumni as against black alumni on the Council and on the Tuks Alumni Board. The other two elements of discrimination are in dispute.
The act
[41] In terms of the definition of s 1 (1) of the Equality Act the act complained of includes a policy, law, rule, practice, condition or situation. In my opinion the legal basis of Legoabe’s complaint is the policies, law, rules and regulations applied by the University and the TuksAlumni Association to their respective process in the election of the alumni to the respective bodies.
[42] My understanding of Legoabe's complaint, as set out in paragraphs [5] to [8] of this judgment, is that he is concerned about the election processes that have been adopted by the University and the Tufa Alumni Association through their policies, rules and regulations. His contention, as I understand him, is that the University and the TuhsAlumni Association use the rules, policies, regulations and statutes to differentiate between white male alumni and the black alumni in particular. According to Legoabe some of the rules, policies and regulations as well as practices of the University and the luksAlumni Association are not in line with the Constitution and their application to the election processes results in the exclusion of the black alumni from the University Council and the 7Alumni Board respectively. See City Council of Pretoria v Walker above.5
[43] To my mind the argument by the counsel for the University and the Council that the issues raised by Legoabe relate to transformation in the workplace and should have been referred to the labour court is misplaced. I do not understand Legoabe’s complaint to be about the lack of transformation in the work place but the complaint is about election processes to the Council and the TuksAlumni Board which according to him leads to inequalities on those bodies.
[44] Even so, s 4 of the Employment Equity Act stipulates that the Act applies to all employees and employers. And in terms of s 53 of the Higher Education Act 101 of 1997 the relationship of employer and employee at the University is created by appointment according to human resources policies. Members of Council and the TuksAlumni Board do not attain their position to the respective bodies as is envisaged in s 53 of the Higher Education Act but are elected into those positions. It is thus my view that the Employment Equity Act would not find application in their stead.
[45] I find the argument by Ms Engelbrecht, on behalf of the TuksAfumn/that there is no act or omission on the part of the luksAlumni Board that has resulted in the absence of elected black members of the alumni to be flawed as well. Counsel fails to take cognisance of the fact that the legal basis of Legoabe’s complaint is the policies, rules and regulations which are used in elections processes and which according to Legoabe are the consequences of the skewed representation on the Council and the  TuksAlumni Board.
Does the act imposes a burden or withholds benefits?
[46] Discrimination is any differentiation on a prohibited ground that imposes a burden or withholds an advantage. It must therefore result in harm or prejudice.
[47] I do not see how differentiation on the basis alleged by Legoabe could be necessary to advance equality and as such it is apparent that such differentiation does impose hardships. The differentiation lies in the failure to extend to others the same advantage or benefits that is extended to the other groups, namely the white male alumni as against black alumni in this instance. See NCGLE v Minister of Home Affairs &  Others 6
[48] Both counsel for the appellants opine that statutes, policies, rules and regulations are already in place at the University and that the University’s policies on transformation have received approval. However, sight should not be lost of the fact that indirect unfair discrimination is also constituted by the unequal impact that an apparently neutral criterion may have on members of a particular group. The fact that there are fewer members of black alumni on the Council and the ’XuhiAiumniBoard, as alleged by Legoabe, may be an indication that black alumni of the University do not enjoy the same benefits and advantages that are extended to white male alumni.
CONCLUSION
[49] My view is that it is undesirable for this court, at this stage of the proceedings, to enquire into the validity or otherwise of the policies, rules and regulation which are the basis of Legoabe’s complaint, as to do so would be for this court to go into the merits of this matter. That duty is reserved for the equality court. Legoabe is required at this stage only to establish the discrimination and he has in my view succeeded to establish the two other elements of discrimination which were in dispute.
[50] The Constitutional Court adopts a ‘symmetrical’ approach to discrimination: thus any differentiation on a prohibited ground that imposes a burden, or withholds an advantage may qualify as discrimination. My view is that the respondent has established a prima facie case of discrimination and as such the equality court has jurisdiction to hear and determine this matter.
ORDER
[51] The appeal is therefore dismissed with costs.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
I concur
G. BOFILATOS
ACTING JUDGE OF THE HIGH COURT
On behalf of the 1st &  2nd appellants: Adv Wim Trengrove SC
Adv Benny Mabola
Instructed by:
GILDENHUYS MALATJI INC
GMI House
Harlequins Office Park 
164 Totius Street 
Groenfeloof 
PRETORIA
On behalf of 3rd  appellant: Adv M J Engelbrecht
Instructed by:
KRIEK WASSENAAR A VENTER INC
Norex House 
79 Rauch Avenue 
Georgeville 
PRETORIA
On behalf of the respondent: Adv Nkosi
Instructed by:
DIESEL MASIA ATTORNEYS
23 Cnr Lovedale and Main Streets 
JOHANNESBURG