Republic of South Africa

THE EQUALITY COURT 
HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

REPORTABLE
CASE NO: EC 2 / 2005

In the matter between:

and

2.	FUTUREGROWTH PROPERTY DEVELOPMENT

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL 
	DELIVERED ON: 6 AUGUST 2009

[1] In this matter the parties applied to this court, sitting as an Equality Court of the High Court, for leave to appeal and counter-appeal to the Supreme Court of Appeal against its principal judgment handed down on 12 November 2008. In addition thereto, first respondent also sought leave to counter appeal against the interlocutory order of this court handed down on 28 August 2007 relating to the legal status of third respondent. Such leave to counter-appeal was conditional on the court granting complainant leave to appeal against its decision in respect of the CBD enquiry ("the narrower enquiry"). Should the court refuse such leave, first respondent abandons the application for leave to counter-appeal in respect thereof.

[2] The parties applied for leave to appeal and counter-appeal against the principal judgment and interlocutory order in the following respects:

2.3.     Second respondent applied for leave to counter-appeal against the order of this court to the effect that there was to be no order as to costs in respect of the narrower enquiry.

The Proceedings
[3] By agreement between the parties the merits and the relief and/or the quantum were separated (Seventeenth Direction). In respect of the broader enquiry, the court in its judgment has disposed of the first leg of such enquiry, namely, the merits. The court is now required to deal with the second leg of the enquiry, namely, the relief and/or quantum. Before the court could enquire into the second leg, both complainant and first respondent brought the present applications. This court has to decide whether the judgment is appealable at this stage. Insofar as the narrower enquiry is concerned, it is common cause that this court has given final judgment in that regard and the judgment is accordingly appealable.

Directions

Case Law

Appeals from the Equality Court
[8] Appeals from the Equality Court are governed by section 23 of Pepuda as amplified by Regulation 9. Section 23(1) provides:
"Any person aggrieved by any order made by an Equality Court in terms of or under this Act may, within such period and in such manner as may be prescribed, appeal against such order to the High Court ha ving jurisdiction or the Supreme Court of Appeal, as the case may be." 
According to the canons of construction, words in the statute must be given its ordinary grammatical meaning unless the context suggests otherwise. In my view the meaning of the words is clear and unambiguous and effect accordingly should be given to such meaning.

[10] However, the provisions of Regulation 19(7) of Pepuda create an anomaly and appear to be inconsistent with the clear and unambiguous language of section 23(1) insofar as appeals from the Equality Court sitting as a High Court are concerned. Regulation 19(7) reads:
"(a) After an appeal has been noted in terms of sub-regulation (1) the appeal must be prosecuted as if it was an appeal against the decision of a magistrate in a civil matter, and the rules regulating the conduct of the proceedings of the several provincial and the local divisions of the High Court in so far as they relate to civil appeals from the magistrate's courts apply, with the necessary changes, to any appeal.

"Any person wishing to appeal against any order made by the court as contemplated in section 23( 1) of the Act must within 14 days of such order being made, deliver a notice of appeal to the clerk and the complainant or the respondent as the case may be."

The Broader Enquiry

[17] In the broader enquiry, the court not only made findings of fact on the merits, but the court also made findings on matters of law. On the latter, this court, amongst other, found that a juristic person such as complainant can be discriminated against on the ground of race. The highest court in our land has not yet pronounced on this matter. Should the Supreme Court of Appeal find to the contrary, then it can put paid to the entire proceedings not only in this court but also in other jurisdictions in which complainant is litigating. This can lead to the final determination of the main dispute between the parties in a more expeditious and cost effective manner. I am therefore of the view that, at this stage of the proceedings, there are reasonable prospects of success on appeal and counter-appeal in respect of the broader enquiry.

The Narrower Enquiry
[18] With regard to the appeal and counter-appeal in respect of the narrower enquiry, this court has given a final judgment in the matter by dismissing complainant's claim against second respondent and making no order as to costs. Complainant has appealed against the whole of that judgment other than the order regarding costs. Both first and second respondent have counter-appealed against the costs order. First respondent has conditionally appealed against the decision of this court handed down on 28 August 2007 to the effect that third respondent is a municipal entity and as such an organ of state.

[19] In the narrower enquiry, like that of the broader enquiry, this court made findings on matters of fact and matters of law. The court, amongst other, found that a private company can be a municipal entity and as such an organ of state. The highest court in this country has not yet pronounced on the matter. This court also made no order as to costs despite the fact that complainant's case against second respondent was dismissed. Both such parties were commercial entities. It is not improbable that another court may come to a different finding to that of this court not only on the factual findings, but also on matters of law. I accordingly conclude that there are reasonable prospects of success on appeal and counter-appeal in respect of the narrower enquiry.

The Forum to Hear the Appeal and Counter-Appeal

The Order
[21 ] It therefore follows that the parties are given leave to appeal and counter-appeal to the Supreme Court of Appeal. The question of costs in the applications for appeal and counter-appeal stands over for later determination.