MINISTER OF JUSTICE AND CONSITUTIONAL DEVELOPMENT First Applicant MAGISTRATE S COMMISSION Applicant

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA DURBAN AND COAST LOCAL DIVISION 14181/2005 CASE NO. In the matter between : MINISTER OF JUSTICE AND CONSITUTIONAL DEVELOPMENT First Applicant MAGISTRATE S COMMISSION Second Applicant and CORRELL LANGUAGE First Respondent NEIL STEPHANUS MALAN Second Respondent JEFF ABRAHAMS Third Respondent REASONS FOR JUDGMENT P.C. COMBRINCK, J. [1] On 11 October 2005, this Court issued a Rule in the following terms : 1. That a rule nisi issue calling upon the Respondents to show cause, if any, to this Honourable Court on the 25 th day of OCTOBER 2005 at 9h30 or so soon thereafter as the matter may be heard, why an order should not be granted in the following terms : 1.1 it be declared that a Magistrate presiding in the Equality section of the lower Courts, is not the appropriate judicial officer to hear matters against the Magistrate s Commission and/or the Minister of Justice and

2 2 Constitutional Development, relating to disputes involving the appointments, promotions, transfer or dismissals of, or disciplinary steps against judicial officers of the lower Courts. 1.2 That it is not competent for the Third Respondent (Magistrate) to continue presiding in the matter between Correll Language and Neil Stephanus Malan versus the Minister of Justice and Constitutional Development and the Magistrates Commission, case no. EQ5/ That the said case no. EQ5/05 pending before the third respondent be and is hereby transferred to the division of the Equality Court having jurisdiction. 1.4 That the hearing under EQ5/05 before the third respondent at the Equality Court section of the Pinetown Magistrate s Court, be stayed until the finalization of this application. 1.5 That any of the respondents who oppose this application be ordered to pay the applicant s costs jointly and severally, the one paying the other to be absolved. 2. That paragraph 1.4 above operate as an interim order pending the return date of the rule nisi. After hearing argument I discharged the Rule and ordered the applicant s to pay the first and second respondent s costs. I indicated that I would hand down my reasons later. These are the reasons. [2] The two respondents in this matter, both additional magistrates, instituted proceedings against the applicants in the Equality Court, Pinetown, in terms of section 20 of the Promotion of Equality and Prevention of Unfair Discrimination Act, (Act 4 of 2000). The respondents claimed that they have been unfairly discriminated against on the grounds of their race in that despite passing all the

3 3 necessary examinations and having the necessary qualifications they have, since 1999, been overlooked for the appointment in the post of Regional Court Magistrate. The application is opposed by the present two applicants. [3] The proceedings commenced before a magistrate sitting as an Equality Court on 14 July The magistrate decided that he would first deal with procedural issues and legal points taken in limine. He indicated that the merits of the case would not be dealt with on that date. He then proceeded to hear argument on an objection lodged by the two applicants to the jurisdiction of the Court. The contention on behalf of the applicants was that the appointment of magistrates is an administrative act and that proceedings should have been brought under the Promotion of Administrative Justice Act, Act 2 of The magistrate decided this point against the applicants. At a later hearing the applicants conceded the correctness of the decision. [4] The matter resumed on 1 August 2005 and at this hearing a

4 4 further point in limine was taken by the applicants to the effect that the Equality Court did not have jurisdiction because the matter should be dealt with in terms of the Employment Equity Act 1998 (Act No. 55 of 1998). The applicants were ordered by the magistrate to file a substantive application and they were ordered to pay the costs of the day. The matter was adjourned to 22 August [5] On 22 August 2005, the magistrate heard argument on the point and again found against the applicants quite rightly I may say. The point in limine was devoid of any merit. Again the applicants were ordered to pay the costs. The matter was then adjourned to 12 September [6] On the resumed date, the applicants came with yet a further point in limine which in essence is the relief which they now seek from this Court. The application was once again made from the Bar and the magistrate directed that a substantive application on Notice of Motion should be brought should the applicants wish to pursue the point in

5 5 limine and the respondents were to be given adequate notice. [7] Instead of complying with the magistrate s directions, the applicants sought and obtained as a matter of urgency the Rule reflected in the opening paragraph of this judgment. [8] When the matter came before me, I indicated to counsel that I wished to hear argument on whether it was competent for me to grant a declaratory order involving a point in limine which the applicants initially raised in the Equality Court and on which the Equality Court has as yet not given a decision nor made an order. I adjourned the matter for a week so that counsel could address this issue. [9] The applicants seek an order under section 19(1)(a)(iii) of the Supreme Court Act 59 of Counsel for the applicants, in argument, contended that there was uncertainty as to the appropriate forum for the adjudication of the respondents dispute and accordingly that this Court should issue a declarator. He submitted that there was

6 6 tangible and justifiable advantage to the applicants for this Court to issue such an order and that it was not a matter of mere academic interest. He was however unable to refer me to a single decided case in which a superior Court issued a declaratory order concerning a legal issue with which an inferior Court was seized of. [10] It must firstly be pointed out that in terms of section 20 of the Act it is incumbent upon the presiding officer of the Equality Court to decide whether the matter is to be heard in that Court or whether it should be referred to another Court. Subsection 3(a) reads as follows: The Clerk of the Equality Court must within the prescribed period of receiving such notification, refer the matter to a presiding officer of the Equality Court in question, who must, within the prescribed period decide whether the matter is to be heard in the Equality Court or whether it should be referred to another appropriate institution, body, Court, tribunal or other forum (hereinafter referred to as an alternative forum) which, in the presiding officer s opinion, can deal more appropriately with the matter in terms of that alternative forum s powers and functions. Subsection (4) sets out the relevant circumstances which the Court must take into account when making this determination inter alia what must be taken into account is

7 7 the nature of the intended proceedings and whether the outcome of the proceedings could facilitate the development of judicial precedent and juris prudence in this area of the law. It must be presumed that the presiding officer has already done this exercise and made a decision that the Magistrates Court Pinetown sitting as an Equality Court, is the appropriate forum for the matter to be heard. That being so, it is not competent for me, in the absence of a review or appeal, to overrule the presiding officer. [11] I consider that it is inappropriate for me in any event to grant a declaratory order regarding an issue pending in the Equality Court and on which it has not made a finding or ruling. The decided cases which I have managed to find have all consistently ruled against the use of a declaratory order for the purpose of deciding an issue which is before another Court. See in this regard Mabukane v Port Elizabeth Divisional Council 1957(4) SA 293(E) where the plaintiff had been charged criminally and in the course of the criminal proceedings had approached the Supreme

8 8 Court for a declaratory order to the effect that he was not subject to the legislation a contravention of which he had been charged. De Villiers, J.P., in a Full Bench decision, said the following at page 297 G : If the applicant is guilty he should be found guilty; if his defence is, or one of them, are sound he will be acquitted, if not before the Magistrate then on appeal. To hold that an application for a declaratory order should be entertained in the instant case would, in my view, almost be tantamount to holding that whenever a person is charged with an offence in a lower Court, he can obtain postponement of the trial, and a declaratory order from a Superior Court. See further Central African Examiner v Howman and Others 1966(2) SA 1 (SR) at 14 A; Netto v Clarkson and Another 1974(1) SA 66 at 70 C and Rutherford v Ferguson and Others 2000(2) SA 275 (O) at 281 H. [12] The applicants desire to have the matter adjudicated by the High Court sitting as an Equality Court, is also illfounded. This Court does not have the power to order the transfer of a case pending before an inferior Court to this Court. The correct procedure is for the Equality Court, Pinetown to decide the issue (once it has been brought before it properly by way of substantive application) and then if they are aggrieved by the decision the applicants

9 9 can appeal to this Court in terms of section 23 of the Act. The finding of the Pinetown Court may even be such that the matter ends up before this Court on automatic review in terms of section 23(5). [13] For the above reasons the Rule was discharged. It would be remiss of me not to comment on the conduct of the applicants. One of the guiding principles in the adjudication of any proceedings in the Equality Court in terms of section 4(a) of the Act is the expeditious and informal processing of cases, which facilitate participation by the parties to the proceedings. The applicants, it appears to me, have gone out of their way to frustrate the expeditious disposal of this case. They have taken two points in limine which were totally without merit, they brought a third point in limine without notice to the respondents, and then refused to bring it by way of substantive application before the Equality Court but instead approached this Court. They have had at least three costs orders granted against them and have as yet not paid the costs. They were ordered to furnish documents to the respondents which they either failed to do

10 10 or furnished late and out of time. This is not the type of conduct one would expect from public officials. A speedy resolution of the matter is now called for.