Manong & Associates (Pty) Ltd v Department of Roads & Transport, Eastern Cape Province

Manong & Associates, an engineering company, submitted tenders for upgrading roads in the Eastern Cape Province. The appellant's tenders were disqualified by the Department of Roads and Transport under the Bid Rules, specifically clause 24. Manong instituted application proceedings in the Bhisho High Court sitting as an equality court, alleging that the tender process constituted indirect discrimination against previously disadvantaged persons in violation of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (Equality Act) and the Constitution. The appellant sought various forms of relief, including review and setting aside of the disqualification decision, review of any tender awards, declaratory orders regarding unconstitutionality and unfair discrimination, and an audit of procurement procedures. The respondents raised a preliminary objection that the equality court lacked jurisdiction to review administrative action and adjudicate constitutional issues. Pillay J upheld this objection and dismissed the application, prompting this appeal.

• Whether an equality court established under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 has jurisdiction to grant relief in respect of administrative action allegedly constituting unfair discrimination
• Whether the equality court is a separate court from the High Court or whether the High Court sitting as an equality court exercises its ordinary High Court jurisdiction
• What is the extent of jurisdiction of an equality court to grant relief where unfair discrimination is alleged in the context of administrative action
• Whether the equality court has jurisdiction to adjudicate constitutional matters

1. The appeal is upheld with costs, subject to 2. 2. The costs of the record on appeal will be restricted to the costs of two volumes. 3. The order of the court a quo dismissing the application with costs is set aside. 4. The matter is remitted to the court a quo for adjudication in terms of the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, and the making of an appropriate costs order.

The equality court established under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 is a separate court created under s 166(e) of the Constitution, distinct from the High Court, with jurisdiction derived from and confined to the powers conferred by the Equality Act. Although the equality court lacks jurisdiction to review administrative action under PAJA (as it does not possess the original jurisdiction of the High Court), it has jurisdiction under the Equality Act to determine whether alleged administrative action constitutes unfair discrimination and to grant the wide range of remedies provided for in s 21(2) of the Equality Act, read with the ancillary powers in s 21(5). The correct jurisdictional question is not whether the equality court can review administrative action or adjudicate constitutional matters generally, but whether the Equality Act confers jurisdiction to grant the specific relief sought in relation to alleged unfair discrimination.

The Court made observations about the scope of the record on appeal, noting that much of the eight-volume record was unnecessary for the purposes of the appeal and restricting the costs recoverable to two volumes. The Court declined the invitation to grant substantive relief itself rather than remitting the matter, noting it would not be appropriate for the Supreme Court of Appeal to sit as a court of first instance. The Court also addressed and rejected the respondents' argument that the appeal had become moot because the contracts had been performed, finding it was in the public interest to pronounce on the extent of the equality court's jurisdiction and that at least some relief sought was not moot.

This judgment is significant for clarifying the jurisdictional boundaries and powers of equality courts in South Africa. It establishes that: (1) The equality court is a separate court from the High Court, created under s 166(e) of the Constitution, with jurisdiction confined to that conferred by the Equality Act; (2) Equality courts have wide jurisdiction to adjudicate allegations of unfair discrimination and grant extensive remedies under s 21 of the Equality Act; (3) While equality courts do not have jurisdiction to review administrative action under PAJA (as they lack the original jurisdiction of the High Court), they do have jurisdiction to determine whether administrative action constitutes unfair discrimination and to grant appropriate relief under the Equality Act; (4) The practical effect of relief granted by an equality court may overlap with relief available from the High Court under PAJA or constitutional grounds, but this does not determine the equality court's jurisdiction. The judgment reinforces the purpose of the Equality Act to provide accessible and effective mechanisms for redressing discrimination and inequality. It is an important decision on the institutional architecture of specialized courts in South Africa's constitutional democracy.