Minister of Environmental Affairs and Tourism v Kenneth George

Respondents, representing approximately 5000 artisanal fishers (small-scale fishers using traditional low-technology methods), lodged simultaneous applications in December 2004 in both the high court and the equality court in Cape Town. They used a single set of papers in both courts, claiming the Minister of Environmental Affairs and Tourism had failed to provide them with just access to fishing rights. They sought an order giving them equitable access to marine resources and requested that before their high court claims be considered, the equality court should hold an inquiry into their causes of action under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The Minister sought to block this by asking the equality court to refer the entire matter to the high court. NC Erasmus J in the equality court refused the Minister's application. The Minister appealed directly to the Supreme Court of Appeal without seeking or obtaining leave to appeal, and filed his notice of appeal late, requiring condonation for various procedural lapses.

• Whether the equality court's refusal to refer the matter to the high court constituted a judgment or order capable of being appealed
• Whether the equality court could refer a matter to the high court where the equality court itself is the high court sitting as an equality court
• Whether leave to appeal is required for appeals from decisions of the equality court
• The proper interpretation of section 20(3)(a) and related provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 regarding referral to 'alternative forums'
• Whether parallel proceedings in the high court and equality court based on substantially the same facts are permissible

The application for condonation was refused with costs. The appeal was struck from the roll with costs.

The binding legal principles established are: (1) An equality court's refusal to refer a matter to an alternative forum does not constitute a judgment or order capable of being appealed, because under section 20(5)(a) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, the court makes an order only when redirecting a matter; in cases of non-referral, the equality court retains jurisdiction and no order is necessary or appropriate. (2) A high court sitting as an equality court cannot refer a matter to itself sitting in its ordinary capacity as a high court - the word 'court' in section 20(3)(a) does not include the high court when the equality court is itself the high court sitting as an equality court. (3) Leave to appeal is required for appeals from decisions of the equality court, notwithstanding the apparent breadth of section 23(1) of the Equality Act, because section 19(1)(e) makes the provisions of the Supreme Court Act applicable with necessary changes to questions of jurisdiction, and section 20(4) of the Supreme Court Act requires leave to appeal from high court decisions. (4) The decision whether to redirect a matter to an alternative forum entails a discretion vested in the equality court with which appellate courts will interfere only when the equality court fails to exercise it judicially.

Cameron JA made several important obiter observations. First, he noted that the question of concurrent jurisdiction between the equality court and high court is likely to arise in every case brought under the Equality Act, and there is no reason why litigants with interrelated remedies under the equality statute and other legislation should not be entitled to pursue parallel proceedings. Second, he observed that the equality court had jurisdiction over at least some of the relief the fishers sought (particularly the inquiry under section 21(1) of the Equality Act), while some relief could only be adjudicated by the high court (such as claims based on constitutional provisions other than equality). This concurrent jurisdiction does not detract from the equality court's jurisdiction nor deprive the fishers of procedural benefits from proceeding in that court. Third, he noted the irony that the fishers' attempt to invoke the benefits of equality courts produced a procedural mire involving considerable time, money and effort - contrary to the Equality Act's guiding principles of expeditious and informal processing and the requirement that procedures be simple, fair and affordable. Finally, he suggested that the most productive way of achieving efficiency in cases of concurrent jurisdiction would be to refer the matter to the same high court judge who, in his capacity as an equality court judge, is presiding in that court - though this was not formally part of the court's order.

This case establishes important principles regarding the functioning of equality courts under the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. It clarifies the appealability of equality court decisions, particularly regarding referrals to alternative forums. The judgment confirms that equality courts have substantial jurisdiction over discrimination matters and that their decisions not to refer matters do not constitute appealable orders. It recognizes the autonomy of equality courts and prevents procedural tactics that could undermine their statutory mandate. The case also confirms that litigants may pursue parallel proceedings in the equality court and high court where they have interrelated remedies under different legal frameworks. This is significant for access to justice for vulnerable groups, particularly those claiming discrimination. The judgment emphasizes the guiding principles of the Equality Act, including expeditious and informal processing of cases, and cautions against procedural obstacles that defeat these purposes. The case provides important guidance on the relationship between the high court in its ordinary capacity and when sitting as an equality court, clarifying that these are distinct functions that cannot simply be merged through referral mechanisms.