Minister of Tourism and Environmental Affairs v Kenneth George and Others

Supreme Court of Appeal - 437/2005 Hearing date: 02 May 2006
Judgment date: 18 May 2006
Equality Court – power under Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 to refer case to ‘appropriate forum’ – court has discretion – when not exercised, no ‘judgment or order’ capable of being appealed – leave to appeal against orders of equality court in any event required

Media Summary of Judgment

In a judgment delivered today, the Supreme Court of Appeal has rejected an attempt by the Minister of Environmental Affairs and Tourism to insist that a challenge to his department’s marine resource allocation policy be transferred from the Equality Court to the High Court. The challenge was brought by a group of individuals and organisations claiming to represent about 5000 artisanal fishers. (Artisanal fishers are small-scale fishers who use traditional low-technology methods to catch fish, not on a large commercial scale, but to make a living through local sale or barter and to feed themselves and their families.)

They lodged simultaneous applications in the high court and in the equality court at Cape Town, claiming that the Minister had failed to provide them with just access to fishing rights, and seeking an order giving them equitable access to marine resources. But they asked that, before their high court claims be considered, the equality court 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. He asked the equality court to refer the entire matter to the high court, but NC Erasmus J refused. The SCA has confirmed the judgment of NC Erasmus. It has held that the Minister’s appeal is fatally flawed, since the equality court’s refusal to refer the matter in any event did not entail an appealable judgment or order, and since its decision not to refer the matter to the high court involves the exercise of a discretion which an appellate court will not lightly overturn.

A further obstacle to the Minister’s appeal was that leave to appeal is required for an appeal to lie from the equality court: the SCA rejected the Minister’s argument that the Equality Act creates an automatic right of appeal without leave.

The SCA analysed the provisions of the Equality Act and concluded the Minister cannot deny the fishers their day in the equality court: they are entitled to claim the assistance and protection the legislature afforded litigants who wish to press equality claims when it enacted the Equality Act.

The SCA regretted the procedural mire that the Minister’s objections had created for the parties, and suggested that the most productive and expeditious way of achieving efficiency might be if the matter were referred to the same high court judge who, in his capacity as an equality court judge, is presiding in that court, and if the fishers’ equality court and high court claims were heard simultaneously.