ON 24 FEBRUARY 2014.
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NO: A251/06
In the matter between
WOODWAYS CC Appellant
and
MOOSA VALLIE Respondent
JUDGMENT DELIVERED ON 31 AUGUST 2009
ZONDI, J
Introduction
[1] This is an appeal against the judgment and order handed down by the Equality Court on 1 September 2005 in which the appellant was found to have unfairly discriminated against the respondent within the meaning of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000 (“the Act”).
[2] The Court a quo accordingly ordered the appellant:
“1. to restrain from discriminating against people belonging to the Muslim faith,
2. to pay the respondent an amount of R2000-00 as damages.
3. to send a written unconditional apology to the respondent within 14 days of the date of judgment; and
4. to pay respondent’s costs on a party and party scale.”
[3] The appellant attacks the judgment and the order of the Court a quo on the bases that it erred firstly, in imposing legal liability upon it on the basis of a legal theory that was advanced neither in the papers, nor at the hearing and secondly, in finding that Bailey had committed discrimination as envisaged in the Act.
[4] Mr Rautenbach appeared for the appellant and Mr Osborne and Mr Ferreira appeared as amici curiae. The Court wishes to record its gratitude for their assistance.
Factual Background
[5] At the hearing before the Court a quo the following facts were accepted as common cause.
[6] The appellant is a Close Corporation registered as such and trading as a wholesale supplier of wood and wood products. The owners of the appellant are Mr and Mrs Hearn.
[7] The appellant employs a small administrative staff and a more extended operational staff in the factory where wood products are received, stored, processed and, in some cases manufactured into finished products such as garden sheds, doll houses, skirting boards, ceilings and the like.
[8] Mr and Mrs Hearn take the view that the fez worn by male Muslims to cover their heads, just as the scarves worn by female Muslims, is a religious expression of their faith, which embodies, to them, offensive religious doctrines; and that it is incumbent on them to express their belief by requesting any person displaying the head scarfor fez, which is an expression or symbol of Islamic faith, to remove it when entering the premises of the appellant. Mr and Mrs Hearn believe that, on the appellant’s private property, they, like the appellant, are entitled to express their religion in this way by, in effect, seeking to persuade the Muslims not to profess their blasphemous beliefs.
[9] It has occurred on a number of occasions in the past that persons apparently of the Islamic faith with similar headgear entered the premises and were requested, by Mrs Hearn or a member of her staff, to remove their headgear.
[10] Mornay-Leazel Bailey (Bailey), the appellant’s employee, has similar beliefs to those held by Mrs Hearn and as set out above. She believes that Islam and Christianity are fundamentally opposing religions and likewise believes that customers entering the premises should be asked to remove their fez or headgear, as the case may
be.
[11] On one occasion before the incident in question, Bailey approached Mrs Hearn and advised her that she had herself taken the initiative to ask a client to remove his heargear, to which Mrs Hearn had no objection. In fact, she condoned it as it accorded with the belief system with which the appellant is run.
[12] The respondent is a devout and practising Muslim who wears a fez as expression of his religious belief.
[13] On Wednesday, 13 April 2005 at about 12h45 the respondent walked into the appellant’s premises as he was looking for skirting boards. He approached Bailey, who at the time was on duty at the reception area.
[14] The respondent informed her that he had been referred to the appellant by another business, Penny Pincher, and that he wished to purchase skirting boards, which he described. At the time, he was wearing a fez.
[15] Bailey thereupon asked him to remove his fez. It is in dispute whether she conveyed to him that such removal was a precondition to her assisting him.
[16] He asked her why she requested him to do that, whereupon she replied that “this is a Christian company”, or words to that effect. It is in dispute whether Bailey advised the respondent that it was the appellant’s policy to ask Muslim customers to remove their headgear.
[17] Thereupon, the respondent turned around and left, saying words to the effect that “you can keep your wood”.
Proceedings in the Equality Court
[18] The issue before the Equality Court was whether Bailey’s statement requesting the respondent to remove his fez, which according to the respondent, is an expression of Muslim religion, constituted an act of unfair discrimination within the meaning of the Act. This issue had to be determined in light of the facts which were common cause and the following evidence.
[19] The respondent (Vallie), who described himself as an adherent of the Muslim faith, testified that as a Muslim he had to wear a fez. In accordance with his religious teachings he is tolerant of other religions.
[20] He testified that when he approached Bailey of the appellant on the day in question in order to buy a skirting board, Bailey told him that she would gladly assist him only if he removed his fez. When he asked her why she requested him to do that, Bailey replied that it was because the appellant is a Christian company. He felt degraded and he walked out of the shop.
[21] The respondent further testified that the request had the same effect on him whether it was conveyed as a mere request or as a precondition to service. To him the mere fact that he was being asked to remove his fez was discriminatory.
[22] Bailey testified that she had asked the respondent to remove his fez because she was a Christian and the respondent a Muslim. She wanted the respondent to show respect for her own faith. She denied that she told the respondent that she would help him on condition that he removed his fez.
[23] Mrs Hearn, the co-owner of the appellant, testified that it was her personal policy to ask Muslims to remove their headgear when they come into the appellant’s premises. Some felt offended and left the premises. Others became aggressive and threatening. She would ask those who became aggressive and threatening to leave the reception area of the appellant.
[24] Faced with these two mutually destructive versions regarding the question whether a request to remove a fez was a mere request or precondition to service, the Court a quo accepted the appellant’s version.
[25] It found that “the version placed… by Bailey… is the most probable to have taken place there in that day, and that the allegations of the complainant that he said that he will only be served once his Muslim fez has been removed is indeed not the truth”.
[26] However, despite its acceptance of the appellant’s version regarding the nature of the request, the Court a quo nevertheless found that the respondent, as a Muslim, was unfairly discriminated against as the appellant did not and would not treat customers of other faiths in the same manner as it did to the respondent. It proceeded to make consequential orders against the appellant in terms of the Act.
Proceedings in this Court
[27] The main attack by the appellant on the Court a quo’s judgment is based on three legs. First, that it erred in finding that the appellant (Woodways) had committed discrimination; secondly, that it erred in finding that the respondent had made out a prima facie case of discrimination on the alternative ground which he pleaded; and thirdly, that it erred in finding that the discrimination was unfair.
(a) Whether discrimination was established
[28] Mr Rautenbach appearing for the appellant submitted that the Court a quo incorrectly found that the appellant (Woodways) had committed discrimination. He argued that the appellant succeeded in discharging its onus under section 13(1)(a) of the Act, namely that discrimination as alleged did not take place.
[29] In elaborating his argument, Mr Rautenbach pointed out that in his complaint form the respondent alleged discrimination in the form of a request to remove his fez as a precondition to service. In other words the case pleaded by the respondent was that the appellant discriminated against him on religious grounds by asking him to remove his fez before it could serve him. The Court a quo rejected the respondent’s version. It accepted the appellant’s version namely that Bailey had merely requested the respondent to remove his fez and that it was not a precondition for her serving him. He accordingly argued that the Court a quo erred in finding that discrimination had taken place where there are no facts to support that finding.
[30] Perhaps it is appropriate before dealing with Mr Rautenbach’s contention to first comment on the object of the Act. Its object is to: “give effect to section 9 read with item 23(1) of Schedule 6 of the Constitution of the Republic of South Africa, 1996, so as to prevent and prohibit unfair discrimination and harassment; to promote equality and eliminate unfair discrimination; to prevent and prohibit hate speech; and to provide for matters connected therewith”.
[31] Secondly, section 4 of the Act requires the proceedings instituted under the Act to be adjudicated in the expeditious and informal manner which facilitates participation by the parties.
[32] The informal nature of proceedings before the Equality Court was considered in George and Others v Minister of Environmental Affairs and Tourism 2005(6) SA 297 EqC NC Erasmus J held at para 12:
“[12] An integral part of the Equality Act, then, is the focus on the creation of a user-friendly Court environment where proceedings are conducted along inquisitorial lines, with an emphasis on informality, participation and the speedy processing of matters. This objective itself goes to the essence of what equality is about because it emphasises the need to make the judicial processes available to all, including the poor and oppressed who are usually the victims of unfair discrimination and inequality. The formal, adversarial, often expensive and potentially intimidating proceedings that prevail in an ordinary magistrate’s court or High Court and which may act as a barrier to those seeking justice, have no place in an Equality Court.”
[33] It is against this background that Mr Rautenbach’s contention should be considered. He contends that the request as pleaded by the respondent clearly expected him to suspend his religious expression in exchange for a commercial transaction whereas the request as envisaged in the alternative cause of action required nothing of the sort.
[34] He argues that had the appellant been alerted to the fact that the respondent would place reliance on the alternative cause of action, it could, have cross-examined him about his feelings in order to demonstrate that the mere request to him to remove his fez did not impose a burden or disadvantage on him.
[35] I reject the appellant’s contention for two reasons. First, the Act creates a mechanism through which claims relating to unfair discrimination can be adjudicated. As was correctly pointed out by Navsa JA in Manong and Associates (Pty) Ltd v Eastern Cape Department of Roads and Transport and Others (396/08) [2009] ZASCA 50 (20 May 2009) at para 50 “the Equality Court was established in order to provide easy access to justice and to enable even the most disadvantaged individuals or communities to walk off the street, as it were, into the portals of the Equality Court to seek redress against unfair discrimination, through less formal procedures”.
[36] It is clear to me that the Act creates an informal and inexpensive platform for the adjudication of unfair discrimination disputes. It marks a shift from the conventional way of litigation which emphasizes elegance in the formulation of the pleadings.
[37] It creates a space for the victims of unfair discrimination to tell their stories so that systemic inequalities and unfair discrimination , which as the Preamble states, remain deeply embedded in social structures, may be eradicated.
[38] The promise of equality and easy access to justice, which the Act seeks to fulfill, would never be realised if litigants in unfair discrimination cases were expected to be meticulous in the manner in which they plead their causes of action. It is for this reason that in terms of section 16(2) read with section 31(4)(a) of the Act only a judge or magistrate who has completed social context training may be designated to hear unfair discrimination matters under the Act.
[39] In my view the contention advanced by the appellant must be rejected as, if accepted, will have the effect of frustrating the purpose which the Act seeks to achieve.
[40] Secondly, it is correct, as Mr Rautenbach pointed out, that where the parties are asked in a Court of Law to plead their cases, they would normally not be permitted to venture outside the ambit of the disputes outlined by those pleadings. A party cannot rely on causes of action or defences which are not put in issue and were consequently not fully investigated. (Alphedie Investments (Pty) Ltd v Greentops (Pty) Ltd 1975 (1) SA 161 (T) at 162A). But where there has been full investigation of a matter and where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion the Court is entitled to treat the issue as if it had been expressly and timeously raised. (Middleton v Carr 1949(2) SA 374 (A) at 385.
[41] The alternative cause of action, though not specifically pleaded by the respondent in his complaint form, was nevertheless raised by him during the hearing and was fully investigated. The appellant was not prejudiced in that it pleaded its defence to the alternative cause of action. My finding is based on the following facts from the record.
[42] It is common cause that when the respondent entered the premises of the appellant he was wearing a fez and that Bailey of the appellant asked him to remove it. It is also common cause that the respondent wears a fez as an expression of his religious belief.
[43] In reply to the respondent’s complaint Mrs Hearn of the appellant alleged that she and her husband are committed Christians who believe in practising their religion in a manner which pays full heed to the teachings of Jesus Christ, as recorded in the Bible.
[44] She states further that she has done some studies on Islamic scriptures with a view to learning more about it. As a result of the studies, it became clear to her that Islamic and Christianity are opposing belief systems.
[45] She believes that the fez worn by male Muslims to cover their heads just as the scarves worn by female Muslims, is a religious expression of their faith, which to her embodies offensive religious doctrines. She and her husband had considered it incumbent upon themselves to express their Christian belief by requesting any person wearing a fez or the headgear to remove it when entering the premises of the appellant.
[46] At the hearing the following question was put to Bailey by the respondent’s legal representative:
“Plaintiff: Did it ever occur to you that asking somebody to remove their headgear could be taken as a precondition, or could be understood in that way?
Witness: No Sir.”
[47] It is clear from the above that the appellant’s defence thus included both a denial that the removal of a fez by the respondent was expressly stated as a precondition to service and alternatively that even if the request was not conditional, it did not constitute discrimination. It is further clear from the respondent’s evidence that he felt discriminated against whether a request to remove his fez was stated as a precondition to service or not.
[48] It is clear therefore to me, upon a careful analysis of the record, that the respondent made a case for unfair discrimination based on two legs. Firstly, he made a case for unfair discrimination based on the fact that the appellant’s request to remove his fez was stated as a precondition to service which is the version which was rejected by the Court a quo. The second or alternative leg of his unfair discrimination claim was that even if the appellant had not stated the request for him to remove his fez as a precondition to service, the mere request for him to remove his fez constituted discrimination.
[49] I am of the view that the Court a quo was entitled to make a finding of discrimination based on the alternative claim relied upon by the respondent. The appellant was not prejudiced in that the discrimination based on the alternative claim was fully investigated and there is no reasonable ground for thinking that further examination of the facts might have led to a different conclusion.
(b) Whether Discrimination was established on alternative ground
[50] Referring to section 1(1)(viii) of the Act, dealing with the meaning of “discrimination”, Mr Rautenbach argued that the respondent failed to make out a case for discrimination on the alternative ground in that the respondent did not prove that Bailey’s words imposed a burden, obligation or disadvantage on him or withheld benefits, opportunities or advantages from him on one or more of the prohibited grounds.
[51] He pointed out that in the circumstances where the Court a quo found as a fact that Bailey’s request to the respondent to remove his fez did not impose a precondition for her assisting him, it is no longer open to the respondent to contend that her request thus imposed on him the burden of removing his headgear before being served by her. Nor is it open to him to contend that she withheld the benefit of serving him on condition that he removed his fez.
[52] He accordingly submitted that the only conceivable burden or disadvantage that the respondent could have suffered by reason of Bailey’s mere request to him to remove his headgear, is that he was insulted or humiliated by the request, in that the request injured his religious feelings and which fact the respondent had failed to establish.
[53] I disagree with Mr Rautenbach’s contention. The interpretation of “discrimination” contended for by the appellant tends to restrict its meaning and which, as Mr Osborne pointed out, flies in the face of the broad interpretation injunctions that appear in the Act.
[54] The respondent brought his claim under the Act and not in terms of the common law. His claim must therefore be determined in accordance with the provisions of the Act and the Constitution which specifically establish the rights which the respondent seeks to assert.
[55] Section 3 of the Act enjoins any person applying the Act to interpret its provisions to give effect to inter alia the provisions of the Constitution relating to the promotion of equality through legislative and other measures designed to protect or advance persons disadvantaged by the past and present unfair discrimination and to take into account the context of the dispute and the purpose of the Act.
[56] The preamble, which must also be taken into account in applying the Act, defines the purpose of the Act as eradicating both social and economic inequality and seeks further to combat discriminatory practices and attitudes.
[57] It may be so that Bailey’s request to Vallie to remove his fez was not addressed in such a way that it directly imposed a precondition for her assisting him, but in my view it nevertheless did indirectly impose a precondition.
[58] This finding is based on Mrs Hearn’s testimony who testified that it had occurred on a number of occasions in the past that where she and one of her staff members asked persons of Muslim faith to remove their headgear while on the appellant’s premises, they refused to do so. They walked away without doing what they had come to do. Others got aggressive and had to be told to leave the premises.
[59] It is therefore clear to me that on all of the occasions referred to by Mrs Hearn the request attracted a negative reaction from persons of Islamic faith who intended to do business with the appellant. They refused to comply with the request and took their business somewhere else. The request thus imposed a burden, obligation or disadvantage on them in that it called upon them to make hard choices.
[60] In MEC for Education, KwaZulu-Natal, and Others v Pillay
2008(1) SA 474(CC) the Court had an occasion to consider the school governing body’s refusal to allow a learner to wear a gold nose-stud in keeping with her South Indian family traditions and culture. At para 62 Langa CJ had this to say:
“[62] The traditional basis for invalidating laws that prohibit the exercise of an obligatory religious practice is that it confronts the adherents with a Hobson’s choice between observance of their faith and adherence to the law. There is however more to the protection of religious and cultural practices than saving believers from hard choices. As stated above, religious and cultural practices are protected because they are central to human identity and hence to human dignity, which is in turn central to equality. Are voluntary practices any less a part of a person’s identity or do they affect human dignity any less seriously because they are not mandatory?”
[61] I also reject the suggestion by the appellant that the only conceivable burden or disadvantage that Vallie could have suffered by reason of Bailey’s mere request to him to remove his headgear, is that he was insulted or humiliated by the request, in that the request injured his religious feelings.
[62] The fact of the matter is not about injury to Vallie’s religious feelings. It is about the extent to which a request impaired his dignity and identity. The wearing of a fez to Vallie is an expression of his religious belief which is central to his identity and dignity. It is his identity and dignity which are implicated in this matter.
[63] In my view Bailey’s request left Vallie with a Hobson’s choice. He had to choose between complying with Bailey’s request and observing his religious faith. Thus the request imposed a disadvantage on him. In the circumstances I find that Vallie was discriminated against on the ground of religion when he was asked to remove his fez by Bailey.
[64] Having found that Bailey’s request to Vallie to remove his fez constituted discrimination, the next question is whether the discrimination was unfair.
(c) Whether fairness of discrimination was established
[65] In terms of section 13 of the Act the onus is on the appellant to prove that the discrimination was not unfair. In this regard section 14(2) and (3) provides:
“(2) In determining whether the respondent has proved that the
discrimination is fair, the following must be taken into account:
(a) The context;
(b) the factors referred to in subsection (3);
(c) whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria, intrinsic to the activity concerned.
(3) The factors referred to in subsection (2) (b) include the following:
(a) Whether the discrimination impairs or is likely to impair human dignity;
(b) the impact or likely impact of the discrimination on the complainant;
(c) the position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;
(d) the nature and extent of the discrimination;
(e) whether the discrimination is systemic in nature;
(f) whether the discrimination has a legitimate purpose;
(g) whether and to what extent the discrimination achieves its purpose;
(h) whether there are less restrictive and less disadvantageous
means to achieve the purpose;
(i) whether and to what extent the respondent has taken such
steps as being reasonable in the circumstances to-
(i) address the disadvantage which arises from or is related
to one or more of the prohibited grounds; or
(ii) accommodate diversity.”
[66] It was submitted on behalf of the appellant that the question is whether Bailey, speaking as an employee of Woodways as a so-called Christian company, and also expressing her own personal belief, exercised her rights of religion and freedom of speech under the Constitution, and if so whether those rights in the circumstances are outweighed by Vallie’s rights to religion and freedom of expression.
[67] It is correct, as the Constitutional Court held in South African National Defence Union v Minister of Defence and Another
1999(4) SA 469(CC) at para 8, that freedom of expression is closely related to freedom of religion, belief and “the corollary of the freedom of expression and its related rights is tolerance by society of different views”.
[68] The appellant contends that when Bailey requested Vallie to remove his fez she was exercising her rights of religion and freedom of speech under the Constitution and that it is inevitable that in the exercise of her religious right a party who holds different religious belief will be offended.
[69] I find this argument untenable given the context in which the communication between Vallie and Bailey occurred. It took place in the commercial context in which in my view expression of religious beliefs was irrelevant and inappropriate. Vallie had come to buy a product. When he stepped into the appellant’s premises he had no idea that religious beliefs would come up for discussion. Bailey may not exercise her freedom of expression and religious rights in a manner inconsistent with the provisions of the Constitution or which is violative of other person’s rights.
[70] It is also correct that in terms of sections 14(3)(c) of the Act and under Constitutional equality jurisprudence (Harksen v Lane No and Others 1998(1) SA 300 (CC) at para 51), a factor that must be taken into account in adjudicating claims regarding unfair discrimination is whether the plaintiff is of a group that has suffered from patterns of disadvantage.
[71] In this regard it is appropriate to refer to the remarks of Kondile J, in Pillay v MEC for Education, KwaZulu-Natal and Others 2006(6) SA 363 (EQC). At para 45 he remarked as follows:
“[45] The adjudication of this factor requires a historical understanding of the type of society that South Africa once was and against which the Constitution has set itself. See Iain Currie and John de Waal The Bill of Rights Handbook 5 ed at 231. There should be an understanding of the position of appellant’s group within the structures of advantage and disadvantage in society in the past. Racial, gender and other differences have been deeply entrenched in our society. The discrimination enquiry should therefore look beyond the form of the impugned provision of the code of conduct to understand its actual harmful effect or impact on real people, in the context of the place of the group in the entire ethnic or social, political, economic and legal structure of our society.”
[72] In determining whether the appellant has discharged the onus to prove that the discrimination was not unfair I will take into account the fact that Vallie is not only a member of a historically disadvantaged group but also belongs to a religion which has suffered marginalisation in the past. It is within the context of and in light of these considerations that Bailey’s request must be considered in order to understand the effect which it had on Vallie’s dignity and identity.
[73] The discrimination is not limited to the respondent only. It extends to all members of the community of Muslim faith. It is clear from the record that the appellant readily accepts and welcomes other customers. The practice of requesting customers of Muslim faith to remove their headgear while on the appellant’s premises humiliates and dehumanises them.
[74] In my view the appellant has failed to justify the fairness of the discrimination. It may not justify Bailey’s statement on the basis that when she made it she was exercising her right to freedom of expression or freedom of religion. She may not exercise her rights under the Constitution or for that matter under the Act in a manner which is in violation of or undermines the other person’s rights under the Act or the Constitution.
Relief
[75] In conclusion I find that Bailey’s statement requesting Vallie to remove his fez constituted discrimination based on religion and that the appellant has failed to justify its fairness. There is no reason to interfere with the consequential relief ordered by the Court a quo and its order should stand
Costs
[76] The Court a quo awarded costs in favour of the respondent. I will not interfere with that order as the respondent was legally represented in the Court a quo.
[77] The respondent did not oppose the appeal and therefore he has not incurred any costs. In the circumstances no costs order will be made.
Order
[78] In the result the following order is made:
- The appeal dismissed.
2. No order as to costs is made.
ZONDI, J
I agree, it is so ordered
HJ ERASMUS, J
