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CASE NO: A251/06
In the matter between
[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").
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 scarf or 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
[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
[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
[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
[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
[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
[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
[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
[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.
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)
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.
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;
whether there are less restrictive and less disadvantageous
means to achieve the purpose;
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.
[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
[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.
In the result the following order is made:
The appeal dismissed.
No order as to costs is made.
I agree, it is so ordered