Pretoria - The University of Pretoria has lost a second court battle to avert a case about racial discrimination being heard in the Equality Court.

Appealing an earlier judgment unfavourable to them, the university’s management, its council and the TuksAlumni Association argued the court had no jurisdiction over the case.

The application by lobby group the Higher Education Transformation Network (HETN) should be heard at the Labour Court instead, the university’s counsel sought to convince the North Gauteng High Court.

But Judge Elizabeth Kubushi dismissed the appeal with costs, opening way for the case to be heard at the Equality Court.

The university would now have to answer what Judge Kubushi found to be “prima facie” evidence of racial-based discriminatory processes in selection of members to its governing structures.

HETN is challenging what it argues is the slow pace of racial transformation in the university’s governing bodies, the council and the alumni association.

In papers filed by Reginald Legoabe, the network’s executive director, HETN argues that the university’s rules and policies for election into the structures are skewed in favour of whites.

HETN’s legal action was triggered by the election of AfriForum senior member Willie Spies to the university’s council in 2012.

Acting chief magistrate Daniel Thulare ruled at the Pretoria Magistrate’s Court last July that HETN’s application could be heard in the Equality Court.

But the university appealed on the grounds that Thulare “erred” in his ruling, claiming Legoabe’s application did not disclose any unfair racial discrimination.

They argued Legoabe’s complaints questioned transformation at the university, making it a labour issue and not one of racial equality. Only the Labour Court therefore has jurisdiction to hear the case.

Judge Kubushi dismissed this, saying in her judgment that she understood Legoabe’s complaint to contend that the university and the TuksAlumni Association applied election rules that “differentiate between white male alumni and black male alumni in particular”.

“To my mind, the argument by counsel for the university and council that the issues raised by Legoabe relate to transformation in the workplace and should have been referred to the Labour Court is misplaced,” the judge said.

“I do not understand Legoabe’s complaint to be about the lack of transformation in the workplace, but the complaint is about election processes to the council and the TuksAlumni board which, according to him, leads to inequalities on those bodies.”

Judge Kubushi cautioned that she wasn’t ruling on the merits of Legoabe’s complaint, as “that duty is reserved for the Equality Court”. She only ruled on jurisdiction.

“Legoabe is required at this stage only to establish the discrimination, and he has in my view succeeded…”

Judge Kubushi said Legoabe managed to “establish the two other elements of discrimination which were in dispute”.

“My view is that the respondent has established a prima facie case of discrimination and as such the Equality Court has the jurisdiction to hear and determine this matter.”

It appears the university went out guns blazing to block merits of the application from being tested by the Equality Court.

Tukkies, as the Pretoria-based institution is known, was represented by Wim Trengrove SC in the appeal.

Described by one newspaper as one of South Africa’s sharpest legal minds, Trengrove has been involved in many high-profile litigations.

He was senior counsel for the National Prosecutions Authority in opposing President Jacob Zuma’s legal bids to avoid prosecution.

HETN was represented on a pro-bono basis by Leonard Nkosi, a little-known advocate based in Joburg.

It was also critical for the university that the matter is not argued in the Equality Court, whose hearings tend to attract more media attention than those of the Labour Court.

An unfavourable ruling by the court could open a can of worms about the institution. It would also embolden HETN, which during its earlier days looked like it had been established to take on Tukkies specifically.

The institution was the first university HETN challenged over transformation demands in 2011, the year in which it was started.

It has since taken its battles beyond Tuks, challenging the North-West University also over claims of racism.

The university has an interdict stopping the group from making what is says are defamatory allegations against it.


Sunday Independent