HIGH COURT REPRESENTATIONS-BATHO PELE

In the High Court of South Africa
(Durban and Coast Local Division)
Case no:
In the Matter between:
N. Mqadi Complainant
And
Adv. S Lakhi Respondent
_____________________________
Complainant’s Submission for a Special Review in the High Court i.r.o of the Promotion of Equality and Prevention of Unfair Discrimination Act No. 4 of 2000
To: The Registrar of
The High Court
(Durban and Coast Local Division)

And To: Mr M Shezi
c/o State Attorney
KwaZulu-Natal
Sirs

Be pleased to take notice that the Complainant herein evenly files the following representations in support of his application for a Special Review in terms of the court order granted by the Equality Court sitting at the Durban Magistrate’s Court on the 13th day of October 2006, before the Presiding Officer Mr G. Abrahams Esq.
Under Case No: 76/2005

1.
The grounds for the complaint emanates from the following allegations:
1.1 Use of language loaded with racial overtones by a Senior Public servant
1.2 Breach of Batho Pele principles
1.3 Abuse and/or Humiliation of Dignity to a private citizen
2.
The complainant asks the High Court to overturn the ruling of the Equality Court with a finding that it was constitutionally invalid and unlawful.
3.
The complainant avers that the Equality Court failed to consider the potential prejudice to himself (Mqadi) which may affect the fairness of the trial, as complainant was not legally represented throughout the proceedings. Such decision by the Equality Court infringed on the complainant’s constitutional right to equality and compromised the complainant’s right to a fair trial.
4.
The complainant avers that it standard practice in the legal system and in a constitutional democracy that proceedings in a court of law were imperative for previously-disadvantaged persons to be legally-represented.
5.
The complainant avers that the Equality Court failed to discharge her responsibility as it failed to take into account the generally-established rule on practice.
6.
Complainant avers that the Equality Court failed to make a determination regarding the central role of public service administration employees that their professional conduct and ethics shall at all times not be illegal but be necessarily always ethical as they send strong messages which may encourage unethical behaviour to the wider citizenry.


7.
Complainant avers that Respondent breached the central government’s noble motives of Batho Pele principles. The Equality Court failed to make a determination that should inculcate and deepen a culture that strengthens a sound constitutional democracy work ethics.
8.
Complainant avers that the fundamental principle of our democracy--Human Dignity—was grossly violated during the 13 September 2006 visit at Independent Complaints Directorate (ICD), as Respondent failed to create a loving, tender and caring environment to a private citizen canvassing government services.




9.
Complainant avers that the treatment he endured at Independent Complaints Directorate offices on 13 September 2005 was grossly inhumane, unfair, unethical, abusive and humiliating. Respondent had a mens rea when she refused to consult with complaint on an appointment that was set down a month earlier after “learning from some nameless ICD personnel that Mqadi was a difficult complaint”.
10.
Complainant avers and respectfully submit that the refusal to consult with complaint was a dereliction of duty by Respondent as when called by the Equality Court to produce her personal diary, it depicted an entry-in the respondent’s handwriting- showing that Respondent had (personally) scheduled an appointment at 10H00 to consult with the Applicant.
11.
Complainant avers that the Respondent had breached the KwaZulu-Natal Citizen’s Charter as unveiled by Premier Sibusiso Ndebele which implores that public servants should ensure a responsive climate focused on people’s needs, and that the citizens are invited to participate in the monitoring of the efficiency and effectiveness with which delivery of services is effected.
12.
Complainant avers that the Respondent’s evidence-in-chief gave credence to the complainant’s version that he was abused, humiliated, severely prejudiced and constitutional rights grossly violated as the Respondent’s first line of defence re-iterated the blatant disrespect of the Constitution Act 108 of 1996 when,her legal counsel said,“There was nothing wrong in calling you African, even the country’s Constitution classifies people in terms of Whites, Coloureds, Indians and Africans”.
13.
Complainant avers that the crux of the complaint lodged with the Equality Court was very much informed by the blatant disrespect, shouting, tone and the context upon which racial language was uttered. I argue that such language was not necessarily illegal but was unethical to a citizen requesting government services.
14.
Complaint avers that the Presiding Officer failed to scrutinize and rule in a detailed manner whether such language and conduct by a senior public servant was justified during the “Age of Hope” and the creation of a caring, people-centred developmental democracy in the Republic of South Africa.
15.
Complaint avers that the Honourable Court must look in details at the Respondent’s base racism and her non-chalance about the provisions of the Bill of Rights by a public servant occupying her position. I implore the Court’s indulgence to scrutinize the Respondent’s views on 13 September 2005 about Africans that were re-iterated on the court record.
16.
Complainant avers that the Respondent’s language was not justified and is contrary to country’s constitutional provisions of a democatric, non –racial, multi-cultural and unified Republic of South Africa?

17.
Complainant avers that the Respondent had shown blatant disrespect, innuendo, deep-seated hatred and subjectivity to the complainant that was grossly prejudicial as Respondent had repeated her remarks “ I had learnt that complainant was a difficult person to deal with” before the Equality Court hearing.
18.
Complainant avers that the refusal of legal aid representation by the Head of Durban Justice Centre was a travesty to a fair and just litigation.
19.
Complainant avers that Durban Justice Centre refusal of legal representation to the complainant was a transgression that breached the corporate principles of good governance and transparency.
20.
Complainant avers that the refusal of legal aid representation to the complainant by the Durban Justice Centre further perpetuated the marginalisation of the complainant as a historically-disadvantaged individual in the democratic Republic of South Africa.
21.
Complainant avers that his constitutional right to a fair trial was violated as complaint was repeatedly denied access to justice by a senior public servant-Head of Durban Justice Centre- despite the recognition and development of a right to effective and affordable court structures, systems and management through the concept of fundamental Batho Pele principles.
22.
Complainant avers that the much-vaunted Legal Services Charter that seeks to restore dignity of all people before a court of law in the Republic of South Africa was violated by the Durban Justice Centre as refusal to grant legal aid representation to the complainant was prejudicial to opportunities of/to a fair trial.
23.
Complainant avers that Durban Justice Centre violated the country’s key focus in ensuring a more caring government peoples-centred environment whereby all citizens are equal and should be seen as equal before law.
24.
Complainant avers that the Head of Durban Justice Centre committed a serious crime which hindered the complainant’s chosen approach regarding the unique nature and the intricacies of a South Africa in transformation as the refusal grant violated the legislative framework issued under the Equality and Prevention of Unfair Discrimination Act No 4 of 2000 was disregarded by the Head, personally.

25.
Complainant avers that the adjudication of the Equality Court complaint should be declared a ‘mistrial’ as it failed to create an affirming environment as there were blatant disparities in the provision of legal services, that were compounded by the disparity in professional and economic opportunities of the two litigants as the Head of Durban Justice Centre violated and breached the Public Finance Management Act.
26.
Complainant avers that the socio-economic empowerment through unconditional access to legal justice opportunities to all citizens in the Republic of South Africa was denied for a fair and equitable trial as enshrined in the Constitution Act 108 of 1996 0f the Republic of South Africa.
27.
Complainant avers that the education of the judiciary service providers, such as the Presiding Officer, was critical about knowledge and understanding of the fundamental principles of Batho Pele as the Equality Court complaint was based on the unethical, and not illegal conduct of the Respondent.
28.
Complainant respectfully avers that there was a blatant abuse of state power and mal-administration that was committed by the Head of Durban Justice Centre and the Presiding Officer {Equality Court} to proceed with the hearing when legal aid was not granted/refused against the complainant without furnishing him with sound reasons.


RELIEF SOUGHT:
a. I pray that the Durban High Court reverse the findings of the Durban Equality Court, and rule in the Complainant’s favour.
b. I pray for the High Court to look critically and expose the flaws that were brought to the justice system through human failure, stupidity and small-mindedness by instituting a financial audit and forensic investigations on the corporate guidelines by the top Durban Justice Centre personnel.
c. I pray for the High Court to provide answers to the Presiding Officer’s question “whether the fact that complainant was unequally armed detracted from his right to fully participate in the proceedings and also whether he was given access to justice.”
d. I pray for the Hon. Court to order the Respondent to make an unconditional apology to the Complainant about the treatment he was made to endure at ICD offices on 13 September 2005.
14.
e. I pray for the Hon. Court to dismiss the Respondent’s defence and order the Respondent and the Durban Justice Centre to pay the Costs.
Dated in DURBAN on this 6th day of January 2007.

Nkonzwenhle H. Mqadi
COMPLAINANT
Address: Z 484
Umlazi Township
4031
Tel:031-9096457
Cell: 0825816323
0735370549