About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2019
>>
[2019] ZAWCHC 16
|
|
School Governing Body of Uitzig Secondary School and Another v MEC for Education, Western Cape and Another; In Re: School Governing Body of Uitzig Secondary School and Others v MEC for Education, Western Cape and Others (3266/2017) [2019] ZAWCHC 16; 2020 (4) SA 618 (WCC) (16 January 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
3266/2017
In
the matter between:
SCHOOL GOVERNING
BODY OF UITZIG
SECONDARY
SCHOOL
First
Applicant
UITZIG
SENIOR SECONDARY SCHOOL
Second
Applicant
and
MEC
FOR EDUCATION, WESTERN CAPE
First
Respondent
WESTERN
CAPE EDUCATION DEPARTMENT
Second
Respondent
In
re:
The
matter between:
SCHOOL GOVERNING
BODY OF UITZIG
SECONDARY
SCHOOL
First
Applicant
UITZIG
SENIOR SECONDARY SCHOOL
Second
Applicant
and
MEC
FOR EDUCATION, WESTERN CAPE
First
Respondent
WESTERN
CAPE EDUCATION DEPARTMENT
Second
Respondent
WESTERN CAPE
DEPARTMENT OF TRANSPORT
AND
PUBLIC
WORKS
Third
Respondent
WESTERN CAPE
COMMUNITY SAFETY
DEPARTMENT
Fourth
Respondent
RAVENSMEAD
SENIOR SECONDARY SCHOOL
Fifth
Respondent
MINISTER
OF
EDUCATION
Sixth
Respondent
MINISTER OF
JUSTICE AND
CORRECTIONAL
SERVICES
Seventh
Respondent
JUDGMENT
DELIVERED ON 16 JANUARY 2019
MASUKU
AJ
1.
This application raises two procedural
questions relating to the status of an administrative decision that
is the subject of an
application for leave to appeal to the Supreme
Court of Appeal in terms of
s 17(2)(b)
of the
Superior Courts Act 10
of 2013
. The first is whether the implementation of an impugned
administrative decision is automatically suspended pending the
outcome
of an application for leave to appeal to the Supreme Court of
Appeal in terms of s 18(1) of the Superior Court Act. Section
18(1) of the Superior Court Act states the following
“
Subject
to subsections (2) and (3), and unless the court under exceptional
circumstances orders otherwise, the operation and execution
of a
decision which is the subject of an application for leave to appeal
or of an appeal, is suspended pending the decision of
the application
or appeal.”
2.
Section 18(1) refers to the execution or
implementation of a judicial decision which is the subject of an
application for leave
to appeal. The crucial question in this
matter is whether the First Respondent’s administrative
decision to close down
the Second Applicant is suspended in terms of
s 18(1) pending the decision of the Supreme Court of Appeal of the
application for
leave to appeal?
3.
The second procedural question depends on
the outcome of the first one. In the event that s 18(1) does
not apply in that there
is no decision to be suspended by the lodging
of an application for leave to appeal to the Supreme Court of Appeal,
what should
a litigant who has lodged an application for leave to
appeal to the Supreme Court of Appeal do to prevent the execution and
implementation
of an administrative decision pending that application
for leave to appeal? The First Respondent contends that such a
litigant
must apply for an interdict to prevent the implementation
and execution of an administrative decision and not rely on the
provisions
of s 18(1).
DOES
S 18(1) OF THE SUPERIOR COURT ACT 10 OF 2013 APPLY
4.
The Applicants contends that s 18(1)
prevents the First Respondents from executing and implementing the
administrative decision,
because they have lodged an application for
leave to appeal the judgment and order of the court a quo dismissing
the application
to review and set aside the decision of the First
Respondent to close down the Second Applicant. There can be no
dispute
that s 18(1) had the effect of suspending the execution and
implementation of the administrative decision when the Applicants
lodged
an application for leave to appeal the order of the court a
quo dismissing the application to review and set aside the decision
to close down the Second Applicant. In other words, s 18(1)
prevented the First Respondent from executing and implementing
the
administrative decision pending the outcome of the application for
leave to appeal the order dismissing the application to
review and
set aside the administrative decision. The only procedural
route open to the First Respondent to execute and implement
its
administrative decision pending the outcome of the application for
leave to appeal was an application in terms of s 18(3).
If the
First Respondent wished to prevent the consequences of s 18(1) when
the Applicants lodged their application for leave to
appeal the
judgment and order dismissing their application to review and set
aside the administrative decision to close down the
Second Applicant,
she would be obliged to make a substantive application in terms of s
18(3). Section 18(3) states the following;
“
A
court may only order otherwise as contemplated in subsection (1) and
(2), if the party who applied to the court to order otherwise,
in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court do orders.”
5.
The position in s 18(1) may therefore only
be altered by an order granted in an application brought in terms of
s 18(3). Neither
the Applicant nor the First Respondent
have brought an application in terms of s 18(3). The Applicants
have brought this
application to enforce the consequences of s 18(1)
and therefore to prevent the First Respondent from executing and
implementing
the administrative decision to close down the Second
Applicant pending the outcome of their application for leave to
appeal to
the Supreme Court of Appeal. The Applicants further
contends that they will suffer irreparable harm should the First
Respondent
execute and implement the decision to close the school
pending the outcome of their application for leave to appeal to the
Supreme
Court of Appeal. The application for leave to appeal to
the Supreme Court of Appeal will be rendered moot if the First
Respondent
executes and implements the impugned administrative
decision.
6.
The First Respondent contends that the
order dismissing the application to review and set aside her decision
is not and cannot be
suspended in terms of s 18(1). They
contend that the purpose of s 18(1) and the common law rule that an
application for leave
to appeal suspends the operation of an order is
to ensure that a judgment whereby relief is granted to a litigant is
suspended
pending the determination of an appeal. The First
Respondent, relying on the judgments of the Supreme Court of Appeal,
say
that in cases where a claim or an application is dismissed, that
order is not suspended pending an appeal, simply because there
is
nothing to appeal that can operate or upon which execution can be
levied.
(MV Snow Delta: Serva Ship Ltd v
Discount Tonnage Ltd
2000 (4) SA 746
(SCA) at para 6)
In the view of the First Respondent, a party wishing to enjoy the
consequences of s 18 to have the implementation and execution
of an
administrative decision suspended must find his or her remedy in an
interdict. A party who wishes to lodge an application
for leave
to appeal to the Supreme Court of Appeal in circumstances where such
application has no s 18(1) effect must launch an
application for an
interdict preventing the implementation and execution of an impugned
administrative decision. The First
Respondent says that s 18(1)
does not apply where a party has not been granted an order because
such an order is incapable of suspension
in terms of s 18(1) or the
common law.
7.
The submissions by the First Respondent,
relying on the authority of the Supreme Court of Appeal, if correct
are binding on me and
I may therefore not deviate. According to
the submissions eloquently made by Ms Huyssteen, the Supreme Court of
Appeal has
decided that where an application is dismissed, the
position in common law and now set out in s 18(1) does not apply in
that there
is no order to suspend when an application for leave to
appeal is launched against that order. A litigant wishing to
suspend
the execution of an administrative decision must apply for an
interdict. The device of an interdict would have the effect
of
s 18(1) if granted, in that it would suspend the execution and
implementation of an impugned decision pending the outcome of
an
application for leave to appeal. According to Ms Huyssteen,
such an application must comply with the requirements of an
interdict. A crucial requirement for the granting of an
interdict is irreparable prejudice if the suspension order is not
granted. This is the exceptionality requirement in s 18(1).
8.
I must therefore examine the authorities
that are relied on for the position taken by the First Respondent.
In the MV Snow
Delta Serva Ship Ltd v Discount Tonnage Ltd, Harms J
at para 6, deals with what he refers to
“
a
misunderstanding of the concept of suspension of execution”
in the context of a ratio of the decision of
Corbett J in SAB Lines (Pty) Ltd v Cape Tex Engineering Works (Pty)
Ltd
1968 (2) SA 535
(C) and the dissenting opinions that followed
this judgment. (cited in para 6). Harms JA then says
“
For
instance, an order of absolution from the instance or dismissal of a
claim or application is not suspended pending an appeal,
simply
because there is nothing that can operate or upon which execution can
be levied. Where an interim order is not confirmed,
irrespective of the wording used, the application is effectively
dismissed and there likewise nothing that can be suspended.
An
interim order has no independent existence but is conditional upon
confirmation by the same Court (albert not the Judge) in
the same
proceedings after having heard the other side (Chrome Circuit
Audio-tronics (Pty) Ltd v Recoton Euopean Holdings Inc and
Another
2000 (2) SA 188
(W) at 190B-C) Any other conclusion gives rise to an
unacceptable anomaly: If an applicant applies for an interim order
with notice
and the application is dismissed, he has no order pending
the appeal; on the other hand, the applicant who applies without
notice
and obtains an ex parte order coupled with a rule nisi and
whose
application is eventually
dismissed, has an order pending the appeal.”
9.
Harms JA however does not deal with what a
party must do to prevent the implementation and execution of an
impugned administrative
decision that is the subject matter of an
application for leave to appeal to the Supreme Court of Appeal.
His judgment does
not deal with s 18(1). All he does is to state what
is trite in common law– that an order dismissing an application
is not
suspended pending an appeal because there is nothing to
appeal. Harms JA did not deal with a situation similar to the
present
– where the appellant has lodged an application for
leave to appeal to the Supreme Court of Appeal and wishes to stop the
implementation of an administrative decision until that application
for leave to appeal is disposed of. The First Respondent
then
relies on the University of the Free State v Afriforum and Another
2018 (3) SA 428
(SCA) for the approach to interpreting s 18 of the
Superior Court Act. In that matter, the University of the Free
State (“UFS)
had exercised its automatic right of appeal in
terms of s 18(4)(ii) of the Superior Court Act against an order of
the full court
of the Free State Division of the High Court,
Bloemfontein directing that its judgment and order delivered on 21
July 2016 not
be suspended pending the determination of an appeal by
the UFS to the Constitutional Court, alternatively to the Supreme
Court
of Appeal.
10.
The facts relevant to this case are
simple. The Full Court delivered the judgment reviewing and
setting aside the decision
of the Council to ‘adopt and
approve’ the new language policy for the UFS. The
UFS sought leave to appeal
to the Constitutional Court, alternatively
leave to appeal to the Supreme Court of Appeal, against the order of
the Full Court.
That application for leave to the
Constitutional Court alternatively the Supreme Court of Appeal had
the effect of suspending the
order of the Full Court reviewing and
setting aside the implementation and execution of the language policy
in terms of s 18(1)
of the Superior Court Act. Leave to appeal
was granted by the Full Court to the Supreme Court of Appeal.
The appeal
process initiated by the UFS had the effect of suspending
the order of the Full Court – which meant that the University
was
not prevented from implementing and executing its decision on the
language policy. Afriforum appreciated this position and
launched an application before the Full Court in terms of s 18(3) for
an order implementing the order of the Full Court pending
the
appeal. The s 18(3) Afriforum application was designed to give
effect to the orders of the Full Court pending the appeal
because
they understood that the appeal of the UFS had suspended that order.
There was no legal instrument preventing the
UFS from executing the
language policy, unless prevented specifically by a s 18(3) order.
The UFS submissions made in the
context of the Afriforum’s
18(3) application helped the Court to evaluate whether exceptional
circumstances existed to prevent
the consequences of s 18(1) from
operating. It was in that context that the Court held that
Afriforum had not meet the exceptionality
test that its application
was dismissed and the consequences of s 18(1) continued to operate in
favour of the UFS. But how
does this matter apply to the facts
of this case.
11.
The Applicants contend that s 18(1) applies
and seek to enforce the suspension of the order giving the First
Respondent the power
to implement its decision to close down the
school. The Applicants further contend that an order dismissing
the review application
must be given its context. The context is the
following. The order dismissing the application to review and
set aside the
decision to close down the Second Applicant was
suspended by the application for leave to appeal lodged immediately
after that
judgment was granted. The First Respondent could
not, save under s 18(3), implement or execute the administrative
decision
while leave to appeal was pending. The First
Respondent appears to accept that. However, prior to that order
being
granted, an order had been granted by Saldanha J, essentially
suspending the implementation of the administrative order of the
First Respondent closing down the school. In terms of that
order, pending the finalisation of the application, the decision
to
close the school would not be implemented and executed by the First
Respondent. The matter was finalised when the judgment of
Hack AJ
dismissing the application was handed down. That ended the
Saldanha J order. When the application for leave
to appeal was
lodged by the Applicants against the judgment and order of Hack AJ, s
18(1) kicked in and that order was suspended.
In my view,
during that period, the order of Saldanha J was revived.
12.
The First Respondent’s contention,
based on her understanding of the Harms JA’s remarks in MV
Snow, that an order dismissing
an application cannot be suspended in
terms of the common law, does not, in my view apply under s 18(1)
with the equal force that
it applied under common law. While the
common law creates a distinction between the orders that may be
suspended pending an appeal,
s 18(1) does not do so. Section
18(1) applies to all decisions or orders. It does not apply, as
the First Respondent
contends, only to orders or decisions that are
granted. I cannot think of any reason why an interpretation of s
18(1) in terms
of which the suspension doctrine applies only to
granted orders and not those that are not granted is possible under s
18(1). Harms
JA did not purport to give an interpretation of s 18(1)
and its scope of application. But even if I am wrong on this –
on the basis of Harms JA in MV Snow, it is clear to me that the
purpose of the suspension requirement in applications for leave
to
appeal would be frustrated if it were to operate in a discriminatory
manner to granted orders only.
13.
The interpretation of s 18(1) has
extensively been covered in the judgment of the Supreme Court of
Appeal in UFS v Afriforum more
particularly in para 5 to 15. I
am bound by that interpretation. However, the Supreme Court of
Appeal did not deal
with the purpose of the suspension requirement.
The purpose of suspension concept in common law applies with equal
force
to s 18(1) save that the interpretation of s 18 must be
coloured by the applicable constitutional concepts. The purpose
of
s 18(1) is therefore to provide protection to a litigant pending a
full investigation of the matter by the Court on appeal. An approach
contended for by the First Respondent in terms of which the
suspension concept would only apply to orders that are granted would
strip a litigant in the position of the Applicants with that
protection. In other words, if the application for leave to
appeal to the Supreme Court of Appeal suspends an order that is
granted but not to an order that is not granted, it would introduce
a
discriminatory criterion between litigants. In terms of this
approach, only litigants against whom orders are granted have the
right to the protection of s 18(1) and not those whose applications
are dismissed. This approach would fundamentally offend
s 9(1)
of the Constitution, which provides that everyone is equal before the
law and has the right to equal protection and benefit
of the law.
The purpose of the suspension rule is intended to protect the
integrity of our courts and to afford courts of
appeal the
opportunity to engage with real disputes on appeal. In any
event, if an application for leave to appeal suspends
the operation
of the judgment and orders of the court a quo, on what logic can the
rule not operate where the appeal is with a
higher court, for
example, the Full Court, the Supreme Court or the Constitutional
Court. The suspension principle must apply
with equal force in
circumstances where an appeal is pending before a higher court as it
applies to the court a quo. The
importance of the
suspension rule is also reflected in the requirement of exceptional
circumstances in under s 18(1). In
other words, the requirement
that only exceptional circumstances justify a deviation from the
suspension rule demonstrates its
potency. The exceptionality
requirement is dealt with sufficiently in UFS v Afriforum at paras 10
and 12. A party wishing
to avoid the consequences of s 18(1)
must show exceptional circumstances in an application under s 18(3).
14.
The approach I take in this application
requires that I deal with the argument of the First Respondent that s
18(1) does not apply
to an order dismissing an application. As stated
above, I do not agree with this position. The approach that must be
adopted is
one which must interpret the order appealed in context.
Furthermore, s 18(1) applies regardless of the order granted by the
court a quo except in interim interdicts. This therefore means
that a party wishing to enforce an order that is under appeal
must
seek to do so by way of a substantive application under s 18(3). The
First Respondent accepts this position, contending that
such an
application must be in the form an interdict. That appears true if
regard is had to the judgment in UFS v Afriforum.
The
difference though is in who the First Respondent says bears the
obligation to show exceptional circumstances in order to avoid
the
consequences of s 18(1). In my view, it is the party wishing to
benefit from the order that is the subject of the application
for
leave to appeal. An order dismissing the application frees the
successful party to execute and implement the decision
that is the
subject of a legal challenge in the appeal. This means, as was
contended by the Applicants, that an order dismissing
their
application allows the First Respondent to implement and enforce the
administrative decision, despite such decision remaining
under a
legal challenge.
15.
In context, the order dismissing the
application has the legal effect of permitting the First Respondent
to implement the decision
to close down the Second Applicant.
In my view, the First Respondent’s decision to close down the
Second Applicant
may only be executed and implemented under the
exceptional circumstances required in an application in terms of s
18(3).
There is no such application, although the First
Respondent’s defence to the Applicant’s application
appears to raise
factors that could be considered in an application
under s 18(3). Given that there is no s 18(3) application by
the First
Respondent, I deem it unnecessary to go into its defence to
the Applicants’ case. In my view, I am only permitted to
determine whether the exceptionality test has been met in a
substantive application by a party wishing to avoid the consequences
of a suspension under s 18(1).
16.
This then means I do not have to determine
whether the Applicants have met the requirements of exceptionality
because in truth,
their rights are fully protected by s 18(1) which
suspends the execution and implementation of the order of the court a
quo.
17.
In the circumstances, I grant the following
order;
1.
Pending the outcome of the Applicant’s application for leave to
appeal to the Supreme Court of Appeal, the First Respondent’s
decision to close down the Second Applicant is suspended in
accordance with s 18(1) of the Superior Court Act 10 of 2013;
2.
The First Respondent is directed to comply with the order of Saldanha
J attached herewith as “X” pending the finalisation;
3. The First
Respondent is directed to pay the costs of the application including
the costs of two Counsel.
…………………………………………………………
.
T
MASUKU
ACTING
JUDGE OF THE HIGH COURT
Counsel
Appellant:
Advocate Norman Arendse
Respondent:
Advocate Elsa van Huisteen
Instructing
Attorneys
Appellant:
Respondent:
JUDGMENT
READ AND DAY(S) IN COURT: 16 January 2019
Court
28