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[2018] ZAGPJHC 6
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Qutswa v Mngomezulu NO and Others (0000664/2018) [2018] ZAGPJHC 6 (19 January 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
0000664/2018
19/1/2018
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED.
In the matter
between:
NTHABISENG
QUTSWA (NEE
SELLO)
Applicant
and
JANE
MNGOMEZULU
N.O.
First
Respondent
MICHAEL
J. SCHNEIER
ATTORNEYS
Second
Respondent
DIXON
ACADEMY OF
EDUCATION
Third
Respondent
MASTER
OF THE HIGH
COURT
Fourth
Respondent
JUDGMENT
MABESELE,
J
:
[1] This is an urgent application for
an order as follows:
(i) Directing the First Respondent to
fully cooperate with the Second Respondent to open the trust account
on behalf of the deceased’s
minor children to enable the Second
Respondent to release funds from the deceased’s estate account
for payment of the outstanding
school fees of the minor children and
the registration fees for the academic year 2018 as well as money for
maintenance;
(ii) Directing the Third Respondent to
release the minor children’s examination results to the
Applicant, for the academic
year 2017;
(iii) The First and Third Respondents
to pay costs of this application on the scale as between attorney and
client.
[2] The Applicant is Nthabiseng
Qutswa. She is the mother of the two minor children, namely:
I., age 15 years, and T.,
age 13 years, respectively. She and the
deceased were married to each other in 2002. Their marriage was
dissolved by divorce
on 4 February 2010. In terms of the
Settlement Agreement, the deceased was liable for payment of the
school fees of the minor
children, amongst others. The deceased died
in May 2016.
[3] The First Respondent is Jane
Nomthandazo Mngomezulu, cited herein in her capacity as the Executrix
in the estate of the late
Themba Theodore Mngomezulu (Estate Number:
024098/2016).
[4] The Second Respondent is Michael J
Schneier, an attorney practising under the name and style of Michael
J Schneier Attorneys,
cited herein as the attorney appointed by the
Master of the High Court to wind-up the estate of Themba Mngomezulu.
[5] The Third Respondent is Dixon
Academy of Education, a private school situated at corner Houtkop and
Steel Road, Vereeniging.
[6] The Fourth Respondent is the
Master of the High Court, Johannesburg, cited herein as a party
responsible for the administration
of the deceased estate.
[7] The deceased was the father of
Itumeleng and Thando. He was responsible for the education and
maintenance of these two
children, as stated earlier. He paid
their school fees direct to the school and bought stationery, uniform
and other school
needs. He paid maintenance in an amount of R1 500,00
per child, per month.
[8] Since the death of the deceased in
2016 the school fees of these children remain unpaid. According to a
copy of the school account
marked “NQ4” the outstanding
amount is R69 291,20 (sixty nine thousand, two hundred and
ninety one rand and twenty
cents).
[9] The Third Respondent, according to
the Applicant, refused to release I.’s Grade 9 results and T.’s
Grade 7 results
of the academic year 2017 as a result of the
non-payment of the outstanding amount aforementioned. This is despite
an undertaking
by the Second Respondent, per the letter addressed to
the Third Respondent, dated 20 July 2017, that the outstanding fees
will
be paid.
The letter reads:
“
Messrs Dixon Academy
Carmy@dixonacademy.co.za
Dear Sirs
RE: ESTATE LATE: T.T.
MNGOMEZULU
FEES – I. AND T.
MNGOMEZULU
We report:
1.
The Master of the
High Court has to appoint Mrs Mngomezulu Senior as the executrix.
2.
We can then apply
for funds from the Investment Institution to pay into the estate
banking account.
3.
There is enough
money to pay the funds but the correct steps have to be followed.
4.
Our firm will be
assisting the executrix to wind-up the estate.
5.
As long as I am
involved, the undertaking is given that the funds will be paid from
the estate banking account.
Yours faithfully
MICHAEL
J. SCHNEIER
”
[10] The Applicant is unemployed and
thus not in a position to pay the outstanding school fees and to
maintain the minor children.
[11]
The Applicant’s argument is that the First Respondent is being
unreasonably and unfairly refusing to cooperate with the
Second
Respondent to open a trust account on behalf of the minor children in
order for the Second Respondent to release funds to
the Applicant and
the Third Respondent. She argued further that the Second Respondent’s
conduct contravenes Section 1 of
the Children’s Act
[1]
and that the First Respondent is not acting in the best interests of
the minor children because she deprives them of their constitutional
right to education.
[12] She substantiated her argument by
referring to a report prepared by a social worker in the employ of
the Department of Social
Development after she had interviewed the
minor children with regard to their well-being and education. This
report is dated 5
January 2018 and marked “NQ6”. It
reads:
“
Psychosocial
report of I. Mngomezulu and T. Mngomezulu aged 15 years and 13 years
respectively. Children of the late Mr Themba Theodore
Mngomezulu
.
BACKGROUND
The children are the children of
the late Mr Themba Mngomezulu who passed on the 10
th
of May 2016. The children are under the guardianship of Mrs
Nthabiseng Qutswa who is their biological mother.
The two children were interviewed
by me on the 3
rd
of January 2018. The
two children explained to me that they are owing school fees and did
not receive their reports since
the second term until year end.
They explained that their father
was the one who was paying for their school fees and uniform but
since he has passed on they have
been struggling.
They also mentioned that they are
not sure if they will attend school this year. (This is very
disturbing thought for children
of such age to have.)
MAJOR PROBLEM
The mother was also interviewed and
she explained that she was not responsible for the payment of the
school fees as the late father
of the children was responsible and
doing a good job there. She mentioned that the fees were paid
straight to the school
account and she never handles such fees.
The only money that she was
receiving from the late husband is that of Maintenance of both
children. She mentioned that she
was getting R3 000-00
(Three Thousand). She was getting R1 500-00 per child
hence she was getting R3 000-00.
The money was
electronically deposited to her account.
The children are learners at Dixon
Academy, a private school in Three River’s Sedibeng District.
The children are owing
this school an amount of R69 291-20. The
school is not ready to hand out the end of the year report unless if
the owed amount
is paid in full. That is very frustrating for
the children. They are unable to know how they performed for
the year
2017 since they do not have reports. Their confidence
as children has been minimised. The elder one has started
behaving
strangely. The children and their mother are in a
process of looking for another place to stay since they are moving to
another
area due to job prospects of the mother.
The mother has performed her duties
and responsibility by looking for another private school for the
children in question.
She is unable to find the school as the
school she communicated with, needs a deposit for the children and
currently she does not
have.
IMPLICATIONS OF THE SITUATION
The two minor children are worried
about the possibility of them not going to school in 2018 as they
know and understand that their
mom is unemployed and is unable to
take care of her children financially.
The children’s academic
performance has been compromised for the year 2017. Chances of
children not realising their
right to education are very high for the
academic year 2018 unless if the Court considers and have the health
and welfare of the
children at heart.
SOCIAL WORKER’S EVALUATION
The children are very hurt by the
whole non-payment of their fees. They feel that somebody is failing
them as children. The mother
is willing to assist the children but is
unable due to unemployment currently.
The following rights were violated
by people who were supposed to take care of the two minor children:-
1.
The right to
education since their school fees were not paid;
2.
The right to
quality healthcare – the children were taken care of by their
late father who had them in his medical aid but
currently they have
to settle for the available medical care;
3.
The right to be
taken seriously – if the two children were taken seriously,
their education was not going to be stalled at
all. Their
livelihoods were going to be on top of the agenda every day.
RECOMMENDATION
It is therefore recommended that
the children’s life especially education should be considered
as priority like their father
was doing.
The children costs of living has
since changed and it is also recommended that the Court should also
consider that.
The social worker also recommends
that the children future maintenance be planned accordingly that will
be beneficial to the children
and all the people who are involved in
this matter should consider having the interests of the children at
heart.
WAY FORWARD
The children will be seen by the
social worker to offer counselling on the strange behaviour that the
children are now displaying.
Counselling will also be offered to
their mom to assist her to continue to give utmost support to the
minor children.
SCRIBE
Phuti
Sarah Mabuza
Social Worker
Sebokeng/Kopanong Hospital
Reg No. 10-16718
Signature:
Date:
05/01/18
”
[13] The main issue in this
application, to my mind, is the right to education. I say so on
the basis of the Applicant’s
contention that the funds be made
available from her late former husband’s estate for payment of
the outstanding school fees
of her minor children and that the Third
Respondent should release the results of the minor children for the
academic year 2017
despite the amount still owed.
[14]
Education is not a privilege but right. This is evident in
Section 29(1)(a) and (b) of the Constitution
[2]
.
The Section makes provision for a right to basic education and to
further education which the State, through reasonable
measures, must
make progressively available and accessible.
[15]
To my understanding, education is intended to improve one’s
knowledge and not for commercialisation. Its significance
on the
youths has been stated in numerous authorities
[3]
and literature
[4]
[16] On 1 September 2017 the First
Respondent was duly appointed by the Fourth Respondent as the
executrix and authorised as such
to liquidate and distribute the
estate of Themba Mngomezulu, father of the minor children, who died
on 10 May 2016.
[17] It is beyond dispute that the
First Respondent should have borne in mind that the process of
liquidation and distribution of
the deceased’s estate is to be
completed without delay for the sake of education of the deceased’s
minor children.
Since her appointment, however, the First Respondent
seems not to have shown eagerness to let the process finalised
expeditiously,
thus hampering education progress of the minor
children.
[18] The Third Respondent has released
the examination results of the minor children on the day of the
hearing of this application
despite non-payment of outstanding fees.
Since the Third Respondent did not oppose the application it cannot
be established whether
its conduct to withhold the results is
governed by its policy or emanates from established practice.
Nevertheless, I am unable
to condone the conduct of the Third
Respondent. My view is that depriving the learners of their end of
the year examination results
due to non-payment of fees is to deprive
them of their constitutional right to basic education as enshrined in
section 29(1)(a)
of the Constitution which includes right of a
learner to know his or her academic performance. Therefore any
public or private
school that withholds the results of a learner due
to non-payment of fees violate this right.
[19]
The other issue worth noting is the adverse impact of the conduct of
the Third Respondent on the emotions of the minor children
and their
mother as highlighted by the social worker in her report marked
“NQ6”. It is regrettable that children
should lose
confidence in them and be tortured psychologically before they
receive what they rightly deserve. That torture
violates a
right to freedom and security of the person
[5]
.
[20] The Third Respondent refused to
release the examination results of the children in December 2017.
It decided to release
them on the day of the hearing of this
application, on 15 January 2018. This is despite the fact that
the Third Respondent
was served with the papers on 12 January 2018.
One would have expected the Third Respondent to release the results
on the
same day in order to save the Applicant legal costs,
particularly that the Applicant is unemployed and the Third
Respondent was
assured that the outstanding school fees will be paid.
For these reasons, I see no reason not to award punitive costs
against the
Third Respondent.
[21] In the result, the following
order is made:
21.1 The First Respondent is directed
to cooperate fully with the Second Respondent to open the trust
account on behalf of the deceased’s
minor children.
21.2 The First Respondent should pay
the costs of this application.
21.3 The Third Respondent should pay
the costs of this application on the scale as between attorney and
client.
________________________________________
M M MABESELE
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
For the
Applicant
Adv Mavodzi
Instructed
by
Fouche Attorneys
c/o Jay Mothobi Inc
Rosebank, Johannesburg
For the
Respondent
No appearance
[1]
Act
38 of 2005 which defines “
care
”
inter
alia
as follows: “
guiding,
directing and securing the child’s education and upbringing,
including religious and cultural education and upbringing,
in a
manner appropriate to the child’s age, maturity and stage of
development
”.
[2]
Act
108 of 1996.
[3]
Section
27 and others v Minister of Education and another
(2012) 3 All SA 579
4,
2013 (2) SA 40
(GNP);
Head
of Mpumalanga Department of Education and another v Hoërskool
Ermelo and others
2010 (3) BCLR 177, 2010 (2) SA 415 (CC).
[4]
Bush
T.
et
al
.
Managing
Teaching and Learning in South African Schools
Int. J. Educ. DEV (2009); Mathebula T.
People’s
Education (For People’s Power) – a promise unfulfilled
.
S. Afric. Educ. Vol. 33 no: 1 2013.
[5]
Section
12(1)(d) provides: “
Everyone
has the right to freedom and security of the person which includes
the right not to be tortured in any way.
”