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[2010] ZAGPJHC 8
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B and Another v Creecy NO and Others (2009/52850) [2010] ZAGPJHC 8 (10 March 2010)
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IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO 2009/52850
In
the matter between
E
B FIRST APPLICANT
H
E B NO SECOND APPLICANT
and
BARBARA
CREECY NO FIRST RESPONDENT
ELIZE
FRONEMAN NO SECOND RESPONDENT
N
HIGH SCHOOL THIRD RESPONDENT
MARIUS
SCHAFER NO FOURTH RESPONDENT
J
A C FOURIE FIFTH RESPONDENT
RENETTE
VILJOEN SIXTH RESPONDENT
______________________________________________________________
J
U D G M E N T
______________________________________________________________
VAN
OOSTEN J:
[1] This application concerns the
status of a learner at a high school. The first applicant (who is
assisted herein by his father,
the second applicant) (also referred
to in this judgment as E) is a learner at the N High School (the
third respondent), an acclaimed
and well-known Afrikaans medium high
school in Krugersdorp. During July/August 2009, and while E was in
Grade 11, he was elected
as a member of the school’s
Representative Learners Council (Verteenwoordigende Leerderraad) (the
RLC), and thereafter elected
as deputy head boy of the school.
[2] Prior to their inauguration there
then followed what apparently has been a long-standing tradition at
the school, an initiation
(Afrikaans “ontgroening” or, as
it has also been referred to in the papers before me, a
“team-building exercise”)
of the members elect of the
RLC. The “purpose” of the exercise I am given to
understand was to ensure bonding between
members of the body, in
particular those who were elected for the first time. As history has
shown these kinds of orientations
more often than not become a
spectacle of that which would only satisfy those with a distorted
sense of “fun” and “enjoyment”
and, for that
matter, “bonding”. This initiation was no exception: it
was marked by unruly and rowdy behaviour probably
much to the delight
and amusement of the onlookers but unfortunately so, to the dismay
and humiliation of the victims. E, probably
because he was the newly
elected deputy head boy, states that he was singled out to be the
victim of even harsher and more direct
humiliating treatment. He had
been diagnosed with generalised anxiety disorder, which further
resulted in him experiencing the
incident as “uiters
traumaties”. Instead of following the channel of complaining to
the appropriate authorities at
the school (as one surely would have
expected a leader in his position to have done) he voiced his
“frustrations” by
posting several unacceptable, insulting
and derogatory messages of and concerning the teachers and the school
on the social internet
network known as “Facebook”. Those
messages came to the notice of the school authorities. In the ensuing
saga his parents,
the principal of the school (the fifth respondent),
his deputy (the sixth respondent) and the school governing body
became involved
and certain internal disciplinary steps were taken
against him.
[3] Having endured what must have been
a harrowing experience and its aftermath E says he eventually formed
the view that the school
and the governing body were all “against
him”. During the early morning on 23 October 2009 the first
applicant and
his parents decided “dat ek die skool moes
verlaat”. Later that morning he and his parents had a meeting
with the principal
at the school. His parents informed the principal
of the decision that E would be leaving the school. The principal
immediately
accepted their decision and without more ado, there and
then “declared” the first applicant to be promoted to
Grade
12 for the 2010 school year (which the principal confirmed in a
letter addressed to E’s mother dated 26 October 2009). The
“promotion” apparently was regarded as justified on E’s
excellent academic record: in the previous examinations
he had
attained no less than five distinctions and two B symbols in his
respective school subjects. E indeed left the school
and visited
family in Germany with his mother hoping that this would provide some
therapeutic benefit to him.
[4] The first applicant and his
parents, one must assume, soon realised the drastic consequences of
their decision: E, having left
the school, was no longer a learner at
N High School. They then sought legal advice from their attorney and
the usual expected
chain of correspondence ensued. In the first
letter by the applicants’ attorney to the chairman of the
Governing Body (the
fourth respondent) the re-admission of the first
applicant at the school for the 2010 school year was requested. The
Governing
Body refused the request. In a further letter by the
applicants’ attorneys to the Governing Body it is stated that
the parents
of the first applicant had reconsidered their earlier
decision to withdraw him from the school and that “hy weer gaan
inskryf
vir 2010 in Hoërskool N”. The necessary forms were
completed for E’s enrolment in Grade 12 for 2010 and handed
in
but the application for enrolment was refused by the Body Corporate
for the reason stated in a letter that “die skool
is reeds vol
en kan nie verdere leerders op hierdie stadium akkomodeer nie”.
The letter further states that the application
for enrolment had been
referred to the Department for the possible allocation of another
school where he could be accommodated.
The first and second
respondents (in their official capacities respectively as a member of
the executive committee, and the director
of the Department of
Education, Gauteng) were then approached, who reverted through the
State Attorney that the first applicant
would be allowed to return to
N High school, but on condition that he would be permitted to enrol
for Grade 11 during 2010
only. Further correspondence was
exchanged between the applicants’ attorney and the State
Attorney, but nothing came of it.
[5] On 15 December 2009 the
applicants’ attorney in a letter addressed to the first and
second respondents, lodged an appeal
“to you to reconsider the
enrolment” of the first applicant at the school (the appeal).
On 18 December 2009 the present
application was launched, on the
basis of urgency, in which the applicants in essence seek, firstly,
an order that the first applicant
be enrolled at the school as a
Grade 12 learner for 2010 and, secondly, confirmation of the first
applicant’s election as
deputy head boy of the school and
member of the RLC. On 12 January 2010 an
interim
order by agreement between the parties, was granted by Makhanya J in
terms of which the first applicant was to be enrolled as a
Grade 12
learner at the school for the current school year, pending the
finalisation of the application (the rule
nisi
).
The order further provided measures for maintaining the
status
quo
in respect of the first
applicant in that he was not to hold out in any way to be the deputy
head boy or member of the RLC.
[6] On the return day of the rule
nisi
(2 February 2010), the matter came up for hearing before me. A full
set of affidavits and, in addition thereto, a number of supplementary
affidavits, with a “quadruplying affidavit by the first
applicant” as the finale, had been filed. This culminated into
an application extending into more than 500 pages. A point
in
limine
was raised by the
respondents in the answering affidavit. It is this: this Court’s
jurisdiction to determine the issue of
the first applicant’s
enrolment as a Grade 12 learner at the school was challenged in view
of the applicants’ appeal
which at the time of the hearing of
this matter had not progressed any further than the letter I have
referred to. At the commencement
of the hearing, Mr
Mathibedi,
who appeared for the respondents, indicated that the point
in
limine
was being persisted
in. I ruled that the issue be dealt with
in
limine
upfront as a
separate issue. During the course of his argument, Mr
Sieberhagen
,
who appeared for the applicants, informed the Court that he on behalf
of the applicants “withdraws” the appeal. The
“withdrawal” of the appeal, however, did not have the
desired effect of easing the argument counsel for the applicants’
continued with. On the contrary, I required further argument on the
question remaining, on the assumption that the appeal had properly
been withdrawn, whether the applicants were not required to first
exhaust the available statutory internal right of appeal (see
s 5(9)
of the
South African Schools Act 84 of 1996
) before this Court could
exercise jurisdiction to determine the issue. As the argument
progressed it became clear to me that the
issue had neither been
researched nor prepared properly so as to be of any assistance to the
Court. I, in consequence, postponed
the matter by extending the rule
nisi
and requested counsel to file supplementary heads of argument on the
issue.
[7] The first applicant, it must be
remembered, in the meanwhile was attending the school as a Grade 12
learner in terms of the
interim order. It became clear to me that the
continuation of the hearing of the matter in all probability was not
going to take
place before the end of February 2010. By then the
first applicant would have been at school for almost 6 weeks with the
uncertainty
concerning his status hanging over his head. On
reflection, shortly after the postponement of the matter, the
interests of the
first applicant, a young promising learner in his
final, if not most important, school year becoming an almost certain
casualty
in a protracted legal battle, led me to conclude that some
form of case management was called for to expedite this matter. I
therefore
called on counsel and their attorneys to approach me in
chambers. At the meeting that followed it was informally agreed that
the
appeal, notwithstanding the “withdrawal” thereof, was
to be regarded as still pending and ready for hearing, that the
appeal would (stripped of all technicalities) be heard by the Gauteng
Department of Education as soon as practically possible and
that the
hearing of this matter would then, after disposal of the appeal,
continue on 26 February 1010. The rule
nisi
was accordingly further extended to this date.
[8] At the resumed hearing of the
matter the applicants were in addition represented by senior counsel,
Mr
Both
and, for the respondents, Mr
Mathibedi
was now assisted by Mr
Pheto
.
I was informed from the Bar that the appeal in fact had been heard on
16 February 2010 with a positive outcome for the first applicant
in
terms of which he was promoted to Gade 12 at N High School. That
effectively disposed of the main relief sought by the applicants
except for costs to which I will revert later in the judgement.
[9]
The hearing accordingly proceeded on the remaining relief sought
which it will be remembered was for an order to confirm the
first
applicant’s election as member of the RLC and deputy head boy
of the school and then of course the costs of the application.
It is
at the outset necessary to consider the nature of the relief sought
and for this purpose to quote in full prayer 2.3 in which
it is set
out as follows:
‘[Dat
die applikante aansoek] sal doen...om ‘n bevel:
1…
2.
Waardeur ‘n interdik verleen word waardeur die respondente
beveel word om alle noodsaaklike stappe te neem en handelinge
te
verrig sodat:
2.1
…
2.2
…
2.3
die verkiesing tot, en aanstelling in, die amp van onderhoofseun as
lid van die Verteenwoordigende Leerraad van die Derde Respondent,
van
die Eerste Applikant bevestig en bekragtig word.’
The
formulation of the prayer as it stands is anything but a model of
clarity. At best for the applicants the relief sought seems
to me to
be in the nature of a declarator. That appeared to be also the
understanding of counsel on both sides. The question immediately
arising is how a declarator in the form sought would have assisted
the first applicant on the facts of this matter. Mr
Both
was unable to advance any
justification or relevance for the relief sought in the light of the
facts of this matter. It is abundantly
clear, as was readily and
correctly conceded by Mr
Both
that the true relief sought was a reinstatement of the first
applicant in the posts he had occupied prior to leaving the school.
Counsel then from the Bar sought an amendment of prayer 2.3 to
reflect exactly that. Mr
Mathibedi
objected to the procedure that was followed. I upheld the objection
and ruled that the normal rules applicable to amendments had
to be
followed. Mr
Both
in response disavowed any further reliance on the proposed amendment
and submitted that the relief sought in the form it stands
was wide
enough in its terms to provide for an interpretation that the
declarator was sought to apply to the first applicant as
at the date
of the granting of the order. Having heard further argument I, in
view of the urgency of the matter, made the order
appearing at the
end of this judgment and indicated that I would furnish reasons for
the order I had made, at a later date. What
follows are those
reasons.
[10]
As a point of departure I will assume in favour of the applicants
(without deciding) that a reinstatement of the first applicant
in the
posts mentioned was in fact sought. The first hurdle that had to be
overcome was that the first applicant on 23 October
2009 as I have
already dealt with, voluntarily left the school, thereby also
abandoning or resigning the posts he had been elected
for. Counsel
for the applicants submitted that the decision by the first applicant
to leave the school had to be considered in
the context of the
stressful situation he found himself in at the time. Accepting that
to be so, it merely serves to soften the
blow. The first applicant
consciously and deliberately decided to leave the school. This
becomes abundantly clear if regard is
had to a further message he had
posted on Facebook in which he defiantly explained his decision as
follows:
‘Soos
meeste weet, het ek besluit om Norries (the school) te verlaat. Wil
graag uitklaar dat ek NIE geskors is NIE, ek het
uit eie vrye wil
geloop hoor! …’
The
first applicant undoubtedly is bound by the decision. On leaving the
school the posts became vacant and could only be filled
again by
following the election procedures provided for in the Act, the
applicable regulations and school policy. Counsel for the
applicants
was seemingly unable to advance any sustainable argument to the
contrary. While dealing with this aspect I pause to
refer to an
irreconcilable inconsistency in the applicants’ case: in the
founding affidavit the first applicant states that
he was advised
that the election procedures in terms of which he was elected “nie
behoorlik ooreenkomstig die Wet (the
South African Schools Act) en
die regulasies in terme daarvan uitgevaardig, was nie”. Nothing
further is said as to the reasons given for the contention.
In the
replying affidavit in an about turn the first applicant now
submitted, without any reference to his earlier stance, that
he was
duly elected in terms of
s 8
of the Act and the applicable
regulations. In the view I take on this matter it is not necessary to
comment any further on this
aspect.
[11]
One last observation concerning this issue: the applicants went to
great lengths and spent considerable time and energy in
an attempt to
whitewash the first applicant. A report by a psychologist (dealing
with the emotional effects of the initiation on
the first applicant)
was obtained and is annexed to the papers. Also annexed to the
replying affidavit are the affidavits of three
teachers (at N High
School), an associate professor in penology and also ex teacher who
also happened to be the mother of one of
the first applicant’s
fellow learners (containing expert opinions) as well as a pastor, all
having joined the choir grandiloquently
singing the first applicant’s
praises. This was echoed in counsel for the applicants’ heads
of argument as the basis
for his re-instatement in the leadership
posts, which is clearly ill-conceived. What is glaringly absent from
these reports is
an objective, well-balanced assessment of the first
applicant. In my view, and notwithstanding the academic excellence he
has achieved
and hopefully will maintain, he lacked one of the vital
qualities of leadership which is to fearlessly take the lead in a
time
of crisis by setting an example, to diffuse emotions and effect
reconciliation. In the crisis situation that had arisen his conduct
in posting scandalous and, in some instances, highly inflammatory
messages about the school on Facebook (he had posted messages
in
similar vein on Facebook months before the initiation), is
reprehensible. Finally, the parental guidance he received is open
to
question: his father joined the fray in posting a Facebook message in
which he described the teachers of the school as “morone
wat in
die verlede lewe”.
[12]
It follows that the applicants have failed to make out a case for the
relief sought and that the application for the relief
sought in
prayer 2.3 of the Notice of Motion falls to be dismissed.
[13]
Finally, it remains to deal with the costs of this application. In
order to determine the liability for costs I have divided
the
application into two stages: first, from commencement until the
appeal was decided, and the second, after that. In regard to
the
first stage a number of considerations arise. As for the applicants,
the application in essence was premised on the principal’s
“promotion” of the first applicant. This resulted in
ingenious contentions being raised such as that an agreement to
promote the first applicant had been concluded and even a reliance on
estoppel. Something regrettably has to be said regarding
the
principal’s conduct in “promoting” the first
applicant by the proverbial wave of the hand. He undoubtedly
acted
outside the scope of his authority. I am of the view that he could
and should have dealt with the issue he was presented
with on the
morning of 23 October 2009 more responsibly. The principal simply
ignored the procedures that were required to be followed
upon
consideration of the promotion of a learner and proceeded
unilaterally to “promote” the first applicant to the
next
grade. This he confirmed in the letter I have referred to above, a
few days later (the content of which is anything but easy
to
understand). The conduct of the principal had adverse consequences
for the school as well as the applicants. The matter proceeded
to
Court with the obvious costs implication and the school was quite
unnecessarily exposed to negative publicity in the public
media. Had
the principal properly taken control of the situation on 23 October
2009, the dispute inevitably could and would have
been resolved. That
being so, I seriously considered, as a mark of this Court’s
disapproval of the way in which this dispute
was dealt with, to order
the principal to pay a portion of the costs of this application. In
the interests of justice I have, however,
decided against such order.
[14]
The crucial consideration in order to decide the liability for costs
in my view is the appeal and the effect the result thereof
had on
this case. The applicants, except for having noted the appeal, did
not take any further steps to bring it to finality. The
interim
relief sought was not made subject to the outcome of the appeal. The
appeal, moreover, was “withdrawn” in Court
and had to be
resurrected by this Court’s intervention. The respondents (the
Department of Education) are also not free from
blame: when the
matter was before this Court in February 2010, which was well after
the first school term had commenced, not a
single step had been taken
to advance the appeal. In these circumstances a costs order either
way would not have been appropriate.
In the exercise of my
discretion, having considered all the relevant facts, I have come to
the conclusion that an order for each
party to pay his or her own
costs in respect of the first stage of the proceedings, would be just
and fair.
[14]
As for the costs of the second stage of the proceedings I propose to
follow the general rule of costs following the result.
It follows
that the applicants must pay these costs, such to include (as agreed
between counsel) the costs of two counsel.
[15]
In the result, the following order was made on 26 February 2010:
The
application for the relief set out in prayer 2.3 of the Notice of
Motion is dismissed.
The
applicants jointly and severally the one paying the other to be
absolved, are ordered to pay the costs of this application
from 16
February 2010 to date of this judgment, such costs to include the
costs consequent upon the employment of two counsel.
As
for the remainder of the costs, each party is to pay his/her own
costs.
________________________
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR
THE APPLICANTS ADV J BOTH SC
ADV
P SIEBERHAGEN
APPLICANTS’
ATTORNEY LYNETTE STEYN
COUNSEL
FOR THE
RESPONDENTS ADV TF
MATHIBEDI
ADV
AM PHETO
RESPONDENTS’
ATTORNEYS THE
STATE ATTORNEY
DATE
OF HEARING 4 & 26 FEBRUARY 2010
DATE OF JUDGMENT 10 MARCH 2010