Summary of Judgment

Introduction

This was an urgent application in the Gauteng Division of the High Court, Johannesburg, concerning the continued attendance at an independent school of the applicants’ minor child who was in Grade 2. Although the substantive relief regarding the child’s return to school was ultimately granted by consent, the court was later required to determine the reserved issue of costs.

The parties were, on the one hand, the parents of the minor child (the first and second applicants), and on the other hand the independent school, The College of Modern Montessori, Linbro Park, together with individuals and directors associated with the school (collectively referred to in the judgment as the “Montessori respondents”). Two provincial executive authorities were also cited as respondents, namely the MEC for Education, Gauteng, and the MEC for Social Development, Gauteng, although the costs determination focused on the dispute between the applicants and the Montessori respondents.

On 14 September 2021, the court granted an order by consent which compelled the Montessori respondents to allow the applicants’ minor child to return to school with immediate effect and interdicted the Montessori respondents from removing, suspending, or expelling the child for the remainder of the academic year without good and lawful cause and without following a proper process. The order expressly recorded that costs were reserved for later determination. The court then heard argument on costs (with heads of argument having been filed) and delivered a separate judgment on costs on 13 January 2022.

The general subject-matter of the dispute was the lawfulness and procedural propriety of the school’s decision to expel the applicants’ children, and in particular the impact of such a decision on the child’s constitutional rights (including the best interests of the child and the right to basic education). The costs judgment focused on which party should bear the costs of the urgent litigation and whether any punitive costs order was justified.

Material Facts

The court treated as material the sequence of events leading to the urgent application and the extent to which the parties’ conduct made litigation necessary.

It emerged from the papers that the applicants had two children at the school and that both were expelled, although it was noted that the parties had agreed that the younger child would be removed from the school. The urgent relief ultimately concerned the child who was in Grade 2, whose continued attendance for the remainder of 2021 was at stake.

A critical factual aspect was the contradiction between what was stated in the answering affidavit and what the surrounding correspondence indicated. Although Mr Darby stated in the answering affidavit that no final decision had been taken on expulsion, the court considered that this did not appear to be correct. Following an email from the first applicant on 7 September 2021 complaining about the school, Mr Darby expelled the applicants’ children on 8 September 2021. The applicants’ version (recorded in the judgment) was that Mr Darby communicated that the decision was final and that the school could no longer accommodate the children, and he offered to provide a report card and transfer card for their daughter.

On 9 September 2021, the applicants’ attorneys wrote to Mr Darby demanding that he withdraw the expulsion decision and allow the children to return to school on 10 September 2021, drawing attention to sections 28(2) and 29(1) of the Constitution and requesting a response by 17h00 that day. No substantive response was provided within that timeframe. Instead, Mr Darby sent a request for a meeting to take place on Monday 13 September 2021. A follow-up email later on 9 September emphasized the urgency and the need for the child to return on 10 September rather than only on 13 September.

Mr Darby replied indicating that he needed time to seek legal advice and attend a school function, stating that he would provide a substantive response only by close of business on 14 September 2021, and that in the interim the expulsion decision (and its reconsideration by the directors) would stand. The applicants’ attorneys rejected that position and advised that urgent proceedings would be launched.

The urgent application papers were served on Saturday 11 September 2021, first unsigned and later signed the same day, with the matter set down for Tuesday 14 September 2021. The meeting proceeded on Monday 13 September 2021, but the applicants’ account (as relied on in the costs judgment) was that its outcome was inconclusive: Mr Darby indicated he may allow the child to return, but needed to consult attorneys and did not commit to when the child could return or provide an undertaking addressing the process issue.

Later on 13 September, the Montessori respondents’ attorney, Mr Van der Berg, wrote asserting that the matter had been settled at the meeting. The applicants’ attorneys disputed that characterization, noting the absence of a clear undertaking not to expel the child without proper process and the absence of agreement on a court order. Mr Van der Berg did not provide further clarification and filed a practice note asserting settlement, lack of urgency, and seeking dismissal with punitive costs.

On the morning of 14 September 2021, the applicants’ attorneys asked whether the child was permitted to return to school that day and proposed settlement on the terms of a draft order. According to the applicants, Mr Van der Berg refused to engage and did not confirm whether the child could attend school. At the hearing, the Montessori respondents persisted that the matter had been settled save for costs and sought punitive costs against the applicants. During the hearing, Mr Van der Berg asserted that the school had expected the child to arrive that morning on the basis of what he regarded as an agreement.

Ultimately, the Montessori respondents agreed to the terms of the order that the court granted on 14 September 2021, which restored the child to school and interdicted removal, suspension, or expulsion for the remainder of the year without good and lawful cause and without proper process. The remaining question for the costs judgment was how those events should affect the allocation and scale of costs.

Legal Issues

The costs judgment required determination of two related questions. The first was who, in the exercise of the court’s discretion, should bear the costs of the urgent application, given that the substantive order was granted by consent and the parties disputed whether the litigation had been necessary.

The second question was whether the circumstances justified a punitive costs order, either in favour of the applicants (on an attorney-and-client scale, based on allegations of unlawful and reprehensible conduct and alleged falsehoods) or in favour of the Montessori respondents (who contended that the matter had been settled and was no longer urgent, and that the applicants should pay punitive costs).

These issues primarily concerned the application of established legal principles governing costs to the facts of the litigation conduct, combined with an evaluative discretionary judgment as to whether the conduct of either party warranted departure from the ordinary rule that costs generally follow the result.

Court’s Reasoning

The court approached the matter on the basis that it had enrolled the urgent application because it concerned a minor child’s education, and that after the consent order was granted, it had to decide costs in light of the parties’ conduct and the extent to which the application was justified.

In assessing the conduct of the Montessori respondents, the court had regard to constitutional considerations relevant to the expulsion of a child from an independent school, specifically as addressed by the Constitutional Court in AB and Another v Pridwin Preparatory School and Others. The costs judgment quoted from Pridwin to emphasise that section 28(2) requires that the best interests of the child are paramount in matters concerning the child, and that section 29(1)(a) guarantees the right to basic education. It also relied on the proposition drawn from Pridwin that an independent school must follow a fair process when making decisions affecting children’s right to basic education, and that due consideration of best interests should be objectively evident.

Applying those principles, the court reasoned that, as in Pridwin, the Montessori respondents failed to explain what process was undertaken to determine the children’s best interests when deciding to expel them forthwith. The court considered that it did not appear that any legitimate process had been followed. This assessment supported the view that the applicants were not acting unreasonably in seeking court intervention to secure the child’s continued schooling and to restrain further removal absent lawful cause and proper process.

However, the court did not accept that the applicants’ conduct justified a punitive costs order in their favour. It evaluated the applicants’ litigation choices and found that they rushed to launch an urgent application comprising nearly 170 pages, containing many annexures not relevant to the central issue. The court also noted that the application was launched on a Saturday, leaving the respondents effectively one day to respond. In addition, the court considered that the applicants could have waited for the Monday meeting to establish what the Montessori respondents would decide, instead of initiating urgent proceedings before that engagement had occurred.

These features led the court to conclude that, despite concerns about the respondents’ expulsion process, the overall circumstances did not meet the threshold for granting punitive costs to the applicants. Conversely, the judgment did not accept the Montessori respondents’ contention that the applicants should pay punitive costs; the court’s ultimate costs disposition reflected that the applicants had obtained substantial relief and that the respondents’ conduct necessitated the order that was granted.

The court therefore exercised its discretion to award costs on the ordinary scale, while declining to impose the more severe attorney-and-client scale sought by the applicants.

Outcome and Relief

The court ordered that the Montessori respondents (being the first to fourth respondents) pay the applicants’ costs jointly and severally, the one paying the other to be absolved.

The court refused to grant a punitive costs order in favour of the applicants. The judgment likewise did not uphold the Montessori respondents’ request for punitive costs against the applicants.

Cases Cited

AB and Another v Pridwin Preparatory School and Others (CCT294/18) [2020] ZACC 12; 2020 (9) BCLR 1029 (CC); 2020 (5) SA 327 (CC) (17 June 2020)

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 28(2)

Constitution of the Republic of South Africa, 1996, section 29(1)

Constitution of the Republic of South Africa, 1996, section 29(1)(a)

Children’s Act (as referenced in the quotation from AB and Another v Pridwin Preparatory School and Others)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the Montessori respondents should bear the applicants’ costs because the applicants had obtained substantive relief restoring the child to school and restraining further exclusion absent lawful cause and proper process, and because the respondents did not demonstrate that a legitimate process had been followed when expelling the children.

The court further held that a punitive costs order was not justified in favour of the applicants, principally because the applicants launched an extensive urgent application with irrelevant annexures, on a Saturday, allowing minimal time for a response, and could have waited for the meeting arranged for the following Monday to clarify the respondents’ position.

LEGAL PRINCIPLES

The judgment applied the principle that in matters concerning children, the best interests of the child are of paramount importance, and that decisions by an independent school affecting a child’s education must be accompanied by a process that makes objectively evident that the child’s best interests were duly considered, as articulated in AB and Another v Pridwin Preparatory School and Others.

It further applied the constitutional recognition that the right to basic education is enjoyed by children in both public and independent schools, and that independent schools must not act in a manner that unjustifiably undermines that right, particularly through procedurally unfair or inadequately motivated exclusionary decisions.

On costs, the court applied the discretionary principle that costs generally follow the result, but that punitive costs require justification based on litigation conduct meeting a higher threshold. In exercising that discretion, the court weighed both the respondents’ failure to demonstrate a legitimate expulsion process and the applicants’ conduct in launching an unusually voluminous urgent application with limited notice to the respondents.