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[2013] ZASCA 79
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The Kenmont School and Another v D M and Others (454/12) [2013] ZASCA 79 (30 May 2013)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:454/12
In the
matter between:
THE
KENMONT SCHOOL
......................................................................
First
Appellant
THE
KENMONT SCHOOL GOVERNING BODY
...............................
Second
Appellant
and
D M
......................................................................................................
First
Respondent
PROVINCIAL
HEAD OF THE DEPARTMENT OF
EDUCATION
..................................................................................
Second
Respondent
MEMBER
OF THE EXECUTIVE COUNCIL
.......................................
Third
Respondent
MATSIE
ANGELINA MOTSHEKGA NO
.........................................
Fourth
Respondent
Neutral
citation:
The Kenmont School & another v Moodley &
others
(454/12)
[2013] ZASCA 79
(30 May 2013)
Bench:
PONNAN and TSHIQI JJA, PLASKET, VAN DER MERWE and SALDULKER AJJA
Heard: 21 MAY 2013
Delivered: 30 MAY 2013
Summary:
Appeal – s 21A(1) of the Supreme Court Act – power of
court to dismiss appeal where judgment or order sought
would have no
practical effect or result.
___________________________________________________________________
ORDER
___________________________________________________________________
On
appeal from
:
KwaZulu-Natal High Court
(Pretoria) (Mbatha J sitting as court of first instance):
The appeal
is dismissed with costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN
JA (TSHIQI JA and PLASKET, VAN DER MERWE and SALDULKER AJJA
concurring):
[1] In this appeal counsel were, at the outset of the hearing,
required to address argument on the preliminary question of whether
the appeal and any order made thereon would, within the meaning of
Section 21A of the Supreme Court Act 59 of 1959, have any practical
effect or result. After hearing argument on this issue the appeal was
dismissed on 21 May 2013 in terms of that section and the
appellants
were ordered, jointly and severally, to pay the costs of the appeal.
It was intimated then that reasons would follow.
These are those
reasons.
[2] Courts should and ought not to decide issues of academic interest
only. That much is trite. In
Radio
Pretoria v Chairman,
Independent Communications Authority of South Africa & another
2005 (1) SA 47
(SCA), this court expressed its concern about the
proliferation of appeals that had no prospect of being heard on the
merits as
the order sought would have no practical effect. It
referred to
Rand Water Board v Rotek Industries (Pty) Ltd
2003
(4) SA 58
(SCA) para 26 where the following was
said:
'The present case is a good
example of this Court's experience in the recent past, including
unreported cases, that there is a growing
misperception that there
has been a relaxation or dilution of the fundamental principle . . .
that Courts will not make determinations
that will have no practical
effect.'
Section 21A(1) of the Supreme Court Act 59 of 1959 provides:
'When at the hearing of any
civil appeal to the Appellate Division or any Provincial or Local
Division of the Supreme Court the
issues are of such a nature that
the judgment or order sought will have no practical effect or result,
the appeal may be dismissed
on this ground alone.'
Of s 21A, this court stated in
Coin Security Group (Pty) Ltd v SA
National Union for Security Officers & others
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) para 7:
'The purpose and effect of s 21A
has been explained in the judgment of Olivier JA in the case of
Premier, Provinsie
Mpumalanga, en 'n Ander v Groblersdalse Stadsraad
1998
(2) SA 1136
(SCA). As is there stated the section is a reformulation
of principles previously adopted in our Courts in relation to appeals
involving what were called abstract, academic or hypothetical
questions. The principle is one of long standing.'
The primary question therefore, one to which I now turn, was whether
the judgment sought in this appeal would have any practical
effect or
result. It arises against the backdrop of the following facts.
[3] The first appellant, the Kenmont School (the school), which is
situated in Umlazi, KwaZulu Natal, is a school designated for
children with specific learning disabilities. One such child is R,
the son of DM, the first respondent (DM), who was first enrolled
at
the school some nine years ago as a grade four learner. On 15 January
2010 DM was informed that the second appellant, the governing
body of
the school (the governing body), had taken a decision to exclude R
from attending the school. That decision by the governing
body
prompted DM to approach the KwaZulu-Natal High Court (Durban) by way
of urgency for an order in effect that R be re-instated
as a learner
at the school. In addition to the school and the governing body, the
Provincial Head of the Department of Education
as contemplated in
s 1
of the
South African Schools Act 84 of 1996
, the Member of the
Executive Council (Education) of KwaZulu-Natal and the National
Minister of Education, were cited as the third
to fifth respondents.
No relief was however sought against them and they accordingly chose
to abide the decision of the High Court.
[4] The school and the governing body opposed the application
primarily on two bases: first, that there had been prior litigation
between the parties which had culminated in a settlement agreement in
terms of which it had been agreed that R would leave the
school at
the end of 2009; and, second, because of R's on-going behavioural
problems and his propensity to resort to violent behaviour,
which had
placed the educators and other learners at risk, the governing body
had resolved not to re-admit him to the school for
the 2010 academic
year.
[5] In support of its contention that it was entitled to refuse
re-admission to R, the deputy principal of the school, who deposed
to
the answering affidavit on behalf of the school and the governing
body stated:
'37.
Mindful of the need to balance
the individual tolerance against the needs of the majority, towards
the end of 2009, the Second Respondent
[the governing body]
implemented a revised admissions policy to govern admissions for the
First Respondent [the school]. (I submit
that [the governing body]
has the power to do so in terms of
Section 5(5)
of the
South
African Schools Act, 1996
.)
38.
The revised policy appears at
paragraph 4 of Annexure "DM30". It effectively creates a
situation where a learner would
automatically qualify for annual
re-admission unless one or more of the criteria for refusal of
admission exist.
39.
In light of the revised
admissions policy, the Second Respondent :
(a) considered that [R] did not
qualify for re-admission to the First Respondent in 2010;
(b) invited representations from
[DM] before it made a decision (see annexures "DM15" and
"DM21";
(c) received no representations
on the merits (see annexure "DM20");
(d) then determined that [R] did
not qualify for re-admission in 2010, for the reasons set out in the
minute of that meeting (copy
of which is annexure "I").'
[6] On 18 February 2010 the matter came before Msimang DJP who, by
consent, made the following order:
'3. Pending the hearing of the
application on the Opposed Roll:
(a) The First and Second
Respondents [the school and governing body] are directed to make
available to [R] (the minor child):
(i) an office on the Kenmont
school premises for the minor child to receive specialised education;
(ii) existing educators to teach
the minor child his computer and Afrikaans subjects;
(b) the Third and Fourth
Respondents are directed to employ an educator individually to
educate the minor child in the remaining
subjects, in such office at
the school premises;
(c) the minor child shall enjoy
breaks at different times to that enjoyed by other learners, so as to
ensure that he does not interact
with the other learners.
4. It is recorded that the First
to Fourth Respondents have undertaken to make arrangements for the
minor child to be examined and
treated by a suitable psychologist.
5. The Applicant and the minor
child are directed to co-operate fully with the psychologist and
comply with any counselling or treatment
recommended to the minor
child and/or the Applicant.'
[7] The matter ultimately came to be argued before Mbatha AJ on 13
April 2011 who reserved judgment and notwithstanding the evident
urgency of the matter handed down a written judgment approximately
one year later on 30 March 2012. The learned Judge held that
'... the
amended Admission Policy of the school is not
ultra
vires
for the reasons given by the third to fifth respondents'. She then
proceeded to a consideration of '… whether the decision
taken
by the school in terms of the amended Admission Policy of the school
to exclude the boy from the school in the beginning
of 2010 should be
reviewed and set aside'. In dealing with that enquiry the learned
judge stated:
'[50] What remains to be
considered is whether the decision taken by the school in terms of
the amended Admission Policy of the
school to exclude the boy from
the school in the beginning of 2010 should be reviewed and set aside.
In deliberating on this question
I cannot even begin to assess the
decision on its merits. The papers bristle with factual disputes
about whether the boy is the
menace that he is painted to be by the
school or simply being the scapegoat of prejudice on the part of the
school.'
That notwithstanding she proceeded to find for DM. She accordingly
made the following order:
'(a) The decision/action of the
First and Second Respondents [the school and governing body] not to
re-admit or re-instate [R] to
Kenmont School, Durban, is hereby
reviewed and set aside.
(b) The First and Second
Respondents are directed to immediately admit and re-instate [R] to
Kenmont School, Durban, with immediate
effect.
(c) The costs of this
application are to be paid by the First and Second Respondents
jointly and severally, including the reserved
costs but excluding the
costs incurred during November 2010 when the matter came before
Ntshangase J.'
[8] In arriving at that conclusion the learned judge stated:
'[51] There are, however,
certain findings that I can make on the papers without any difficulty
on a balance of probabilities, that
may have a bearing on this
question and I list the facts that I find to be incontrovertible
below:
(a) The boy was never convicted
of any misconduct by a disciplinary hearing.
(b) The school was desperate to
get rid of the boy for the 2010 school year as evidenced by its
willingness to compromise the disciplinary
process to achieve that
objective.
(c) The school was distraught
when it appeared that the applicant was not going to abide by the
agreement for the boy not to be
accommodated by the school during the
2010 school year.
(d) The school only came to know
about the
volte face
of the applicant (concerning the
undertaking to remove the boy from the school) in December 2009 and
there would not have been time
to resume the disciplinary hearing.
(e) The amended Admission Policy
was implemented by the school with the boy in mind and designed to be
used as a tool to preclude
the boy from admission to the school
during 2010. The amended Admission Policy was first mentioned in
correspondence on 17 December
2009 and the school admitted that the
boy was the only learner affected by this policy for the beginning of
the 2010 school year.
'
That impelled her to the finding that:
'[53] The amended Admission
Policy of the school was implemented in bad faith and for the
ulterior motive of excluding the boy from
attending the school in
2010 without having to go through the rigours of a disciplinary
hearing. The fact that the amended Admission
Policy in itself may
have been within the powers of the school to adopt cannot hide the
sinister reason behind its adoption and
offends against PAJA.
Section
3
of PAJA enjoins a court to treat each case on its own merits and in
my judgment the decision to refuse the boy entry to the school
in
2010 offends against administrative fairness and ought to be reviewed
and set aside.'
[9] I entertain some reservations as to whether it was permissible on
the disputed allegations on the papers as they stood for
the learned
judge to have arrived at several of what she describes as the
incontrovertible findings listed in paragraph 51 of her
judgment. But
it is not necessary that any firm view be expressed on the
correctness of her judgment, for, by the time she delivered
her
judgment in the matter R was already in grade 12. And by the time she
granted leave to appeal to this court half of that academic
year had
already run its course. In heads of argument filed on behalf of the
first respondent we were informed that R is no longer
a learner at
the school, having matriculated at the end of 2012. It was in those
circumstances that the registrar of this court
was directed to
enquire of the appellants whether they still persisted in the appeal
and inform them that at the outset of the
hearing of the appeal they
would be required to address argument on the preliminary question of
whether the appeal and any order
made thereon would within the
meaning of
s 21A
have any practical effect or result.
[10] In the further heads of argument filed on behalf of the
appellants to address the preliminary point raised, as also from the
bar in this court, it was urged upon us that although the primary
relief, the subject of the dispute in the high court, may well
be
moot, we should nonetheless proceed to a consideration of the appeal
on the merits. Various reasons were sought to be advanced
most
notably that: (a) the school needs to know whether it has the power
to amend its admission policy; (b) the school principal
may be
subject to disciplinary proceedings; (c) other learners at the school
may in the future be affected by the outcome of this
appeal; (d)
other schools could possibly benefit from a judgment of this court;
and (e) there may in the future be other litigation
between the same
parties.
[11]
As to (a):
The high court held in the appellant’s
favour that they had the power to adopt the amended admission policy.
It found against
the appellants on a much narrower basis, namely that
in applying that policy they were motivated by an ulterior purpose.
The finding
that the appellants did indeed have the power to amend
the policy and that in doing so they had not acted ultra vires is not
the
subject of a cross-appeal. That disposes of the point.
As to
(b):
The matter commenced in January 2010. Some three years have
elapsed since then. In that time not a single step has been taken by
the principal’s employer to discipline her. Counsel was thus
constrained to concede that any likely possibility of her employer
now doing so would be rather remote. Moreover, the principal having
recused herself, was not a party to the decision to exclude
R from
the school. That decision was taken by the governing body. In those
circumstances one can hardly imagine that charges of
insubordination
could be levelled against her.
[12]
As to (c), (d) and (e):
Given the common ground that has
to be covered it may be convenient to consider these three points
together. None of these issues
present as discrete legal issues of
public importance (
Qoboshiyane NO & others v Avusa Publishing
Eastern Cape & others (Pty) Ltd
2013 (3) SA 315
(SCA) para
5). All three are primarily fact-based enquiries. It is trite that
every case has to be decided on its own facts. And
efforts to compare
or equate the facts of one case to those of another are unlikely to
be of assistance. For, as we well know,
parties frequently endeavour
to distinguish their case on the facts from those reported decisions
adverse to them. Moreover, absent
an undisputed factual substratum,
it would be extremely difficult to define the limits of any order
that should issue in this case.
In
Clear Enterprises (Pty) Ltd v
SARS
(757/10)
[2011] ZASCA 164
(29 September 2011) this court
held:
‘
[17]
Simply put, whatever issues do arise in the pending matters none of
them are yet “ripe” for adjudication by this
court. To
borrow from Kriegler J in
Ferreira
v Levin NO & others
;
Vryenhoek
v Powell NO & others
1996
(1) SA 984
(CC) para 199:
"The essential flaw in the
applicants' cases is one of timing or, as the Americans and,
occasionally the Canadians call it,
'ripeness'. That term has a
particular connotation in the constitutional jurisprudence of those
countries which need not be analysed
now. Suffice it to say that the
doctrine of ripeness serves the useful purpose of highlighting that
the business of a court is
generally retrospective; it deals with
situations or problems that have already ripened or crystallised, and
not with prospective
or hypothetical ones. Although, as Professor
Sharpe
points out and our Constitution
acknowledges, the criteria for hearing a constitutional case are more
generous than for ordinary
suits, even cases for relief on
constitutional grounds are not decided in the air. And the present
cases seem to me, as I have
tried to show in the parody above, to be
pre-eminent examples of speculative cases. The time of this Court is
too valuable to be
frittered away on hypothetical fears of corporate
skeletons being discovered."
[18] Although expressed somewhat
differently and in the different context of constitutional
adjudication where "ripeness"
has taken on a particular
meaning, both the principles and policy considerations articulated by
Kriegler J resonate with the jurisprudence
of this court. Thus in
Coin Security Group
(Pty) Ltd v SA National Union for Security Officers & others
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) para 9,
Plewman JA quoted with approval from the speech of Lord Bridge of
Harwich in the case of
Ainsbury
v Millington
[1987] 1
All ER 929
(HL), which concluded at 930
g
:
"It has always been a
fundamental feature of our judicial system that the Courts decide
disputes between the parties before
them; they do not pronounce on
abstract questions of law when there is no dispute to be resolved."
In a similar vein, in
Western
Cape Education Department v George
1998
(3) SA 77
(SCA) at 84E, Howie JA stated:
"Finally, it is desirable
that any judgment of this Court be the product of thorough
consideration of,
inter
alia
,
forensically tested argument from both sides on questions that are
necessary for the decision of the case."
And in
Radio
Pretoria
(para 44),
Navsa JA said:
"Courts of appeal often
have to deal with congested court rolls. They do not give advice
gratuitously. They decide real disputes
and do not speculate or
theorise (see the
Coin
Security
case
(
supra
)
at paragraph [7] (875A-D)). Furthermore, statutory enactments are to
be applied to or interpreted against particular facts and
disputes
and not in isolation."
[19] In effect what the parties
are seeking is legal advice from this court. But as Innes CJ observed
in
Geldenhuys &
Neethling v Beuthin
1918
AD 426
at 441:
"After all, Courts of Law
exist for the settlement of concrete controversies and actual
infringements of rights, not to pronounce
upon abstract questions, or
to advise upon differing contentions, however important."
In
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
2000
(2) SA 1
(CC) para 21 footnote 18, the Constitutional Court echoed
what the learned Chief Justice had stated over eight decades earlier
when it said:
"A case is moot and
therefore not justifiable if it no longer presents an existing or
live controversy which should exist if
the Court is to avoid giving
advisory opinions on abstract propositions of law."’
[13] The cumulative consequence of all the factors that I have
alluded to is that no practical effect or result can be achieved
in
this case. For the aforegoing reasons the appeal was dismissed.
[14] That leaves costs. As early as May 2012, in an affidavit filed
by R in opposition to the application for leave to appeal it
was
contended that by the time the appeal came to be heard it would have
become moot. In that regard R stated:
'4.
I find it strange that the
Respondents [the school and governing body] are proceeding with an
application for leave to appeal when
it is clear that by the time the
appeal is heard (if leave to appeal is granted) the whole issue of my
continued presence at the
school will have become academic. Even if
the leave to appeal was to be heard in June and leave granted in June
it is highly unlikely
that the appeal will be heard by October 2012.
5.
I am in my matric year and there
are approximately three (3) month of the academic year prior to the
examinations. The mid-year
vacation begins on 22
nd
June 2012 and end 15
th
July 2012. School re-opens on
16
th
July 2012.
Shortly after school re-opens
the syllabi in the different subjects will have to be completed and
the trial examination held sometime
between the period end of July
and 28
th
September 2012. The final
examination begins in October 2012 and is expected to be completed
towards the end of November 2012. Two
(2) weeks prior to the
commencement of the final examinations I will be on study leave and
will not be attending school.'
That notwithstanding, the appellants sought and obtained leave to
appeal to this court. Even after 5 April 2013, when the registrar
of
this court had directed the attention of both parties to the
provisions of s 21A and enquired whether the appeal was being
persisted in there was no pause for reflection on the part of the
appellants. Undaunted, they filed additional heads of argument
and
affidavits. Nor, even after further time for reflection, was there
any modification of that stance in argument before us. And
since the
respondent was not brought before this court as a willing party no
cause existed for departing from the normal rule as
to costs which
were accordingly ordered to follow the result with the consequence
that the appellants have to pay them jointly
and severally.
_________________
V PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellants: J Marais SC
Instructed
by:
Norton
Rose South Africa
La
Lucia Ridge
Webbers
Bloemfontein
For
Respondents: D D Naidoo
Instructed
by:
Viren
Singh & Company
Durban
Mthembu
& Van Vuuren Inc
Bloemfontein