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[2010] ZAGPPHC 141
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Success Primary School and Others v MEC for Mpumalanga Department of Education (24678/2008) [2010] ZAGPPHC 141 (7 October 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 24678/2008
DATE:
07/10/2010
in
the matter between:
SUCCESS
PRIMARY
SCHOOL
..................................................................
1
st
Applicant
SUCCESS
PRIMARY SCHOOL GOVERNING BODY
..............................
2
nd
Applicant
EDUCATORS
OF SUCCESS PRIMARY SCHOOL
..................................
3
rd
Applicant
MRS
TE
ZULU
................................................................................................
4
th
Applicant
MR
J
SKHOSANA
..........................................................................................
5
th
Applicant
MR
SOGEBA A
NGWENYA
..........................................................................
6
th
Applicant
and
THE
MEC FOR MPUMALANGA DEPARTMENT
OF
EDUCATION
.............................................................................................
Respondent
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1]
The applicants, represented by Mr. Omar, brought this application
seeking an order in the following terms:
"1.
Rescinding and setting aside the judgment and orders of learned Mr.
Justice Botha handed down on the 25
th
November 2008, in which the learned judge made an order in default as
per the notice of motion that initiated these proceedings.
2.
Granting
the Applicants leave to oppose the main application that was issued
on the 22
nd
May 2008.
3.
Costs
of suit.
4.
Further
and/or alternative relief."
[2]
The respondent opposed the application and Mr.
GreyWng
represented
the respondent when the matter was argued on 4 October 2010.
[3]
The judgment of Botha J that the applicants seek to have rescinded
and set aside reads:
"1.
That the respondents be interdicted and restrained from
conducting business as Success Primary School;
2.
That
the Respondents be interdicted and restrained from entering the
premises of Mphephethe Primary School for purposes of conducting
the
business of Success Primary School.
3.
That
the Respondents be ordered to restore possession of the four
classrooms at Mphephethe Primary School in Hendrina, Kwazamokuhle
township to the Applicant;
4.
That
the Respondents be interdicted from interfering with the Applicant's
business activities;
5.
That the respondents be ordered to pay the costs of this
application
jointly and severely, the one paying the others to be absolved."
[4]
Mr. Makobe of Makobe and Associates instructed by the applicants to
handle their matter, merely served and filed the respondents
notice
of intention to defend and failed to file the answering affidavit.
Botha J then at the instance of the applicant (now respondent)
by
default granted the interdict on 25 November 2008 which prompted the
applicants to bring this application to rescind same.
[5]
Mr. Omar on behalf of the applicants contended that the application
is governed by the common law. He is correct because Rule
42 does not
cover a situation such as the situation in the current application.
[6]
Under common law "sufficient cause" is required for the
setting aside of a judgment obtained by default. The two essential
elements of "sufficient cause" for rescission of such
judgment are:
6.1
that
the party seeking relief must present a reasonable and acceptable
explanation for his default; and
6.2
that
on the merits such party has a
bona
fide
defence,
which,
prima
facie
carries
some prospect of success
(see
in this regard
Chetty
v Law Society Transvaal
1985 (2) SA 756
AD
at
765 B-C)
[7]
Mr. Omar further contended on behalf of the applicants that they have
a
bona
fide
defence
to the case of the respondent. Mr. Greyling, however, held a contrary
view adding that even if it can be said that the applicants
were not
in wilful default it can never be said that they have demonstrated
any
bona
fide
defence
to the respondent's case.
THE
ISSUE
[8]
The issue is whether the applicants have satisfied the common law
requirements for rescission for the order to be granted.
[9]
Mr. Greyling submitted on behalf of the respondent that the
applicants' papers do not disclose much to show that they were not
in
wilful default. Save for confirming that they fully instructed Makobe
of Makobe and Associates to handle their matter, according
to Mr.
Greyling, the applicants have merely shown that they intended to
amicably settle the matter with the respondent and the
National
Minister of Education. It is Mr. Greyling's contention that this does
not sufficiently explain the applicants default.
The deponent to the
founding affidavit, one Thabo Elizabeth Zulu ("Zulu"), the
secretary of the Success School Governing
Body, states on indexed
page 13 paragraph 19 of the papers that:
"Subsequent
to the aforegoing, and in 2004 the Circuit Manager of the department
of Education informed us that there were plans
to close our school.
We attended a host of meetings during which we, together with the
parents and community members raised their
objection to the closure
of the school."
[10]
It is evident from the above paragraph that consultations and
meetings were held before the school was closed. The nub of the
matter is that an administrative decision was taken by the
respondent. This decision still stands as it has never been
challenged.
It is this decision which led to the seeking of the
relief by the respondent which was granted by Botha J on 25 November
2008.
Despite the fact that "Zulu" in her founding
affidavit states:
"Noteworthy
is that on the 25
th
November 2008, when the Respondent secured the order to evict us from
the Mphephete Primary School we had already been forced out
of the
school. In fact we have not been at Mphephete School since late March
2008. The Respondent evidently did not draw this to
the attention of
the above honourable court at the hearing of this matte,"
the
applicants never challenged the administrative action to close the
school until the respondent sought and obtained the interdict.
Botha
J in my view, in the absence of any action from the applicants could
not be faulted for granting the order sought. There
was no
bona
fide
defence
at the time of the granting of the order and there is still, even to
date, no
bona
fide
defence,
which,
prima
facie
carries
some prospect of success.
[11]
Mr. Greyling contended that the fact that the administrative action
to close down the school has to date not been challenged
and the fact
that the school remains so closed, reveals therefore, that there can
be no basis for the setting aside of Botha J's
order. Having regard
to the fact that "Zulu" in her founding affidavit states
that they were forced out of the school,
one would have expected the
applicants to have challenged the closure of the school long before
Botha J gave his order. This is
also indicative of the absence of any
bona
fide
defence.
The applicants would have put up a heavy legal battle had such
bona
fide
defence
existed. They would not have simply vacated the school ending up
saying that they had been forced out of the school when
the
respondent secured the order to evict them therefrom.
[12]
The applicants, in my view, have failed to make out a case for the
relief that they seek. The application to rescind and to
set aside
the judgment and orders of Botha J should, therefore, fail.
[13]
The
order I make, in the result, is as follows: The application is
dismissed with costs.
M.
W.
MSIMEKI
JUDGE
OF THE HIGH COURT