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[2012] ZAECPEHC 85
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Bosch v MEC for Department of Education, Eastern Cape Province and Others (3331/12) [2012] ZAECPEHC 85 (29 November 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE – PORT ELIZABETH)
CASE NO.: 3331/12
In the matter between:
ROBYNNE BOSCH
....................................................................................
Applicant
And
M
E C, DEPARTMENT OF EDUCATION, E C
.......................................
First
Respondent
HEAD OF DEPARTMENT OF EDUCATION
............................
Second
Respondent
GOVERNING BODY, HERBERT HURD
PRIMARY
SCHOOL
......................................................................................
Third
Respondent
G J HARRIS
..............................................................................
Fourth
Respondent
MINISTER OF BASIC EDUCATION
.............................................
Fifth
Respondent
JUDGMENT
BESHE, J:
[1] The applicant in this matter is
the mother of the two boys that are the subject of this application,
Callym and Keane 12 and
10 years old respectively. She approached
this court on an urgent basis for an order in the following terms:
“
1. That the
non-compliance with the Rules of this Honourable Court in respect of
this application be hereby condoned as a matter
of urgency.
2. That a
Rule Nisi
do calling
upon the Respondents to show cause to this Honourable Court on
Tuesday
the
30
th
of
OCTOBER 2012
,
at
09h30
or so soon thereafter as the matter may be heard, why
an Order in the following terms should not be granted:
2.1. Declaring that the administrative
action of the First and Second Respondents, in failing to consider
and decide upon the Applicant’s
matter in terms of the
South
African Schools Act 84 of 1996
as amended (the “Act”), is
reviewed and hereby declared unlawful;
2.2. Declaring that the First and
Second Respondents failure to place Callym and Keane McClean in
school is reviewed and hereby
declared unlawful.
2.3. Declaring that the Third and
Fourth Respondents refusal to admit Callym and Keane to Herbert Hurd
Primary School is reviewed
and hereby declared unlawful.
2.4. That the Third and Fourth
respondent be and are hereby ordered to accept and enrol Callym and
Keane McClean at Herbert Hurd
Primary School for the final term of
2012 with immediate effect upon receipt of this order.
2.5. Alternatively, that the First
and/or Second Respondents, or the duly authorised official in the
First snd/or Second Respondents’
department, be and is hereby
ordered to place Callym and Keane McClean in a school, within
reasonable travelling distance of the
children’s home, by no
later than
13 November 2012
.
2.6. That the First, Third and Fourth
Respondents be and are hereby ordered to pay the costs of this
application, the one paying
the others to be absolved.
3. That paragraph 2.4 above operates
as an interim order pending the finalisation of this matter.
[2] On the date appointed for the
hearing of the application which was opposed by the firsts to fourth
respondents, the fifth respondent
was joined and the matter was
postponed to the 23 October 2012 at the instance of the applicant.
[3] It appears to be common cause that
Callym and Keane, were withdrawn from Lorraine Primary School (LPS)
at the end of second
term (June 2012) by the applicant. This, as a
result of being unhappy at the treatment Callym received at the said
school.
[4] According to the applicant, Callym
was a victim of sexual and physical abuse from 2000 to 2003, which
resulted in him having
feelings of rejection and suffering from other
related illnesses. He received counselling as well as psychological
and psychiatric
treatment. This required that he be taught and dealt
with in a caring and understanding manner. At first he did well at
school
but towards the end of the second school term this year (2012)
he started having a number of difficulties with his class teacher.
Things came to a head when he was required to take classes in
isolation. This had an adverse effect on him requiring his admission
in Greenacres hospital for three days. It was after this incident
that applicant took a decision to withdraw him (Callym) from
Lorraine
Primary School.
[5] On the 20 June 2012, the applicant
approached the fourth respondent, who is the principal of Herbert
High Primary School “HHPS”
for assistance in the
placement of Callym at Herbert Hurd Primary School. The fourth
respondent suggested that Callym should attend
Herbert Hurd Primary
School for the last two days of the third term in order that it may
be determined whether he would acclimatize
or fit into the
environment at Herbert Hurd Primary School. Applicant and fourth
respondent also discussed the position of Callym’s
younger
brother Keane who was also a pupil at Lorraine Primary School. There
was apparently a suggestion that it would be in Callym’s
interest if both brothers moved to the same school. As a result of
which Callym spent the last two days of the second term at Herbert
Hurd Primary School.
[6] It is common cause that during
discussions with the applicant in June, the fourth respondent uttered
words to the effect that
paper work regarding the admission to school
can be sorted out later. According to the fourth respondent he made
it clear to the
applicant that the admission of Callym to Herbert
Hurd Primary School would depend on what emerged during the two days
that he
would attend Herbert Hurd Primary School in June, as well as
compliance with the prerequisites for admission to the school.
[7] It appears to be common cause that
no communication took place between the applicant and fourth
respondent in the period after
the end of second term and the start
of the third school term. On the first day of the third school term,
Callym and Keane attended
Herbert Hurd Primary School in casual
clothes. They were turned away. According to the applicant the reason
for her children to
be turned away from school was that they were not
wearing school uniform.
[8] Applicant acknowledges that she
was also at that stage told to collect registration forms. Having
bought school uniform for
the children applicant presented with the
two children as well as registration forms which according to her,
she had completed
to the best of her ability. She was also informed
that a R1000.00 deposit was required and that certain documents that
were supposed
to be attached to the application forms had not been
attached by her.
[9] On the 26 July 2012 applicant
emailed the documentation required for application purposes and
requested the school’s banking
details in order for her to pay
the R1000.00 deposit. On the 29 July 2012 fourth respondent emailed
to inform her that because
the school did not hear from her after the
two days that her sons spent at the school (HHPS) there were no
longer any positions
available and therefore the school cannot
accommodate her children.
[10] As it would appear from the
Notice of Motion applicant seeks the reviewal of actions and
decisions by the respective respondents.
And that pending the
finalisation of this matter third and fourth respondent which are the
Governing Body and principal of Herbert
Hurd Primary School
respectively, to accept and enrol Callym and Keane at Herbert Hurd
Primary School for the final school term
of 2012.
[11]
Mr Pienaar
who appeared
with
Mr Dyer
on behalf of the applicant, submitted that all
that the applicant sought effectively at this stage, was that pending
the finalisation
of this review application, the third and fourth
respondent be ordered to accept and enrol Callym and Keane at Herbert
Hurd Primary
School for the remainder of the 2012 school term.
[12] The adoption of the approach
proposed by
Mr Pienaar
was opposed by
Mr Scott
who
appears for the third and fourth respondent on the following grounds.
There was no need for the matter to be heard piecemeal
because
applicant set a return date that would have been two weeks after the
issue of the
rule nisi
for orders sought in the Notice of
Motion. In the course of opposing the application third and fourth
respondent complied with
the time frames set by the applicant and
ventilated all the issues raised by the applicant.
[13]
Mr Pienaar
submitted that
they came to court to argue in respect of interim interlocutory order
sought and not the review of the respective
respondents’
actions. He argued respondents cannot amend applicant’s cause
of action. Under the heading “Introduction”,
applicants
heads of argument dated 22 October 2012 read thus:
“
1.
The relief that the applicant effectively seeks on the 22 October
2012 is that pending the return day of the third and fourth
respondent be ordered to accept and enrol the minor children, Callym
and Keane McClean, at Herbert Hurd Primary School for the
final term
of 2012 with immediate effect upon receipt of the order.”
[14] Beside a detailed exposition of
the background to the matter, the bulk of third and fourth
respondents heads of argument are
devoted to dealing with the two
points raised
in limine
by them. The same points are also
raised by the first and second respondent although Cedric Pillay who
deposed to an affidavit
filed on behalf of the first and second
respondent stated that first and second respondent do not oppose the
application.
[15] Besides the two points raised
in
limine
, being:
1. Lack of urgency.
2. Failure to exhaust internal
remedies; submissions on the merits are addressed in paragraph 27 of
the third and fourth’s
heads of argument which reads:
“
Having
regard to the abovementioned facts, it is submitted that it is clear
that the reason why the applicant’s children were
not admitted
to the school was due to the fact that despite the fact that the
applicant was afforded the opportunity of bringing
the older child
Callym to the school for a period of two days, she failed to
thereafter meet with the fourth respondent, and furthermore
failed to
enrol her children at the school timeously. By the time that the
applicant complied with the enrolment requirements,
namely on 26 July
2012, the positions which the school would have allocated to the
applicant’s children had been filled.”
[16] From the aforegoing, it is clear
that the matter is before court at this stage for consideration of
the application for an
interlocutory order sought by the applicant
pending the finalisation of the review application. Whilst I agree
with
Mr Scott
that it is undesirable for matters to be dealt
with in a piecemeal fashion, I do not think that aspects pertinent to
the review
application have been sufficiently ventilated to enable
this court to decide whether the actions of the respondents stand to
be
reviewed and set aside.
[17] First, second, third and fourth
respondents, as already indicated earlier, have raised two points
in
limine
. One of those is lack of urgency. This application
concerns two children. Section 28(2) of the Constitution stipulates
that a child’s
best interest is of paramount importance in
every matter concerning the child. Section 4 of the Children’s
Act number 38
of 2005 provides that:
“
In
any matter concerning a child –
an
approach which is conducive to conciliation and problem-solving
should be followed and a confrontational approach should be
avoided;
and
a
delay in any action or decision to be taken must be avoided as far
as possible.
Lastly, in
B v B
[2007] ZAGPHC 306
;
2008 (4) SA 535
WLD at 542
marginal letter a-h
it was stated
that:
“
In
a matter such as the current matter, where there is a need to remove
uncertainty about the future, safety and well being of minor
children, will always be urgent.”
In casu
, the right to schooling
is in issue. Just like the safety and well being of the children, the
issue relating to the right of the
two children to basic education is
and will always be urgent in my view.
[18] As would appear from the
authorities referred to in the preceding paragraph decisions to be
taken in matters concerning children
should be taken without delay.
The need to remove uncertainty in matters pertaining to children will
always be urgent. I am therefore
not persuaded that this application
should be dismissed on the basis of lack of urgency although
considerable time has elapsed
since the beginning of the second 2012
school term.
[19] The second point raised
in
limine
by the respondents is failure by applicant to exhaust
internal remedies, as provided for in section 7(2) of the Promotion
of Administrative
Justice Act 3 of 2000 (PAJA). It was submitted in
this regard that the first respondent has not determined the
applicant’s
appeal.
“
7
(1) Any proceedings for judicial review in terms of section 6(1) must
be instituted without unreasonable delay and not later than
180 days
after the date-
(a)
subject to subsection (2) (c), on which any proceedings instituted in
terms of internal remedies as contemplated in subsection
(2) (a) have
been concluded; or
(b)
... ... ... ... ...
(2)
(a) Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
(b)
Subject to paragraph (c), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph
(a) has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court
or tribunal for
judicial review in terms of this Act.”
[20]
Section 5(9)
of the
South African
Schools Act 84 of 1996
(SASA) provides that “Any learner or
parent of a learner who has been refused admission to a public school
may appeal against
a decision to the Member of the Executive
Council”. On the 27 September 2012 a letter was addressed to
the Department of
Education on behalf of the applicant. In that
letter applicant requested urgent assistance with the placement of
the minor children
who are the subject of this application. This is
not an appeal as envisaged in
section 5(9)
of the
South African
Schools Act. Be
that as it may, I am of the view that because this
application concerns young children in respect of whom any
uncertainty should
be removed, and is therefore urgent. That this is
an appropriate case where the applicant can be exempted from
exhausting the external
remedy prescribed in terms of
section 7(2)
(c) of PAJA. This section provides that “
A
court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation
to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice”.
[21] This being an application for an
interim interlocutory relief, the following must be established by
the applicant:
(a) A
prima facie
right
(b) A reasonable apprehension of harm
should the interim relief not be granted, but final relief be
granted.
(c) Balance of convenience and
(d) Absence of satisfactory or
alternative relief.
[22] In order to determine whether the
applicant has satisfied the requirements for the granting of an
interlocutory interim interdict,
and whether it will be in the best
interest of the two boys to grant the order sought by the applicant,
it is necessary to trace
the timeline of the events that took place
after the last day of the second term.
[23] The two children were in grade
four and one respectively. The older child had been attending school
at Lorraine Primary School
since 2011 and the younger one since 2012.
Implicit in this is that the applicant is aware that certain
procedures must be followed
before a child can be enrolled at a
school. In her founding papers she states that the fourth respondent
said she should bring
the children in and paper work will be sorted
out later. However the applicant did not take the trouble to enquire
after Callym
had attended Herbert Hurd Primary School on the last two
days of the second term what the way forward was. How he fared at the
school on those two days. What she was required to do next when they
can attend to the paperwork.
[24] On the first day of the term,
Monday the 16 July 2012 she merely sent the children to school. It
was only after the children
had been turned back – according to
her because they were not in uniform that she was told to collect
registration forms
and have them completed. The secretary of the
school dealt with the matter at that stage and she had not been given
any instructions
regarding the two boys because according to the
fourth respondent, due to the fact that he had not heard from the
applicant he
assumed that she had decided against enrolling her
children at Herbert Hurd Primary School. She had not taken any steps
even then
to enquire about the school requirements or what the “two
day trial run” yielded or whether the children had been
accepted.
On Wednesday when she took the children to school with the
registration forms with documents that were supposed to be attached
to the registration forms still outstanding.
[25] It was only on the 26 July that
she e-mailed the fully completed forms to the school – and
requested the school’s
banking details in order for her to pay
the R1000.00 deposit required by the school. On the 29 July 2012 she
received communication
from the fourth respondent that since the
school had not heard from her all the positions at the school had
been filled and the
school could no longer accommodate her children.
[26] Thereafter several schools were
contacted by her in a bid to get her two boys enrolled. Those being
Charlo Primary School,
Walmer West Primary School, Victoria Park Grey
School, Sunridge Primary School, Newton Park Primary School,
Clarendon Park Primary
School. None of the school accepted her
children.
[27] Based on what transpired during
discussions between applicant and the fourth respondent, which was
encapsulated in a letter
written by the fourth respondent to the
applicant
inter alia
that “
You
approached me with a very unique problem towards the end of last term
and I allowed you to send your child to school for two
days, after
consultation with the necessary health practitioners, if it would be
his best interest. Yes, I did say that it would
be in your best
interest to move both boys across and yes; I did say that the paper
work would be sorted out later. Sorting the
paper work out later
implied that if your son enjoyed the school set-up, formal
application for official enrolment and transfer
from one school to
the next would then take place.”
It would seem that
applicant has succeeded in establishing a
prima facie
right.
[28] I am however not persuaded that
there is no other satisfactory remedy available to the applicant. She
was informed in no uncertain
terms on 8 August 2012 that on 26 July
2012 when she forwarded the completed application forms by e-mail to
the Herbert Hurd Primary
School, the places that the school had had
available for her sons had been filled and that it was impossible for
the school to
accommodate the boys. After she had addressed a letter
to the Department of Education only in September 27, attempts were
made
to assist her by an official of the department Mr Cedric Pillay.
Mr Pillay contacted principals of a number of schools in the Port
Elizabeth area, including that of Herbert Hurd Primary School.
Schools in the Walmer vicinity where applicant resides could not
accommodate applicant’s children. In August applicant also
contacted the following schools:
Charlo Primary School
Walmer West Primary School
Victoria Park Grey School
Sunridge Primary School
Newton Park Primary School
Clarendon Park Primary School
She could not get her children
accommodation at any of these schools as indicated.
[29] Mr Pillay received confirmation
from the following schools that they can accommodate applicant’s
children:
Gelvandale Park Primary School
Missionvale Primary School
Kleinskool Primary School
Daniels Primary School
Applicant was not amenable to sending
her children to any of these schools, stating that she had a number
of concerns about the
schools. She however only mentioned one such
concern, as being the distance between her residence and the school.
Instead she insisted
that a school in respect of which it was made
clear that there was no longer any accommodation available, should
admit her children.
[30] Besides I do not think it will
serve the two children who have been out of school for the whole of
the third term and part
of the fourth term, any good to attend a few
days of school in the fourth term.
[31] I am not satisfied that the
applicant has made out a case for the relief sought.
[32] Accordingly the application is
dismissed with costs.
_____________
N G BESHE
JUDGE OF THE HIGH COURT
APPEARANCES
For
Applicant ADV: B J Pienaar SC and ADV: E Dyer
Instructed
by ANTHONY INC.
9
Bird Street
Central
Port
Elizabeth
Ref.:
J Anthony
Tel.:
041 – 582 5150
For
Respondent(s) ADV: P W A Scott SC and ADV: I Dala
Instructed
by OFFICE OF THE STATE ATTORNEY
29
Western Road
Central
Port
Elizabeth
Ref.:
Nr. 2073/2012/K
Tel.:
041 – 585 7921
BOQWANA
LOON & CONNELLAN
4
Cape Road
Port
Elizabeth
Ref.:
Mr LT Schoeman/mc)
Tel.:
041 – 506 3700
Date
Heard 23 October 2012
Date
Reserved 23 October 2012
Date
Delivered 29 November 2012