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2024
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[2024] ZAECMHC 12
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Genukile v Walter Sisulu University and Others (582/2024) [2024] ZAECMHC 12 (27 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
CASE
NO: 582/2024
In
the matter between:
NHLANHLA
GENUKILE
Applicant
And
WALTER
SISULU
First
Respondent
WALTER
SISULU UNIVERSITY: REGISTRAR
DR
L. NTONZIMA
Second
Respondent
MINISTER
OF HIGHER EDUCATION, SCIENCE
AND
TECHNOLOGY
Third
Respondent
JUDGMENT
PITT
AJ
Introduction
[1]
This matter came before court as an urgent application for a
declaration of a violation of the applicant’s
right to
education in terms of section 29(1) of the Constitution
[1]
.
The applicant also seeks and order declaring the first and second
respondent’s conduct of excluding and/or barring him from
registering and enrolling for a diploma at the Walter Sisulu
University (the University), unlawful and in breach of the
respondents’
constitutional obligation in terms of section
29(1)(b) of the Constitution
[2]
.
In addition, the applicant asserts that the respondents have breached
a contract that came into existence when he accepted his
admission by
the first respondent into the Diploma in Human Resources Management
qualification at its Butterworth campus.
[2]
The applicant further asked the court to issue a
mandamus
,
directing and compelling the first respondent, the University, and
second respondent, the Reister of the University, to remedy
the
breach of contract by allowing and assisting him to register and
enrol for the diploma at the University, Butterworth campus
within
two days of the order. She/he further seeks other ancillary relief.
[4]
The application was opposed by the first and second respondents only,
the applicant having indicated
that no relief was sought against the
third respondent, the Minister of Higher Education, Science and
Technology.
Facts
relevant to the application
[5]
The salient facts upon which the application is brought are as
follows:
(a)
The applicant completed and submitted an online application to be
admitted to study towards a
Diploma in Human Resources Management
(the Diploma) at the University. The applicant did not state the date
on which he completed
and submitted the application.
(b)
He received various offers from various institutions including the
first respondent.
(c)
He was officially admitted and accepted by the University to study
towards the Diploma, after
which he rejected all other offers which
he had received from various other institutions. He accepted the
offer from the University.
He attached a screenshot to his founding
affidavit of the status which showed him as having been admitted for
the Diploma. When
his admission was confirmed, a contract came into
being between him and the University that he would be admitted to the
qualification
for he qualified provided that he met the requirements
for that qualification and paid the required registration fee.
(d)
According to the applicant, it was an oral term of the contract
between the applicant and the first
and second respondents the
applicant was to pay a registration fee.
(e)
The applicant requested to speak to the second respondent, still on
26 January 2024, to whom he
indicated that he accepted the offer to
enrol for the Diploma in Human Resource Management. He also indicated
to the second respondent
that he took all necessary steps to honour
the salient terms and conditions, and that he even “attempted
to make a payment
of a registration fee amounting to R 4 800.00”.
However, such attempts were not successful because of his inability
to register through the student portal.
(f)
He sought assistance but was told that he could only be assisted on
Monday, 29 January 2024.
(g) On
the same day, he attempted to register and enrol for the Diploma on
the online portal of the University,
but he could not process the
registration and enrolment. He attempted numerous times to submit his
registration but was later on
the same day informed by the online
portal that the qualification intake was filled to maximum capacity.
(h)
The first respondent informed the applicant that they do not have
space to accommodate him to study
for the qualification they had
offered, and he accepted this. That being the case, the applicant
maintained that the first respondent
should have registered and
enrolled him for the Diploma.
The
issues for determination
[6]
I am called upon to decide if the applicant entered into a contract
with the first respondent and if
such contract was breached.
[7]
In their opposition of the application, the first and second
respondents raised a defence that there
was no contract between the
applicant and the first and second respondents.
In
their answering affidavit deposed to by the second respondent,
the
first and second respondents contend that the applicant should have
brought his application for the review of the decision of
the first
respondent not to admit and enrol him as a student of the first
respondent.
The
third respondent has not filed any answering affidavit, presumably
because no relief is sought against him.
[8]
The applicant did not file a replying application. It was submitted
on behalf of the applicant that
this was because of the urgency of
the matter.
Factual
submissions on behalf of the first and second respondents
[9]
The second respondent functions in terms of the university’s
Institutional Statute, and
such functions include supporting the
vice-chancellor on the management and administration of the
university at an institutional
level. He also ensures that the
university complies with statute, relevant legislation, national
higher education policies and
the policies and rules of the
university.
[10]
The first respondent is a public higher education institution as
defined in terms of
section 33
of the
Higher Education Act No. 101 of
1997
and is governed by its Institutional Statute which was published
in the Government Gazette by Notice No. 37235 dated 17 January
2014.
[11]
The Council of the
University
is empowered by the enabling legislation, with the approval of the
Senate, to determine entrance requirements for admission for
a course
of study. The university published its own rules in its prospectus to
give effect to the entrance requirements for admission.
The applicant
was admitted to the Faculty of Management and Public Administration
Sciences for a Diploma in Human Resources Management.
[12]
A total of 8 198 applicants applied to be registered for the
Diploma at the
University
for the study year 2024, of which 2 434 met the admission
requirements. There are 168 positions available for study of the
Diploma at the
University
.
[13]
The applicant, as well as all other applicants for the
Diploma, were advised by SMS, email and correspondence
that
registration for this qualification was subject to the availability
of space.
[14]
The applicant was a privately funded student, and the status of his
application with the Student Financial Aid
Scheme (NASFAS) was
pending at the time he was expected to register for the Diploma.
[15]
Even though the applicant met the minimum admission requirements, it
was not a guarantee that the applicant would
be registered at the
University, it also did not vest the applicant with a legal right to
be so registered. This is because there
are substantially more
candidates who meet the requirements than there are places in the
quota allocated to the university in any
year. The Diploma which the
applicant applied for was fully subscribed to.
[16]
The first and second respondents go on to state that a selection
process subject to the availability of space in
the course must
therefore be applied, which, as they claim, the applicant does not
appear to appreciate.
[17]
It is the first and second respondents’ assertion further, that
there is no proof that the applicant paid
the required registration
fee. In fact, the first respondent denies that the applicant paid the
registration fee. It is their version
in this regard that non-payment
of the registration fee is a bar to registration.
[18]
The respondents further state that the university’s admission
and entrance policies are fair and transparent.
The enabling
legislation of the university empowers Council of the university,
with the approval of Senate, to determine the entrance
requirements
for admission for a course of study and the number of students which
may be admitted to any particular course of study.
[19]
To give effect to the determinations referred to in the previous
paragraph, the university has published its own
rules in its
prospectus, which provide as follows:
a)
Once a course becomes fully subscribed, the university may not
register further students
regardless of whether they have been
provided with an admission letter. Students are notified once the
course is fully subscribed
by the online portal.
b)
Historically, once registration opened and because of the numbers of
students
seeking registration, so the first and second respondents
assert, courses in the past have become fully subscribed within
thirty
minutes. This is why registration is done online and on a
first-come-first-served basis.
c)
For a good reason, say the first and second respondents, it is
imperative
that the university completes the process of registration
of incoming students timeously. If registration is delayed because of
a lack of funding, it impacts upon the duration of the academic year
and teaching time.
d)
Should the university register and admit more students than it has
spaces for, it will be
penalised by the Department of Higher
Education and Training (the Department).
e)
Students who exceed the number of available spaces will not receive
subsidies from the Department,
which already funds 31 000
students studying at the university.
f)
The university does not have the funding to pay for any students in
excess of the permitted
number, as well as residence costs, tuition
and the required textbooks. The number of students in campus
residences is limited
and also already over the limit.
g)
There is obvious prejudice to the university because if it registers
more students than its
capacity, this will cripple the university
financially to the detriment of all its students.
h)
The university will have to fund all students who are registered and
admitted over
the permitted limit for the full extent of their
courses of study for up to four years. This will also affect teaching
because
the university will have to employ additional staff and
overuse its already strained infrastructure.
i)
Further according to the respondents, from previous experiences,
students who
fund their own studies do not succeed because they
cannot access residences without the subsidy, and they accumulate
debt to the
university. These students are also forced to stay in
residences off campus. According to the University’s policy, if
a student
is not funded, they have to pay 80% of a R 25 000.00
entrance expense which they cannot do.
j)
The University’s policy is further that if a student owes fees
for previous
years of study, they are required to pay approximately
15% thereof to be registered for the next year of study, which
students
who fund their own studies cannot afford.
k)
The consequences cannot be mitigated by the university unless it
controls its registration
processes tightly.
[20]
The University received 357 622 applications for admission to
study in 2024, of which only 31 000 can
be admitted, thus
putting immense pressure on the University. It can only admit 7 322
students into the first year of study.
The 4 million residents in the
former Transkei prefer WSU as their first choice to register to study
their tertiary education.
They do not consider other tertiary
institutions for registration and admission outside this part of the
Eastern Cape, and this
adds more pressure on the university.
[21]
While the applicant may have a constitutional right to education,
that right does not extend to enrolment or registration
at the
university.
[22]
The first and second respondents also deny that there was a
contractual relationship concluded between the applicant
and the
first respondent. This is because it was dependant upon the
availability of spaces within the Diploma. All students are
required
to pay registration fee to finalise their registration, and the
applicant did not do so.
[23]
It is the first and second respondents’ contention that the
applicant can obtain admission to other institutions
of education.
The
law
[24]
Section 29(1)(b) of the Constitution provides that everyone has the
right to further education, which the state,
through reasonable
measures, must make progressively available and accessible.
[25]
Since the applicant bases his cause of action on breach of contract
by the first respondent, it is important to
consider the principes
governing the time at which it can be said a contract has been
concluded. The applicant alleges that the
contract between the
university and himself was established when he received ‘acceptance
offers” from the first and
second respondents to study at the
University towards a Diploma in Human Resources Management.
[26]
It is trite law that a contract is concluded between persons when
there is acceptance of an offer.
[3]
It is further trite law that a contract is breached when a material
term of that contract has not been complied with by one of
the
parties thereto.
[4]
[27]
Agreement, as a necessary ingredient of a contract, must be agreement
in the sense of a meeting of the minds or
coincidence of the wills of
the contracting parties, or
consensus
ad item
.
[5]
[28]
A condition is an external fact on which the existence of an
obligation or juristic act depends.
[6]
The fulfilment of a condition must be alleged and proved by the party
relying on the contract, so too the breach must be alleged
and proved
by the person relying thereon.
[7]
[29]
A contract subject to a suspensive condition creates a real and
definite contractual relationship between the parties.
[8]
The eligible portion of the contract is suspended, pending fulfilment
of the suspensive condition.
[9]
The contract therefore only comes into full force and effect and is
enforceable in accordance with its terms when the condition
is
fulfilled.
[10]
Further, a
party cannot enforce any rights arising from the agreement until the
condition has been fulfilled.
[11]
See
Palm Fifteen (Pty) Ltd v Cotton Tail Homes (Pty) Ltd
1978 (2)
SA 872
(A).
[30]
If the condition is not fulfilled, the contractual consequences fall
away and no claim for damages flows from the
contract’s
failure.
[12]
[31]
In
Dirk
Fourie v Gerber
1986
(1) SA 763
(A) it was held that fulfilment of a suspensive condition
after the passing of a reasonable time, or after the time limit
imposed,
does not give rise to a binding obligation.
[13]
[32]
It is so that when a party to a contract prevents fulfilment of a
condition, upon the fulfilment of which that
party would become
bound, with the intention of frustrating such fulfilment, the
unfulfilled condition will be deemed to have been
fulfilled.
[14]
See
Scott v Poupard
1971 (2) SA 373
(A).
The
legislative framework governing the University.
[33]
The University is a public higher education institution as defined in
section 33
of the
Higher Education Act No. 101 of 1997
and is
governed by the Institutional Statute of Walter Sisulu University
which was published in Government Gazette No. 37235 dated
17 January
2014.
[34]
Section 37
of the Act makes provision for the Council of the
University, together with its Senate, to make its own determination
of entrance
requirements in respect of each particular higher
education programme offered by the University for an academic year,
as well as
the number of students who may be admitted for a
particular programme and the manner of their selection.
[35]
In terms of
section 32(1)
of the Act, the Council of a university may
also make institutional rules to give effect to the Institutional
Statute (the Statute).
In furtherance of this provision,
section 7(1)
of the Statute provides that the Council governs the university
subject to the Act and the Statute.
[36]
Section 7(3)
of the Statute provides that the Council has the powers
and functions to determine the student admission policy of the
university,
after consultation with the Senate. The Council may also
determine the entrance requirements in respect of the particular
programmes,
the number of students that may be admitted for a
particular programme and the manner of their selection, as well as
the minimum
requirements for readmission to study at the University.
[37]
The rules of the University are published in its annual prospectus,
have legal force and are applicable to and
binding on all students
enrolled at the university and/or prospective students.
[38]
In terms of
Rule 1.5
in the prospectus, the University reserves the
right to set a selection criteria, in addition to the minimum
admission requirements,
and to apply such criteria to admit or refuse
admission to specific qualification and programmes, taking into
consideration the
university’s targets and capacity to offer
the qualifications and programmes concerned. The Rule goes further to
state that
a limited number of students with appropriate degrees may
be considered for admission, and that graduate students are assessed
on the basis of their post-matric results as well as their
matriculation results.
Discussion
[39]
As part of the relief, the applicant contended that the first and
second respondents’ conduct which resulted
in the applicant’s
inability to register and enrol for a Diploma in Human Resources
Management at the University be declared
as a violation of his
rights, and that excluding the him from registering and enrolling for
the same Diploma be declared unlawful
and in breach of the
constitutional obligation in in terms of section 29(1)(b) of the
Constitution.
[40]
The applicant submitted that his right in terms of section 29(1)(b)
was violated by the first and second respondents
when they failed to
make available to him further education through reasonable measures
and to ensure that it is accessible. This
is based on the allegation
that the first and second respondents have barred him from
registration and enrolment at the University
towards a Diploma in
Human Resource Management.
[41]
In the founding affidavit, the applicant alleges that this right was
further violated by the first and second respondents
in that they
have failed to make available further education through reasonable
measures and to ensure that it is accessible when
they barred him
from registration and enrolment towards the Bachelor’s degree
of Education. The last allegation is misplaced
in the circumstances.
It has always been the applicant’s case, as I understood it,
that he was barred from registering for
the Diploma and not Bachelor
of Education. The applicant cannot claim the right to register for
this Degree when he was not admitted
for it. On the facts, the
applicant has not made out a case for this relief.
[42]
The applicant submits that his cause of action is based on breach of
contract, in that the university made it impossible
for him to
perform in terms of the contract, namely, paying the required
registration fee after he had been admitted to the Diploma
for which
he had applied. The first and second respondents denied that the
applicant paid the required registration fee and that
this was a bar
to registration.
[43]
The applicant maintains that he had complied with all the terms of
the contract except for paying the required
registration fee.
[44]
When asked if the applicant had paid the required registration fee,
Mr
Madubela
responded in the affirmative. But when asked where
in the affidavit this was so, he hesitated and referred to paragraph
6.7 of
the founding affidavit. Here the applicant alleged that “
I
paid the registration fee”
.
[45]
At paragraph 5.5 of the same founding affidavit, the applicant
alleges that he attempted to make payment of a registration
fee
amounting to R 4 800.00, but that “
[s]uch attempts were
halted by my inability to register through the student portal”
.
He did not allege how he attempted to pay the registration fee and he
does not provide any proof of such attempts.
[46]
The applicant again in paragraph 6.6 of his founding affidavit
alleges that he called the University and indicated
that he was
accepting the offer and proceeded to pay the registration fee on the
same day.
[47]
The applicant contradicts himself in the paragraphs in his founding
affidavit referred to above. When asked if
the applicant had provided
proof that he had made payment of the required registration fee, Mr
Madubela could
not refer the court to such proof in the
founding affidavit.
[48]
From the above, it is clear that the condition relating to the
payment of the required registration fee was not
complied with by the
applicant. But the applicant’s case is that the first and
second respondents made it impossible for
him to pay by barring him
from being able to continue with his registration on the university’s
portal. The applicant did
not in his founding affidavit supply
further details of how exactly he was barred from doing so.
[49]
From a further examination of the facts of the instant application,
the following emerges: The applicant alleges
that there was a
contract between him and the University, and as part of the
contractual terms agreed to by him and the first and
second
respondents, he would pay the registration fee after the offer was
made and accepted by him. If that is the case, which
is denied by the
first and second respondents, there must be a meeting of minds, or
the parties must be
ad idem
as to the existence and terms of
the contract. It ought to follow from this that there was no meeting
of minds, therefore, there
cannot be a contract. In any event, if
there was such a contract a contract, there was a suspensive
condition of payment of the
required registration fee by the
applicant, which fee was not paid.
[50]
The first and second respondents in their answering affidavit alleged
that they have limited numbers for the Diploma
which the applicant
had applied for registration to the university. Admission to this
Diploma and any other course of study at
the University is not
guaranteed and subject to the first-come-first-served rule. The first
and second respondents submitted that
the applicant delayed
finalising his registration process and was ‘kicked out of the
system’ because the course of
study for which he had applied
was full before he could pay the registration fee to finalise the
process of registration.
[51]
Therefore, even though the applicant’s admission was complete,
except for the payment of the registration
fee, the process would
only have been finalised upon such payment. In essence, another
prospective student beat the applicant to
the position which they had
both competed for, so to speak.
[52]
The first and second respondents in their answering affidavit alleged
that meeting the requirements for registration
does not vest the
applicant with the right to be registered.
[53]
The applicant alleged that he had rejected all other offers from
other universities and institutions of higher
education when he was
admitted to study at the University. No further information was
provided in support of this allegation. The
first and second
respondents in their answering affidavit stated that these
allegations are unknown to them, and therefore not
admitted. Nothing
turns on this allegation in any event.
[54]
The applicant can therefore not rely on this unsubstantiated
allegation as a factor in favour of his cause of action.
There was no
proof provided by the applicant.
[55]
The applicant contended that his attempts to pay the required
registration fee of R 4 800.00 were unsuccessful,
but that he
was unable to register through the student portal.
No
further explanation is given as to how the applicant was unable to
register in this way, nor was any proof provided thereof.
[56]
The applicant referred the court to the decision of
Mbana v
University of Walter Sisulu and two others
(846/2023) [2023]
ZAECMHC 9 (7 March 2023), a decision of this Division by the
Honourable Jolwana J. The respondents were exactly
the same as in
this matter, so were many of the facts.
[57]
In referring the court to this decision, the applicant did not
indicate whether the applicant relied on the facts
of the case or the
legal principles therein. The applicant did however argue that the
principle of breach of contract was relied
on in support of the
applicant’s case.
[58]
The relevant portions of the
Mbana
decision are as follows:
“
He
submits that on the same day that he received the offer, he accepted
it by phoning the University on 0[...]. During that
call he
requested to talk with the registrar. His call was transferred
to the office of the registrar. This is when
he indicated his
acceptance of the offer of admission to the University. He then
took all the necessary steps to comply with
the salient terms and
conditions of the offer. In this regard he made a payment of
the registration fee in the sum of R4 600.00
into the bank
account indicated in the admission letter. He emailed his proof
of payment to m[...] and requested registration
clearance.”
[59]
As can be seen from the above, the facts are almost identical to
those of the present application, except that
the applicant in the
Mbana
case had actually paid the required registration fee.
This distinguishes the two cases from each other.
[60]
Further, the applicant in the
Mbana
case provided proof of the
payment as an annexure to the founding affidavit in support of the
allegation that he had paid the required
registration fee.
[61]
In
Mbana,
the applicant had applied for registration and
admission to study at the University in July of the previous year
already. This is
a fundamental difference in the facts to the present
matter.
[62]
The only strong reference which the applicant can take from
Mbana
is that it supports the applicant’s allegation that there
was a contract between the applicant and the university and
subsequent
breach of that contract. However, that contract was
alleged and proved on facts different to those in the present matter.
[63]
The applicant in this matter relied on breach of contract but failed
to prove such contract and its breach. The
facts alleged by the
applicant did not support a contract between the applicant and the
university, nor did the facts support a
breach of such contract. If
there was such a contract, it was subject to a suspensive condition
of payment of the requisite registration
fee. This condition was not
complied with and therefore the contractual consequences fall away.
[64]
The fulfilment of the suspensive condition did not take place within
the time limit imposed or after a reasonable
time, and therefore does
not give rise to a binding obligation on the first and second
respondents.
[65]
There is no evidence that the first and second respondents frustrated
the fulfilment of the suspensive condition
by the application,
otherwise the unfulfilled condition would have been deemed to have
been fulfilled. The applicant alleged that
the University blocked him
from completing his registration online when he attempted to pay the
required registration fee, but
there was no allegation or proof that
this was done intentionally by the first and second respondents to
frustrate the applicant.
[66]
In application proceedings, such as this one, the affidavits take the
place not only of the pleadings in an action,
but also of the
evidential evidence which would be led at a trial in action
proceedings.
[15]
[67]
I am constrained to remind the parties that the application was
brought on urgent basis, and the applicant chose
not to file a
replying affidavit to the first and second respondent’s
answering affidavit due to the urgency of the matter.
This was
confirmed by the applicant’s Counsel at the beginning of the
hearing of the application.
[68]
In motion proceedings, there are three sets of affidavits filed.
[16]
It is common cause that in this application only two sets were filed.
In urgent applications, parties file their necessary affidavits
in
support of their respective cases on truncated timeframes. Due to the
urgency of the matter, parties file these affidavits hurriedly
with
the information at their disposal. A party is afforded extra time to
file an affidavit at the request of such a party to the
court, and
provided that such a request is not opposed.
See
Standard Bank of South Africa Ltd v Sewparsad
2005 (4) SA 148
(C) at 153H.
[69]
The applicant was provided with an opportunity by the court to file a
replying affidavit at the beginning of the
hearing, but the applicant
declined this opportunity and indicated that he will not be filing a
replying affidavit.
[70]
It was held in
Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
1957(4)
SA 234 (C) at 235 that if the material facts are in dispute and there
is no real dispute for the hearing of oral evidence,
a final order
will only be granted on notice of motion if the facts as they are
stated by the respondent together with the facts
alleged by the
applicant that are admitted by the respondent, justify such an
order.
[17]
There is no
material dispute of facts between the parties, nor was an application
made for the referral to oral evidence of any
of the issues between
the parties.
[71]
The matter is one that is capable of being determined on the
affidavits filed by the parties. However, the first
and second
respondents did not admit the facts relied on by the applicant in the
founding affidavit for the relief sought. What
falls to be
considered is whether the respondent’s version is nonetheless
sustainable, or whether it is untenanble, warranting
its rejection.
[72]
The version of the first and second respondents on the facts remain
unchallenged by the applicant. This is because
the applicant did not
file a replying affidavit dealing with the allegations made by the
respondent which I consider to be material
to the issues for
determination in this matter.
[73]
The applicant’s allegation that he had rejected the offers to
study at other institutions for registration
and admission is
unsubstantiated and remains to be proved. The applicant did not
provide any
facts as to the names of these other
institutions and for which courses of study the applicant had
applied. Besides, the applicant
should have secured his registration
and admission with the University first before rejecting all other
offers at other universities
and institutions.
[74]
The applicant alleged that he sought assistance but was told that he
could only be assisted on Monday, 29
January 2024. No detail is
provided as to what type of assistance was sought, how, or from whom.
[75]
The first and second respondents contended that once a course becomes
fully subscribed, the University may
not register further students
regardless of whether they have been provided with an admission
letter. This makes full sense because
the University will encounter
problems with overcrowding if they have to admit every student who
applies for registration and admission
despite there being no space
left for students.
[76]
The first and second respondents also contended that the Diploma for
which the applicant had applied was
fully subscribed. If the
University accepts more students that it has spaces for, as submitted
by the first and respondents, the
third respondent will penalise the
University.
[77]
The first and second respondents submitted that registering more
students than they have places for would
cripple the University
financially to the detriment of all its students. This would also
greatly compromise the administrative
processes of the University.
[78]
The court should dismiss an application where there are fundamental
disputes of fact on the papers and the
applicant failed to make out a
case for the relief claimed. This is such a case where there are
fundamental disputes of fact and
the applicant failed to make out a
case for the relief claimed. The application falls to be dismissed.
Costs
[79]
Although the applicant did not argue that he is unable to pay the
legal costs of the respondents should the application
not succeed, I
will deal with the issue of costs in greater detail than is normally
done.
[80]
Mr
Hobbs
, Counsel for the respondents, submitted that costs of
the application should follow the cause. The normal order is that if
an application
fails, the applicant must pay the costs occasioned by
the application.
[81]
It is common cause that that application entails the promotion and
protection of a right entrenched in the Constitution,
namely the
right to education. The applicant’s founding affidavit sets out
as much. The applicant seeks to enforce his right
to education with
this application. This was also confirmed by Mr
Hobbs
on the
issue of costs.
[82]
In the Constitutional Court decision of
Biowatch
v Trust v Registrar Genetic Resources and Others
[18]
it
was held that the case involved “litigation in which private
parties with competing interests were involved, not to settle
a legal
dispute between themselves, but in relation to determining whether
the state had appropriately shouldered its constitutional
and
statutory responsibilities”. Although the present case is not
identical to the
Biowatch
case,
the principle regarding costs finds application here.
Conclusion
and order
[83]
I conclude that the applicant has not proved his case and the
application must fail. I make the following order:
1.
The application is dismissed.
2.
Each party shall pay its own costs.
DV
PITT
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
Counsel
for the Applicant
Adv
Madubela
Instructed
by
L
Nqeketo Inc Attorneys
Mthatha
Counsel
for the Respondents
Adv
Hobbs
Instructed
by
Drake
Flemmer & Orsmond (EL)
Mthatha
Heard
on
13
February 2024
Judgment
delivered on
27
February 2024
[1]
The
Constitution of South Africa, Act 108 of 1996.
[2]
This
section of the Constitution provides that
everyone
has the right to further education, which the state, through
reasonable measures, must make progressively available and
accessible
.
[3]
Aimler’s
Precedents of Pleadings,
Harms,
LexisNexis, Ninth Edition, p. 195; see also
CGEE
Alsthom Equipments et Enterprises Electriques v GKN Sankey (Pty) Ltd
1987(1)
SA 81 (A) at 90. Also see
Ally
v Courtesy Wholesalers (Pty) Ltd
1996
(3) SA 134
(N) 149F-150H.
[4]
See also
Christie’s
The Law of Contract,
LexisNexis,
8
th
Edition, p.619.
[5]
Christie’s, at p.11.
[6]
See
Aimler’s
Precedents and Pleadings, supra
at
p. 111.
[7]
Supra;
see also
See
Jurgens
Eiendomsagente v Share
[1990] ZASCA 81
;
1990
(4) SA 664
(A). Also see
Parson’s
Transport (Pty) Ltd v Global Insurance Co Ltd
2006
(1) SA 488
(SCA)
[8]
See
Aimler’s
op cit,
p.112.
[9]
Supra.
[10]
Supra.
[11]
Supra.
[12]
Aimler’s
at
p. 112.
[13]
Supra.
[14]
Aimler’s
at
p.113.
[15]
Erasmus,
Superior
Court Practice,
Volume
2, Juta, D1-56 and 57. See also
Hart
v Pinetown Drive-
In
Cinema (Pty) Ltd
1972(1)
SA 464 (D) at 469C-E.
[16]
Erasmus,
op
cit,
D1-67.
[17]
Erasmus,
D1-76.
[18]
2009
(6) SA 232
(CC).