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2023
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[2023] ZAECMHC 25
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Mgquba and Others v Principal, St John's College and Others (1347/2023) [2023] ZAECMHC 25 (9 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – MTHATHA)
CASE
NO.: 1347/2023
Matter
heard on: 20 April 2023
Judgement
delivered on: 9 May 2023
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED
In
the matter between: -
AYANDA MGQUBA &
OTHERS
Applicant
and
THE PRINCIPAL,
ST JOHN’S COLLEGE
First
Respondent
THE
CHAIRPERSON, ST JOHN’S COLLEGE
SGB (MR
MLENZANA)
Second
Respondent
THE
DISTRICT DIRECTOR, O.R. TAMBO
DISTRICT FOR THE
DEPARTMENT OF EDUCATION, E.C.
Third
Respondent
JUDGMENT
SMITH
J:
[1]
The applicants seek an order,
inter alia
, directing the
principal of St Johns College (the first respondent) to withdraw an
advertisement in respect of various teachers’
posts at the
school and prohibiting the Chairperson of the School Governing Body
(the second respondent) from shortlisting, interviewing
or employing
anyone in the advertised posts.
[2]
The 18 applicants asserted that they have the necessary
locus
standi
to bring the application because they have children who
are enrolled as learners at the school. They did not provide the
names
of the children or the grades in which they are currently
enrolled. This assertion was squarely challenged by the respondents
in
their answering affidavit.
[3]
The applicants contended that the impugned advertisement is unlawful
because the decision to create
the advertised posts was not taken by
the School Governing Body (the SGB) and that, in any event, the
latter has not adopted a
budget as required in terms of section 38 of
the Schools Act, 84 of 1996. It was thus not entitled to take
decisions which would
have had long term financial implications for
the school.
[4]
The respondents, in their answering papers, have stated that the
decision to advertise the posts
was taken by the Executive Committee
of the SGB, on the recommendation of the Financial Committee. The
advertised posts were not
new, but existing posts that became vacant
as a result of the suspension of three teachers, one teacher being on
maternity leave
and another having retired. The SGB consequently had
no alternative but to advertise the posts in order to avoid the
situation
where several classes would be without teachers.
[5]
The respondents have also raised various points
in limine
, the
most compelling point being the challenge to the applicants’
locus standi
. In their answering affidavit, they have
unequivocally stated that the applicants were not known to them, that
they have failed
to provide their identity numbers or the names and
grades of their children so as to enable the respondents to verify
their claim
that they have children who are enrolled as learners at
the school. Surprisingly, the applicants in their replying affidavit,
instead
of at the very least providing the names and grades of their
children, simply repeated the bald allegations contained in their
founding papers.
[6]
Ms
Mxotwa
, who appeared for the applicants, has conceded that
they could conceivably only have a direct and substantial interest in
the relief
sought in the notice of motion if they are indeed parents
of children enrolled as learners at the school. The relief they seek,
namely to interdict the SGB from filling vacant teachers posts, have
far-reaching implications, both for the learners and other
parents.
It was thus important for them to aver the necessary facts to sustain
their assertions in respect of their
locus standi
. Ms
Mxotwa
has argued that because the SGB had previously entertained a letter
from the applicants - writing as ‘concerned parents’
- to
demand withdrawal of the advertisement, it is not open to them to
challenge their
locus standi
in these proceedings.
[7]
It is trite that it is sufficient for a deponent in application
proceedings to assert baldy that
he or she has
locus standi
or
the necessary authority to institute the proceedings. However, if
those assertions are challenged by the respondent in the answering
affidavit, the applicant must either annex the relevant resolution or
aver further facts to establish
locus standi
. It is common
cause that in this case the only possible basis on which the
applicants could have established
locus standi
is by virtue of
them being parents of learners enrolled at the school. And it would
have been relatively easy for them to do so
merely by providing the
names of their children and their grades. This would have been
sufficient to defeat the respondents’
challenge to their legal
standing. Ms
Qikila
, who appeared for the respondents,
correctly argued that it was simply not good enough for them merely
to repeat the bald allegations
contained in their founding papers and
to embark on convoluted arguments to avoid dealing with the serious
challenge to their standing.
And insofar as a dispute of fact may
have arisen regarding this issue, it must be resolved on the
respondents’ version.
[8]
It is indeed a matter of great concern that the applicants appeared
to have deliberately avoided
the obvious riposte to the respondents’
challenge, which was to name their children. And in my view it
matters not that the
respondents may previously have accepted their
bona fides after they had addressed a letter to the SGB. The
respondents were perfectly
entitled to challenge them to provide
further details regarding their children in order to establish their
locus standi
. As mentioned earlier, the relief they seek have
far-reaching consequences for the school. It is not difficult to
conceive of the
deleterious consequences for learners if they are
left bereft of educators in some subjects at such a vital stage of
the academic
year.
[9]
Nevertheless, if it is established that the process leading to the
decision to advertise the posts
was fundamentally flawed, the court
must intervene. It can, however, only do so if the proceedings have
been brought by persons
who have a direct and substantial interest in
the relief sought and who have established the necessary
locus
standi
. In
Four
Wheel Drive CC v Leshni Rattan NO
(1048/17)
[2018] ZASCA 124
(26 September 2018), the Supreme Court of Appeal
held that ‘[t]he plaintiff must have an adequate interest in
the subject
matter of the litigation, usually described as a direct
interest in the relief sought; the interest must not be too remote;
the
interest must be actual, not abstract or academic; and it must be
a current interest and not a hypothetical one. The duty to allege
and
prove
locus standi
rests on the party instituting the
proceedings.
’
[10] In
my view the applicants have failed to put up sufficient facts to
sustain their bald assertion regarding
locus standi
and the
application falls to be dismissed on this basis alone.
[11] In
the result the following order issues:
The application is
dismissed with costs.
JE SMITH
JUDGE OF THE HIGH
COURT
Appearances:
Counsel
for the Applicant:
Adv. N
Mxotwa
Khazimla
Sigila Inc.
Office
No 424, Fourth Floor
Cnr
York & Elliot Road
ECDC
Building
MTHATHA
(Ref.:
KS/044-LIT/23 (Ms. K. Sigila)
Counsel
for the 1
st
& 2
nd
Respondents:
Adv.
CN Qikila
Bongani
G Mtati Inc.
Suite
No. 109 ECRDA
(TRACOR)
Building
No. 52
Spring Street
MTHATHA