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[2020] ZALMPPHC 66
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Hoerskool Piet Potgieter and Another v K obo K (6114/2018, HCAA11/2019) [2020] ZALMPPHC 66 (19 August 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
COURT
A QUO
CASE
NO: 6114/2018
APPEAL
CASE NO: HCAA11/2019
19/8/2020
In
the matter between:
HOERSKOOL
PIET POTGIETER
FIRST
APPELLANT
JIMMY
STEELE
SECOND APPELLANT
and
M[….]
M[….]
K[….]
RESPONDENT
Obo
LEARNER MINOR CHILD
K[….]
K[….]
JUDGMENT
NAUDE
AJ:
[1]
This is an appeal against the judgment
and order of Sikhwari AJ confirming a
rule
nisi
on the 22
nd
of November 2019 in favour of the Respondent. The appeal is with
leave of the Court
a quo .
[2]
The Respondent's minor child is a
learner at the First Appellant School where the Second Appellant is
the school principal or headmaster.
The parties before this court
have a long history. It was not the first time the Respondent
approached this division for urgent
interim relief.
[3]
During March 2018 the Respondent on
behalf of the minor child approached the Polokwane High Court on an
urgent basis for an interdict
against the Appellants. The Appellants
had expelled the minor child from school on 7 February 2018 on the
grounds that he had hair
which was longer than 4(four) cm.
[4]
On 13 March 2018 Kganyago J granted an
interim order in the following terms:
"1.
The Application is hereby enrolled and heard on ex parte as one of
urgency in terms
of Rule 6(12) (of the Uniform Rules of this
Honourable Court and the forms and service provided for in the rules
of this Honourable
Court are hereby dispensed with.
2.
The
First and Second Respondents are hereby ordered to re-instate the
Applicant with immediate effect from the date of the granting
of this
order.
3.
The
First and Second Respondents are hereby interdicted and or prohibited
from discriminating, victimizing and harassing the Applicant
emotionally, physically and otherwise. (Own emphasis as this prayer
will be dealt with later in this judgment.)
4.
The
First and Second Respondents are hereby ordered to pay the costs of
this application on the scale
as
attorney and own client scale, the
one paying the other to be absolved.
5.
The
interim order shall operate with immediate effect.
6.
A
Rule nisi
is
hereby
granted calling upon Respondents to
show
cause on the 17
th
April 2018 to show cause as to why (t)his court order should not be
made final.
"
[5]
On 17 April 2018 prayers 2 and 3 of the
interim order supra was by consent of the parties confirmed by
Makgoba JP in the Polokwane
High Court.
[6]
It can be accepted that the minor child
is not a model learner. The minor child attracted penalty points and
in terms of the Code
of Conduct of the 1
st
Appellant, was supposed to sit detention on 3 August 2018, which the
minor child learner did not attend in violation of the Code
of
Conduct.
[7]
A notice of a disciplinary hearing to be
conducted on 15 August 2018 at 16h00 was issued to the learner. The
learner only attended
at approximately 16h33 and was unrepresented by
either his guardian or any other representative.
The
Disciplinary Committee was chaired by Mr. Van der Hoven. Van der
Hoven, in the circumstances where the learner was unrepresented,
postponed the proceedings indefinitely in order to afford the learner
an opportunity for representation.
[8]
On 27 August 2018, the learner was found
in possession of so-called "space-cakes" which contained an
illegal substance
namely cannabis (dagga). The learner also consumed
some of the "space-cakes" and sold the aforesaid
"space-cakes"
to other learners during school hours.
[9]
As a consequence, further disciplinary
proceedings were instituted by the Disciplinary Committee of the
School Governing Body of
the First Appellant. The learner was charged
with contravention of four school policies and regulations, to wit
(i) absence from
detention on 3 August 2018, (ii) bringing
"space-cakes" containing illegal substance to school on 27
August 2018, (iii)
consuming "space cakes" containing
illegal substance at school on 27 August 2018, and (iv) trading with
"space-cakes"
containing an illegal substance at school on
27 August 2018.
[10]
Notice to attend the disciplinary hearing was given to the learner so
that he could dispatch
same to his mother and guardian, the
Respondent in this appeal. The Respondent and the learner did not
attend the disciplinary
hearing.
Despite
there not being any proof that the Respondent was served with the
charge sheet and/or notice of disciplinary hearing, it
is common
cause that she did know about the hearing date as her counsel was
informed, at her request, through an e-mail.
[11]
A hearing was held on 28 September 2018
and a finding of guilty was made by the Disciplinary Committee on 9
October 2018. The School
Governing Body accepted the recommendations
made by the Disciplinary Committee and the sanction imposed was a
suspension pending
the decision of expulsion by the Head of the
Department of the 3rd Respondent in the
court
a
quo.
It is this sanction imposed on the
learner that sparked the bringing of yet another urgent application
against the Appellants on
12 October 2018. The urgent application was
brought ex parte. No notice was given to the Appellants.
[12]
An interim order was granted by M.G.
Phatudi J on 12 October 2018, which interim order was confirmed by
Sikhwari AJ on 22 November
2018. Sikhwari AJ made the following
order:-
"1.
That the rule nisi granted on the 12 October 2018 is confirmed in the
following terms:-
1.1
That the decision taken by first and second respondents to suspend
the minor child, namely K[….]
K[….], is hereby
suspended pending the outcome of the decision of the Head of
Department of the Limpopo's Department of
Basic Education regarding
the expulsion of the aforesaid minor child from school.
1.2
That pending the decision of the Head of
Department of Limpopo Department of Basic Education regarding the
expulsion or otherwise
of K[….] K[….] from Hoerskool
Piet Potgieter (first respondent,) the first and second respondents
are hereby ordered
to reinstate the learner, K[….] K[….],
with immediate effect from the date of granting of the interim order.
1.3
That the first and
second respondents are interdicted and or prohibited from
discriminating, victimizing and harassing the applicant
emotionally,
physically and otherwise. (own emphasis)
1.4
That the first respondent is ordered to
pay costs of this application, including costs of 12 October 2018 and
costs for the points
in limine,
on
party and party scale.
2.
That the application for contempt of court is postponed
sine
die."
[13]
It is paragraphs 1.3 and 1.4 supra of
this order of Sikhwari AJ which are the subject of this Appeal. The
Appellants seek an appeal
against the order of the Court
a
quo
to the effect that paragraphs
1.3 and 1.4 of the order be set aside and substituted with the
following:
a)
Prayer
4 of the Notice of Motion is dismissed (Paragraph 1.3 of the order).
b)
The
Applicant is ordered to pay the costs of the application on a scale
as between attorney and client, which costs include the
reserved
costs of 12 October 2018.
[14]
First, this court will deal with the appeal against paragraph 1.3 of
the order of the court a
quo
dated 22 November 2018. In the
Respondent's Founding Affidavit in support of the Respondent's
ex
parte
urgent application the Respondent only dealt with
allegations in respect of victimization of the minor child and
furthermore only
dealt with this allegation in paragraph 11.4 and
11.5 of her founding affidavit.
[15]
In paragraph 11.4 of the founding affidavit the Respondent stated as
follows:-
"
Since
the learner was re-instated through an order from this court, the
learner was victimized from time to time until such time
his
attorneys of record wrote
a
letter to the attorneys who were
representing the school and the principal. I humbly attach hereto
a
copy of such
a
letter dated 20/04/2018 and its proof of fax
marked annexure "K3" and "K4"."
[16]
In Annexure "K3", a letter
sent to the then attorneys of the Appellants by the Respondent's
attorneys of record dated
20 April 2018, only the following
allegation was made:-
"We
have been informed by our client about the victimization he is facing
at school by whites teachers to such an extent that
he is restricted
to use the toilets."
and
furthermore:-
"
We
were informed that teachers are making public statements in front of
everyone to say, "it does not mean that if you take
our school
to court you are untouchable."
[17]
It should be noted that this letter was
dated 20 April 2018 and was already sent on 21 April 2018 as per the
fax report, Annexure
"K4". No further letters were sent or
allegations were made in respect of victimization, discrimination or
harassment
of the learner emotionally, physically and otherwise.
[18]
It should be borne in mind that an order
as per paragraph 1.3 of the order dated 22 November 2018 was already
made on 17 April 2018
as highlighted here above.
[19]
The Respondent failed to set out any new
facts, and/or for that matter any facts whatsoever, as to what the
purported victimization
entailed. The Respondent alleges
victimization but failed to proof any form of victimization.
Furthermore the allegation was already
made in a letter during April
2018, which does not render the relief claimed in this paragraph
urgent.
[20]
In terms of
Section 1(1) of the Protection from Harassment Act, 17
of 2011
"harassment"
means directly or
indirectly engaging in conduct that the respondent knows or ought to
know-
(a)
causes
harm or inspires the reasonable belief that harm may be caused to the
complainant or
a
related
person by unreasonably-
(i)
following,
watching, pursuing or accosting of the complainant or
a
related
person, or loitering outside of or near the building or place where
the complainant or
a
related
person resides, works, carries on business, studies or happens to be;
(ii)
engaging in verbal, electronic or
any other communication aimed at the complainant or
a
related person, by any means, whether
or not conversation ensues; or
(iii)
sending, delivering or
causing the delivery of letters, telegrams, packages, facsimiles,
electronic mail or other objects to the
complainant or
a
related person or leaving them where
they will be found by, given to, or brought to the attention of, the
complainant or
a
related
person; or
(b)
amounts to sexual harassment of
the complainant or
a
related
person;
[21]
Furthermore, in terms of
Section
1(1) of the Protection from Harassment Act:-
"harm
, means any mental, psychological, physical or economic harm"
[22]
In terms of
Section
3(2) of the Protection from Harassment Act
a
court must be satisfied that:-
"..
.there is prim
a
facie evidence that-
(a)
the respondent is engaging or has
engaged in harassment;
(b)
harm is being or may be suffered
by the complainant or
a
related
person as
a
result
of that conduct if
a
protection
order is not issued immediately; and
(c)
the protection to be accorded by
the interim protection order is likely not to be achieved if prior
notice of the application is
given to the respondent, the court must,
notwithstanding the fact that the respondent
has
not been given notice of the
proceedings referred to in subsection (1) issue an interim protection
order against the respondent".
[23]
This court is of the view that the court
a
quo
erred
in granting an interdict where the 1st and 2nd Respondents were
interdicted from harassing the learner emotionally, physically
and
otherwise. The Respondent did not allege or prove any grounds for an
interdict based on harassment. There is no
prima
facie
evidence that the Appellants
engaged in harassment, nor of any harm being suffered of which may be
suffered by the Respondents as
a result of the conduct of the
Appellants if an interdict protecting the learner is not granted.
[24]
Discrimination is defined in the
Promotion of Equality and Prevention
of Unfair Discrimination Act 4 of 2000
as:-
"any act or omission,
including
a
policy,
law, rule, practice, condition or situation which directly or
indirectly-
(a)
Imposes burdens, obligations or
disadvantage on; or
(b)
Withholds benefits, opportunities
or advantages from, any person on one or more of the prohibited
grounds."
The
Respondent also failed to allege or prove any grounds of
discrimination.
[25]
It is trite law that in motion
proceedings an applicant must make out his or her case in the
founding affidavit.
(Moloi and Others
v Vogers N.O. 2016 (3) SA 370 (CC))
[26]
It is further held
that the court a
quo
could not grant
paragraph 1.3 as the relief ordered in paragraph 1.3 was already
ordered on 17 April 2018. No new facts or cause
of action arose since
the granting of the order on 17 April 2018. It is trite law that a
court order stands for 30 (thirty) years
and is valid and binding
until set aside or varied. As a result, this court is of the view
that the second order for exactly the
same relief constitute
res
judicata,
especially
in the light thereof that the Respondent did not allege or prove any
new cause of action.
[27]
It is in light of the above that this
court is of the view that the appeal against paragraph 1.3 of the
order of the court
a quo
should
succeed.
[28]
This court now deals with the appeal
against paragraph 1.4 of the order of the court a
quo
- costs.
[29]
The award of costs is a matter wholly
within the discretion of the Court but this is a judicial discretion
and must be exercised
on grounds upon which a reasonable person could
have come to the conclusion arrived at.
[30]
In leaving the judge with a discretion,
"..
.the
Jaw contemplates that he should take into consideration the
circumstances of each case,
(Cronje v Petzer
1967 (2) SA
589
(A) 593; Baptista v Stadsraad van Welkom
1996 (3) SA 517
(0) 520,
[1996] 1 All SA 378
(0))
carefully weighing the various
issues in the case, the conduct of the parties and any other
circumstances which may have
a
bearing upon the question of
costs and then make such order as to costs as would be fair and just
between the parties. And if he
does this, and brings his unbiased
Judgment to bear upon the matter and does not act capriciously or
upon any wrong principle,
r know of no right on the part of
a
court of appeal to interfere with the honest exercise of his
discretion.
(Fripp v Gibbon & Co
1913 AD 354
at 363
)"
[31]
The Appellants argue that the
application brought before court has grave deficiencies. Firstly, one
would be hard pressed to find
any justification in the founding
affidavit for the Respondent not to have given notice of the
proceedings to the Appellants prior
to the initial hearing and
secondly that the application was predicated on an express allegation
that the minor child had been
expelled from school without charges
and without having committed any misconduct, and without any hearing.
This positive allegation
was made in paragraph 12.2 of the founding
affidavit. These allegations are met true: Both the Respondent and
her Counsel knew
of the date of hearing before the Disciplinary
Committee on 28 September 2018.
[32]
The Respondent then further in paragraph
13.3 of the founding affidavit stated as follows:-
'This
matter
is
urgent because my child
was
dismissed
without any commission of any misconduct since 2016
as
a
scholar at the first Respondent and the worse part without any
hearing.
"
[33]
It is common cause that both the
Respondent and the learner were full well aware of the charges
levelled against the learner,
the disciplinary proceedings which had
pre-empted to expulsion, and in general had been kept abreast of
these proceedings at all
stages, whilst electing not to attend the
proceedings.
[34]
The court a
quo
correctly found that the Respondent
was in fact aware of these disciplinary proceedings in contradiction
to the express allegations
by the Respondent that no such proceedings
were held prior to the expulsion of the learner.
[35]
Counsel for the Appellant correctly
argues that failure to disclose salient information in
ex
parte
applications is a serious
matter.
[36]
The Court a
quo
erred in giving too little
consideration to the conduct of the parties and any other
circumstances which may have a bearing upon
the question of costs and
as a result it is just and equitable for this court to interfere with
the cost order granted by the court
a
quo.
[37]
Counsel for the Appellants referred to
the judgment in
Recycling and
Economic Development Initiative of South African NPC v Minister of
Environmental Affairs
2019 (3) SA 251
(SCA) at [46], [50], [90] and
[148]
where the majority of the
court held:-
"The
duty of utmost faith, and in particular the duty of full and fair
disclosure in ex parte applications, was imposed, because
orders
granted without notice to affected parties were
a
departure from
a
fundamental
principle of administration of justice, namely audi alteram partem.
If material non-disclosure was established,
a
court should be
astute to ensure that
a
plaintiff, who
obtained an ex parte order without full disclosure, was deprived of
any advantage they may have derived by such breach
of duty. The
Minister's skewed disclosures and non-disclosures were extensive.
They related to matters that must have influenced
the Judge's hearing
the ex parte applications, the ex parte orders would not have been
granted if fair disclosure had been made."
[38]
This court has also been referred to
National Director of Public
Prosecutions v Sasson
2002 (1) SA 419
(SCA)
where
the Supreme Court of Appeal held:-
"Where
an order is sought ex parte it is well-established that the utmost
good faith must be observed. All material facts must
be disclosed
which might influence
a
court in coming
to its decision, and withholding or suppression of material facts, by
itself, entitles
a
court to set
aside an order, even if the non disclosure or suppression was
not wilful or
ma/a
fide (
Schlesinger v Schlesinger
1979 (4)
SA
342
(VV) at
348E-B)"
[39]
The Appellants only launched an appeal
against paragraphs 1.3 and 1.4 of the
court
a
quo's
order. As a result this court will
not deal with any of the other grounds and arguments raised by the
legal representatives for
the parties.
[40]
In light of the above it can be said
that the Respondents were still successful in their urgent
application as paragraphs 1.1 and
1.2 of the court a quo's order
stands.
[41]
Although the general rule is that the
successful party should be awarded costs, the court can, in the
exercise of its discretion,
deprive a successful party of costs
wholly or partly. The court may even order such party to pay the
whole or a portion of the
costs incurred by the unsuccessful party.
[42]
Although the Respondent was in essence
successful in her application in the court a
quo,
the manner in which the application
was brought and the material non-disclosure of facts, leaves much to
be desired. This Court's
displeasure should be marked by depriving
the Respondent, as successful litigant, of her costs in the court a
quo.
In
the circumstances, it will be just and equitable for each party to
pay its own costs incurred in the application in the court
a
quo.
Order
[43]
The following order is made:-
1.
The
appeal is upheld.
2.
Paragraphs
1.3 and 1.4 of the order of Sikwari AJ is set aside and substituted
with the following:-
2.1
Prayer
4
of the notice of motion is
dismissed.
2.2
Each party to pay his/her own costs.
3.
The
Respondent is to pay the Appellants costs of Appeal in this Court.
M.
NAUDE
ACTING
JUDGE OF
THE
HIGH COURT
I
AGREE:
E.M.
MAKGOBA
JUDGE
PRESIDENT
LIMPOPO
DIVISION
I
AGREE:
M.F.
KGANYAGO
JUDGE
OF THE
HIGH
COURT
APPEARANCES:
HEARD
ON:
14 AUGUST 2020
JUDGMENT
DELIVERED ON: 19 AUGUST 2020
For
the Appellants:
Adv. S.G. Gouws
Instructed
by:
De Bruin Oberholzer Attorneys
27 General Joubert Street,
Polokwane
For
the Respondent:
No Appearance