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[2016] ZANCHC 14
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Member of the Executive Council for Education in the Northern Cape and Others v School Governing Body: Northern Cape and Others (Leave to Appeal) (1981/2015) [2016] ZANCHC 14 (12 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
1981/2015
DATE
HEARD:
09/02/2016
DATE
DELIVERED:
12/02/2016
In
the matter between:
THE
MEMBER OF THE EXECUTIVE
COUNCIL
FOR EDUCATION IN THE
NORTHERN
CAPE
1
st
Applicant
THE
HEAD OF THE DEPARTMENT OF
EDUCATION
IN THE NORTHERN CAPE
PROVINCE
2
nd
Applicant
THE
DISTRICT DIRECTOR: FRANCES BAARD
DISTRICT
OF THE DEPARTMENT OF
EDUCATION
IN THE NORTHERN
CAPE
3
rd
Applicant
and
SCHOOL
GOVERNING BODY: NORTHERN
CAPE
1
st
Respondent
NORTHERN
CAPE HIGH SCHOOL,
KIMBERLEY
2
nd
Respondent
ANNELIE
FOURIE
3
rd
Respondent
KAREN
RHEEDER
4
th
Respondent
CARMEN
TAYLOR
5
th
Respondent
MILTON
VAN
HEERDEN
6
th
Respondent
WINNIFRED
VAN
WYK
7
th
Respondent
LUKE
AIYER
8
th
Respondent
MELANIE
CLARKE
9
th
Respondent
PETRUS
DU
TOIT
10
th
Respondent
MOGAMAT
FREDERICKS
11
th
Respondent
CHARLES
HENDRICKS
12
th
Respondent
MZIMKHULU
JELE
13
th
Respondent
SALMON
ROBERTS
14
th
Respondent
PETER
MAMABOLO
15
th
Respondent
ALDRIN
MASDOLL
16
th
Respondent
BENEDICT
MODISE
17
th
Respondent
VINCENT
NOSI
18
th
Respondent
MKULULEKO
NQUMASHE
19
th
Respondent
MARILDIA
PANKER
20
th
Respondent
THUBEKA
TAWO
21
st
Respondent
ELTONJON
TOPKIN
22
nd
Respondent
FAIZA
VAN DER
MERWE
23
rd
Respondent
DAVID
VAN DER
MERWE
24
th
Respondent
LAWRENCE
VAN
ROOYEN
25
th
Respondent
In
re
CASE
NO: 1981/2015
SCHOOL
GOVERNING BODY: NORTHERN
CAPE
1
st
Applicant
NORTHERN
CAPE HIGH SCHOOL,
KIMBERLEY
2
nd
Applicant
ANNELIE
FOURIE
3
rd
Applicant
KAREN
RHEEDER
4
th
Applicant
CARMEN
TAYLOR
5
th
Applicant
MILTON
VAN
HEERDEN
6
th
Applicant
WINNIFRED
VAN
WYK
7
th
Applicant
LUKE
AIYER
8
th
Applicant
MELANIE
CLARKE
9
th
Applicant
PETRUS
DU
TOIT
10
th
Applicant
MOGAMAT
FREDERICKS
11
th
Applicant
CHARLES
HENDRICKS
12
th
Applicant
MZIMKHULU
JELE
13
th
Applicant
SALMON
ROBERTS
14
th
Applicant
PETER
MAMABOLO
15
th
Applicant
ALDRIN
MASDOLL
16
th
Applicant
BENEDICT
MODISE
17
th
Applicant
VINCENT
NOSI
18
th
Applicant
MKULULEKO
NQUMASHE
19
th
Applicant
MARILDIA
PANKER
20
th
Applicant
THUBEKA
TAWO
21
st
Applicant
ELTONJON
TOPKIN
22
nd
Applicant
FAIZA
VAN DER
MERWE
23
rd
Applicant
DAVID
VAN DER
MERWE
24
th
Applicant
LAWRENCE
VAN
ROOYEN
25
th
Applicant
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
FOR EDUCATION IN THE
NORTHERN
CAPE
1
st
Respondent
THE
HEAD OF THE DEPARTMENT OF
EDUCATION
IN THE NORTHERN CAPE
PROVINCE
2
nd
Respondent
THE
DISTRICT DIRECTOR: FRANCES BAARD
DISTRICT
OF THE DEPARTMENT OF
EDUCATION
IN THE NORTHERN
CAPE
3
rd
Respondent
Coram:
Olivier J
JUDGMENT
: APPLICATION FOR LEAVE TO APPEAL
Olivier
J:
[1.]
The third to eighth, tenth to fourteenth
and sixteenth to twenty-fifth respondents are all parents who had
applied for the admission
of their children, as learners, to the
second respondent, the Northern Cape High School (“
the
school
”). The first
respondent is the School Governing Body of the school.
[2.]
The third applicant, the District Director
(Francis Baard District) of the Department of Education, Northern
Cape, had refused to
admit the children to the school and the
internal appeals against those decisions had been dismissed by the
first applicant, the
Member of the Executive Council for Education,
Northern Cape Province. The second applicant is the Head of the
Department
of Education, Northern Cape Province.
[3.]
On
4 December 2015 I ordered that, pending the finalisation of an
application
[1]
by the
respondents for the review of those decisions and of the decisions to
dismiss the appeals, as well as for a (final) order
that they be
admitted to the school should they so wish, the children be admitted
to the school and that the third respondent during
that period be
prohibited from filling the vacancies that had resulted from the
refusal of the initial applications for the admission
of the
learners. The applicants were ordered to pay the costs of the
first part of the application, in other words, the part
in which the
interim relief was granted
[2]
.
[4.]
The
applicants now apply for leave to appeal against those orders.
The grounds of appeal are set out in more than 50 paragraphs
and
sub-paragraphs, the contents of most of which amount to argument,
rather than a concise statement of grounds of appeal
[3]
.
[5.]
Before considering any of the grounds of
appeal that can be discerned from the notice, it has to be considered
whether the orders
made by this court on 4 December 2015 are indeed
appealable.
[6.]
For
an order or decision of this court to be appealable to the full bench
of this court or to the Supreme Court of Appeal it “
must
be final in effect and not open to alteration by the court of first
instance; it must be definitive of the rights of the parties
and …
it must have the effect of disposing of at least
(a)
substantial
portion of the relief claimed in the main proceedings
”
[4]
.
[7.]
These
requirements or principles, however, “
are
neither exhaustive nor cast in stone
”
[5]
and
the
overriding requirement is that it has to be in the interests of
justice to allow an appeal against orders which “
have
no final effect and that are susceptible to reconsideration …
when final relief is determined
”
[6]
.
[8.]
“
(W)
hat
the interests of justice require depends on the facts of each
particular case
”
[7]
.
An important factor would be “
whether
irreparable harm would result if leave to appeal is not granted
”
[8]
.
[9.]
The
form of the orders of 4 December 2015 is clearly that they are to
apply only until the review is decided and on the face of
it they
would have only interim effect, but the question would remain whether
they nevertheless are final in effect
[9]
.
[10.]
In paragraph 11 of the notice of
application for leave to appeal the submission is indeed made that
“
Although this order is called an
interim relief
(sic)
,
it has the effect of a final order, therefore the applicants are
entitled to appeal same
”.
[11.]
The effect of the orders of 4 December 2015
are that, should the decisions of the third and first applicants not
be set aside on
review, the temporary “
admission
”
of the learners to the school will lapse, as will the temporary
prohibition of filling the vacancies.
[12.]
Whether the particular learners would in
such an event be allowed to stay on in the school or not, is neither
in form nor in effect
determined by the orders of 4 December 2015.
Prayer [2] of part B of the notice of motion is, as already
indicated, a prayer
for an order that the learners be admitted to the
school, presumably finally, should they so wish.
[13.]
Counsel for the applicants argued that, in
the event of the respondents failing in their application for review,
it would not be
“
feasible
”
or “
practical
”
to have these learners removed from the school, and that the interim
relief is therefore indeed final in effect. While
it may be
argued that it would be undesirable to do so, there is no evidence to
the effect that it would not be possible.
In any event, and as
already pointed out, the question whether the learners should stay on
in the school after the expiry of the
interim order is the subject of
the application in part B of the notice of motion. The
particular prayer in part B is simply
for the (final) admission of
the learners for the 2016 academic year. It is not qualified by
any reference to the result
of the application for the review of the
decisions made by the first and third applicants.
[14.]
In
Minister
of Home Affairs and others v Johnson and others
;
Minister
of Home Affairs and another v Delorie and others
[10]
the court
a
quo
had granted orders suspending the operation of declarations that the
respondents were “
undesirable
persons
”
who could not return to South Africa, and of the directive in terms
of which those declarations had been made, and allowing
them to
return to the country pending the review of the directive and of the
declarations. On appeal it was held that the
orders were “
only
temporary in nature and did not finally dispose of any factual or
legal issues
”
and that, because the orders were directed at the two respondents
only, it would not be in the interests of justice to entertain
the
appeal
[11]
.
[15.]
The interim orders in the present matter
are in my view also clearly temporary in nature, and the relief is
also limited to the
parents and learners in the present matter and to
the vacancies resulting from the non-admission of those particular
learners.
[16.]
The review court will, in effect and in
considering the relief sought in prayer [2] of part B of the
notice of motion, be
reconsidering the temporary or provisional
admission of the particular learners, and that court will, in
granting or refusing that
relief, in effect either confirm or
discharge the interim orders.
[17.]
The orders are also clearly not definitive
of any of the rights concerned here. They do not dispose of any
part of the relief
claimed in part B of the main application.
[18.]
Keeping
in mind that it is normally regarded as not in the interests of
justice “
to
hear appeals against interim orders that have no final effect and
that in any event are susceptible to reconsideration by a Court
when
the final relief is determined
”
[12]
,
the question would then be why this case should be an exception and
whether the interests of justice in this case require such
a
piecemeal approach
[13]
.
[19.]
On the evidence there is no indication that
the present applicants will suffer any prejudice at all, let alone
irreparable prejudice,
should the interim orders remain in place
pending the application for the relief sought in part B of the notice
of motion.
No submission to this effect can in any event be
discerned from the contents of the notice of application for leave to
appeal.
[20.]
In
the notice it is contended that, in making the interim orders, this
court encroached upon the terrain of the applicants.
I
disagree. The orders are, as already pointed out, only
temporary in effect and they are not definitive of the rights of
any
of the applicants. In this regard the facts of the present
matter are entirely distinguishable from those in the
National
Treasury
case referred to above
[14]
,
where there was clear evidence “
that
the impact of the temporary restraining order
(was)
immediate,
on-going and substantial
”
[15]
.
There is simply no evidence to this effect in the present matter.
[21.]
In
deciding an appeal against the interim orders on the grounds advanced
in the notice of application for leave to appeal “
the
appellate court would in effect usurp the role of the review court
”,
something which should be avoided as far as possible
[16]
.
[22.]
In my view the interim orders in the
present matter are therefore not appealable, which makes it
unnecessary to consider the grounds
of appeal in any detail.
[23.]
There is no reason why costs should not
follow the result and the following order is therefore made:
THE
APPLICATION FOR LEAVE TO APPEAL IS DISMISSED WITH COSTS.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For the
Applicants:
ADV T C TSHAVUNGWA
Instructed
by:
MJILA & PARTNERS
For the
Respondents:
ADV J G VAN NIEKERK SC
Instructed
by:
ENGELSMAN MAGABANE INC.
[1]
Part
B of the notice of motion.
[2]
Part
A of the notice of motion
[3]
Compare
S
v Mapani
2012 JDR 0884 (Nm);
Uniform
Rule
62(3).
[4]
Compare
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd and
Others
2010
(5) BCLR 457
(CC) para [48]
[5]
Ibid
,
para [50]
[6]
Ibid
,
para [50];
Philani-Ma-Afrika
v Mailula
2010 (2) SA 573
(SCA) para [20].
[7]
S
v Western Areas Ltd and Others
2005
(5) SA 214
(SCA) para [28].
[8]
Machele
and Others v Mailula
and
Others
2010 (2) SA 257
(CC) para [24]; Compare
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd and
Others,
supra
,
para [55]
[9]
Compare
Jacobs
and Others v Baumann NO and Others
2009 (5) SA 432
(SCA) para [9]
[10]
2015
(6) BCLR 707
(CC).
[11]
Ibid
,
para [7].
[12]
National
Treasury and others v Opposition to Urban Tolling Alliance and
others (Road Freight Association as applicant for leave
to
intervene)
2012
(11) BCLR 1148 (CC).
[13]
Compare
International
Trade Administration Commission v SCAW South Africa (Pty) Ltd and
Others,
supra
,
para [50].
[14]
Paragraph
[19] and footnote 10 above.
[15]
National
Treasury and others v Opposition to Urban Tolling Alliance and
others (Road Freight Assocation as applicant for leave
to
intervene),
supra
,
para [27].
[16]
Ibid
,
para [26]