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[2012] ZAKZDHC 23
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Moodley v Kenmont School and Others (828/2010) [2012] ZAKZDHC 23 (30 March 2012)
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
Case
No: 828/2010
In
the matter between:
DEVARAJH
MOODLEY
…................................................................................
Applicant
and
THE KENMONT SCHOOL
…...............................................................
First
Respondent
THE KENMONT SCHOOL
GOVERNING BODY
….......................
Second
Respondent
PROVINCIAL HEAD OF THE
DEPARTMENT
OF EDUCATION
….............................................................................
Third
Respondent
MEMBERS OF THE
EXUCUTIVE COUNCIL
…..............................
Fourth
Respondent
MATSIE ANGELINA
MOTSHEKGA NO
….........................................
Fifth
Respondent
JUDGMENT
Delivered: 30 March
2012
[1] This application
concerns Remano Moodley, a boy born on 8 July 1993. (“the boy”)
His father, Devarajh Moodley, a
captain in the South African Police
Services is the applicant and brought the application in his
representative capacity as such.
I will deal with the application
that is presently before me in due course
BACKGROUND
TO THE APPLICATION
[2] The boy was at all
material times a scholar at the Kenmont School in Durban,
KwaZulu-Natal, a school designated for children
with specific
learning disabilities (“the school”). The boy was
enrolled at this school during the year 2004 and during
January 2010
he was “excluded” by the school from further attendance
and this led to the protracted litigation which
has sprouted into
four (4) ring binder files crammed with affidavits and documentary
evidence. I better tell this tale from the
beginning in an abridged
manner. In order to do that I need to mention the respondents cited
by the applicant.
[3] The first respondent
is the school, the second respondent is its governing body and third
to fifth respondents, the Provincial
Head of Education, the MEC for
Education and the National Minister of Education, respectively. No
relief was sought against the
third to fifth respondents and at all
times they indicated that they would abide the judgment of the court,
but they were drawn
into the application and an affidavit was filed
on their behalf and they were represented by counsel during the
hearing of the
application.
[4] During this judgment
I will at times refer to “the school” when it should be a
reference to either the first or
second respondents.
[5] On 4 June 2009 the
boy and his parents were served with a Notice of a Disciplinary
Meeting by the principal of the school in
connection with an incident
that is alleged to have taken place on 3 June 2009 involving an
alleged assault by the boy on other
boys with a pair of scissors. The
hearing was scheduled to take place on 12 June 2009. On that date the
hearing commenced but was
adjourned for further evidence until 17
June 2009 and on that date further adjourned to 24 June 2009. By then
the witnesses to
the event had all testified and so did the boy. The
matter could not be finalised and was adjourned to 7 August 2009.
[6] At the end of July
2009 the applicant brought an urgent application in the High Court,
KwaZulu-Natal, Durban, under Case No.
10947/2009 and sought to
interdict the school from isolating the boy from other learners and
to allow him to interact with other
learners during the school
breaks. The applicant alleged that the boy told him on 23 July 2009
that the principal of the school
decided that he be made to sit on
the stairs in front of the principal’s office during school
breaks and was not allowed
to mix with other learners. The
applicant’s representations on behalf of the boy were ignored
and apparently the principal
intended to enforce the boy’s
isolation pending the outcome of the disciplinary hearing. The school
opposed this application
and the principal deposed to an affidavit in
which she sought to justify the isolation of the boy on the basis
that he represented
a danger to other learners. What one gathers from
her affidavit is that it was being alleged at the disciplinary
hearing that the
boy attacked another boy by the name of Anele with a
pair of scissors on 3 June 2009 and that Anele sustained injuries to
his hand
and arms as he warded off the blows. Two other two boys who
tried to intervene were also injured. The principal conceded that
there
were no serious injuries sustained by anyone during this
altercation but that she viewed the matter in a very serious light as
her responsibilities extended to other learners. I must also add that
according to the boy he acted in self-defence and was being
attacked
and it is common cause that the boy was also injured during this
altercation.
[7] I do not want to
involve myself with this application as obviously I am in no position
to judge what happened at the school
between the boy and Anele on 3
June 2009. I also do not want to be seen to make light of the
decision by the principal to isolate
the boy in the manner that she
did. Mr Marais S. C. who appeared on behalf of the first and second
respondents referred me to the
case of
Jacobs
v Chairman,
Governing,
Body,
Rhodes High School And
Others
1
2011 (1) SA 160
(w)
where a principal of a
school ignored a threat made by a learner with near fatal
consequences. Suffice it to say that I doubt if
the isolation of the
boy in this manner was warranted. I say this because the principal
also disclosed that prior to the alleged
attack on Anele the boy also
“held a knife to Bianca, a fellow learner’s neck”
She does not say when this incident
took place and why it was not the
subject of a disciplinary enquiry or at the very least a charge as a
separate count to the one
concerning the attack on Anele. There are
other averments in the principal’s affidavit that somehow
detracts from her assertion
that she was genuinely of the view that
the boy constituted a danger to fellow learners. She says “even
though we attempted
to keep him (the boy) under supervision, he
continually slipped away” and elsewhere in her affidavit, “I
deny the allegation
that he cannot utilise the toilets during school
breaks because he is always in the toilet and has to be continually
called from
the toilet” Also worth a mention is the principal’s
remarks that “attempts to keep him under supervision during
lunch breaks have been unsuccessful in that he does not obey his
teachers and simply slips away when he is able to”. If the
boy
was roaming around despite the fact that he was ordered to sit
outside the principal’s office during breaks, then it
rather
defeats the whole object of the exercise and the impression is
created, and I put it no higher than that, that the boy was
being
made to sit outside her office as a form of punishment pending the
outcome of the disciplinary hearing. Lastly, it needs
to be mentioned
that the boy had been a learner at the school since 2004 and if he
had these violent propensities, surely the principal
would have said
so in her affidavit.
[8] This urgent
application was due to be heard by Shepstone A J on 3 August 2009 but
the parties apparently reached an agreement
and an order was taken by
consent. I quote this whole order (with grammatical errors) without
comment:
“
IT
IS ORDERED
That the respondent
is directed to appoint a member of staff to supervise the school
activities of Remano Moodley during school
which shall be of the
discretion of the principal of the respondent. But which shall not
be exercised in such manner as to have
the effect of isolating
Remano outside the principal’s office, and which shall
exercise in such manner as to allow Remano
reasonable freedom of
movement and reasonable interaction with his peers.
That the respondent
is directed to hear and conclude the disciplinary e4nquiry presently
in progress by the 20 August 2009.
That the matter is
adjourned sine die.”
[9] Although this
application was adjourned
sine die
I have no doubt that the
parties were of the view that the matter was now finally put to rest
and that the disciplinary enquiry
would be concluded by 20 August
2009. This application was not reinstated but merely featured as an
annexure to the present application.
THE PRESENT
APPLICATION
[10] The applicant
brought the application as one of urgency. The relief being sought
that is pertinent to this application is contained
in paragraphs
2.1.1, 2.1.2 and 3 of the “Perfected Notice of Motion”.
These paragraphs read as follows:
“
2.1.1.
Directing the Respondents’ to immediately reinstate Remano
Moodley to normal classes at Kenmont School.
Alternatively
An order reviewing,
setting aside and correcting the First and Second Respondents’
decision/action not to re-admit Remano
Moodley to Kenmont School
and directing that Remano Moodley immediately be admitted or
reinstated to Kenmont School.
3. Pending the return
date, the provisions of paragraph 2.1.1. operate with immediate and
interim effect, pending the outcome of
the Main Application.”
[11] I will continue with
the events that are alleged to have occurred after the order had been
granted by Shepstone AJ before commenting
on the application itself.
[12] On 7 August 2009
when the disciplinary enquiry was due to proceed a Mr Viren Singh,
the attorney representing the boy on instructions
from the applicant,
and one Mr Thami Majola an attorney then representing the school
entered into settlement negotiations about
the disciplinary enquiry
against the boy. The outcome of all this was that Mr Singh drafted a
settlement agreement in manuscript.
The settlement agreement appears
as an annexure to the papers before me and it reads as set out below:
“
IN
THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO: 10947/2009
In the matter between:
DEVARATH MOODLEY
Applicant
And
THE KENMONT SCHOOL
Respondent
Settlement Agreement
Whereas Respondent has
instituted disciplinary proceedings against Remano Moodley, the
Applicant’s son.
and
Whereas Applicant has
instituted legal proceedings under the aforesaid Case Number;
NOW THEREFORE IT IS
AGREED AS FOLLOWS:-
1.
The disciplinary
proceedings against Remano Moodley are hereby abandoned.
2.
In the event of
violent physical conduct on the part of Remano the Respondent shall
be entitled to approach the High Court under
this Case Number for
urgent interim relief.
3.
Remano shall
voluntarily leave the school at the end of the 2009 academic year. In
the interim all restrictions on the freedom of
movement and
interaction with his peers will be uplifted and removed in respect of
Remano.
4.
The principal of the
Respondent, Elizabeth Kloppers, shall arrange a transfer to another
suitable school of Remano, on the recommendation
of the committee
referred to in paragraph 5 infra.
5.
Within 1 month of date
hereof a meeting shall be commenced by the said Elizatheth Kloppers
of all role players, including a psychologist
and high ranking
official at the Department of Education, to chart the way forward in
respect of the further education of Remano.
The Respondent undertakes
to abide by and implement the decisions of the committee envisaged in
this paragraph which will constantly
monitor progress.”
[13] What is immediately
apparent is that this agreement purported to settle the application
that came before Shepstone AJ. It also
incidentally purported to
bring closure to the disciplinary proceedings against the boy. Of all
the other considerations referred
to in this document the salient
feature thereof was that the disciplinary proceedings against the boy
would be abandoned against
the undertaking by the applicant that the
boy would be relocated to another school by the end of the 2009
academic year. This agreement
was not signed by or on behalf of
either the applicant or first and second respondents and in the
papers before me the status of
this document is in dispute. The
applicant states that this so called settlement agreement was drafted
by his attorney and given
to the representatives of the school for
“further perusal and consultation and amendment”. The
deputy principal of
the school deposed to the answering affidavit on
behalf of the first and second respondents and remains adamant that a
compromise
had been reached that is lawful and binding on the
applicant and the boy and that the present relief that is being
sought is directly
in conflict with the compromise reached.
[14] I accept without any
reservation that from the perspective of the school this agreement
was thought to bring finality to the
disciplinary process, otherwise
it is highly unlikely that it would have agreed to abandon the
disciplinary proceedings against
the boy. What is equally apparent is
that during the months following the comprehension by the school that
the applicant was suggesting
additional terms to the settlement
agreement the school’s attorneys participated in these
negotiations. In a letter dated
3 November 2009 addressed to the
applicant’s attorney by the attorney acting on behalf of the
school, reference is made to
“pending settlement negotiations”
and certain suggestions are then made on what the settlement
agreement should contain.
The letter ends with an expression to the
effect that it is hoped that the applicant will carefully consider
these proposals. At
the stage when this letter was written it was
still common cause between the parties that whatever further
conditions were being
negotiated the one certainty was that an
agreement had been reached that the boy would not return to the
school the following year.
My impression of the correspondence is
that the school would go to any length to ensure that it would not
have to put up with the
boy in 2010. Its attorneys demonstrated this
by the contents of a letter addressed to the applicant’s
attorneys dated 17
November 2009. It reads as follows:
“
We
point out that it was agreed (in terms of a Settlement Agreement)
that Remano Moodley would leave the Kenmont School at the end
of the
2009 academic year.
This letter is written
to avoid any misunderstanding and to indicate to your client that our
client stands by this agreement.”
[15] On 9 December 2009
applicant’s attorneys addressed a letter to the first and
second respondents’ attorneys advising
them that the boy would
in fact be returning to the school during 2010 and that his clients
have consistently denied that any settlement
had been reached. The
letter concluded with a warning that if the boy is refused permission
to the school in 2010 an urgent application
would be brought in the
High Court.
[16] On the probabilities
the contents of this letter must have caused the school anguish and
dashed any hopes that it may have
had that it could get rid of the
boy through negotiations. Moreover, the date by which Shepstone AJ
had directed that the disciplinary
process should be concluded namely
20 August 2009 had come and gone.
[17] Mr Marais SC relied
on the settlement agreement and argued that if it is accepted that
this agreement was a binding agreement
it disposes of the application
as the relief being sought is in direct conflict with its contents. I
will deal with this argument
in due course.
[18] Paragraph 3 of the
settlement agreement allowing as it does for all restrictions on the
freedom of movement of the boy to be
lifted also seems in conflict
with the principal’s earlier assertion that the boy posed a
danger to fellow learners. Why,
one may ask, does the boy cease to be
a danger to other learners simply because his parents agreed not to
return him to the school
the following year?
[19] The school responded
to this new development and in a letter from its attorneys dated 17
December 2009 addressed to the applicant’s
attorney informed
the applicant that it has amended its Admission Policy and purported
to invite the applicant to make representations
whether to re-admit
the boy to the school in 2010. It stated that the school believed
that the boy should not be re-admitted as
he no longer qualified to
be admitted regard being had to the provisions of the amended
Admission Policy and in particular paragraphs
4.2. 4.2.1, 4.2.2, 4.3
and 4.5 thereof. The relevant paragraphs of the Amended Admission
policy are the following:
“
A
learner who has been admitted to Kenmont School will automatically
qualify for annual re-admission, unless:
4.1…………………………………..
4.2 The learner has
demonstrated behavioural problems or conduct which
4.2.1 seriously
interfered with education of the other learners
4.2.2 endangered the
psychological health of the other learners or educators;
4.3 The Governing Body
decides on information disclosed to it, that there is reason to
believe that a learner may behave in the
manner described in Clause
4.2.
4.4 The learner is
likely to benefit from the specialised education offered by Kenmont
School;
4.5 It is not in the
interest of the learner or the other learners for the learner to be
re-admitted.”
[20] The applicant
declined to respond to the invitation to make representations and on
12 January 2010 a communication was addressed
to the applicant’s
attorney to the effect that the second respondent had met and after
considering its admission policy determined
that the boy do not
qualify for re-admission to the school. The boy nevertheless went
back to school and after some futile correspondence
between the
respective attorneys; the boy was removed from the school premises on
20 January 2010.
[21] This resulted in the
urgent application for the relief that I set out above with the
matter on the roll for hearing on 26 January
2010. I am informed that
on that day Van Zyl J heard the application in chambers and directed
that the third, fourth and fifth
respondents should file answering
affidavits and the matter was adjourned for that purpose to 18
February 2010.
[22] The deputy principal
of the school then filed an answering affidavit on behalf of the
first and second respondents and defended
the decision of the school
to refuse to allow the boy back for the 2010 school year on the basis
that the settlement agreement
provided that he would not be back for
the 2010 school terms and that a decision had been taken by the
second respondent, as he
claimed it was entitled to do, in terms of
the amended Admission Policy. In this affidavit the deputy principal
justified the decision
not to allow the boy back to the school by
referring to the altercation that took place between Anele and the
two other boys to
which reference has been made and to a number of
other alleged offences that did not appear in the affidavit of the
principal in
the affidavit filed in that other application. I quote
from his affidavit:
“
(b)
Apparently had a knife at school during the week of 28 May 2009,
which was reported to me by BIANCA MILTON the following week.
Aggressively shoved a
female learner, CHANEL HEPBURN, twice, on 28 August 2009. (The first
incident was witnessed by HICKMAN and
the second by a learner,
MICHAEL PENTECOST).
Struck and attempted
to strangle other learners until an educator intervened (ACKERMAN).
Used a glue gun to
pour hot glue onto another learner’s arm (VAN WYK).
Threw stones at
another learner (VAN WYK).
Told other learner’s
and educators “I WILL FUCK YOU UP” and said “FUCK
YOU” (SMITH, CHETTY).
Was seen carrying a
kitchen knife on the playground and then passed it to a child in
Grade 7 (reported to JACOBS by several learners
including SARAH
KENNEDY and BIANCA MILTON).
Attempted to strike
other learners with a divider (mathematical instrument with very
sharp ends) until an educator intervened
(SMIT).
20.
REMANO
is
volatile and unpredictable. Educators and learners fear for their
safety. Given that he, inter alia, inflicted stab wounds on
other
learners with large sharp scissors, I submit that such fear is
reasonable.
21.
Less serious incidents
happened continuously. The teachers aforesaid confirm that
REMANO
:
is generally
aggressive and confrontational;
regularly -
(i) talked, shouted
loudly or sang during classes;
(ii) knocked over
desks;
kicked anything in
the classroom out of his way;
clicked his tongue
when reprimanded;
interfered with the
learning activities of other learners;
was openly defiant,
impervious to any disciplinary attempts and a law unto himself.
22.
While these incidents
did not physically endanger learners or educators, they were so
frequent that they caused a material disruption
to classes. This is
unfairly prejudicial to other learners.
23.
It is clear
that REMANO has a behavioural problem apparently emanating from his
life at home.”
[23] The matter once
again came to be heard and was allocated to Msimang DJP, as he then
was. An interim order was put into place
by Msimang DJP and I record
below paragraph 3 of this order dated 18 February 2010 :
“
3.
Pending the hearing of the application on the Opposed Roll.
the First and Second
Respondents are directed to make available to Remano Moodley (the
minor child):
an office on the
Kenmont School premises for the minor child to receive specialised
education;
existing educators
to teach the minor child his computer and Afrikaans subjects;
the Third and Fourth
Respondents are directed to employ an educator individually to
educate the minor child in the remaining
subjects, in such office
at the school premises;
the minor child
shall enjoy breaks at different times to that enjoyed by other
learners, so as to ensure that he does not interact
with the other
learners.”
[24] The effect of this
order was that the boy was allowed back to school but separated from
the other learners in circumstances
that must have been traumatic to
him to say the least. I have no doubt that Msimang DJP was influenced
to make this order in the
light of the barrage of allegations made by
the deputy principal against the boy which I referred to above. It
also appears that
the parties themselves drafted the order and I do
not know to what extent this was on account of directions or
suggestions from
Msimang DJP. I think it needs to be mentioned that
where the safety of learners are concerned any court will prefer to
err on the
side of caution. What I do not understand is why all these
allegations against the child did not feature in the affidavit made
by the principal when she deposed to the affidavit in the earlier
case.
[25] During February 2010
the applicant filed an affidavit to complain about the circumstances
of the boy’s isolation in terms
of the order granted by Msimang
DJP and this drew another answer from the deputy principal and a
subsequent reply from the applicant.
I do not want to go into the
details of this dispute but it was probably considered by Pillay AJ
on 21 May 2010 when the matter
came before him. Pillay AJ directed
that the Department of Education urgently investigate and report on
the suitability of the
physical circumstances in which the boy was
currently being educated at the school and directed the Society of
Advocates for KwaZulu-Natal
to appoint an advocate as curator ad
litem for the boy with a view of interviewing the boy and to file a
report in due course.
[26] In response to this
order third to fifth respondents filed a joint report by a number of
education specialists on 8 June 2010.
Predictably it was found that
the environment of the small room where the boy was receiving his
education in isolation was not
conducive for effective learning and
impacted negatively on the boy’s socio-emotional development.
It was also suggested
that the boy was of sufficient intelligence to
enter mainstream schooling.
[27] I have thus far said
little about the applicant himself. He obviously agreed to take the
boy out of the school at the end of
the 2009 academic year provided
that the disciplinary proceedings against the boy are abandoned. When
he achieved this objective
he reneged on the agreement. The deputy
principal gave letters to be delivered to the applicant and these
were returned to the
school defaced with written comments like “
Go
and sleep” and sweet dreams” and more abrasively,
“Verwoerd is
dead
”
.
The applicant did not deny that he wrote these remarks and passed
them on to the school but sought to justify what on the face
of it
appears to be immature conduct by saying that the school was trying
to push the boy out of the school because he is black
and that the
school was unfairly and improperly acting against the boy.
THE ATTITUDE OF THE
THIRD TO FIFTH RESPONDENTS
[28] These respondents
abided the judgment of the court but were directed to file an
answering affidavit and an affidavit was filed
on behalf of these
respondents collectively, represented by the Director of the
Department of Education, Umlazi
District. The attitude of third
to fifth respondents is that the amended Admission Policy of the
school is
ultra
vires
and
not reconcilable with both the provisions of the
South African
Schools Act, 84 of 1996
(SASA)
2
and the National
Education Policy Act, 27 of 1996 (NEPA)
3
[29] In this affidavit
reference is made to clauses contained in Government Notice GG 19377
of 19 October 1998 by the Minister of
Education which is a Schedule
that provides for a policy in respect of admissions to ordinary
public schools and promulgated in
terms of section 3(4) of NEPA. (the
policy) Sections 9 and 12 of the policy read as follows:
“
9.
The admission policy of a public school and the administration of
admissions by an education department must not unfairly discriminate
in any way against an application for admission.
The name of a learner
must be removed from a school’s admission register when the
learner-
leaves the school
after grade 12 or after completing the compulsory school attendance
period, or is granted exemption from compulsory
attendance
according to section (4) of the South African School Act;
applies for a
transfer to another school and the transfer is effected;
is expelled from
school; or
dies.”
[30] According to the
deponent of this affidavit the intention was clear; that once a
learner has been admitted to a public school
he or she can only be
removed from the school if one of the facts listed in clause 12 of
the policy occurred. It was therefore
implied that although the
admission policy of a school is entrusted to its governing body by
section 5(5) of SASA, such admission
referred to the first time
admission of the learner. According to the deponent of the affidavit
a governing body is not entitled
to require learners to apply for
admission on an annual basis as this would lead to chaos at schools
and this is precisely what
clause 12 of the policy precluded a
governing body from doing.
[31] If the deponent to
this affidavit is correct it will dispose of the reliance by the
first and second respondents on the amended
Admission Policy of the
school as the amended Admission Policy offends against the contents
of clause 12 and would be
ultra
vires
[32] Mr Marais SC had and
answer to this apparent obstacle which I will explain in due course.
[35] What is plain
however is that the First and Second respondents did not have the
support of Third to Fifth Respondents in their
opposition to the
relief being sought by the applicant.
THE SUBSEQUENT EVENTS
[33] The application was
argued before me whilst I was still an acting judge on 12 April 2011.
The last occasion it received judicial
attention was in May 2010 when
Pillay AJ was seized with it. I assumed that whatever urgency there
may have been, no longer existed
and reserved judgment with leave to
the applicant’s counsel, Mr Moosa, to file further heads of
argument. Mr Moosa filed
further heads of argument on 17 May 2011.
[34] I started to work my
way through the ring binder files but the transition from a
practising attorney to a judge took its toll
on my time and then I
developed a condition that required surgery, hospitalisation for over
a month and an extended absence from
chambers.
[35] To my horror I
discovered that the matter was in fact on the roll for hearing before
Ntshangase J during November 2010 but
had to be adjourned because
volume 3 of the papers went missing from the court file.
[36] It never occurred to
me during the argument stage of this application to pertinently ask
counsel if the boy was still at the
school in 2011 and whether there
was therefore urgency for me to prepare the judgment.
[37] All I can do now is
to sincerely apologise to the parties for my delay in bringing about
this judgment and to hope that my
initial impression about the
absence of urgency was the correct one.
THE ISSUES TO BE
DECIDED
[38] It seems to me that
three issues can be identified that requires to be addressed to bring
about a result:
(a) Whether or not the
dispute has been compromised by the settlement agreement;
(b) If not, whether the
third to fifth respondents are correct in saying that the amended
Admission Policy of the school is
ultra
vires
SASA,
NEPA and in particular the policy; and
(c) If not, whether there
are sound reasons to review and set aside the decision taken by the
second respondent to bar the boy from
attending the school in 2010.
I will deal with each of
these issues in turn.
[39] A compromise
(
transactio
)
is an agreement between two or more persons either to end litigation
or to prevent litigation resulting from the differences between
them.
It is most closely related to a consent judgment.
GOLLACH & GOMPERTS
(1967) (PTY) LTD v UNIVERSAL MILLS & PRODUCE CO (PTY) LTD AND
OTHERS
4
[40] The settlement
agreement was not signed by any of the parties and was clearly
designed to receive judicial ratification. In
short the case had to
be enrolled again for a judge to make the agreement an order of court
for it to become effective. This did
not happen.
[41] Even assuming that
the settlement agreement was not required for judicial ratification
to become effective, neither of the
parties appeared to be bound by
the terms of this agreement as is evidenced from proposals and
counter proposals being made after
this settlement agreement was
concluded between the respective attorneys acting on behalf of the
parties.
[42] The second
respondent elected in January 2010 to treat the boy as a returning
learner in accordance with the amended Admission
Policy and invited
the applicant to make representations in terms of that policy. This
is wholly inconsistent with any intention
or belief that the
settlement agreement was in force.
[43] On a conspectus of
these facts I am satisfied that the settlement agreement was not
intended to be a compromise despite the
fact that it was the
applicant’s attorney who caused it to be drafted in manuscript
form.
[44] The fact that I am
persuaded that the applicant undertook not to enrol the boy at the
school in exchange for the disciplinary
charges to be dropped is of
no relevance as this undertaking is not severable from the settlement
agreement. The settlement agreement
as a whole is either a
transactio
or it is not one. In my judgment it falls short of the legal
requirements and I will not hold the applicant bound by it.
[45] On the issue of the
amended Admission Policy being
ultra vires
NEPA and in
particular clause 12 of the policy, Mr Marais SC argued that the
policy was not applicable to the school as the school
is a public
school for learners with special education needs and not an ordinary
public school. Section 12(3) of SASA in fact provides
that a public
school may be an ordinary public school or a public school for
learners with special education needs.
[46] Sections 23 and 24
of SASA moreover distinguish between the membership of the respective
governing bodies of an ordinary public
school and that of a public
school for learners with special education needs.
The heading to the policy
reads” ADMISSION POLICY FOR ORDINARY PUBLIC SCHOOLS”
Sections 1, 2, 3 and 4 of
the policy reads as follows:
“
Interpretation
1. In this policy any
expression to which a meaning has been assigned in the National
Education Policy Act, 1996 (Act 27 of 1996)
and the South African
School Act, 1996 (Act 84 of 1996), has that meaning.
Scope
This policy, read
with the age requirement for admission to ordinary public schools,
published in the same government notice,
applies uniformly in all
provincial departments of education and ordinary public schools.
The admission of an
ordinary public school must be consistent with this policy.
Purpose
The purpose of this
policy is to provide a framework to all provincial departments of
education and governing bodies of public
schools for developing the
admission policy of the school.”
[47] On an ordinary
interpretation of the wording of these sections of the policy it
appears to bear out the submission made by
Mr Marais SC that the
policy was not intended to have application in respect of schools for
learners with special needs. It would
have been very easy for the
Minister to expressly provide that the policy also applies to schools
for learners with special needs
or simply to regulate that the policy
should apply to public schools, which would have included by
definition a school for learners
with special needs (section 12(3) of
SASA). The fact that the policy is at pains to regulate admission for
ordinary public schools
only, must of necessity mean that it was not
intended to cater for a public school for learners with special
education needs.
[48] I therefore conclude
that third to fifth respondents are wrong in the interpretation that
they place on the policy and that
the amended Admission Policy of the
school is not
ultra
vires
for
the reasons given by third to fifth respondents.
[49] With no legal
obstacle in the way for the adoption by the second respondent of the
amended Admission Policy there is no reason
to find that it was not
properly adopted and enforceable by the school. Section 5(5) of SASA
expressly provides that the admission
policy of a public school is to
be determined by the governing body of the school. There is nothing
contained in the amended Admission
Policy of the school on the face
of it that requires judicial censure and the third respondent has not
invoked section 22 of SASA
to curtail or withdraw any functions of
the second respondent to implement the amended Admission Policy such
as was done in the
case concerning the language policy of the Ermelo
school.
MPUMALANGA DEPARTMENT
OF EDUCATION v HOERSKOOL ERMELO
5
2010 (2) SA 415
(CC).
[50] What remains to be
considered is whether the decision taken by the school in terms of
the amended Admission Policy of the school
to exclude the boy from
the school in the beginning of 2010 should be reviewed and set aside.
In deliberating on this question
I cannot even begin to assess the
decision on its merits. The papers bristles with factual disputes
about whether the boy is the
menace that he is painted to be by the
school or simply being the scapegoat of prejudice on the part of the
school.
[51] There are, however,
certain findings that I can make on the papers without any difficulty
on a balance of probabilities, that
may have a bearing on this
question and I list the facts that I find to be incontrovertible
below:
(a) The boy was never
convicted of any misconduct by a disciplinary hearing.
(b) The school was
desperate to get rid of the boy for the 2010 school year as evidenced
by its willingness to compromise the disciplinary
process to achieve
that objective.
(c) The school was
distraught when it appeared that the applicant was not going to abide
by the agreement for the boy not to be
accommodated by the school
during the 2010 school year.
(d) The school only came
to know about the
volte
face
of
the applicant (concerning the undertaking to remove the boy from the
school) in December 2009 and there would not have been time
to resume
the disciplinary hearing.
(e) The amended Admission
Policy was implemented by the school with the boy in mind and
designed to be used as a tool to preclude
the boy from admission to
the school during 2010. The amended Admission Policy was first
mentioned in correspondence on 17 December
2009 and the school
admitted that the boy was the only learner affected by this policy
for the beginning of the 2010 school year.
[52] Section 6(2) (e) of
the Promotion of Administrative Justice Act No. 3 of 2000 (PAJA)
6
provides
inter
alia
for
the review of administrative decisions taken for an ulterior purpose
or motive or taken in bad faith.
[53] The amended
Admission Policy of the school was implemented in bad faith and for
the ulterior motive of excluding the boy from
attending the school in
2010 without having to go through the rigours of a disciplinary
hearing. The fact that the amended Admission
Policy in itself may
have been within the powers of the school to adopt cannot hide the
sinister reason behind its adoption and
offends against PAJA. Section
3 of PAJA enjoins a court to treat each case on its own merits and in
my judgment the decision to
refuse the boy entry to the school in
2010 offends against administrative fairness and ought to be reviewed
and set aside.
[54] I therefore grant an
order in terms of paragraph 2.1.2 of the “Perfected Notice of
Motion” appearing at page D30
in volume 4 of the papers, which
reads as follows:-
“
An
order reviewing, setting aside and correcting the First and Second
Respondents’ decision/action not to re-admit Remano
Moodley to
Kenmont School and directing that Remano Moodley immediately be
admitted or reinstated to Kenmont School.”
For clarity I make the
following order:
(a) The decision/ action
of the First and Second Respondents not to re-admit or re-instate
Remano Moodley to Kenmonth School, Durban,
is hereby reviewed and set
aside.
(b) The First and Second
Respondents are directed to immediately admit and re-instate Remano
Moodley to Kenmont School, Durban,
with immediate effect.
(c) The costs of this
application are to be paid by the First and Second Respondents
jointly and severally, including the reserved
costs but excluding the
costs incurred during November 2010 when the matter came before
Ntshangase J.
_____________________
MBATHA J
Date of Hearing: 13 April
2011
Date of Judgment: 30
March 2012
For the Applicant: Adv M.
Moosa
Instructed by: Viren
Singh and Company
239 Mathews Meyiwa Road
(Stramford Hill Road)
Greyville
DURBAN
4001
For the First &
Second Respondents: Adv J. Marais SC
Instructed by: Deneys
Reitz Inc.
c/o Regus Management
Group (PTY) Ltd
26
th
Floor,
Old Mutual Centre
303 Dr Pixley Kaseme
Street (West Street)
Durban
For the Third, Forth &
Fifth Respondents:Adv M. De Klerk
Instructed by: The State
Attorney
Metropolitan Life
Building
Smith Street
DURBAN
1
2011(1)
SA 160
2
Act
84 of
1996
3
Act
27
of 1996
4
1978
(1) SA 914
AD
5
2010
(2) SA 415
(CC)
6
Act
3
of 2000