MEC, Northern Cape Provincial Government: Department of Education v Bateleur Books (Pty) Ltd and Others (1304/06) [2007] ZANCHC 2 (11 May 2007)

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[2007] ZANCHC 2
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MEC, Northern Cape Provincial Government: Department of Education v Bateleur Books (Pty) Ltd and Others (1304/06) [2007] ZANCHC 2 (11 May 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: 1304/06
Heard:
29/03/2007
Delivered:
11/05/2007
In
the matter:
THE
MEC, NORTHERN CAPE PROVINCIAL 1
st
Applicant
GOVERNMENT:
DEPARTMENT OF EDUCATION
THE
HEAD: EDUCATION: NORTHERN CAPE
PROVINCIAL
GOEVERNMENT: DEPARTMENT
OF
EDUCATION 2
nd
Applicant
and
BATELEUR
BOOKS (Pty) Ltd Respondents
AND
9 OTHERS
Coram:
Kgomo JP et Molwantwa AJ
JUDGMENT ON
APPLICATION FOR LEAVE TO APPEAL
KGOMO
JP
This is an application for leave to
appeal against the judgment of
Molwantwa
AJ
(in which I
concurred) by the First and Second Respondents in the main
application, the MEC for Education and his Head of Department,
Northern Cape (the Department). The ten publishers who were
applicants in the main application oppose this application, itself
out of time and accompanied by an application for condonation. The
granting of the condonation is not opposed by the publishers.

Condonation was granted without in any way suggesting that the leave
sought was meritorious. All that it signifies is that
non-compliance
with the time limits has been satisfactorily
explained.
The grounds for appeal
are so numerous and detailed that adverting to all of them would
encumber the judgment unduly:
In essence the
application is against the whole of the judgment on the merits and
the law;
We gave advance
notice to the parties to file short Heads of Argument, more
particularly on whether the case is not moot and therefore
no
longer justiciable. We are indebted to counsel for their written
and oral argument in this regard.
A recital of the order
that we have granted would enhance the better comprehension of this
judgment:
“
1. The decision of the Second
Respondent (the HOD) contained in Annexure DFR 13 to the Applicants’
supplementary affidavit and
in Department Circular 67/2006, dated 20
July 2006, to the extent to which the Second Respondent decided and
the schools were informed
that the Department of Education would be
ordering Learner Teacher Support Material (LTS-Material) regarding
grades 8,9 and 11 from
publishers without giving any schools the
right to select such material, is reviewed and set aside.
The
decision of the Second Respondent to continue with the
requisitioning and ordering process after the Department was
informed
of the Applicants’ objection to the above process is
reviewed and set aside.
The
Second Respondent is directed to:
Withdraw
all orders in respect of LTS-Material for grades 8,9 and 11 which
have already been placed with any of the parties to
this
application;
Ensure
that all schools in the Northern Cape receive a copy of the
catalogues of approved LTS-Material for grades 8, 9 and 11;
Ensure
that all schools are forthwith informed of their right to select
LTS-Material for procurement by the Department of Education
in
respect of grades 8, 9 and 11 in 2007;
To
collate all requisitions once received and to place such orders
without delay on behalf of those schools which have not exercised
their right to select LTS-Material.
The
First (the MEC) and Second (the HOD) Respondents are ordered to pay
the costs of this application, including the costs of the
application of 3 November 2006, and which costs are to include the
costs of two counsel where employed.”
A case is moot and therefore not
justiciable if it no longer presents an existing or live controversy
which should exist if the
Court is to avoid giving advisory opinions
on abstract propositions of law:
J
T Publishing (Pty)
Ltd & Another v Minister of Safety & Security & Others
1997(3) SA 514
(CC).
Section 21A of the
Supreme
Court Act No 59 of 1959
,
stipulates in part that:
“
(1) When at the hearing of any
civil appeal to the Appellate Division or any Provincial or Local
Division of the Supreme Court the
issues are of such a nature that
the judgment or order sought will have no practical effect or result,
the appeal may be dismissed
on this ground alone.
(2)(a) If at any
time prior to the hearing of an appeal the Chief Justice or the Judge
President, as the case may be, is prima facie
of the view that it
would be appropriate to dismiss the appeal on the grounds set out in
subsection (1), he or she shall call for
written representations from
the respective parties as to why the appeal should not be so
dismissed.---
(c) The judges
considering the matter may order that the question whether the appeal
should be dismissed on the grounds set out in
subsection (1) be
argued before them at a place and time appointed, and may, whether or
not they have so ordered-
(i) order that the
appeal be dismissed, with or without an order as to the costs
incurred in any of the courts below or in respect
of the costs of
appeal, including the costs in respect of the preparation and lodging
of the written representations; or
(ii) order
that the appeal proceed in the ordinary course.
(3) Save under
exceptional circumstances, the question whether the judgment or order
would have no practical effect or result, is
to be determined without
reference to consideration of costs.”
We raised the issue of
mootness in view of the following factors and circumstances:
Prior to 2006 the
Department procured Learning and Teaching Support Material
(LTS-Material) through book publishers (including
the ten
applicant-publishers). In about July 2006 the Department
centralized the procurement system without prior notice to or
consultation with the schools or publishers. The schools raised no
demur. The publishers objected, in particular because some
publishers were totally excluded from the system and drew no
benefit at all whilst others were favoured and therefore benefited
much more than others in a process that was undeniably not
equitable and transparent.
On the 18
th
October 2006 a meeting was convened between the aggrieved
publishers and the Department, the latter being represented by
senior
functionaries, to sort out the new procurement system and
reach an amicable solution. The Department adopted the following
attitudes
at the meeting:
“
4. The Department views this
centralised procurement for the implementing grades as “a once-off”
and it was stated repeatedly
that things will return to normal next
year (2007) and thereafter with LTS-Material being procured via the
normal channels. Towards
the end of the meeting, Mr Masuabi stated
that the Department may, however, decide to use this centralised
method of procurement
for Grade 12 next year.”
During the main
hearing the contention of the Department was that they centralized
the procurement of the LTS-Material for Grades
8,9 and 11 because:
The Provincial
Government only allocated a budgeted amount of R6,3 million for
2006/2007 financial year, leaving a deficit of
R33 million.
Through the virement system (shifting funds designated for one
purpose to another) they managed to secure the required
additional
R 33 million.
That the acquisition
and application of this R33 million was an internal matter
so closely related to policy based decisions
in respect of
budgetary choices and financial implementation that the HOD’s
decision does not constitute administrative action
or if it does
then the decision was not subject to administrative review.
As the main judgment and resultant
order show, we found against the Department on the 21
st
December 2006 and delivered judgment on the 15
th
December 2006. The Department brought this application out of time
as a result of which it could only be heard on the 29
th
March 2007. We were constrained to raise the question
mero
motu
whether a final
determination of the issues by the Supreme Court of Appeal (the
SCA) will have a practical effect or result,
particularly in view
thereof that the process effected by our judgment has progressed
substantially. In Chairperson:
Standing
Tender, Commitee v JFE Sapela Electronics
[2005] 4 All SA 487
(SCA)
at
paragraphs 28 and 29 the Court remarked:
“
[28] In appropriate
circumstances a court will decline, in the exercise of its
discretion, to set aside an invalid administrative
act. As was
observed in
Oudekraal
Estates (Pty) Ltd v City of Cape Town
2004(6) SA 222
(SCA)
paragraph 36
at 246D:
”
It
is that discretion that accords to judicial review its essential and
pivotal role in administrative law, for it constitutes the
indispensable moderating tool for avoiding or minimizing injustice
when legality and certainty collide.”
A
typical example would be the case where an aggrieved party fails to
institute review proceedings within a reasonable time. See
eg
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaleteit van Kaapstad
1978 (1) SA 13
(A
):
see also section 7(1) of PAJA which gives statutory recognition to
the rule. In a sense, therefore, the effect of the delay is
to
“validate” what would otherwise, be a nullity. See
Oudekraal
Estates (Pty) Ltd
(supra) paragraph 27 at 242E-F. In the present case, as I have
found, there was a culpable delay on the part of the respondents.

But the object of the rule is not to punish the party seeking the
review. Its raison d’être was said by
Brand
JA
in
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005 (2) SA 302
(SCA)
at paragraph 46 to be twofold:
“
First,
the failure to bring a review within a reasonable time may cause
prejudice to the respondent. Secondly, there is a public
interest
element in the finality of administrative decisions and the exercise
of administrative functions.”
Under the rubric of
the second I would add considerations of pragmatism and practicality.
[29] In
my view, the circumstances of the present case as outlined above, are
such that it falls within the category of those cases
where by reason
of the effluxion of time (and intervening events) an invalid
administrative act must be permitted to stand.”
Mr Jamie, SC, for the
Department argued that it is quite evident from the provisions of
section 21A of the Supreme Court Act, quoted
hereinbefore, that it
is the Court hearing the appeal that has the discretion to dismiss
an appeal on the basis of mootness and
not for a Court of first
instance which is merely required to consider or grant leave to
appeal. He could not refer us to any
decision or authority for his
submission nor are we aware of any. Counsel has made this
concession, though, in his Heads:
“
Of course, it has to be
conceded that any possible still existing or live controversy between
the parties will, in all likelihood,
have become resolved by the time
this matter eventually reaches the Supreme Court of Appeal, should
leave be granted. However, and
were the matter then to be moot that
would be a matter for the SCA and not, with respect, for this Court.”
This argument is
without merit for the following reasons:
8.1 The wording of the statute,
quoted in paragraph 5 above, is very clear and unambiguous.
Therefore in the interpretation thereof
to establish its meaning the
ordinary grammatical meaning must be assigned to each word within the
context of that particular provision.
The section speaks
inter
alia
of when “
at
the hearing of any civil appeal to --- any provincial or local
division of the Supreme Court.”
It is falacious to reason that because the appeal now lies to the
SCA therefore a High Court cannot refuse to grant an applicant
for
leave to appeal on that basis only. This is tantamount to
propounding that a High Court that has heard a matter on the merits
cannot refuse leave to appeal to the next tier or the SCA because it
is for that Court to make the final decision; which cannot be
correct.
8.2 In
Van
Winsen,
Civil
Practice of the Supreme Court, Fourth Edition
,
at pp 884 and 885 the authors state:
“
Broadly
speaking, the same principles are applied by the courts in deciding
whether to grant leave to appeal in all cases in which
leave is
required. Leave to appeal will be granted only when:
There is a reasonable prospect
of success.
(
R
v Baloi
1949(1)
SA 523 (A)
at
524;
R v
Nxumalo
1939 AD 580
and
R v
Ngubane & others
1945
AD 185
at 187
;
Afrikaanse
Pers Bpk v Olivier
1949
(2) SA 890
(O);
Rood
v Broderick Properties
Ltd
1962 (2) SA 434
(T) at 435C-F;
Odendaal
v Loggerenberg en andere NNO
(2)
1961 (1) SA 724
(O) at 727B-D;
Captial
Building Society v De Jager & Others
;
De Jager
& another v Capital Building Society
1964 (1) SA 247
(A);
Rademwyer
v Steyn
1967
(4) SA 112
(O);
Minister
of Prisons v Donon
o
1974 (1) SA 323
(C).
)
---.
The matter is of substantial
importance to one or both of the parties concerned. The fact that
it involves interesting points of
law which are important to the
public, or to a class of the public, is no longer regarded as a
reason for involving a litigant
in heavy costs of appeal.(
Haine
v Podlashuc & Nicolson
1933 AD 104
a
t
112;
Olley v
Des Fountain
1941 AD 98
). The
mater must be of substantial importance to one of the parties in the
proceedings, not merely in abstacto. (
African
Guarantee & Indemnity Co Ltd v Van Schalkwyk & others
1956 (1) SA 326
(a) at 328
in fine – 329A.) Leave may be granted even though the sum in
dispute is comparatively small if the matter is of importance to
the
parties. In such a case the fact that it is also a matter of
importance to the public, or a section of the public, is a factor
which can be taken into account. (
Podbrey
v Stern
1946 CPD 962
.)
Leave will, however, be refused if the matter in dispute is of
purely academic interest; (
Kanderssen
(Pty) Ltd v Bowman NO
1980 (3) SA 1142
(T)
;
Castel NO v
Metal & Allied Workers Union
1987 (4) SA 795
(a));
for example, the court is not compelled to undertake an inquiry into
legal conundrums involved in a purely procedural dispute
not
affecting the real matter in issue. (
African
Guarantee & Indemnity co Ltd v Van Schalkwyk & others
1956 (1) SA 326
(A) at 329B-D
.)”
Section 21A therefore
merely refined a long standing principle.
Mr Van Niekerk, SC, for the
Publishers, has also drawn our attention to the dictum of the SCA
in
Premier Mpumalanga
en `n Ander v Groblersdalse Stadsraad
1998(2) SA 1136 (SCA)
at 1141D-E and 1143 A-C which scuppers Mr Jamie’s argument. The
Head Note captures Mr Van Niekerk’s submission succinctly
in
these terms:
“
Section 21A of the Supreme
Court Act 59 of 1959 is aimed at alleviating the heavy workload of
Courts of appeal, including and perhaps
especially the Supreme Court
of Appeal. It breaks away from the then vague concepts of 'abstract',
'academic' or 'hypothetical' as
criterion for the exercise of the
power of a Court of appeal not to hear an appeal. It now sets a
direct and positive test: will
the judgment or order have a practical
effect or result? Given the object and clear meaning of this
formulation, the question is
whether the judgment in the case before
the Court will have a practical effect or result and not whether it
might be of importance
in a hypothetical future case.
Appeals
should be submitted for adjudication only if there will be a real,
practical effect or result of a judgment of the Court of
appeal.
Practitioners ought therefore to be constantly conscious of the
object of s 21A; in particular in an application to appeal
to a
higher Court and in
the prosecution,
preparation and arguing of the appeal
.”
My underlining
Mr Van Niekerk has
further contended that the mootness of these proceedings does not
establish any permanent bar or injunction
to the Department should
it wish to centralise the procurement of LTS-Material in future
provided it follows the proper procedure
and that procedure is
later found to be permissible. He premised his argument on the
following concluding paragraph in the
main judgment, which bears
repetition:
“
This judgment should not be
understood to lay down a principle to the effect that the acquisition
of LTS- Material, be that publications,
title, books etc, can never
be centralized by the Department. It is fundamental that the
Department ought first to comply with the
provisions of Section 217
of the Constitution, the relevant provisions of
PAJA
(
Promotion
of Administrative Justice Act
,
No 3 of 2000) and those of the
South
African Schools Act
,
84 of 1996; there are also its own Rules and Regulations to be seen
to before a change could be affected, if at all. Whilst the
schools
have not voiced any opposition to the proposed method, and possibly
may never do so, it is cardinal that the attitude of
the schools be
canvassed timeously if the Department were to persist in its
endeavours to centralise the existing procurement system.
In doing
so quality education must not be sacrificed at the altar of costs
saving.”
Needless to say, I
agree with Mr Van Niekerk’s submission.
The final contention
by Mr Jamie that requires attention is one that says even if the
matter is moot a judgment by the SCA would
definitely have a
practical effect or result as it would not only provide guidance for
the Department, and indeed other education
authorities throughout
South Africa, should the Department embark upon a similar project
(virement and centralizing procurement
of LTS-material), but it
would also have an important bearing on the legal relationship
between education departments and section
21 schools.
I am unable to support
this argument:
The first infirmity that afflicts
this contention is that the schools, let alone section 21 schools,
are not party to these proceedings
and have not provided any
argument on this issue. The Courts are even more loath to
determine moot issues which are unilateral
and one-sided as such a
judgment cannot be precedent setting. See
Port
Elizabeth Municipality v Smit
2002
(4) SA 241
(SCA)
at
248J– 249B;
Western
Cape Education Department & Another v George
1998
(3) SA 77
(SCA)
at 84E.
The second weakness in the
argument is that the procument for the 2006/2007 financial year has
come and gone. The deviation from
the established procedure was “a
once-off.” This “once-off” related to the aforesaid
2006/2007 period. It is implicit
in the view that the Department
took that it intended to revert to the
status
quo ante
or commence a
fresh process. Granting leave to the SCA knowing fully well that
the issues are of such a nature that the SCA
judgment or order will
have no practical effect or result will defeat the very purpose of
section 21A of the
Supreme
Court Act,
59 of
1959. See
Coin
Security
Group v S A National Union for Security Officers
2001(2) SA 872 (SCA)
at
876G-I.
The SCA has, in any event, dealt
extensively with the relationship between section 21 schools and
Government Departments in
Minister
of Education, Western Cape v Governing Body, Mikro School
2006(1) SA 1 (SCA)
.
For the aforegoing
reasons I am of the considered view that:
The issues between
the parties have become moot and that another court is unlikely to
come to a different conclusion;
Should we be wrong then, in that
event, there are no reasonable prospects of a successful appeal on
the merits. The reasons therefor
emanate from the judgment of
Molwantwa AJ.
In the result I
make the following order:
The application for
leave to appeal by First and Second Respondents in main application
(the Department of Education) is dismissed
with costs.
_____________________
F
D KGOMO
JUDGE
PRESIDENT
Northern
Cape Division
I
concur
_____________________
B
C MOLWANTWA
ACTING
JUDGE
Northern
Cape Division
On behalf of the Applicant
:
Adv J. Van Niekerk SC
Instructed by: DUNCAN &
ROTHMAN
On behalf of the 1
st
& 2
nd
Respondent
: Adv I.
Jamie SC
Instructed by: HAARHOFFS INC.