MEC of education: Northern Cape HOD: Department of Education: NC v Seodin Primary School and Others (1177/2004) [2006] ZANCHC 11 (24 February 2006)

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[2006] ZANCHC 11
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MEC of education: Northern Cape HOD: Department of Education: NC v Seodin Primary School and Others (1177/2004) [2006] ZANCHC 11 (24 February 2006)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 1177/2004
Case
Heard: 07/02/2006
Date
delivered: 24/02/2006
In
the matter:
MEC
OF EDUCATION: NORTHERN CAPE 1
ST
APPLICANT
HOD:
DEPARTMENT OF EDUCATION: NC 2
ND
APPLICANT
versus
SEODIN
PRIMARY SCHOOL 1
ST
RESPONDENT
GOVERNING
BODY OF SEODIN
PRIMARY
SCHOOL 2
ND
RESPONDENT
KALAHARI
HIGH SCHOOL 3
RD
RESPONDENT
GOVERNING
BODY OF KALAHARI
HIGH
SCHOOL 4
TH
RESPONDENT
Coram:
Kgomo JP
et
Williams J
et
Goliath J
JUDGMENT: APPLICATION FOR LEAVE
TO APPEAL
KGOMO
JP:
This
is an application by the First to the Fourth Applicants for leave to
appeal against our judgment reported
sub
nom
Seodin
Primary School & Others v MEC of Education, Northern Cape &
Others
2006 (1)
ALL SA 154
(NC
). The
Fifth and Sixth Applicants, Northern Cape Agricultural High School
and its School Governing Body, respectively, are not
a party to this
appeal.
The
Notice of the application for leave to appeal comprises an unwieldy
13 pages and traverses in essence our entire judgment and
much more.
The “much more” is encapsulated in these terms in the
Applicants’ Application for Leave to Appeal:
“
14.3 If the
Honourable Court is correct that these matters had become academic
due to the expiry of time and the overtaking events:
the
Applicants’ application for leave to appeal dated December 2004
is still to be heard;
the
Applicants have been deprived of their constitutional right in
terms of the provisions of sec 34 of the Constitution, to
have
their disputes heard in a court of law;
At
least in respect of costs, a finding as prayed for is essential
since it will determine whether the Applicants were entitled
to
launch the application and if so, that the Applicants are entitled
to their costs.
15. The Honourable
Court erred in finding that the Applicants have not spelled out the
reasons for couching their prevailing Notice
of Motion as they did,
in view of the fact that the notice of intention to amend filed
during December 2004, was accompanied by an
affidavit setting out the
reasons for the amendment sought.”
In
his Heads of Argument Adv J I du Toit, for the applicants, contended
in elaboration of para 2 (above) that the application for
leave to
appeal against the interlocutory judgment the
coram
whereof consisted of only myself and Williams J
“was
made dependent on the outcome in the main application, since the
judgment appealed against held, so the applicants understood
it,
that the applicants did not have a prima facie case to start with …
(and that) … the condition for the first (the interlocutory)
application for leave to appeal has been fulfilled, hence the
necessity to have that application heard.”
What
the Applicants are propounding is that because their main
application was eventually unsuccessful, therefore, that failure
has
triggered the resuscitation of the leave to appeal against the
dismissed interim interdict that they sought pending the
determination
of the main application. The questions which arise
are:
What
were the terms of the interim relief that was sought?
what
was the decision in that interlocutory application?
Are
we
(Kgomo JP, Williams J
and Goliath J)
competent to hear an application for leave to appeal against a
judgment by
Kgomo JP
et
Williams J
in the interlocutory application?
We,
the Full Bench as currently constituted, decided that the
application for leave to appeal in respect of the interim interdict
had to be heard by
Kgomo
JP
et
Williams J
and struck that application for leave to appeal from the roll with
costs. I deal first with the reasons for such decision.
The
interim interdict was heard on the 30
th
November 2004. I can do no better than to reproduce extracts from
the latter judgment. We stated:
“
1. On
the 22
nd
October 2004 the five applicants filed a Rule 53 Review application
against the MEC of Education, Northern Cape, the Departmental
Head
(HOD), five affected schools and their School Governing Bodies and
the principals of these schools. They seek an order that
the
following decisions be reviewed and/or set aside:
The
decision of the MEC for Education taken on the 31
st
August 2004 that all single-medium Afrikaans schools in the Kuruman
District, as well as Northern Cape Agricultural High School
should
from January 2005 convert to and function as double-medium
Afrikaans-and-English schools; and
The
decision of the HOD taken on the 1
st
September 2004 pertaining to the implementation of the MEC’s
decision mentioned in para 1.1 (above).
2. ……………………………………………………………………………………………….
3. This
judgment deals with two matters:
3.1 The
respondents’ application for a postponement as they have been
unable to file opposing papers timeously or at all;
3.2 The
applicants’ opposition to the postponement and a
counter-application to the postponement which has as its aim an
interim
interdict which would prohibit the respondents from
implementing the decisions in paras 1.1 and 1.2 above. In their own
words:
“
Hierdie
beëdigde verklaring het ‘n dubbele doel. Dit word aangebied ter
opponering van die Respondente se aansoek om uitstel,
en as
funderende verklaring vir Applikante se voorwaardelike teenaansoek om
‘n tussentydse interdik, sou die aansoek om uitstel
toegestaan
word.”
4.
- 7. ……………………………………………………………………………………..
8. A
refusal to postpone the main application or to allow the hearing of
the main application on the version of the applicants only
would have
had far-reaching implications, and would unquestionably have been
prejudicial to the respondents. Such measure would
also have been
highly irregular. This matter is of great importance to both parties
and the broader Northern Cape and indeed South
African public. A
Court must be loath and very slow to close a litigant’s mouth by
refusing a meritorious application for a postponement.
See the
principles enunciated in
Myburgh
Transport v Botha t/a SA Truck Bodies
1991 (3) SA 310
(Nm SC)
at 314F-315J. ……
9. -
13. ……………………………………………………………………………………..
14. I enquired from
Mr Raath whether he could argue the interdict application without
traversing the merits of the main application.
He conceded that he
could not. This concession was fairly made because the applicants
have copiously borrowed from the main application
to bolster the
interdict application. For example under: “Benadeling en die
balans van gerief” the deposition reads:
“
38. Ek verwys in
hierdie verband met eerbied na paragrawe 50 tot 56 van Eerste en
Tweede Applikante se aanvullende funderende beëdigde
verklaring (pp
190-194) saamgelees met aanhangsels “JCT49” en “JCT 50” (pp
308-314)”.
15. This pattern is
maintained throughout. When you cross-refer to the indicated pages
of the main application there you are told
to proceed elsewhere for
further information. Only by shanting from pillar to post as
directed do the pieces of the puzzle fall
in place and by that time
you shall have traversed the best part of the prolix record. If,
therefore, the respondents availed themselves
the opportunity of
filing papers in opposition of the interdict they would have had to
cover essentially the same grounds for that
purpose as for the main
application. I therefore appreciate Mr Olivier’s submission that
the so-called counter-application (the
interim relief sought) should
not be allowed to degenerate into a situation where the tail take
centre stage and was wagging the
dog (the main application).
16.
- 19. ……………………………………………………………………………………..
20. On
a conspectus of all the factors adverted to I am not satisfied that
the applicants have made out a prima facie case for an
interlocutory
interdict. See Prest,
The
Law & Parctices of Interdicts
,
1996 Edition, pp 49 to 80. It is accordingly unnecessary to deal at
this stage with the points in limine raised by Mr Olivier in
para 12
supra. They may, of course, still be raised when the main
application is heard. As regards the specific issues raised on
both
sides of the divide we find it undesirable and precipitous to express
firm views or to make concrete finding thereon as it is
more
appropriate for the Court hearing the main application to do so. The
interlocutory application therefore stands to be dismissed.
Order
:
The applicants’
(Seodin Primary School and Five Others’) application for an interim
interdict pending the determination of the
main application (against
the MEC (NC) and 13 others) is dismissed.”
The
conditional application for leave to appeal against the extrapolated
judgment immediately above was made and filed in December
2004.
That leave to appeal was made contingent upon the “main
application” not succeeding. In December 2004 the “main
application”
was then the one quoted in par 6 of this judgment
(viz par 1 of the interim interdict judgment). As will be seen from
the main
judgment the final relief that the applicants settled for
was a declaratory order as distinct from the original review to set
aside
the decisions by the MEC and HOD. See par 5 of the main
judgment which reads in part:
“
5.1
The decision of the First Respondent (MEC for Education) of 31 August
2004 to the effect that all single-medium Afrikaans Schools
at
Kuruman, as well as the Agricultural High School Northern Cape shall
from January 2005 function as double-medium Afrikaans-and-English
schools
is
susceptible or amenable (“vatbaar”) to being set aside
;
5.2
The decision of the Second Respondent (the HOD) of 1
st
September 2004 concerning the implementation of the First
Respondent’s decision
is
susceptible or amenable to being set aside
;”
(My current emphasis)
In
the preceeding par 4 of the main judgment we stated:
“
It
would be an exercise in futility to deal with the second amended
Notice of Motion because it has since been completely overhauled
by
the current amendment … which applicants only ushered in during
the course of argument on the merits in May 2005. It suffices
to
state that the relief claimed in the second amendment was such a
radical departure from the original Notice of Motion that was
sought
that we were constrained to allow the postponement sought by the
respondents because it was necessary for them to deal in
their
Answering Affidavit with the then fresh points of departure.”
The
aforegoing passages are demonstrative of the fact that the
Applicants deliberately and expressly waived their right to seek
the
setting aside of the Respondents’ challenged decisions and they
cannot now be allowed to revert to their original position
as that
amounts to blowing hot and cold much to the detriment of the other
party. The Applicants applied for the amendment, which
were on each
occasion granted by consent and they conducted their case on the
basis of such amendments to the end. In fact the
original Notice of
Motion has dissipated.
Adv
Danzfuss submitted that the application for leave to appeal against
the judgment in respect of the interim interdict be dismissed
by us
summarily with costs. We reckoned that such measure would be too
drastic and decided to afford the applicants an opportunity
to
persuade the appropriate forum, if they can, that the decision by
Kgomo JP
et
Williams J
was not interlocutory and was therefore appealable and if so (in
other words if the decision had the effect of a final judgment
or
order) why the leave to appeal was made conditional and not
prosecuted for more than a year.
In
respect of the main appeal Mr du Toit, normally combative but
polite, without conceding that the appeal has no merits,
understandably
on this occasion intimated at the inception of the
hearing that he abides by his Heads of Argument. His attitude is
well taken
because:
Even
if the Supreme Court of Appeal might come to a different conclusion
in some of the findings that we made the immutable result
is that
the decisions of the MEC and the HOD will persist as they were not
sought to be set aside;
The
hurdle that the affected children were not afforded the assistance
of a
curator ad litem
to see to their best interests as section 28(2) of the Constitution
decrees, remains. It is immaterial who the blame for this
omission
is attributable to. At best for the applicants the SCA could order
that a
curator ad litem
be appointed for the children and that the matter be heard afresh.
In that event par 11.1 (above) will then kick in and the
whole
purpose of such SCA order or exercise would still be frustrated and
defeated.
The
principle in the case of
Oudekraal
Estates (Pty) Ltd v City of Cape Town & Others
2004 (6) SA 222
(SCA
) is
apposite to this matter and in particular the scenario sketched in
par 11 above. At pp 241G-242B (par 26)
Howie
P
et
Nugent
JA
(Cameron
JA, Brand JA
and
Southwood AJA)
concurring stated:
“
[26]
For those reasons it is clear, in our view, that the Administrator's
permission was unlawful and invalid at the outset. Whether
he
thereafter also exceeded his powers in granting extensions for the
lodgement of the general plan thus takes the matter no further.
But
the question that arises is what consequences follow from the
conclusion that the Administrator acted unlawfully. Is the permission
that was granted by the Administrator simply to be disregarded as if
it had never existed? In other words, was the Cape Metropolitan
Council entitled to disregard the Administrator's approval and all
its consequences merely because it believed that they were invalid
provided that its belief was correct? In our view, it was not. Until
the
Administrator's
approval (and thus also the consequences of the approval) is set
aside by a court in proceedings for judicial review
it exists in fact
and it has legal consequences that cannot simply be overlooked
.
The proper functioning of a modern State would be considerably
compromised if all administrative acts could be given effect to or
ignored depending upon the view the subject takes of the validity of
the act in question. No doubt it is for this reason that our
law has
always recognised that even an unlawful administrative act is capable
of producing legally valid consequences for so long
as the unlawful
act is not set aside.”
(My
emphasis)
The
Applicants’ problems are further compounded by the fact that they
also asked that First and Second Respondents “be ordered
to review
or revise their own decisions” in certain respects. See par 5.6
of main judgment. We could not do that because these
functionaries
have exercised the statutory power entrusted upon them as they
deemed fit, as already described. They cannot now
call their own
decisions in question in the manner proposed by the Applicants
because they are
functus
officio
. See:
De
Freitas v Somerset West Municipality
1997 (3) SA 1080
(C
) at
1082 and case there cited.
It
remains to state that to deal with all the other grounds raised in
the Notice would lead to the unnecessary rehashing of the
judgment
to no end, in that all those matters have been adequately covered in
the judgment. See:
S
v Sikasana
1980
(4) SA 559
(A)
at
562H-563B.
The application for
leave to appeal, far from it not having any reasonable prospects of
success, is in fact devoid of any merits and
must fail.
The
Respondents have given notice of their intention to apply for leave
to appeal to the Supreme Court of Appeal against the costs
order
only but on condition that we grant the Applicants leave to appeal
on the merits. We ordered that each party pay its own
costs. In
the light of the decision that we have come to the need to
adjudicate upon this issue has fallen away.
As
far as the costs of the application by the Applicants for leave to
appeal to the SCA is concerned the Applicants were well aware
that
they were flogging a dead horse. There is no reason for the costs
occasioned hereby not to follow the result.
Order
On
the 7
th
February 2006 (the day of hearing) we struck the Applicants’
conditional application for leave to appeal to the Supreme Court
of
Appeal in respect of the interlocutory application (interim
interdict) (Kgomo JP et Williams J) from the roll with costs.
The
Applicants’ application for leave to appeal against the main
application (Kgomo JP, Williams J et Goliath AJ) is dismissed
with
costs.
The
Respondents’ conditional application for leave to appeal against
the Costs Order only has fallen away in the light of clause
2
(above) of this order. There is no order as to costs in respect of
this conditional application.
It
is noted that the Northern Cape Agricultural High School and its
School Governing Body have not sought leave to appeal and are
therefore not affected by the costs order made against the
Applicants.
________________________
F
D KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
I
concur:
________________________
C
C WILLIAMS
JUDGE
NORTHERN
CAPE DIVISION
I
concur:
________________________
P
L GOLIATH
JUDGE
NORTHERN
CAPE DIVISION
For
the Applicants: Adv J I du Toit
Instructed
by: van der Wall & Partners
For
the Respondents: Adv A F W Danzfuss, SC
Instructed
by: Haarhoffs