IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No. 7271/2024
In the matter between:
EQUAL EDUCATION First Applicant
KUNGAZO MPHETSHULWA Second Applicant
NCUMISA STOFILE Third Applicant
NOMBONISO QUVILE Fourth Applicant
NOMZAMO JULIA MACI Fifth Applicant
XOLISWA FELICIA MAKUPULA Sixth Applicant
and
HEAD OF DEPARTMENT: WESTERN CAPE
EDUCATION DEPARTMENT First Respondent
DIRECTOR: THE METRO EAST EDUCATION DISTRICT Second Respondent
MEMBER OF THE EXECUTIVE COUNCIL:
WESTERN CAPE EDUCATION DEPARTMENT Third Respondent
GOVERNMENT OF THE WESTERN CAPE PROVINCE Fourth Respondent
MINISTER OF BASIC EDUCATION Fifth Respondent
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Coram: NUKU J
Order made on: 17 May 2024
Reasons delivered
electronically on: 24 July 2024
REASONS
NUKU, J
Introduction
[1] This application concerns delays experienced by learners when applying to be
placed in public schools that offer basic education which are in the Metro East Education
District (MEED) of the Western Cape Department of Education (WCED). The case for the
applicants is that these delays constitute a violation of the constitutional rights of the
concerned learners, and particularly the right to education as contained in section 27 (1)
(a) of the Constitution of the Republic of South Africa, 1996 (Constitution) which provides
that ‘Everyone has the right to a basic education, including adult basic education’.
[2] By this application, the applicants seek to put an end to the violation of the
constitutional rights referred to above by seeking , in Part A of the applications which
served before me, an urgent mandatory interdict directing (a) the first to third respondents
to place in public schools any unplaced late applicants (unplaced late applicants) within
10 days from the date of the order , (b) the first to third respondents to provide remedial
catch-up plans for learners placed in schools after March 2024, (c) the first respondent to
investigate and report within 30 days from the date of the order , as contemplat ed in
section 3 (5) (a) of the South African Schools Act 84 of 1996 ( Schools Act ), on the
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reasons why the learners were not timeously placed at the schools to which they had
applied, and (d) the first to the third respondents to pay the costs, including co sts
occasioned by the employment of two counsel.
[3] The application was opposed by the first to the fourth respondents (Respondents)
on the basis that (a) the application is not urgent, (b) the application in respect of learners
listed in annexure A to the notice of motion had become moot, and (c) the applicants have
failed to meet the requirements for a final interdict.
[4] The Respondents drew a distinction between the relief relating to the placement
of unplaced late applicants on the one hand and t he relief relating to remedial catch -up
plans as well as the investigation and report on the other hand. In respect of the
placement relief, the Respondents conceded that the unplaced late applicants have a
right to basic education as well as a right to placement at public schools. They, however,
took issue with the two remaining requirements for a final interdict, namely (a) injury
actually committed or reasonably apprehended, and (b) the absence of similar protection
by any other remedy ordinarily obtainable. In respect of the remedial catch-up plans and
investigation and reporting relief, the Respondents’ position was that the applicants have
not established any of the requirements for a final interdict.
[5] The application was initially enrolled for h earing on 26 April 2024 when it was
struck off from the roll. It was subsequently enrolled for hearing on 29 April 2024 when I
postponed it, by agreement between the parties, for hearing on 14 May 2024. The order
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postponing the matter incorporated a timetable for the filing of further papers as well as
the parties’ heads of argument.
[6] On 14 May 2024, I heard argument and on 17 May 2024 , I granted an order
directing the first to third respondents to place all unplaced learners within ten days from
the aforesaid date . The first to third respondents were also ordered to pay costs of the
application, including the costs of two counsel. I refused the relief relating to the
development of remedial catch-up plans as well as the relief requiring the first respondent
to investigate and report in terms of section 3 (5) (a) of the Schools Act. The reasons for
that order are set out below.
The Parties
[7] The first applicant is a non-profit organisation that operates as a social movement
consisting of learners, parents, teachers, and community members advocating for equal
and quality education through activism and analysis. It is actively involved in matters
relating to basic education with particular focus on public schools situated in areas
servicing previously disadvant aged communities. It approached this Court (i) in its own
interest in terms of section 38 (a) of the Constitution, ( ii) on behalf of unplaced l ate
applicants in terms of section 38 (b) and (c) of the Constitution, and (iii) in the public
interest in terms of section 38 (d) of the Constitution.
[8] The second applicant, Ms Kungazo Mph etshulwa, is the biological sister to, and
caregiver of OZM, a seventeen-year-old minor learner who was seeking placement into
grade 11 for the 2024 academic year. The third respondent, Ms Ncumisa Stofile, is the
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biological mother and caregiver to AS, a sixteen-year-old minor learner who was seeking
placement into grade 10 for the 2024 academic year. The fourth respondent , Ms
Nomboniso Quvile, is the biological mother and caregiver to SQ, a sixteen-year-old minor
learner who was seeking placement into grade 10 for the 2024 academic year. The fifth
respondent, Ms No mzamo Julia Maci, is the biological mother and caregiver of LM, a
seventeen-year-old minor learner who was seeking placement into grade 11 for the 2024
academic year. The sixth respondent, Ms Xoliswa Felicia Makuphula, is the caregiver to
OMO, a seventeen-year-old minor learner who was seeking placement into grade 11 for
the 2024 academic year.
[9] The first respondent, the Head of Department of the WCED (HOD) is, in terms of
the Admission Policy for Ordinary Public Schools promulgated in terms of section 3 (4) (i)
of the National Education Policy Act 27 of 1996 (NEPA), responsible for the administration
of the admission of learners to public schools in the Western Cape Province. The second
respondent, the Director of the MEED ( District Director) shares the responsibility, with
the HOD, of administering the admission and placement of learners within the MEED.
The Third respondent , the Member of the Executive Council of the WCED (MEC) was
cited as a nominal respondent on behalf of the WCED and must, in terms of section 3 (3)
of the Schools Act, ‘ensure that there are enough school places so that every child who
lives in his or her province can attend school as required by subsections (1) and (2)’. The
fourth respondent, the Government of the Western Cape, was cited for the constitutional
as well as statutory obligations it bears in respect of the provision, administration, and
funding of public schools in the Western Cape.
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[10] The fifth respondent, the Minister of Basic Education (Minister) was cited in her
official capacity as the political head of the National Department of Basic Education (DBE)
who is, in terms of section 85 (2) of the Constitution read with the NEPA, responsible for
developing and implementing national education policy , as well as monitoring and
evaluating all levels of education within the DBE. The Minister played no role in these
proceedings.
Factual Background
[11] The first applicant has, for several years, played an active role in assisting parents
of learners seeking placement in public schools in the Western Cape Province . This, it
has done, by liaising with the public schools concerned as well as the relevant officials in
the WCED. The first applicant sometimes refers parents and learners to Equal Education
Law Clinic (EELC) for assistance.
[12] OZM, who had previously resided and studied in the Eastern Cape relocated to
live with the second applicant in the Western Cape during December 2023. This was after
her mother, Ms Nokuthula Mphetshulwa, was offered employment as a domestic worker
in Johannesburg where she had to start during the first week of January 2024. At the
time of her relocation, the WCED’s window period for application for placement of learners
had closed.
[13] On 18 January 2024, the second applicant approached several schools including
Thembelihle High School, Uxolo High School and Bulumko High School seeking
assistance regarding placement of OZM in a school for the 2024 academic year. She was
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advised that these schools had no place to offer OZM, and that she should approach the
offices of the MEED instead. She was unable to travel to the offices of the MEED due to
lack of means but was fortunate to be referred to the EELC (EELC), who assisted her on
22 January 2024 to submit a completed placement application to the MEED. As of 25
March 2024, when she deposed to an affidavit in support of this application, she had not
received any feedback regarding the application for placement of OZM.
[14] AS attended grade 9 at Homba Primary School , a public school in Khayelitsha ,
during 2023. The highest grade that the school offers is grade 9. On 6 April 2023, he
submitted, using the online portal, an application for placement into grade 10 for the 2024
academic year, and he selected Thandokhulu High School, Manyano High School and
Masiyile High School. On 5 November 2023, the third respondent received a text
message from the WCED part of which read:
‘… the WCED is doing a phenomenal job under extreme pressure to make sure that all
learners are placed at schools. But there are fewer school places than there are unplaced
learners seeking placement. The WCED notices that AS is placed at Homba Primary
School. We would advise that the learner be kept at Homba Primary School for the 2024
academic year…’
[15] On 8 January 2024, the third applicant attended at the offices of the MEED where
she was advised to come the following day. Upon returning on 9 January 2024, she was
told that the application by AS for placement at the schools referred to above had been
rejected. She was required to complete a new application and was advised to follow up
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during the week of 18 January 2024. She again visited the offices of the MEED on 22
January 2024 when she was , this time, advised to wait for a further period of ten days.
When the said ten-day period elapsed without her hearing from the officials from the
MEED, she again attended at their offices on 6 February 2024 to make further enquiries.
She was ultimately contacted by an official from the Metro Central Education District
(MCED) who offered AS a place in one of the schools in the MCED. She could, however,
not accept the place as she understood the language of learning and teaching at the
school to be predominantly Afrikaans, and AS had never been taught in Afrikaans.
[16] SQ attended Cameron Ngudle Senior Secondary School in the Eastern Cape
during 2023 where she was doing grade 9. She relocated to the Western Cape towards
the end of 2023 to live with the fourth applicant . This was after an unfortunate passing
away of her caregiver who committed suicide. Between 15 and 18 January 2024, the
fourth applicant approached several schools including Manyano High School, Masiyile
High School, Bulumko High School, Luhlaza High School and the Centre for Science and
Technology, all in the Khayelitsha area which is within the catchment area of the MEED
seeking placement for SQ for the 2024 academic year. She was unable to get any
assistance until she was referred to EELC who , on 22 January 2024, assisted her to
complete and submit an application for the placement of SQ.
[17] LM, who had previously resided and studied in the Eastern Cape relocated, during
December 2023, to the Western Cape to live with the fifth applicant. From 13 December
2023, the fifth applicant approached several schools including Thembelihle High School,
Masiyile High School and Bulumko High School, all within the area of Khayelitsha w hich
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falls under the MEED. She was advised that Thembelihle High School and Bulumko High
School could not offer a place to LM. An administrative clerk who assisted her at Masiyile
High School refused to accept LM’s application for placement because the fifth applicant
did not have LM’s report and transfer cards. On 15 January 2024, the fifth applicant
approached the WCED head office where an administrative clerk who assisted her also
refused to take LM’s application for placement because she did not have LM’s b irth
certificate with her at the time . On 18 January 2024, she approached EELC who, on 22
January 2024, assisted her to complete and submit LM’s application for placement.
[18] Only an unsigned affidavit was filed in respect of the sixth applicant and there was
no explanation why a properly attested affidavit could not be filed. For that reason, I deal
with the matter without reference to the facts contained in the said draft affidavit.
[19] Between 15 and 31 January 2024, EELC was approached by a group of about 42
parents and caregivers who required assistance with either the submission of placement
applications or follow up on applications for placement that they had already submitted.
[20] On 19 January 2024, the EELC addressed an email to Mr Ryan Titus, who is
employed by the WCED , providing him with details of 8 learners who applied for
placement and requesting him to provide placement letters by no later than Monday, the
22nd January 2024.
[21] On 22 January 2024, Mr Lance Abrahams (Mr Abrahams), also employed by the
WCED advised EELC that the WCED was going to correspond directly with the parents
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of the 8 learners regarding the outcome of their applications . He also advised that all
requests should be directed to the HOD . These learners were ultimately all placed
approximately five weeks after the schools had opened for the 2024 academic year.
[22] On the same date, EELC addressed a further letter to the WCED requesting
placement of about 35 learners who had not submitted their applications for the 2024
academic year. Mr Abrahams and the HOD were copied in this communication , and the
former acknowledged receipt of the documents that had been submitted . He also
undertook to investigate and revert as soon as possible.
[23] As of 31 January 2024, 11 learners remained unplaced, and this number reduced
to 7 as of 26 February 2024. The EELC continued to receive requests for assistance from
parents whose learners were unplaced. The EELC prepared the list annexed to the notice
of motion as annexure “A” which lists the names of learners who were confirmed as
unplaced as of 28 March 2024 as well as those who had been placed but whose parents
had become unreachable. Thus, as of 28 March 2024, 19 learners were confirmed as
unplaced and 12 could not be confirmed to be attending school as their parents had
become unreachable.
[24] On 11 April 2024, the fifth applicant was advised by EELC that it had been advised
by WCED that LM had been placed at Sinako High School on 7 March 2024 . This,
however, had not been conveyed to her by the WCED and as such LM had remained at
home waiting to be advised about the placement. Upon learning of this placemen t, the
fifth applicant advised EELC that she could not afford the costs of transporting LM to
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Sinako High School as it is far from her place of residence. She indicated that she would
have preferred either Thembelihle High School or Bulumko High School or Uxolo High
School as these are within a walking distance from her place of residence.
[25] Similarly, the fourth applicant was advised by EELC on 11 April 2024 that SQ had
been ‘placed: in-transit’ at Homba Primary School on 28 February 2024. She was advised
that the term ‘placed: in-transit’ refers to a learner who has not taken up the place offered
to him or her or where a parent has requested a transfer. She, however, had never been
advised by the WCED of SQ’s placement. The placement of SQ at Homba Primary School
did not make sense to her as she had applied for SQ to be placed in grade 10, a grade
that Homba Primary School does not offer.
[26] On 17 April 2024 , the f ourth applicant was advised that SQ had been offered a
place at Manyano High School. On 18 April 2024, she visited Manyano High School where
she was advised that SQ could not be taken in as he did not have a transfer card . She
sought the intervention of EELC who prevailed on the school principal to enrol SQ despite
the fact that he did not have a transfer card.
[27] On 22 April 2024, the fourth applicant, having been advised by EELC that SQ
would be enrolled without the transfer card, attended at Manyano High School when the
school principal confirmed that SQ is on the list of learners placed at the school. The
school principal, however, advised her that SQ could not start attending classes as the
school was in the process of building mobile classrooms. She was told to follow up on a
regular basis. As of 27 April 2024, SQ had not been able to attend classes.
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[28] As with the fourth and fifth applicants, the third applicant was also advised by EELC
on 11 April 2024 that AS had been placed at Manyano High School on 19 March 2024,
something which had never been communicated to her by the WCED. This was confirmed
telephonically on 18 April 2024 with Mr Swartz, one of the employees of the WCED. She
attended at Manyano High School on 19 April 2024 where she met with the school
principal who confirmed that AS had, indeed, been placed at the school. He, however,
advised her that AS could not commence with the classes as the school was in the
process of erecting mobile classrooms which he expected to be completed by the
weekend of 20 April 2024. On 23 April 2024, the third applicant met with the school
principal who advised her that AS could still not start with the classes, despite the
construction of the mobile classrooms having been completed , because the school was
waiting for the number of learners to reach 20 before commencing with classes. As of 28
April 2024, AS had not been able to attend classes.
[29] The application was launched on 11 April 2024, and on that same day, the WCED
provided an update on the status of the applications for placement that had been referred
to it by EELC. The update had two annexures, annexure “A” and annexure “B”. In terms
of annexure “A”, 11 learners had been placed; 3 had been ‘placed: in-transit’; 1 had been
placed and de -registered; 2 were recorded a s placements in progress and 1 had been
referred to an Adult Education Training College ( AET). In terms of annexure “B”, 30
learners had been placed; 2 had been placed and de-registered and 3 had been ‘placed:
in-transit’. SQ appeared in both annexures as ‘placed: in-transit’. AS appears in annexure
“A” as placed.
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[30] On 26 April 2024, the Respondents’ attorney provided a further update on the
placement status of the learners listed in annexure “A” to the notice of motion. According
to Mr Abrahams, this update confirms that 28 of the learners in annexure “A” to the notice
of motion had been placed as of 26 April 2024 , and i n respect of the remaining 5, the
WCED did not have sufficient particulars of 3 learners. Mr Abrahams further confirm ed
that there were 2 other learners, who were not listed in annexure “A” to the notice of
motion, whose applications were in the process of being finalised.
[31] According to the first respondent, (a) the principal of Manyano High School
confirmed that SQ attended school on 2 May 2024 , (b) LM was offered a place at
Thembelihle Primary School where he started attending classes on 3 May 2024, and (c)
AS started attending classes at Manyano High School on 30 April 2024.
[32] In terms of the affidavit deposed to by the first respondent dated 7 May 2024, three
learners listed in annexure “A” to the notice of motion had not been placed as at the date
when he deposed to his affidavit. Two of these learners, who were 17 and 18 years old,
had applied for grade 7 and were referred to be assessed for placement at an AET as
they were considered overaged for placement at a primary school. The third learner who
was 19 years old had also been referred for placement at an AET.
[33] The first respondent stated that the 2 learners (not included in annexure “A” to the
notice of motion) and whose applications had not been finalised when Mr Abrahams
deposed to his affidavit had since been finalised. He stated, however, that the WCED had
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become aware of 11 learners whose applications for placement had not been finalised at
the time when he deposed to his affidavit. He explained that 6 of these learners had only
submitted their applications on 29 April 2024. He stated further that ‘ The remaining cases
relate to applications where the caregivers were uncontactable and where the parents have now
reached out to the Department for assistance. These applications will be processed and finalised
without delay.’
[34] To sum up, 14 learners remained unplaced at the date when the first respondent
deposed to the answering affidavit. Three of these learners are listed in annexure “A” to
the notice of motion. Of the remaining eleven, 6 had submitted their applications after 29
April 2024 and the respondents did not provide the date/s by when the remaining 5
learners submitted their applications. This, notwithstanding, the first respondent
concluded his answering affidavit by stating that ‘In the circumstances, based on the updated
information provided in this affidavit, no factual basis exists for an order in terms of prayer 2 of
the notice of motion .’ It will be recalled that praye r 2 of the notice of motion is about the
mandamus directing the first to third respondents to place all u nplaced learners (those
included in annexure “A” to the notice of motion as well as those similarly placed as those
listed in annexure “A” to the notice of motion) within 10 days from the date of the order.
[35] Regarding the relief relating to the remedi al plans for learners whose placement
had been delayed, the first respondent explained that each school has an academic
support team that is responsible for developing individual support plans for each learner
and that this is done after the assessment of the learner concerned.
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[36] Regarding the relief relating to a report contemplated in section 3 (5) (a) of the
Schools Act, the first respondent’s response was that the provision does not oblige him
to conduct an investigation and that, in any event, the provision applies in respect of
learners of compulsory school going age. As none of the learners in this application are
of compulsory school going age, so the response went, section 3 (5) (a) of the Schools
Act does not find application.
Issues for determination
[37] Despite the lengthy factual background provided above, the position as at the date
of hearing of the application was that 3 learners named in annexure “A” to the notice of
motion were confirmed as unplaced, and 11 other learners not named in annexure “A” to
the notice of motion were also confirmed as unplaced. This was because some of the
learners had since been placed since the commencement of the litigation.
[37] It is, thus, in relation to the learners referred to in the preceding pa ragraphs that
the applicants’ entitlement to the relief in Part A must be assessed. As stated earlier, the
issues that were disputed by the Respondents, and which issues require determination
by this Court are:
37.1 Urgency;
37.2 Whether the applicants have satisfied remaining two requirements
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for a final interdict, namely, (a) an injury committed or reas onably
apprehended, and (b) the absence of similar protection by any other remedy
ordinarily obtainable;
37.3 Whether the applicants are entitled to the relief relating to remedial catch -
up plans in respect of learners placed after March 2024; and
37.4 Whether the applicants are entitled to the relief relating to the investigation
in terms of section 3 (5) (a) of the Schools Act.
[38] A further issue that was raised by the Respondents, in their heads of argument as
well as during oral argument, was that the relief sought in respect of learners named in
annexure “A” to the notice of motion had become moot . It is convenient to deal with this
issue first.
Mootness
[39] I had great difficulty in following the Respondents’ argument that ‘the relief sought
in respect of the listed learners is moot’, considering the first respondents’ evidence that
there were about 14 learners who remained unplaced as at the date when he deposed to
the answering affidavit, a position which had not changed as at the date of the hearing.
[40] The dispute that had been brought for adju dication was about the placement of
learners (named and unnamed) who remained unplaced as at the date of the hearing of
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the application . T he issue of the placement of the 14 learners remained a live issue
between the parties as these learners remained unplaced as at the date of the hearing.
[41] To the extent that the Respondents sought to distinguish between learners named
in annexure “A” to the notice of motion and th e rest of the learners, such a distinction is
artificial because the relief sought was for the placement of all learners whose
applications for placement had not been finalised , and self-evidently not all the
applications for placement had been finalised when the hearing took place on 14 May
2024.
[42] To the extent that Respondents sought to have their undertaking to place the
unplaced learners regarded as dispositive of the matter or as the basis of withholding the
relief, I deal with this aspect when considering the applicants’ entitlement to the relief. For
now, it suffices to say that the undertaking did not put an end to the violation of the rights
of those learners who remained unplaced when the matter was heard . That being the
case, the dispute was very much alive, despite the undertaking by the Respondents.
Urgency
[43] Other than a bald assertion that th e application was not urgent, the Respondents
advanced no cogent reasons why the continued violation of the learners’ constitutional
rights does not justify the hearing of the matter on the urgent roll. This, however, is
unsurprising and, in fact, consistent with the way the Respondents have approached their
responsibility towards the placement of learners, an issue I return to later in this judgment.
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[44] The applicants, on the other hand, made various compelling arguments why the
matter should be heard on the urgent roll. They referred this court to the decision of the
Constitutional Court in Moko v Acting Principal of Malusi Secondary School1, a matter
that also dealt with the infringement of a right to education. Reference was made to paras
[20] and [21] where the Constitutional Court, in dealing with urgency stated:
‘[20] Vindication of his constitutional right to education – a right which, due to its
transformative nature both for individuals and society as a whole, is of fundamental
importance in this Country. The High Court is a forum that is substantially better suited for
determining urgent matters than this Court, and it has jurisdiction to determine matters of
a constitutional nature. It would therefore ordinarily be the appropriate forum for a matter
of this ilk. And yet, for reasons beyond feasible comprehension, the High Court struck this
matter off the urgent roll. This placed the applicant in an invidious p osition. Desperate to
not have to wait until the supplementary examination in May 2021 or for that matter to be
enrolled on the ordinary roll in the High Court, which could result in a determination of the
matter many months down the line, the applicant chose to approach this Court directly for
the urgent relief he seeks.
[21] On the face of it, this matter concerns a potentially serious violation of the
applicant’s right to education. Over and above that, a lack of urgent relief could have a
significant adverse effect on the applicant’s future endeavours and opportunities. His life
could forever be out of step by a whole year. Also, delaying the pursuance of further
education until 2022, to wait for the results of the supplementary examination, could easily
result in the applicant abandoning that admirable goal entirely. Even if the applicant
1 2021 (4) BCLR 420 (CC)
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wished to pursue a different path, a five to six-month delay in obtaining his matric results
could similarly frustrate any attempt to obtain employment that requires a matric certificate.
In my view, the urgency of this matter is undeniable.’
[45] By parity of reasoning, there could not have been any comprehensi ble reason for
striking the matter off the roll in view of the fact that there were learners, whose
applications were submitted during January 2024, and who were still sitting at home two
months later when the matter came before me for the first time on 29 April 2024 and again
on 14 May 2024. In my view, the statement by the C onstitutional Court that ‘this matter
concerns a potentially serious violation of the applicant’s right to education’ is also
apposite.
[46] I was, thus, satisfied that the matter is one that should be dealt with as an
application that warrants dispensing with the forms and service provided for in the Uniform
Rules of Court. When the matter first came before me on 29 April 2024, the Respondents
had not filed their answering papers and to ameliorate the potential prejudice that would
be occasioned by deciding a matter without hearing from them, I postponed the matter to
14 May 2024 to enable them to file the ir answering papers. Faced with a potentially
ongoing constitutional rights violation, I considered that thi s was the least I could do to
balance the learners’ constitutional rights on the one hand against the Respondents’
procedural right to be heard before the determination of the matter.
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Have the applicants, in respect of the relief relating to the placement of learners,
satisfied the remaining two requirements for a final interdict, namely, (a) injury
committed or reasonably apprehended, and (b) the absence of similar protection
by any other remedy ordinarily obtainable?
[47] The Respondents conceded that the applicants have established the first
requirement for a final interdict, that is, a clear right. They, however, contended that at no
stage have they failed to fulfil their obligation to place the learners at schools and that
where they have not been able to place the learners, it was in circumstances where they
were not in possession of information or documents, which information they had
requested from EELC. The submission was, therefore, that it was an inability to process
the applications that was the cause of the non -placement of learners and not the
Respondents’ refusal to do so.
[48] It was submitted further on behalf of the Respondents that an order compelling the
first to third respondents to place the unplaced learners within 10 days from the date of
the order is unwarranted in view of the ir undertaking to process and finalise the new
applications without delay.
[49] It was submitted that the issue of alternative remedy does not arise in the absence
of harm or injury reasonably apprehended.
[50] Regarding the irreparable harm to be suffered by unplaced learners, the
submission on behalf of the applicants, as I understood it , was that the violation of the
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right to basic education of those learners who remained unplaced was ongoing and that
absent the intervention of this Court, the right to education of unplaced learners would
continue to be violated. Thus, the applicants did not rely on past violations of the right to
education but the contin uing violation. Reference in this regard was made to the 14
learners referred to above in respect of which the WCED could not even give a firm
undertaking with a date by which it would be able to place them. It was submitted that in
the absence of an interven tion by this court, the unplaced learners would not have any
other remedy that would vindicate their right.
[51] During the course of the hearing I enquired from Respondents’ counsel as to what
would happen to the 14 learners, who on the common cause evidence remained unplaced
as at the date of the hearing and the answer was that their applications would be
processed and finalised expeditiously . Initially no date was given by when the said
learners would be placed. On further pressing by the court, counsel for the Respondents
responded that he was instructed to advise that the remaining unplaced learners would
be placed the following day. This response, however, has to be viewed in light of the
evidence that was placed before this court by the applicants which suggested that there
had been instances in the past where the Respondents would say that they have placed
a learner at a school when that learner either had not been informed of placement or had
not been able to attend classes despite being placed.
[52] As submitted on behalf of the applicants, the right to education is among rights that
are immediately realisable and are not subject to any qualification. Thus, the right to
education of a learner is violated where the said learner has not been enabled to attend
22
school despite having applied for placement. The 14 learners referred to above, 3 of
whom are named in annexure “A” to the notice of motion , had on the evidence before
Court not been enabled to attend classes when the matter was heard and as such their
right to basic education was violated. The said violation continues until such time as these
learners are enabled to attend school, and this in my view, is the injury contemplated in
the second requirement for a final interdict.
[53] It is difficult to follow the argument advanced on behalf of the Respondents that
the applicants have not established harm or injury reasonably apprehended, when in fact
the unplaced learners’ right to education continues to be violated. The argument that the
Respondents were unable to process and place the learners for lack of information or
documents, is also difficult to follow because there is nothing stopping the Respondents
from placing the learners pending the submission of whatever documents that may be
outstanding. It is the conduct of the Respondents that is responsible for this inability by
seeking to first have all the necessary documents while the learners sit at home.
[54] The Respondents appear to misconceive the extent of their responsibilities when
it comes to giving effect to the right to basic education as they appear to be content to sit
back and wait for the provision of documents before placing the learners. The reading of
the Schools Act, however, suggests that their responsi bilities, especially the first
respondent, go much further than just waiting for the provision of documents before
placing a learner. Sec tion 3 (5) of the Schools Act makes it clear that it should be of
concern to the first respondent that any learner of compulsory school going age is not
attending school such that he is empowered not only to investigate the circumstances of
23
the learner’s absence from school but also to take appropriate measures to remedy the
situation.
[55] The attitude adopted by the Respondents, and particularly the first respondent, is
at odds with the responsibility that section 3 (5) of the Schools Act place s on him, and
which responsibility can only be regarded as one of the means by which the right to basic
education can be given effect to. To be content with learners sitting at home because of
outstanding documentation or information is, in my view, a clear violation of the concerned
learners’ right to basic education. In my view the applicants have established the second
requirement for a final interdict, namely, an injury committed. That being the case, it is not
necessary for them to also establish the reasona ble apprehension of injury, particularly
in these circumstances where the violation of the learners’ rights is ongoing.
[56] In any event, in my view, the applicants have also established the reasonable
apprehension of harm. This is because it took the Respondents more than two months to
ensure that some of the learners whose applications had been referred to them by EELC
during January 2024 were able to attend classes. These delays , the Respondents
attributed to various reasons including outstanding documents to inability to each the
parents or caregivers. It is worth noting that the first respondent, in the answering affidavit,
explains that one of the reasons some of the learners remain unplaced is because their
parents or caregivers were unreachable. This, he says without giving any indication of the
attempts that were made to reach the said parents or the caregivers. It is un clear then
how the Respondents, would place these learners in the absence of a court order
24
compelling them to do so. This also makes the undertaking given by Counsel for the
Respondents ring hollow.
[57] In support of their argument that an order compelling the Respondents to place the
Learners is unwarranted, Counsel for the Respondents relied on the decision of the
Supreme Court of Appeal in Primedia v Radio Retail2 where the following was stated:
‘[26]… once Primedia, two days before th e respondents had launched their application,
and later in their answering affidavit , had given an undertaking not to disseminate false
statements, the respondents could have had no reasonable apprehension that Primedia
would repeat the statements – assuming that they were unlawful. An interdict is not
granted for past invasions of right; it is concerned only with future infringements, and there
was no evidence to suggest that the respondents had a legitimate fear in this regard.
There was therefore no longer any ground to interdict the further dissemination of false
statements. So, the high court ought to have not granted the respondents this relief.’
[58] Primedia v Ret ail is, however, distinguishable on the facts from the present
matter. Firstly, Primedia v Retail was not concerned with ongoing harm whereas, as
already alluded to above, this matter concerns the ongoing violation of the learners’ right
to basic education. Secondly, the Supreme Court of Appeal in Primedia v Retail
found that there was no evidence to suggest that the respondents had a legitimate fear
of future infringements whereas in this matter, as alluded to above already, the learners
2 Primedia (Pty) Ltd t/a Primedia Instore v Radio Retail (Pty) Ltd and Others (354/11) [2012] ZASCA 32 (29 March
2012 at para [26]
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who remained unplaced, especially in respect of those the first respondent says their
parents or car egivers had become untraceable. For these reasons, the Respondents’
reliance on the decision of th e Supreme Court of Appeal in Primedia v Retail cannot
assist them.
[59] The Respondents did not address the issue of lack of alternative remedy on the
assumption that the applicants had not established the second requirement for a final
interdict. The court is enjoined to give effective remedy where there has been a continuing
violation of a constitutional right and in my view, this is one such matter. It is only a court
order that can put an end to the violation of the learners’ right to basic education and it is
for these reasons that the order was made directing the first to third respondents to place
the unplaced learners. It also became necessary to define the term “to place” given the
evidence placed by the applicants that the Respondents, in some instances, had failed to
ensure that the learners who they had placed had received placement letters and were
also able to attend classes.
The Remedial Catch-up plan
[60] The applicants sought this relief on the basis that it is not difficult to understand
that a learner whose placement has been delayed will start at a disadvantage unless he
or she is assisted with a remedial catch-up plan.
[61] The Respondents have explained that there is a policy already in place called the
Screening, Identification, Assessment and Support Policy (SIAS Policy) that expressly
26
contemplates a needs-based approach, and which delineates roles to be performed by
various role players as follows:
a) Teachers:
(i) to gather information and identify learners at risk of learning breakdown
and/ or school dropout.
(ii) to provide teacher-developed classroom-based interventions to address
the support needs of identified learners.
b) School-based Support Teams:
(i) to respond to teachers’ requests for assistance with support plans for
learners experiencing barriers to learning.
(ii) To review teacher -development support plans, gather any additional
information required, and provide direction and sup port in respect of
additional strategies, programmes, services and resources to
recommendation for the placement of a learner in a specialised setting.
(iii) where necessary, to request assistance from the DBST to enhance ISPs
or support their recommendation for the placement of a learner in a
specialised setting.
27
c) District-based and Circuit-based Support Teams:
(i) to respond to requests for assistance from SBST’s.
(ii) to assess eligibility of requests made by SBST by gathering any
additional information and/or administering relevant assessments,
conducting interviews and/or site visits.
(iii) to provide direction in respect of any concessions, accommodations,
additional strategies, programmes, services and resources that will
enhance the school-based support plan.
(iv) to identify learners of outplacement into specialised settings, e.g. special
schools, to access specialised support services attached to ordinary or
full-service schools or to access high-level outreach support.
[62] In light of the SIAS Policy referred to above, i t was submitted on behalf of the
Respondents that the applicants have not established a right to a blanket order directing
the first to the third respondents to provide individual support plans to all learners who
were placed during and after March 2024.
28
[63] Unlike the relief relating to the placement of learners, the applicants presented no
evidence to suggest that the learners whose placement had been delayed would not be
provided with the necessary support to enable them to catch up with their peers. The
other difficulty with this relief appears to be that it contemplates an assessment of each
learner which is the same thing contemplated by the SIAS Policy. For these reasons, I
concluded that that the applicants had not made out a case for this relief.
The relief relating to the investigation in terms of section 3 (5) (a) of the Schools
Act
[64] By this relief the applicants sought a mandatory interdict directing the first
respondent to produce an investigative report on the reasons why the unplaced learners
were not placed as at the date of the order, and to furnish such report to them as well as
the court within 30 days of the order. This was premised on the submission that the
Respondents’ confusion surrounding the true status of learn er placement in the MEED
renders such report essential.
[65] The further motivation for the report was that it cannot be that the WCED and the
community are faced with dozens or hundreds of unplaced late applicants, yet each year
the WCED refuses to acknowledge the scale of the problem and refuses to investigate it.
It was further submitted that the investigative report is a proactive measure where the
WCED takes positive steps to ensure that it respects, protects, promotes, and fulfils the
right to basic education, and moreover, the principles of good, transparent and responsive
governance contemplated in section 195 of the Constitution demand an explanation from
the WCED.
29
[66] The Respondents resisted this relief on various grounds. Firstly, it was submitted
that it is clear from the use of the word ‘may’ in section 3 (5) (a) that it empowers but does
not oblige a head of department to conduct an investigation in the circumstanc es
contemplated by the subsection. Secondly it was submitted that that power applies only
in the case of learners of compulsory school age and that because none of the learners
who remained unplaced were of compulsory school going age this provision is not
applicable. Lastly, it was submitted that an investigative report of the kind contemplated
by the applicants is not urgent. If the applicants are entitled to such a report (which is
denied), it was submitted that, there is no reason the applicants cannot obtain an order
to that effect at a hearing in due course, for example in Part B.
[67] I have touched briefly on the provisions of section 3 (5) of the Schools Act above
and in my view, the provision is concerned with learners of compulsory school going age
who are either not enrolled at a school or who fail to attend school after having been so
enrolled. The relief sought by the applicants is not directed at investigating the
circumstances of learners who fail to attend school after having been so enrolled.
[68] In respect of those learners who were not enrolled as at the time of the hearing,
the circumstances that resulted in their failure to enroll are the subject matter of the relief
that seeks their placement within a period of 10 days from the date of the order. An order
was made to directing the first to third respondents to place the unplaced learners within
10 days from the date of the order. Upon Respondents complying with the aforesaid order,
there would be nothing further to investigate and report on as those learners would by
30
then have be enrolled. It appeared to me that th is relief is misconceived in the
circumstances because the applicants cannot on the one hand seek the placement of the
learners and on the other hand seek an investigation into the circumstances that had led
to those learners failing to enroll. In any event, there is nothing to investigate because the
circumstances that led to the learners’ failure to register are known to both the applicants
as well as the Respondents.
[69] To further demonstrate the inappropriateness of this relief, one also needs to have
regard to the provisions of section 3 (5) (b) which make it clear that the purpose of the
investigation is to remedy the learners’ failure to attend school. As already stated above,
the Respondents have already been ordered to enroll the learners and as such there is
nothing that remains to be remed ied. It is for these reasons that I declined to make an
order directing the first respondent to conduct an investigation contemplated in section 3
(5) of the Schools Act.
[70] The applicants were substantially successful, and I could not find any reason why
the costs should not follow the results. Both the Applicants and the Respondents had
employed the services of two counsel, including senior counsel in the case of the
Respondents. In my view the employment of two counsel was warranted.
_____________________
L.G. NUKU
JUDGE OF THE HIGH COURT
31
APPEARANCES
For the Applicants: Advocate L Zikalala
Advocate N. Soekoe
Instructed by: Ms C Stuurman
(Equal Education Law Centre)
For the 1st Respondents: Advocate E De Villiers-Jansen SC
Advocate A Christians
Instructed by: Ms A Marsch-Scott: State Attorney