SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 748/2023
In the matter between:
BOARD OF GOVERNORS OF
MITCHELL HOUSE SCHOOL FIRST APPELLANT
MITCHELL HOUSE SCHOOL SECOND APPEL LANT
STEPHEN LOWRY THIRD APPELLANT
and
T[…] K[…] M[…] RESPONDENT
Neutral citation: Board of Governors of Mitchell House School and Others v M[…]
(748/2023) [202 5] ZASCA 15 (25 February 2025)
Coram: MAKGOKA and MEYER JJA and GORVEN , COPPIN and CHILI AJJA
Heard: Matter disposed of without oral hearing in terms of s 19( a) of the Superior
Courts Act 10 of 2013 .
Delivered : 25 February 2025.
2
Summary: Civil P rocedure – re-adjudication of concluded application by same court
– functus officio – res judicata principle s – Judge re -adjudicating same application on
same cause of action between same parties.
______________________________________________________________ ____ _
ORDER
___________________________________________________________________
On appeal from : Limpopo Division of the High Court, P olokwane (Mdhluli AJ, sitting
as court of first instance):
1 The appeal is upheld with costs on the attorney and client scale .
2 The order of the high court is set aside and replaced with the following:
‘The application is struck from the roll with costs on the attorney and client scale. ’
__________________________________________________________________ _
JUDGMENT
___________________________________________________________________
Makgoka JA et Chili AJA (Meyer JA and Gorven and Coppin AJJA concurring):
[1] This appeal was disposed of without oral hearing in terms of s 19 (a) of the
Superior Courts Act 10 of 2013 (the Superior Courts Act). It is an appeal against the
judgment and order of the Limpopo Division of the High Court, Polokwane (the high
court) . That court, per Mdhluli AJ, set aside the decision of the first appellant , the Board
of Governors of Mitchell House School, to terminate its contract with the respondent,
Mr T[…] K[…] M[…], in respect of his children who were enrolled at the second
appellant , Mitchell House School (the school). The effect of th e school ’s decision was
that Mr M […]’s three children would not be enrolled at the school for the 2023
acad emic year because of Mr M […]’s repeated failures to pay for his children ’s tuition
fees at the school. The third appellant, Mr Stephen Lowry, is the headmaster of the
school.
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Factual background
[2] On 10 January 2023 , Mr M […], a legal practitioner, launched an urgent
application in the high court for an order directing the school to allow the return of his
three minor children, to the school. The application was heard by Muller J , who
delivered his judgment on 11 January 2023 . He set out the history of the dispute
between Mr M […] and the school that led to the termination of the contrac t. The
learned Judge considered the relationship between Mr M […] and the school in the
light of the leading authority on the matter, AB v Pridwin .1 He concluded that the
process which the school initiated in terminati ng its con tract with Mr M […] was a fair
one in the circumstances. He further held that the rights of the children had been
properly considered by the school when it terminated the contract. Lastly, Muller J
emphasised that the school was privately owned and depended on school fees to
sustain itself. Given these considerations, the learned Judge dismissed the application
and made no order as to costs.
[3] On 13 January 2023, Mr M […] filed a document titled ‘Re: Enrolment Affidavit in
Re: Urgent Interdict Application ’ (the re -enrol ment affidavit) . On the very same day , Mr
M[…] lodged an application for leave to appeal against the order of Muller J. However,
that application was never pursued. In his ‘re-enrolment affidavit ’, Mr M […] stated that:
‘The applicant s have since filed an application for leave to appeal against the aforesaid order
of Muller J granted on 11 January 2023, under case no: 68/2023.’
[4] The appellants opposed the ‘re-enrolled urgent application ’, which came before
Mdhluli AJ on 16 January 2023 . Having considered the same papers that had served
before Muller J together with the ‘re-enrolment affidavit ’, Mdhluli AJ delivered her
judgment ex tempore and granted an order directing the school to admit and enrol KK
‘pending the determinat ion of Part “B” of case number 6883/2021 ’. She subsequently
dismissed the school ’s application for leave to appeal with costs. The school ’s appeal
is with the leave of this Court.
Mootness
1 AB and Another v Pridwin Preparatory School and Others [2020] ZACC 12; 2020 (5) SA 327 (CC);
2020 (9) BCLR 1029 (CC).
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[5] In his heads of argument, M r M[…] asserted that the appeal was moot because
all his children are no longer at the s chool. This point was not formally raised by way
of an application to introduce new evidence. However, the school elected no t to join
issue with Mr M […]’s assertion. Thus, we are prepared, for present purposes, to accept
that none of Mr M […]’s childre n still attend the school . On that basis, we are prepared
to accept that the appeal is moot , and its outcome will have no practical effect .
[6] Section 16(2)( a) of the Superior Courts Act provides that:
‘(i) When at the hearing of an appeal the issues are of such a nature that the decision sought
will have no practical effect or result, the appeal may be dismissed on this ground alone.
(ii) Save under exceptional circumstances, the question whether the decision would have no
practical effect or result is to be determined without reference to any consideration of costs. ’
[7] Generally, courts do not decide issues of academic interest only.2 A caveat to that
principle is that a court has a discretion to enter into the merits of an appeal,
notwithstanding the mootness of the issue as between the parties , when a discrete
issue of public importance arose that would affect matters in the future and on which
adjudication of the court is required.3 In Laugh It Off v South African Breweries4 the
Constitutional Court decided to hear a matter which had become moot by the time it
reached that court, as it considered the matter , among other things, to be of ‘concern
to the broader public ’.5 As will become clear below when we consider the merits , this
is such a case .
The merits
[8] The issue is whether it was competent for Mdh luli A J to entertain Mr M […]’s
application at all, given the doctrine of res judicata that bars continued litigation for the
same cause, between the same parties , and where the same thing is demanded.6 ‘The
2 Radio Pretoria v Chairman, Independent Communications Authority of South Africa, and Another
[2004] ZASCA 69; 2005 (1) SA 47 (SCA); [200 4] 4 All SA 16 (SCA) para 41.
3 Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others [2012] ZASCA
166; 2013 (3) SA 315 (SCA) para 5.
4 Laugh It Off Promotions CC v South African Breweries International (Finance) BV t/a Sabmark
International and Another [2005] ZACC 7; 2006 (1) SA 144 (CC); 2005 (8) BCLR 743 (CC).
5 Ibid para 30.
6 Molaudzi v S [2015] ZACC 20; 2015 (2) SACR 341 (CC); 2015 (8) BCLR 904 (CC) ( Molaudzi ) para
14. See also Royal Sechaba Holdings (Pty) Ltd v Coote and Another [2014] ZASCA 85; 2014 (5) SA
562 (SCA); [2014] 3 All SA 431 (SCA) ( Royal Sechaba ).
5
underlying rationale of the doctrine of res judicata is to give effect to the finality of
judgments ’7 and ‘an avoidance of a multiplic ity of litigation or conflicting judicial
decisions on the same issue or issue s’.8 In Firestone South Africa (Pty) Ltd v Gentiruco
AG,9 Trollip JA remarked as follows:
‘The general principle, now well established in our law, is that, once a court has duly
pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement
it. The reason is that it thereupon becomes functus officio : its juri sdiction in the case having
been fully and finally exercised, its authority over the subject -matter has ceased. ’10
[9] The doctrine of res judicata and its application are well -settled in our law and
can hardly be considered to be novel. However, by i gnoring it in the present matter,
Mdhluli AJ has created an untenable situation in the Limpopo Division by considering
herself entitled to overrule an order granted by another Judge. Needless to say, that
is a recipe for disaster for judicial comity and ju risprudential coherence. Furthermore,
there seems to be a problem in the Limpopo Division about the observation of the res
judicata doctrine. In two recent cases, this Court has had to pronounce itself on the
same issue.
[10] The first one is Thobejane v Premier of the Limpopo Province ,11 where the court
dismissed a preliminary point of misjoinder and proceeded to hear the merits of the
application. Subsequently , the Judge delivered judgment in which she upheld the very
same preliminary point she had dismissed earlier , and struck the application from the
roll with costs . On appeal, t his Court held that it was not open to the high court to revisit
the point it had dismissed earlier, as in relation thereto, it had become functus
officio and that its second order undermined the principle of finality of litigation .12 The
first order dismissing the preliminary point was final a nd therefore the second order
was a nullity which fell to be set aside .
7 Molaudzi para 16.
8 Royal Sechaba para 21.
9 Firestone South Africa (Pty) Ltd v Gentiruco AG 1977 (4) SA 298 (A).
10 Ibid at 306F -G.
11 Thobejane and Others v Premier of the Limpopo Province and Another [2020] ZASCA 176.
12 Ibid para 6.
6
[11] In Hulisani Viccel Sithangu v Capricorn District Municipality13 the trial court
heard argument on a special plea of misjoinder and reserved its ruling and proceeded
to hear the evidence and argument on the merits. Thereafter, it dismissed the special
plea, but at the same time relied on the facts sustaining the special plea to dismiss the
action. This Court held that the two orders were mutually exclusive , and explained:
‘It was not open to the trial court to non -suit the applicant based on the point on which it had
earlier found in his favour. The ruling of the trial court on the special plea effectively meant that
the correct defendant was before it, and from then onwards, the identity of the defendant was
no longer in issue. The order dismissing the special plea was final in effect, and accordingly it
was not competent for the trial court to revisit it when it considered the merits. In relation to
that issue, the trial cour t had become functus officio as its authority over the subject matter
had ceased. ’14 (Footnotes omitted .)
[12] This is therefore a third case from the Limpopo Division in which it appears that
there is some difficulty in applying the principle of res judicata . If not corrected, Mdh luli
AJ’s order could have practical implications for coherence in the workings of the
Limpopo Division as it could be followed in the future, unless another Judge considers
it to be clearly wrong (which it is). It therefore behoves this Court to reiterate the need
to observe the doctrine of res judicata and the importance of doing so . On these
considerations, we exercise our discretion to hear the appeal , despite its mootness.
[13] It is clear from the record that the ‘re-enrolled urgent application ’ that served
before Mdhluli AJ was identical , in respect of the parties and the cause of action, to
the application that had been finalised by Muller J in his judgment delivered barely 5
days earlier, on 11 January 2023. There is no debate that Muller J ’s order was final,
the learned Judge having considered the merits of the application and having
dismiss ed it. It had the three attributes identified in Zweni v Minister of Law and Order15
as it was: (a) final in effect and not susceptible to alteration by the high court; (b)
definitive of the righ ts of the school and Mr M […]; and (c) dispositive of the relief
13 Hulisani Viccel Sithangu v Capricorn District Municipality [2023] ZASCA 151.
14 Ibid para 16.
15 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 536B ; [1993] 1 All SA 365 (A) at 368.
Although the Zweni test has undergone some modifications over the years , those relate mainly to
whether, in a particular case, the order is appealable. That does not arise in the present case.
7
claimed by the school. The common cause facts clearly indicate that Mdhluli AJ was
alive to this fact when e ntertaining Mr M […]’s ‘re-enrolled urgent application ’.
[14] It is not clear from Mdhluli AJ ’s judgment as to the basis upon which she
considered herself competent to hear the application, especially in the light of the
defence of res judicata being raised before her on behalf of the school .16 Not anywhere
in her judgment does the learned Acting Judge refer to Muller J ’s earlier order
dismissing the application . In a perfunctory ex tempore judgment, Mdhluli AJ referred
to s 28 (2) of the Constitution17 regarding the interests of minor children, and to the
contract ual disputes between Mr M[…] and the school. She then alluded to possible
irreparable harm to the child should she not intervene. The learned Acting Judge
concluded as follows:
‘What gives me comfort . . . is that both parties agree that the order of 23 September 2021
spoke of the children staying at the school pending the 6883, which both parties have
confirmed or record that is still to be determined. As a result, this c ourt finds that the minor
child [KK] who is doing grade 8 must be able to return to school on the strength of the order
of 23 September 2021, which this court is also extending based on what it heard this afternoon.
That will be the order of this court. ’
[15] It seems, with respect, that Mdhluli AJ misconstrued her powers in respect of
the application before her. She predicated her judgment on the interests of the
children. But, as mentioned, Muller J had considered that issue in his judgment ,
despite whic h he dismissed the application. By traversing the issue again, Mdh luli AJ
impermissibly positioned herself as a court of appeal over Muller J ’s judgment. The
fact of the matter is that the very same application, involving the same parties and the
same cause of action, had already been decided by Muller J. Accordingly, the matter
was res judicata . The high court was functus officio and Mdhluli AJ had neither the
jurisdiction nor the competence to entertain the ‘re-enrolled urgent application ’. She
erred in doing so . The appeal should accordingly succeed .
Costs
16 T[…] K[…] M[…] obo KK v The Board of Governors of Mitchell House School and Others , (Limpopo
Division of the High Court, Polokwane, Unreported case no: 68/2023 (2023 -01-16)).
17 Section 28(2) of the Constitution provides that ‘[a] child ’s best interests ar e of paramount importance
in every matter concerning the child ’.
8
[16] Costs should follow the result. The ordinary rule is that the successful party is
awarded costs on the scale as between party and party. Counsel for the school
contended in his heads of argument that costs shoul d be ordered agains t Mr M […] on
a punitive scale of attorney and client . It is that issue that requires determination , to
which we turn. About costs on an attorney and client scale, the following was stated in
Nel v Davis :18
‘A costs order on an attorney and client scale is an extra -ordinary one which should not be
easily resorted to, and only when by reason of special considerations, arising either from the
circumstances which gave rise to the action or from the conduct of a party, should a court in a
particular case deem it just, to ensure that the other party is not out of pocket in respect of the
expense caused to it by the litigation. ’19 (Footnotes omitted.)
[17] Mr M […]’s application was not properly before court for the simple reason that it
was re-enrolled based on an affidavit that should never have been allowed by the high
court . There is no indication on record that he had sought and was granted leave by
the court to file this affidavit .20 As a legal practitioner Mr M […] must have known that
his application wa s not properly before court. Furthermore , the conduct of Mr M […]
resulted in the school receiving two conflicting judgments from Judges of the same
Division, within the space of five days , which could lead to confusion on the part of
legal practitioners. It is unbecoming of legal practitioner s to conduct them selves in the
manner Mr M […] did. His conduct is reprehensible, and worthy of a punitive costs
order – both in this Court and in the high court .
Order
[18] In the circumstances the following order is made :
1 The appeal is upheld with costs on the attorney and client scale .
2 The order of the high court is set aside and replaced with the following:
‘The application is struck from the roll with costs on the attorney and client scale. ’
18 Nel v Davis N O and Another [2016] ZAGPPHC 596; [2017] JOL 37849 (GP) .
19 Ibid paras 25 -26, affirmed by the Constitutional Court in S S v V V -S [2018] ZACC 5; 2018 (6) BCLR
671 (CC) para 39.
20 See rule 6(5) (e) of the Uniform Rules of Court. See also James Brown & Hamer (Pty) Ltd (Previously
named Gilbert Hamer & Co Ltd) v Simmons NO 1963 (4) SA 656 (A) at 660D -H; Hano Trading CC v
JR 209 Investments (Pty) Ltd [2012] ZAS CA 127; 2013 (1) SA 161 (SCA); [2013] 1 All SA 142 (SCA)
paras 13 -14.
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_______ __________________
T MAKGOKA
JUDGE OF APPEAL
_________________________
N E CHILI
ACTING JUDGE OF APPEAL
On record :
For appellants:
Heads of Argument: HF Marx
Instructed by: Ehlers Law Incorporated, Polokwane
Symington De Kok Attorneys, Bloemfontein
For respondent:
Heads of Argument: In person
Attorneys: Ntsako Phyllis Mbhiza Attorneys, Pretoria
Hattingh Attorneys, Bloemfontein.