1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
REPORTABLE : YES/NO (1)
(2)
(3)
OF INTEREST TO THE JUDGE S: YES/NO
REVISED.
DATE : 14/07/2025
G),._,
SIG N ATU RE ....... .
In the matter between:
BBKS HIGH SCHOOL
And
DEPARTMENT OF EDUCATION-LIMPOPO
MEC FOR EDUCATION - LIMPOPO
UMALUSI
CASE NO: 1471/2025
Applicant
First Respondent
Second Respondent
Third Respondent
Delivered: This judgment is handed down electronically by circulation to the
parties through their legal representatives' email addresses. The date for the
hand-down is deemed to be 14 July 2025.

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JUDGMENT
Makoti AJ
Introduction
[1] This opposed application invokes the right to basic education, of particularly
grade 12 learners. It concerns an application for registration of the Applicant,
BBKS High School (the school) as an examination centre. To put in in the
right context, the case is about the Limpopo Department of Education's
refusal to register the school as an examination centre. As Applicant the
School wants the Court to declare that the school has met the requirements
for registration as grade 12 NSC examination centre.
[2] The battle between the school and the Department has been ongoing since
early 2022, after an application for it to be registered as a grade 12 NSC
registration centre was lodged. Over three years later the school is still not
allowed to operate as an examination centre. I will explore the reasons later
in this judgment.
Relief sought by the school
[3] There are three substantive orders that the school is asking the Court to
grant. They are:
"3. An order declaring that the applicant, BBKS High School has met the
requirements for registration as a grade 12 NSC examination and for
the issuing of the examination number to the applicant, BBKS High

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School by the respondents Department of Education and MEC for
Education Limpopo.
4. An order interdicting the 1st and 2nd respondents Department of
Education and MEC of Education Limpopo from discounting the
provision of service to the applicant, BBKS High School.
5. An order directing the 1st and 2nd respondents, Department of
Education and MEC of Education Limpopo to issue a grade 12 NSC
examination number to the applicant, BBKS High School."
[4] may just mention that this matter was first launched as an urgent
application that was scheduled for hearing on 25 February 2025. It was not
heard on that day as it was struck off for lack of urgency. Subsequently, with
the Judge President's directive the case was set down for hearing on the
special allocation roll of 28 May 2025.
The facts giving rise to the dispute
[8] The school is registered as a non-profit organisation which was incorporated
in terms of the provisions of the Non-Profit Organisation Act.1 It operates as
a school or learning centre offering basic education to learners doing grades
8 to 12 at Ga-Phala Village, D4134 RD, at or near Burgersfort.
[9] Ordinarily, and as asserted by the school, the school is catering for the
educational needs of minor children. The basic rights of minor children,
including in respect to education, are constitutionally safeguarded. I will
revert to this in due course.
A ct No . 71 of 1997.

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[1 O] The school applied for allocation of grade 12 examination centre on 31
March 2022. This letter was duly delivered to the Department in its circuit on
19 September 2022. On 12 April 2023 the Department granted the school a
provisional registration as a private school. It has been operating in that
capacity since its registration. In the Department's letter the following is
stated:
"1.12. The school is approved to offer from grade 8-12.
1.13. In terms of introduction of grade 10-12, the management of the school
authority must apply for examination centre status with the Provincial
Examination Directorate at this number 015 290 7827."
[11] The school was in the same letter advised to heed the provisions of sections
17 A(2)(a) and 23(1) of the General and Further Education and Training
Quality Assurance Act, 20012 by ensuring that it applies for accreditation as
private assessment body within twelve (12) months. Section 17A reads:
"(2)(a) The Council must develop policy for the accreditation of assessment
bodies other than departments of education and must submit it to the
Minister for approval."
[12] Section 23( 1) enjoins Council to develop policy and criteria for quality
assurance of private education institutions. I assume that by making
reference to these legislative provisions the Department intended to convey
a message for the school to take into consideration the relevant provisions of
the applicable policy and criteria.
[13] The school has registered learners, in grades 8 and 11 , a list of which was
sent to the Department on 06 December 2023. The learners who were in
grade 11 have progressed to grade 12. It does not have accreditation or
2 A ct No . 58 of 2001.

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registration as NSC examination centre. A response to the school's
application for accreditation dated 11 December 2023 stated the following:
"3. Kindly be advised that to qualify to be an NSC examination centre you
are required to consistently comply with among others the following:
3.1 Accreditation by Umalusi which is current/active [see Gazette
35830 of 29 October 2013]
3.2 A suitable venue to accommodate candidates, i.e. sufficient
space and appropriate furniture to be used by candidates for
examinations and assessment.
3.3 "
[14] Then , the Department advised the school that it is not in a position to be
registered as an accreditation centre on account of the contents of
paragraph 3.1, ostensibly due not having Umalusi accreditation. It was then
directed to shed or move its learners in the relevant grades [10-12] to other
schools.
[15] Prior to sending the letter to the school the Department had conducted a
feasibility study. On 31 October 2023 the following was recommended as
part of the feasibility study report:
"In light of the findings recorded above, the school meets the
minimum requirements as stipulated. It is therefore recommended,
that the application for registration as examination centre be
considered for processing."
[16] While the school is told that it cannot be registered because of the Umalusi
issue, on 23 January 2025 one Mr Dawie Oberholster on behalf of the said
Umalusi wrote to the school and advised it that:

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"We have spoken to the Department of Education on your
Accreditation Status. You need now to go to the Department and
register an exam centre.
[17] Still, the Department would not budge to register the school as an
examination centre. One does not know the exact details of the conversation
between Umalusi and the Department, but the tone of the message from Mr
Oberholster gives an impression that between those two authorities matters
had been resolved which paved the way for the school to be registered as an
examination centre.
[18] In a supplementary affidavit filed on 23 May 2025 the school highlighted a
further challenge that it was facing. I quote the relevant paragraph which
states the following:
"11. On 21 May 2025 the school received an email from Umalusi
requesting the school for the NSC examination centre number
because Umalusi cannot finalise the accreditation process without
the NSC examination centre number."
[19] Despite that the Department was advised of the Umalusi requirement, it still
refused to provide the school with the NSC examination centre number. In
the email from Ms Mariette Ebersohn dated 21 May 2025 Umalusi indicated
to the school that it was ' ... finalizing the accreditation report and in need of
this information." What this implies is that Umalusi is unable to attend to the
accreditation of the school and the Department can't provide the examination
number as it awaits the schools' accreditation by Umalusi.
[20] With what is going on the school and most importantly the learners are left in
an invidious position. The learners' rights to receive or access basic
education are trampled by the ongoing issues. The challenges are within the

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remit of the Department and / or Umalusi to resolve, yet the school is sent
from 'pillar to post' about the situation.
[21] The school was forced to take litigation steps as it does not seem like there
will be a solution soon. On 30 April 2025 the Court granted an order in favour
of the school in which Mangena AJ disapproved of the Department's related
conduct and directed it to restore possession of the SASAMS system to the
school. To show the Court's displeasure the Department was mulcted with
punitive costs on attorney and client scale.
Consideration of the applicable legislative and legal authorities
[22] It is axiomatic that the Department relies on, amongst others, regulation 27
of the National Senior Certificate Regulations in its refusal to register the
school as an examination centre. I do not usually quote large extract from
legislation. However, for this specific application and given the nature of the
orders that are sought, it is important that I do so. The regulation setting out
qualification criteria reads as follows:
"(1) Examination centres must be registered by the assessment body in
accordance with the following criteria-
(a) a suitable venue to accommodate candidates, i.e. sufficient
space and appropriate furniture to be used by candidates;
(b) security of the venue. See Annexure G;
(c) provision of proper lighting;
(d) availability of water and toilet facilities;
(e) suitably qualified teaching staff or members of the community
who can be trained as invigilators;
(f) availability of a strong room or safe for the safekeeping of
assessment material;

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(g) the capacity to assess learners experiencing barriers to
learning;
(h) capacity to complete the School-Based Assessment
requirements, Practical Assessment Tasks, and Language
Oral Assessment. In the case of repeaters enrolled at
registered institutions, such repeaters must comply with the
requirements as contemplated in Regulation 7(3), 7(4) and
7(5); and
(i) report on previous irregularities at the centre with specific
reference to the nature and outcome of the irregularities."
[23] As I understand the case for the Department, it is not allowed to register an
examination centre that has not been accredited by Umalusi. Nothing in the
above regulation 27 suggests the procedure for registration which the
Department relies upon, that the school must first be accredited by Umalusi
before it is registered as an examination centre. There is no suggestion that
the school does not meet any of the requirements listed above.
[24] In circular 110 of 2019 published by the Department there is an additional
requirement. It provides that:
"(i) All examination centres must be evaluated by an official of the
assessment body, to verify that all the necessary facilities required
for conducting examination are available at the centre. Furthermore,
the Department as a "deemed" Umalusi Accredited (Public)
Assessment Body", must ensure strict security with regard to the
storage of examination question papers at all times."
[25] This differs from the provisions of regulation 27 which I saw fit to quote in this
judgment. Apart from regulation 27 the circular makes reference to regulation
26A of the same Regulations. The latter regulation deals with requirements

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for registration of independent schools as examination centres. In sub­
regulation (1) the following is stipulated:
"In order for an independent school to be registered as an
examination centre by either an accredited private assessment body
or the state, such a school, besides being registered as a school,
must also be accredited by Umalusi."
[26] Once again, there is no suggestion that an independent school must first be
accredited by Umalusi to be registered as an examination centre. In any
case, Umalusi itself has indicated that it requires the school to be provided
with an examination centre number before it may accredit it. I add that
section 27(3) only requires that an independent school that has
[27] The current applicable National Policy on the Conduct, Administration and
Management of the Assessment of Senior Certificate3 provides in clause 33
that:
"33. Establishment and registration of assessment centres: Norms and
Standards
(1) All independent providers, which request the Department of
Education to conduct the Senior Certificate examination for the first
time, must register with the Department of Education in terms of the
agreed procedures . ... Every centre should be registered under its
own name with the provincial department of education .... "
[28] From what is contained in the policy, the Department is still the authority that
should register the school as an examination centre. At the very least, where
it ma y be required for Umalusi to be involved, the Department is still required
3 National policy on the conduct, administration and management of the assessment of the Senior
Certificate, published by means of Government N otice N o. 1081 in Government Gazette No . 26789 of
17 September 2004 (as emended).

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to provide an examination centre number which will enable Umalusi to
perform its tasks. Umalusi has said so in no uncertain terms and the
Department had no answer for that. Instead, in its attempt to hold on to its
position, the Department still suggests that the school must be accredited by
Umalusi before it may register it as an examination centre.
[29] The Department also referred to a policy that was published in terms of
General Notice 31337. At clause 26A(1) the policy states that an
independent school that wants to be registered as an examination centre
must also be accredited by Umalusi. I do not see as requiring that the
accreditation must happen before an independent school can be registered
as an examination centre. That requirement appears to be only a construct
of the Department. It is not in accordance with any legislative provision. If
anything, it appears to me that a qualifying independent school (which has
satisfied the requirements for accreditation and registration) is required to
must apply to the relevant assessment body for registration in its own
names. The policy has not made it clear as to which institution is considered
to be the assessment body. That is not the point to detain us in this case.
[30] So far I have not come across a single legislative provision that confirms the
position that has been adopted by the Department. It seems to me irrational
that the Department has sought to rely on a procedure that is not existent in
law to refuse the application to register the school as an examination centre.
In our law a decision a decision is considered irrational when it is so
unreasonable that no reasonable person could have arrived at it. Wh ere a
meas ure is not rationally connected to a permissible objective, then that lack

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of rationality would result in such a measure not constituting a permissible
limitation of a Constitutional right.4 This is that kind of a situation.
[31] I add that a decision that is irrational is unlawful. Further, it is well settled in
our constitutional jurisprudence that that administrative bodies or organs of
the state perform only those powers and functions that have been conferred
or delegated.5 What the Department is doing in this application is to impose
on the school obligations that are not in terms of legislation. When doing this
it omits to take into account the fact that the school has satisfied the
requirements as stipulated in legislation.
[32] The Department's actions bely the principle in Pharmaceutical Manufacturers
Association of South Africa and Another: In Re Ex Parle President of the
Republic of South Africa and Others6 in which the Court held that the
principle of legality demanded that the exercise of public power should not
be arbitrary or irrational.
[33] There is another consideration here, which is that the Department's officials
conducted an investigation at the school and returned a report that the
school meets all the minimum requirements for accreditation and registration
as an examination centre. The school is put in a position where, upon doing
all that was necessary from its side, it suffers because of the contradicting
positions adopted by the Department and Umalusi.
[34] One would have expected the Department, upon being satisfied, to assist the
school with the remaining processes to have it registered. Instead, it raised
procedural issues that do not exist in its refusal to register the school as an
4
5
6
De Beer and Others v Minister of Cooperative Governance and Traditional Affairs (21542/2020) [2020)
ZAGPPHC 184; 2020 (11) BCLR 1349 (GP) (2 June 2020) at para 6.6.
City of Tshwane Metropolitan Municipality v Afriform and Others 2016) ZACC 19 (21 July 2016).
2000 (2) SA 67 4 (CC); 2000 (3) BCLR 241 (CC).

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examination centre. Also, even if accreditation with Umalusi was a
requirement, I am of the view that the Department ought to have provided
the school with an examination centre number that is needed by Umalusi to
finalise the accreditation process. Its refusal to provide the number is
unfathomable. It ignores the fact that it, and not any other institution, granted
the school approval to start operating.
[35] I am minded that there are minor children who are already attending at the
school whose educational progress might be adversely affected by the
decision taken by the Department. Their futures are at stake. This calls for
the Court to intervene.
[36] Additionally, I have carefully considered the minimum requirements for
registration and accreditation as an examination centre. The school has
indeed satisfied the minimum requirements, and that is so even on the
version of the Department.
Whether the school has satisfied the requirements for interdict
[37] The school wants the Department and the MEC interdicted and restrained
from discontinuing the provision of service to the applicant. Final interdict is
sought. The requirements for final interdict are well-known in our law. Failure
to satisfy any one of them will lead to the application failing. Thus, it is an
absolute requirement for such applicant to make out a case to the
satisfaction of the court to grant the interdictory relief sought.
[38] The applicable test is long existing and was set out in Set/oge/o v Set/oge/o, 7
and is that an applicant who is approaching Court for a final interdict must
establish (i) a clear right; (ii) reasonable apprehension of harm; and (iii) that
7 1914 AD221.

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the applicant has no other suitable remedy.8 The requirements were revisited
in Commercial Stevedoring Agricultural and Allied Workers' Union and
Others v Oak Valley Estates (Pty) Ltd and Another9 in which it was
emphasised that an interdict is not there merely for the taking.
[39] In its oral and written arguments the school did not deal with the
requirements at all. Perhaps the school took the view that it was no longer
necessary to pursue the interdictory relief in light of the order granted by
Mangena AJ, to which I have referred earlier.
[40] Though the school did not address the interdict aspect of the case before
me, I have nonetheless considered the cases pleaded by the parties in their
respective affidavits. I am not persuaded with the case for the school. If I
were to grant the interdict, the order would have the effect of tying the
Department's hands from making the decision where circumstances may
warrant such decision to be made.
[41] Courts are cautioned to not be tempted do so and in National Treasury10
where it was held amongst others that:
8
9
10
"A court must also be alive to and carefully consider whether the
temporary restraining order would unduly trespass upon the sole
terrain of other branches of Government even before the final
determination of the review grounds. A court must be astute not to
stop dead the exercise of executive or legislative power before the
exercise has been successfully and finally impugned on review. This
approach accords well with the comity the courts owe to other
Pilane and Another v Pilane and Another (CCT 46/12) [2013] ZACC 3; 2013 (4) BCLR 431 (CC) (28
February 2013).
Commercial Stevedoring Agricultural and Allied Workers' Union and O thers v Oak Valley Estates (Pty)
Ltd and Another 2022 ZACC 7.
National Treasury and Others v Opp osition to Urban Tolling Alliance and O thers (CCT 38/12) [2012]
ZACC 18; 2012 (6) SA 223 (CC); 2012 ( 11) BCLR 1148 (CC ) (20 September 2012).

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branches of Government, provided they act lawfully. Yet another
important consideration is whether in deciding an appeal against an
interim order, the appellate court would in effect usurp the role of the
review court. Ordinarily the appellate court should avoid anticipating
the outcome of the review except perhaps where the review has no
prospects of success whatsoever."
[42] This is such a case where this Court would offend separation of powers by
granting the interdict prayed for. The question of when and how the
Department provides service to the school is a matter that falls entirely within
its decision-making. The Court can only get involved when it is alleged that
such decision, if and when taken, falls short of legality or fairness.
Consequently, I am disinclined to grant the interdict sought by the school at
this stage.
Court's order
[43] The following order is made:
[a] It is hereby declared that the applicant, BBKS High School has met
the requirements for registration as a grade 12 NSC examination and
for the issuing of the examination number to the applicant, BBKS
High School by the respondents Department of Education and MEC
for Education Limpopo.
[b] The first and second respondents are directed, as the Department of
Education and MEC of Education Limpopo, to issue a grade 12 NSC
examination number to the applicant, BBKS High School.
[c] The first and second respondents shall pay the costs of this
application on party and party scale B.

JUDGMENT RESERVED
JUDGEMENT DELIVERD
APPEARANCES:
FOR APPLICANT
FOR RESPONDENTS
15
M. Z. MAKOTI
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
28 MAY 2025
14 JULY 2025
PJ DE NECKER
BOTHA MASSYN THOBEJANE ATT
POLOKWANE
FR MATHOHO
OFFICE OF THE STATE ATTORNEYS
POLOKWANE