THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 1003/2023
In the matter between:
HOD: WESTERN CAPE EDUCATION
DEPARTMENT FIRST APPELLANT

DIRECTOR OF THE METRO EAST
EDUCATION DISTRICT SECOND APPELLANT

MEC FOR EDUCATION, WESTERN CAPE THIRD APPELLANT

and

EQUAL EDUCATION LAW CENTRE FIRST RESPONDENT

NELISWA MENZIWA SECOND RESPONDENT

NWABISA MPAGEVA THIRD RESPONDENT

PROMISE MHLULULWA FOURTH RESPONDENT

SOMIKA THENGWA FIFTH RESPONDENT

YOLANDA TOLI SIXTH RESPONDENT

MANDISA MELANI SEVENTH RESPONDENT

2

Neutral Citation: HOD: Western Cape Education Department and Others v Equal
Education Law Centre and Others (1003/2023) [2025] ZASCA
116 (11 August 2025)
Coram: NICHOLLS and MBATHA JJA and WINDELL, BLOEM and
MOLITSOANE AJJA
Heard: 11 March 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, published on the Supreme Court of Appeal website,
released to SAFLII. The date and time for hand -down is deemed to be 11h00 on 11
August 2025.
Summary: Civil procedure – Uniform Rule of Court 53(1)(b) – ambit of the rule –
whether a party seeking review relief is also entitled to be furnished with the record
in terms of rule 53(1)(b) for non-review relief – no obligation on decision-maker to
furnish a record where applicant pursues non-review relief.

3

___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Western Cape Division of the High Court , Cape Town
(Baartman J, sitting as court of first instance):
1 The appeal is upheld with no order as to costs.
2 The order of the Western Cape Division of the High Court , Cape Town is set
aside and replaced with the following:
‘1 The application is dismissed.
2 The parties shall pay their own costs of the application.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Molitsoane AJA (Nicholls, Mbatha JJA and Windell and Bloem AJJA
concurring):

[1] This is an appeal against the judgment and order of the Western Cape Division
of the High Court, Cape Town (the high court) compelling the appellants
(the Department) to furnish the respondents with certain documents and information
for the purposes of a review application. The appeal , which is with the leave of the
high court, arises from an interlocutory application and is concerned with the extent
and ambit of rule 53(1)(b)1 of the Uniform Rules of Court where an applicant seeks
both review and non-review relief.

1 Uniform rule 53(1)(b) provides as follows:
‘(1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any
inferior court and of any tribunal, board or officer performing judicial, quasi -judicial or administrative functions shall
be by way of notice o f motion directed and delivered by the party seeking to review such decision or proceedings to

4

[2] The first respondent, Equal Education Law Centre (EELC), is a registered non-
profit organisation and a public benefit organisation which professes to address
systemic inequalities in the South African education. Amongst its services, it
provides an education walk-in law clinic and offers legal support to indivi duals and
communities.

[3] At the beginning of the 2022 academic year, EELC was approached by the
second to the seventh respondents acting in their capacities as parents of certain
school-going learners (named unplaced learners) who were unplaced in public
schools. They had allegedly been turned away by the Department which allegedly
also refused them the opportunity to complete the so called ‘unplaced learner forms.
This situation prompted EELC to institute an urgent review application in two parts.
In Part A, EELC sought relief for the placement of th ose learners as well as other
learners who were in a similar situation as the named unplaced learners, pending the
adjudication of Part B, in which EELC sought review of the failure or refusal by the
Department to take a decision and other relief.

[4] The urgent application was heard on 27 May 2022. However, by that time, the
named unplaced learners had already been placed. On 3 June 2022, the urgent court
granted the relief sought and agreed to, by the parties in Part A, and further ordered
that Part B be enrolled in the semi-urgent court roll.

the magistrate, presiding officer or chairperson of the court, tribunal or board or to the officer, as the case may be, and
to all other parties affected—
. . . .
(b) calling upon the magistrate, presiding officer, chairperson or officer, as the case may be, to despatch, within 15 days
after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside,
together with such reasons as the magistrate, presiding officer, chairperson or officer, as the case may be is by law

required or desires to give or make, and to notify the applicant that such magistrate, presiding officer, chairperson or
officer, as the case may be has done so.’

5

[5] It is necessary at this stage to set out in full the relief sought in Part B, as it has
a bearing on the adjudication of the issue in this appeal. In Part B, EELC sought the
following relief:
‘1 Directing the first and second respondents to comply with their statutory and policy
obligations in terms of the Schools Act, Admission Policy for Ordinary Public School
promulgated in terms of section 3(4)(i) of the National Education Policy Act 27 of 1996 and
the Western Cape Education Department Policy for the Management of Admission and
Registration of Learners at Ordinary Public Schools and to pl ace all eligible learners and
those of compulsory school going age, who are similarly placed, in grade appropriate public
schools.

2 Declaring to be unconstitutional, unlawful and reviewing and setting aside the failure by the
first and second respondents to take a decision on the placement of the learners in the 2022
academic year.

3 In the alternative to 1 to the extent necessary:
3.1 reviewing and setting aside the first and second respondents’ decision to refuse the
Learners placement in a public school for the 2022 academic year.
3.2 Exempting the applicants from the obligation to exhaust any internal remedies in
terms of section 5(9) of the School Act.

4 Declaring that the first and second respondents have subjected the Learners to repeated
violations of their constitutional and statutory rights due to the delayed processing of their
placements in grade appropriate schools in the Metro East Education District.

5 Declaring that the first and second respondents failed in their constitutional and statutory
obligations to administer the admission of unplaced learners in the Metro East Education
District in a lawful manner.

6 Declaring that the third respondent has failed to comply with her statutory and constitutional
obligations to diligently and without delay ensure the availability of sufficient school places
for every learner that lives in the Western Cape.

for every learner that lives in the Western Cape.

7 Directing the first and third respondents to furnish the First Applicant with a plan on steps
that will be taken by it to ensure that sufficient school places are available for the learners
at public schools by the commencement of the 2023 academic year.

6


8 Directing the second respondent to develop a plan to assist unplaced and late registration
learners for the 2023 academic year.’ (Emphasis added.)

[6] In purported compliance with rule 53(1) (b), in respect of Part B of the
application, the Department filed an electronic record with the registrar of the high
court, in the form of a flash drive containing a microsoft excel spreadsheet with three
sections. According to the Department, this record pertain ed to all applications for
placements handled by the schools in the Metro East Education District (the MEED)
for the 2022 academic year and related to information captured ‘during the ordinary
admissions process in the [MEED] for the 2022 academic year ’. EELC was not
satisfied with the record filed and contended that it was incomplete and deficient. It
thus brought an application to compel compliance with rule 53(1)(b), in terms of rule
30A2 read with rule 6(11).3

[7] EECL’s main criticism of the record was that it was furnished in the form of
an excel spreadsheet , with numerous names and other data, and without an
explanation of the meaning of such data and its relevance to the review application.
In a letter dated 29 June 2022 , addressed to the Department, EELC contended that
the electronic record furnished only provided information relating to online
applications and did not account for manual applications made at the schools.

2 Rule 30A provides as follows:
‘(1) Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, or with an
order or direction made by a court or in a judicial case management process referred to in rule 37A, any other party
may notify the defau lting party that he or she intends, after the lapse of 10 days from the date of delivery of such
notification, to apply for an order —
(a) that such rule, notice, request, order or direction be complied with; or
(b) that the claim or defence be struck out.

(b) that the claim or defence be struck out.
(2) Where a party fails to comply within the period of 10 days contemplated in subrule (1), application may on notice
be made to the court and the court may make such order thereon as it deems fit. ’
3 Rule 6(11) provides that ‘[n]notwithstanding the a foregoing subrules, interlocutory and other applications incidental
to pending proceedings may be brought on notice supported by such affidavits as the case may require and set down at
a time assigned by the registrar or as directed by a judge.’

7

According to EELC, the spread sheets did not describe how the information provided
related to the relief sought in paragraphs 1 and 2 of Part B of the notice of motion.

[8] In the rule 30A application, EELC also submitted that the data provided lacked
information detailing:
(a) the number of unplaced learners in the MEED;
(b) the number of unplaced learner s forms the Department received throughout the
course of the 2022 academic year;
(c) how the unplaced learners were ultimately placed;
(d) policies, circulars and /or guidelines which informed the decisions in relation to
the learners’ placements;
(e) whether the schools have waiting lists; and
(f) whether schools in the MEED are oversubscribed and what the learners -teacher
ratio was together with the resource allocation by the Department to MEED.

[9] On the other hand, the Department contended that the record was complete, as
the information placed before the Department in the admission process was that
which was captured on the online system . In this regard , it asserted that the record
included all online and manual applications of leaners known to the Department; all
applications received by the Department; and the actual placements (or offers of
placement) in respect of each learner. The Department further indicated that the
electronic system they use allows the information contained on an unplaced learner
form to be captured, but once that happens, there was no need to retain it. It explained
that the online system enables the Department to attend to every learner who has
applied for admission. For these reasons, the Department rejected the contention that
the record lodged was incomplete, unusable or inaccessible.

8

[10] The high court found in favour of EELC and granted the following relief:
‘(a) The respondents are directed, within (ten)10 days of this Court’s order, to file with the Registrar
and the first applicant a complete record containing all documents and all electronic records
(including all documents, letters, memoranda, reports, recommendations, minutes and other
materials that were before the first, second and third respondents when their respective decisions
were taken), together with their full reasons, including:
(i) A record of school capacity in the [MEED] for the 2022 academic year and the learner -
teacher ratio at those schools and an indication of which schools are oversubscribed in Metro
East.
(ii) A record showing resource allocation to the [MEED] vis-a-vis other districts in the Western
Cape for the 2022 academic year.
(iii) A report on the investigation, if any, conducted by the respondent s on the allegations
outlined in the applicants’ founding papers that parents were turned away by district officials.
(iv) An extract of the data relevant to these proceedings together with an analysis to make the
data intelligible.’

[11] The high court accepted that the Department provided some of the
information sought. In this regard, reference was made to the electronic spreadsheet
of all online and manual applications submitted as of 15 June 2022. It observed that
EELC had to interrogate the record in order to decide on its way forward , more so,
as such information would be needed by the review court in assessing the lawfulness
of the decision-making process. In addition, the high court concluded that the EELC’s
case was concerned with systemic problems of over subscription and once that was
properly understood, the information was relevant for the purposes of the intended
review.

[12] The high court considered that EELC had alleged systemic failures in the
admission process of the learners and that the investigation report was commissioned

admission process of the learners and that the investigation report was commissioned
pertaining to allegations that the learners were turned away. It found that, if the report

9

existed, it ‘…would contain the information that was available to the decision maker
at the relevant time’.4

[13] In my view, the high court erred in granting the application. As a starting point,
the Constitutional Court , in Helen Suzman Foundation v Judicial Service
Commission (Helen Suzman Foundation),5 recognised the importance of a record in
a review application. The Court referred, with approval , to Turnbull-Jackson v
Hibiscus Coast Municipality and Others6 in which the following was said:
‘Undeniably, a rule 53 record is an invaluable tool in the review process. It may help: Set light on
what happened and why; keep the light to the unfounded ex post facto (after the fact) justification
of the decision under review; in the substantiation of a s yet not fully substantiated grounds of
review; in giving support to the decision – maker’s stance; and in the performance of the review
court’s function.’7

[14] What triggered these proceedings was the plight of the seven unplaced learners,
who were allegedly unplaced in public schools at the commencement of the 2022
academic year. As a result, EELC sought an order compel ling the placement of th e
said learners and to effect certain remedial plans pertaining to the said children.

[15] An applicant in a review application is entitled to th e documents and
information which are relevant to the decision sought to be reviewed. In this regard,
the Constitutional Court in Helen Suzman Foundation held that ‘the record contains
all information relevant to the impugned decision or proceedings ’.8 It held further

4 Paragraph 10 of the judgment of the high court.
5 Helen Suzman Foundation v Judicial Service Commission [2018] ZACC 8; 2018 (4) SA 1 (CC); 2018 (7) BCLR 763
(CC) (Helen Suzman Foundation) para 16.
6 Turnbull-Jackson v Hibiscus Coast Municipality and Others [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11)
BCLR 1310 (CC).
7 Ibid para 37.
8 Helen Suzman Foundation para 17.

10

that the ‘[i]nformation is relevant if it throws light on the decision -making process
and the factors that were likely at play in the mind of the decision-maker’.9

[16] It is evident from Part B of the notice of motion that prayers 1, 7 and 8 concern
mandamus relief, while prayers 4, 5 and 6 seek declaratory relief. It is thus apparent
that the relief sought in these prayers has nothing to do with the review relief and are
stand-alone substantive causes of actions , as preferred by EELC. This Court, in
Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for
Conciliation, Mediation and Arbitration and Others ,10 held that i n review
proceedings, ‘[t]he focus is on the process and on the way in which the decision -
maker came to the challenged conclusion’. This is what rule 53 seeks to facilitate.

[17] The only decisions , which were sought to be reviewed are, first, the alleged
failure on the part of the Department to take a decision on the placement of the named
unplaced learners in the 2022 academic year , and second; in the alternative, the
contention that a decision was taken to refuse the named unplaced learners’ admission
to public schools in the year mentioned. Section 6(2)(g) read with s 1 of Promotion
of Administrative Justice Act 3 of 2000 (PAJA) includes a failure to take a decision.
It entitles a court or tribunal to judicially review an administrative action if the action
concerned consists of a failure to take a decision.


9 Ibid para 17.
10 Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration and
Others [2006] ZASCA 175; [2007] 1 All SA 164 (SCA); 2007 (1) SA 576 (SCA); [2006] 11 BLLR 1021 (SCA); (2006)
27 ILJ 2076 (SCA) para 31.

11

[18] It is apposite that to mention that this Court, in Offit Enterprises (Pty) Ltd and
Another v Coega Development Corporation (Pty) Ltd and Others,11 held as follows,
with regard to the failure to take a decision:
‘…[w]here s 6(2)(g) of PAJA refers to the failure to take a decision it refers to a decision that the
administrator in question is under some obligation to take, not simply to indecisiveness in planning
on policy issues… It is not directed at decisions in regard to future policy…’12
On the other hand, s 6(3)(a)(iii) with reference to s 6(2)(g) of PAJA provides as
follows:
‘If any person relies on the ground of review referred to in subsection 2(g), he or she may in respect
of a failure to take a decision, where the administrator has failed to take that decision , institute
proceedings in a court or tribunal for judicial review of the failure to take the decision within that
period on the ground that the administrator has a duty to take the decision.’

[19] In the notice of motion of the rule 30A application, EELC sought an order
compelling the Department to file with the Registrar and EELC, ‘a complete record
containing all documents and all electronic records (including all documents, letters,
memoranda, reports, recommendations, minutes and other materials which were
before the first, second and third respondents when their respective decisions were
taken), together with their reasons ’. (Emphasis added.) While the Department did
furnish a record, EELC was dissatisfied with its content. In its founding affidavit, it
alleged that the record was insufficient in that it did not include, among other things:
(a) a breakdown of how many learners remain unplaced in schools in the MEED for
all grades for the 2022 academic year, including any learners classified as ‘essential’
and ‘non-essential’ transfers; (b) information on how many unplaced learner forms

11 Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation (Pty) Ltd and Others [2010] ZASCA 1;

2010 (4) SA 242 (SCA); [2010] 2 AII SA 545 (SCA) at 259 A-C (Offit Enterprises I). This judgment was confirmed
by on appeal by the Constitutional Court in Offit Enterprises (Pty) Ltd and Another v Coega Development Corporation
(Pty) Ltd and Others [2010] ZACC 20; 2011 (1) SA 293 (CC); 2011 (2) BCLR 189 (CC) (Offit Enterprises II).
12 Ibid Offit Enterprises I para 43.

12

were received during that period; (c) policies, circulars and guidelines that informed
placement decisions; (d) school waiting lists; and (e) data on oversubscription,
learner-teacher ratios, and resource allocation across schools in the district.

[20] The Department consistently denied that it had refused admission to any
learner whose application it had received. Its position was that, whenever it became
aware of unplaced learners during the 2022 academic year, those learners were duly
placed. Indeed, by the time the matter came before the urgent court all the named
learners had already been placed. The Department further maintained that its online
system captured all applications – both manual and online – as well as the outcomes
thereof. On this basis, it contended that the record provided was complete. In the
absence of a properly pleaded and substantiated allegation that the Department had
failed to take a decision, there was no basis to compel the additional information in
terms of rule 53(1)(b).

[21] The EELC’s alternative basis for review was that the Department had taken a
decision to refuse the placement of the named unplaced learners. However, this was
never pleaded as a factual assertion. In its founding affidavit in Part B, EELC merely
invited the Department to state in its answering affidavit whether such a decision had
been taken and, if so, to provide reasons. It did not allege t hat such a refusal had
occurred. Nevertheless, the high court inferred that a refusal decision had in fact been
made. That inference was unwarranted on the pleadings. The obligation to furnish a
record under rule 53(1)(b) arises only where a decision is alleged and sought to be
reviewed. It cannot be used to conduct a preliminary inquiry into whether a decision
exists. On this basis alone, the high court erred in granting the relief.

13

[22] Crucially, what was before the high court was not the review itself, but an
interlocutory application to compel production of a record. That application could
only succeed to the extent that it concerned the review relief properly framed in Part
B. In prayers 1, and 8 of Part B EELC sought mandamus relief, while prayers 4, 5
and 6 it sought declaratory relief. The relief in the latter paragraphs stand apart from
the review relief, which is confined to prayers 2 and 3. Rule 53 governs the procedure
for judicial review of administrative action. It does not entitle an applicant to obtain
discovery for the purpose of substantiating or pursuing separate con stitutional or
statutory claims for declaratory or mandatory relief. The high court’s order traversed
this procedural boundary.

[23] In addition, EELC expressly framed the relief sought in Part B as being
confined to the 2022 academic year. In its founding affidavit, it stated: ‘ …for this
Honourable Court to determine the reasonableness and legality of the [Department’s]
delay in placing the [l]earners as well as similarly placed learners, the complete rule
53(1)(b) record and reasons are required, which should include the information and
documents listed in paragraph 11…’. However, the list contained in paragraph 11
includes materials that bear no relation to any alleged administrative decision subject
to review. Th ese include, for example, plans for the 2023 academic year, district -
level resource allocations, and general data intended to support systemic declaratory
or structural relief. Such relief is not dependent on the legality of a particular
administrative decision, and therefore does not fall within the ambit of rule 53(1)(b).
In compelling the production of information unrelated to reviewable conduct, the
high court erred both procedurally and substantively.

[24] At no stage had EELC sought to amend its notice of motion to align with the

[24] At no stage had EELC sought to amend its notice of motion to align with the
broader averments made in its supporting affidavit. When the high court dealt with

14

the rule 30A application, the relief sought remained confined to the review of alleged
failures or refusals by the Department in respect of the 2022 academic year. The
review relief, as framed in prayers 2 and 3 of Part B, is limited to that academic year
and relates specifically to the named unplaced learners and others similarly placed. It
was on this basis that EELC sought the production of a record under rule 53(1) (b).
However, the high court erred in granting relief that extended beyond the scope of
that review.

[25] In particular, the order compelling discovery of an investigation report was
misplaced. That report was not before the Department at the time any alleged decision
was taken, and thus falls outside the scope of a rule 53 record. The high court further
erred in directing the Department to generate and furnish an extract of the data with
explanatory analysis, particularly where such relief was never sought. Rule 53 cannot
be used to obtain discovery in support of declaratory or mandatory relief – remedies
that must be pursued through appropriate procedural mechanisms.

[26] It bears emphasis that the 2022 academic year, to which the review application
relates, has long since passed. On its own version, EELC acknowledges that the
named unplaced learners were eventually placed. Its interest now lies in the
Department’s alleged delay in effecting those placements. Whether such a delay
renders the review application moot is an issue that must be determined by the court
seized with the merits of that review. That question is not before this Court. What is
relevant for present purposes is that rule 53(1)(b) does not oblige a decision -maker
to furnish a record where the relief pursued falls outside the bounds of judicial review.

[27] EELC in this case raises important statutory and constitutional issues relating
to the right to education. It cannot be said that the application is frivolous or even

15

vexatious. While the application is interlocutory, I hold the view that although
unsuccessful, in line with the Biowatch principle, the respondents should not be
saddled with costs.13

[28] The appeal must be upheld and I accordingly order as follows:
1 The appeal is upheld with no order as to costs.
2 The order of the Western Cape Division of the High Court, Cape Town is set
aside and replaced with the following:
‘1 The application is dismissed.
2 The parties shall pay their own costs of the application.’


______________________
P E MOLITSOANE
ACTING-JUDGE OF APPEAL



13 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC) 2009 (10) BCLR
1014 (CC).

16

Appearances

For the appellant: E A De Villiers-Jansen SC and A G Christians
Instructed by: State Attorney, Cape Town
State Attorney, Bloemfontein

For the respondent: L J Zikalala and N Soekoe
Instructed by: Equal Education Law Centre, Cape Town
Webbers, Bloemfontein.