IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION: PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE : NO
(2) OF INTER EST TO OTHER JUDGES· NO
{3) REV ISED
20 November 2025
DATE
In the matter between:
CJ MOLATOLI
And
ADV TECH GROUP
PINNALE COLLEGE COPPERLEAF
DEBBIE PRINSLOO
MARTIN DE LA REY
JUDGMENT
MINNAARAJ,
Date: 20 November 2025
Case number: 061967-2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
2
Introduction:
[1] The applicant brought an urgent application, which was set down for 20
May 2025. The second respondent opposed the application. In the
application, the applicant sought the following relief:
a. That the application be treated as urgent in terms of the provisions
of Rule 6(12(b).
b. That, in terms of the provisions of the Promotion of Administrative
Justice Act, 3 of 2000 ('PAJA'), the second to fourth respondents'
decision, made on 24 April 2025, be reviewed and set aside as
unlawful, irrational and unfair.
c. That the second to fourth respondents be ordered to allow the
applicant's minor child to write the mathematics cycle test before
the end of May 2025.
d. The respondents be ordered to pay the costs of the application
on the attorney and client scale.
[2] On 12 May 2025, the applicant launched an application to amend prayer
2 of his notice of motion. The application for amendment was set down
for 20 May 2025. In terms of the purported amendment, the applicant
changed his tack: the decision taken was no longer attacked under the
auspices of PAJA. The attack on the decision was now premised on the
common law.
[3] The second respondent objected to this application to amend. The
second respondent further delivered a Rule 30 notice regarding the
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application to amend, on the ground that it does not comply with the
provisions of Rule 28. The applicant filed a replying affidavit in the
application to amend.
[4] On 21 May 2025, the review application was struck from the roll for lack
of urgency, and the applicant was ordered to pay the costs of the urgent
application.
[5] The applicant then proceeded to enrol the review application on the
opposed roll, and the application was heard on 20 October 2025.
[6] The mathematics cycle test was meant to be written by the applicant's
minor son on 22 April 2025. The minor could not write the cycle test as
the family were away on holiday.
[71 Despite an explanatory affidavit from the applicant's wife and
engagements between the applicant and his wife with the school, the
school did not permit the minor child to take the cycle test. According to
the applicant, this decision is irrational, unlawful and unfair, and it has a
negative bearing on the minor's academic record.
The application to amend:
[8] Rule 28 of the Uniform Rules of Court deals with the amendment of
pleadings. It is trite that any amendment to a notice of motion is also
subject to the provisions of Rule 28. Failure to comply with the provisions
4
of Rule 28 would render the amendment an irregular step that stands to
be set aside.
[9] It is the second respondent's case that the purported amendment is an
irregular step. The applicant contends that the second respondent, when
it delivered its answering affidavit in response to the application to
amend, took a further step (as envisaged in Rule 30(2)). As such, the
second respondent is barred from relying on the application for
amendment as an irregular step.
[1 OJ The applicant's approach is flawed. The delivery of an answering
affidavit in an interlocutory application (which the application to amend
is) can never be regarded as a 'further step in the cause'.
[11] The applicant further relied on Rule 6(12) and argued that the
amendment should be effected in light of the urgent nature of the
application and the provision in Rule 6(12) that non-compliance with the
Rules may be condoned.
[12) The applicant clearly lost sight of the fact that the application was
struck from the roll due to lack of urgency, and any entitlement to rely on
the provisions of Rule 6(12) disappeared.
[13] In the absence of Rule 6(12), the applicant should have pursued
his amendment in accordance with Rule 28; however, he failed to do so.
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[14] In light of all of the above, the amendment sought was not
effected, and the applicant is bound by his election to place reliance on
PAJA.
Point in limine: incompetent relief claimed:
[15] In the answering affidavit, the second respondent raised a point
in fimine that the relief claimed is not competent, as the decision not to
allow the minor child to take the cycle test was not an administrative
action as defined in PAJA. The decision was not an exercise in public
power, nor was it the performance of a public function. Instead, the
decision stems from the school's academic policy, which forms part of
the agreement under which the minor child was enrolled for the 2025
academic year. As such, the implementation and enforcement of the
policy were contractual rights and did not constitute an administrative
action.
[16] In reply, the applicant pinned his flag to the intended amendment.
[17] Since the amendment was not effected, the applicant has no
defence to this point in limine; it follows that this point in limine must be
upheld and the application dismissed.
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Point in limine: material misioinder:
[18] The second respondent raises the material non-joinder of the
minor child's mother (the applicant's spouse) and the minor child.
[19] The minor child is 14 years old. He is represented by the
applicant, who is his biological father. The applicant is acting in the best
interest of the minor child. As such, there was no need to join the minor
child to these proceedings.
[20] The minor child's mother was involved throughout in engaging
with the school, and she deposed to a confirmatory affidavit in the
application. She has a direct and substantial interest herein, but it cannot
be fathomed that any of her rights might be affected prejudicially by the
order of this court.1
[21] In the premises, the points in limine on the non-joinder of the
minor child and his mother are dismissed with costs to be costs in the
application.
Merits:
[22] Since the point in limine on incompetent relief sought in terms of
PAJA is upheld, there is no need to address the merits of the application.
As the applicant places reliance on Moko v Acting Principal, Malusi
1 .Judicial Service Commission and Another v Cape Bar Council and Another 2013 (I) SA 170 (SCA)
at para 12
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Secondary School and Others 2021 (3) SA 323 (CC), I deem it
appropriate to make some remarks on the merits of the application.
(23] Independent schools are bound to provide basic education and to
act in the best interest of the minor child.2
[24] In Moko, the Constitutional Court addressed a case involving a
Grade 12 pupil who was barred from writing the National Senior
Certificate. In paragraph 35 of Moko, the Constitutional Court stated:
"Access to a school is a 'necessary condition for the achievement of the
right to education'. Access to an examination, especially one that is
integral to completing one's schooling, is another important
component for the achievement of this right. The first respondent
had both a positive and negative obligation under s 29(1)(a) to allow
the applicant to write the examination, unless there was an
acceptable basis for not doing so. Refusing the applicant entry into
the school, without adequate justification, and preventing him from
writing the Business Studies Paper 2 examination, especially when
his lateness to the examination was caused by the first respondent,
undeniably breaches the right to basic education ins 29(1)(a) of the
Constitution. None of the respondents sought to provide any
acceptable basis for the first respondent's conduct in refusing the
applicant entry to the examination, or the earlier conduct of sending the
2 AB and Another v Pridwin Preparatory School and Others 2020 (5) SA 327 (CC).
8
applicant home from school on the morning of an examination, which
resulted in him missing the examination." (my emphasis).
[25] The facts in casu are distinguishable from those in Moko. In this
case, the minor child was barred from taking a cycle test because the
applicant and his wife, despite ample notice, chose to go away on
holiday, leaving the minor child absent when the cycle test was
administered.
[26] In my view, the cycle test can never be regarded as integral to
complete the minor child's academic year. The cycle test represents only
5.6% of the total year-end mark. To not allow the minor child to write the
cycle test can in no way infringe on the minor child's right to basic
education.
[27] Under clause 19.1 of the Assessment Policy, if a formal
assessment, such as a cycle test, is missed, the student must produce
a medical certificate; in extenuating circumstances, the principal may
grant a principal waiver.
[28] The applicant's understanding that the mere production of an
affidavit would be sufficient to allow the minor child to write the cycle test
is flawed. Being away on holiday, whilst having been fully made aware
of the academic roster and school policies, can never be regarded as an
extenuating circumstance, capable of being explained in an affidavit to
9
warrant a principal's waiver. To permit such an understanding would
open the floodgates and create a risky precedent.
(29] 'Extenuating circumstances', by logic, would include
circumstances such as death in the family, a house that burned down on
the day before the cycle test, or a mechanical breakdown whilst being
transported to school. A legion of worthy examples can be given. But
being away on holiday would not be one of those worthy examples.
Costs:
[30] The applicant is a legally qualified individual. He pursued this
application, which would have impacted 5.6% of the minor child's
ultimate year mark. The cycle test is but a fraction of the minor child's
academic record, who, from the papers, excels academically.
[31] When the application was struck for lack of urgency, the applicant
should have reconsidered his approach. In essence, the relief sought
became moot. The applicant failed to pursue the amendment, and the
PAJA approach bound him. From the outset, the applicant sought costs
against the respondents, including attorney and client costs. The second
respondent was compelled to incur legal costs to protect its interests and
prevent the creation of an untenable precedent.
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[32] Under the circumstances, there is no basis why the second
respondent should be left out of pocket. It follows that attorney and client
scale costs are justified.
Consequently, I make the following order:
1. The application is dismissed.
2. The applicant is to pay the costs of the application on the scale as
between attorney and client.
Heard on
For the applicant
Instructed by
For the respondent
Instructed by
Date of judgment
Acting Judge of the H igh Court
Gauteng Division, Pretoria
: 20 October 2025
: In person
: In person
: Adv R Kriek
: C R Bothma & Jooste Attorneys
: 20 November 2025