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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN
Case No: 2026-013902
In the matter between:
RA First Applicant
ZA Second Applicant
and
THE HEAD OF DEPARTMENT:
WESTERN CAPE EDUCATION DEPARTMENT First Respondent
THE CIRCUIT MANAGER, METRO EAST
EDUCATION DEPARTMENT: THABO MANGANENG Second Respondent
LAERSKOOL MIKRO Third Respondent
DE KUILEN PRIMARY SCHOOL Fourth Respondent
BASTION PRIMARY SCHOOL Fifth Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION, WESTERN CAPE Sixth Respondent
DIRECTOR OF THE METRO EAST
EDUCATION DISTRICT Seventh Respondent
THE GOVERNING BODY, LAERSKOOL MIKRO Eighth Respondent
THE GOVERNING BODY, DE KUILEN Ninth Respondent
THE GOVERNING BODY, BASTION PRIMARY SCHOOL Tenth Respondent
Reportable / Not reportable
Coram: Anderssen AJ
Heard: 25 February 2026
Delivered: Electronically on 9 March 2026
Summary: Review application – procedural unfairness – applicants notified of
decision after deadline for appeals had passed – decision remitted, not
substituted
Urgency – self-created urgency – best interests of children paramount – non-
compliance with Rule 6(12) condoned in terms of Rule 27(3) – applicants
deprived of costs
ORDER
1. The application for the review of the decision of the first, second, sixth and
seventh respondents to refuse the applicants’ minor children placem ent at
the third or fourth respondents and, instead to place them at Rouxville
Primary School (“the decision”), succeeds.
2. The decision is set aside and remitted to the first, second, third, fourth,
sixth and seventh respondents (“the named respondents ”) for re -
consideration.
3. The applicants shall furnish the named respondents with their written
submissions in this regard, in an appeal of the decisio n, by 17h00 on
Friday, 13 March 2026.
4. The named respondents shall provide the applicants with their new
decision, together with reasons therefore, by 17h00 on Tuesday 24 March
2026, and the second and sixth respondents are directed to file the new
decision with Mr Brill (the court’s registrar) on the same day.
5. There shall be no order as to costs.
JUDGMENT
Introduction
[1] This is an application instituted by the first and second applicants in their
capacity as the guardians of twin boys, aged 6, who should be attending
Grade 1 in 2026. It is an application for the review and setting aside of the
decision taken by the first, third, fourth and fifth respondents in refusing the
twins placement at the latter three respondents’ respective schools . In
addition, the applicants seek certain interdictory relief directing the first and
second respondents to place the children at third, alternatively fourth ,
alternatively fifth respondent for the 2026 academic year and for the first
and second respondents to take certain steps to ensure the twins are able
to meet academic requirements despite the late start.
[2] Although this matter required an urgent judgme nt, my judgment and the
order was delayed as I was informed on 26 February 2026 that counsel for
the first, second, sixth and seventh respondents wished to bring a new
case to my attention. The applicants consented to them doing so on 3
March 2026 and furn ished me with a note in reply in the afternoon of 5
March 2026.
[3] I will, in this judgment, refer to the first , second, sixth and seventh
respondents as ‘ the WCED’, to the second respondent as ‘ the circuit
manager’ and to the third, fourth and fifth respondents as ‘ Mikro’, ‘ De
Kuilen’ and ‘Bastion’ respectively.
[4] All the respondents vigorously opposed the relief sought, some on different
grounds, but all of them raised objections on the same two grounds: the
complaint is, firstly, that the urgency in this matter is self -created and that,
when launching the application, the applicants did not comply with the
provisions of Rule 6(12), and secondly, that the applicants utilised Rule 6
instead of Rule 53. In addition the WCED seek the striking out of certain
paragraphs of the applicants’ replying papers in terms of Rule 6(5)(g) on
the basis that it constitutes impermissible new information and new relief.
The averred facts in the founding affidavit
[5] The applicants made online application for the twins’ placement at Mikro,
De Kuilen and Bastion primary schools . They preferred Mikro – as their
older son was enrolled there for Grade 7 – but also applied at De Kuilen as
their daughter is in De Kuilen High School and at Bastion because it is on
the way to Paarl where the first applicant works. The family only ha s one
car and the second applicant usually fetch the children in the afternoons
using public transport. Mikro and De Kuilen are near one another and
Bastion is not much further away. The family does not have substantial
means and live in a high crime area. It is important for them , from a
financial and safety perspective, to have the children in the same schools
or schools that are close to one another. On 29 August 2025 they were
informed, however, that the children were placed at Rouxville Primary
School (“Rouxville”) – a school they had not applied to. On 2 September
2025 the applic ants appealed to Mikro to accept the twins. On 18
September 2025 they were informed by the WCED that the twins could not
be placed at their schools of choice as the schools are ‘oversubscribed’.
[6] On 22 September 2025 Mikro informed the applicants that the WCED
should have informed them in the first week of June 2025 that their
applications were not successful. The applicants say they were not
informed (this is disputed by the WCED) . On the same day their attorney
noted an appeal to the WCED, which was c opied to the circuit manager.
The applicants were, however, informed by the WCED that they lodged
their appeal too late as the closing date for appeals was 31 August 2025.
They therefore continued to engage the circuit manager in an effort to
secure a plac e at their school of first choice, being Mikro. On 1 October
2025 they made a further appeal to the WCED and the circuit manager.
They continued to engage with the circuit manager through October and
secured a meeting with him on 7 November 2025. At this m eeting they
were told they do not have to complete any paperwork to place the twins
on a waiting list. On 26 November 2025 they were again told their schools
of choice are oversubscribed. They remained in contact with the circuit
manager until 10 December 2025 and reached out again on 12 January
2026. On 14 January 2026 they were told that there was nothing that could
be done to place the twins at their schools of choice.
[7] The application followed, which was set down in the fast lane on 29
January 2026 on 4 days’ notice to the respondents . The matter was
postponed and came before me on a preferred allocation date with the
leave of the judge president.
The relevant facts set out in the WCED’s answering affidavit
[8] The WCED recorded that the twins have a school placement but that the
applicants elected to keep them out of school without explaining why they
are unable to attend Rouxville . There is a negligible difference in distance
and travel time between all the schools and the applicants’ home. The
applicants are unhappy with the placement as they find it inconvenient and
their review application serve their own interests and not the tw ins’ best
interests. The WCED’s policy regarding school placements gives effect to
the section 29 constitutional right to basic education. Their obligation is to
ensure that there are sufficient places so that each child in its province can
attend school. By placing the twins at Rouxville, after their applications to
the other schools were unsuccessful, they met these criteria. The WCED
informed the applicants of the unsuccessful outcome of their applications
on 30 May 2025 and that the twins were placed on the waiting list at Mikro.
[9] Each public school’s governing body is responsible for its own admission
policy. The applicants live within the catchment areas of Mikro, De Kuilen
and Rouxville but not Bastion. It is common cause that the applicants did
not seek to review the admissions policy for any of the three schools of
choice. The WCED provided the following facts regarding each school:
[9.1] Mikro has 1120 learners in its school with 35 per class and 140 in
each grade. It employs a preferential a llocation process. According
to the WCED’s records the school admitted 124 Grade 1 learners
for 2026 to be accommodated in 4 classes. The number is made up
of 30 English medium learners and 83 Afrikaans medium learners.
Of the 30 English medium learners, 28 l earners would progress
from Grade R. The school received 140 applications of which 16
was successful (6 English medium and 10 Afrikaans medium). The
actual number of Grade 1 learners enrolled for 2026 is 132 (I note
that the numbers are not consistent and do not match).
[9.2] De Kuilen is also a dual medium school with a preferential allocation
process. The WCED records show that De Kuilen planned to enrol
170 Grade 1 English medium learners to be accommodated in 5
classrooms of 34 learners each. It estimat ed that 117 learners
would progress from its Grade R class. The school received 519
applications of which 52 were successful, it admitted 172 learners
(117 Grade R learners plus 52 successful applicants plus an
additional 3 Grade R learners that they initially anticipated would not
be progressing).
[9.3] Bastion admits learners in terms of a selection process and not a
first-come-first-served basis. They have a preferential 3 -phase
allocation process. Bastion planned to admit 217 Grade 1 learners
of whom 76 would be English medium learners, according to WCED
records. The school received 277 applications of which 21 was
successful (15 English medium and 6 Afrikaans medium) with 57
learners progressing from Grade R, which included 5 learners they
had not anti cipated would pass. This left the English medium class
oversubscribed.
The relevant facts pertaining to Mikro per the answering affidavit
[10] For the 2026 school year Mikro has one English Grade 1 class with a
capacity of 27 learners determined in accordance with the guidelines from
the Federation of Governing Bodies of South Africa Schools (“ FEDSAS”)
and infrastructure constraints . For the 2026 Grade 1 intake, the scho ol
received about 120 applications for the English medium class. Of these, 29
learners were admitted from the 2025 Grade R English class (which
included one learner transferring from the Afrikaans stream). To
accommodate demand, Mikro increased the Grade 1 capacity to 33
learners, being 6 learners over FEDSAS guidelines. The class is therefore
oversubscribed and no further admissions are possible without
compromising educational quality, safety, and compliance with statutory
norms. All additional admitted G rade 1 learners reside or have parents
working within the school’s catchment area. The majority of the 120
learners were from within the catchment area, reflecting high local
demand. The school’s admission policy is governed by its’
Leerdertoelatingsbeleid (spanning some 22 pages and incorporating 17
clauses and 2 annexures with tables). The annexures include formulas
relating to capacity with criteria such as numbers of classrooms, classroom
sizes, teacher’s space, space for learner’s tables, and other ava ilable
facilities (such as bathrooms, a club house and a small café), being used
to inform its’ capacity formula.
[11] Mikro assessed the twins on 15 January 2026 for potential admission to
the Afrikaans stream but the outcomes indicate that the twins do not have
sufficient proficiency in Afrikaans, and enrolment in this stream would not
be in their interests . The first applicant attended at school on the following
day and informed the school he was removing his son from Grade 7 and
would be enrolling all his children elsewhere. The son did not attend school
from 14 January 2026 and given this, on 28 January 2026, he was
deregistered as a learner on CEMIS (a centralised education management
information system). In terms of WCED policy the school has the ri ght to
deregister a learner if he has not attended school for 10 consecutive days.
The relevant facts pertaining to De Kuilen
[12] De Kuilen’s admission process is similarly regulated by its admission policy
– a 14 -page document with 17 clauses incorporating topics such as
admission criteria, the practical implementation of these criteria, criteria
relating to learners with special needs, schoo l zoning (the feeder zone or
catchment area), a right to appeal and so forth . This school also serves
both Afrikaans - and English -speaking learners. Their learner / educator
ratio is 34:1 for Grade 1 to Grade 7 learners.
[13] De Kuilen has 5 classes for each grade and place for 170 learners in terms
of their admission policy . There are 4 Grade R classes, which means that
they have 120 learners in that grade who automatically progress to Grade
1. They therefore only have 50 places available for new Grade 1 learners
each year. The school is in high demand and therefore preference is given
to learners residing within its core catchment area. In addition they give
preference to learners with older siblings in the school. Close attention is
paid to the language of preference for each learner. De Kuilen received
476 applications for placement in 2026. Of the 476 applicants, 8 had older
siblings in the school. Of the remaining, there were 59 learners for whom
De Kuilen is the closest school offering English as a la nguage of
instruction. The school accepted 42 of the latter applications. All offered
places were accepted. No places could be offered to children , such as the
twins, residing further away. The applicants have not complained about a
defect in the school’s decision-making policy.
The relevant facts pertaining to Bastion
[14] The school’s Toelatingsbeleid is, once again, a comprehensive document
typed in single spacing with 11 clauses and multiple sub -clauses. The
school’s criteria for admission include the older -sibling-preference policy,
the policy to prefer children living closest to the school and the policy to
ensure that children can receive education in their mother tongue. In
addition this school also prefers to admit their own Grade R learners first.
Bastion’s capacity to admit learners are based on the number and size of
their classrooms (56 m²) a nd the capacity of other facilities. Their policy
provides for the admission of 38 learners per classroom. The applicants’
application did not meet the primary criteria for admission as they live
outside the school’s geographical catchment area. When their application
was unsuccessful, the applicants did not appeal the decision.
The complaint concerning self-created urgency / lack of urgency
[15] It is well -established that an applicant cannot create its own urgency by
simply waiting until the normal rules can no longer be applied. 1 It is also
well-established that a litigant seeking relief on an urgent basis must
explain the circumstances, which render the matter urgent and the reasons
why substantial redress in the ordinary course would not be obtained . A
litigant should carefully analyse the facts of each case to determine the
degree of relaxation of the rules and the ordinary practice of the court that
is required. A litigant’s entitlement to deviate from the rules is dependent
upon and limited to the urgency which prevails.2
[16] The usual consequence that follows where an application lacks the
requisite degree of urgency was confirmed by the SCA in Commissioner,
SARS, Hawker Air Services (Pty) Ltd 3 to be the following:
“Where the application lacks the requisite element of degree of urgency, the
Court can, for that reason, decline to exercise its power under Rule 6(12)(a). The
matter is then not properly on the Court’s roll, and it declines to hear it. The
appropriate order is generally to strike the application from the roll.”
[17] There seems to be a practice that has arisen in this division of applicants
who blithely rely on section 28(2) of the Constitution to support urgency .
That a child's best interests are of paramount importance in every matter
concerning the child is undeniable. The best-interests-of-the-child principle
enshrined in s ection 28(2) is a right in and of itself, and has been
described as the ‘benchmark for the treatment and protection of children ’.4
Our jurisprudence also holds, however, that the paramountcy principle
1 Edrei Investments 9 Ltd (In Liquidation) v Dis -Chem Pharmacies (Pty) Ltd 2012 (2) SA
553 (ECP); Bandle Investments (Pty) Ltd v Registrar of Deeds and Others 2001 (2) SA
203 (SE) 213; East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011) at para [6] and [9] – The fact
and Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011) at para [6] and [9] – The fact
that Applicant now wants the matter resolved urgently does not render the matter urgent.
2 Luna Meubels Vervaardiger (Edms) Bpk v Makin (t/a) Makin’s Furniture Manufacturers)
1977 (4) SA 135 (W); Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 (W).
3 2006 (4) SA 292 (SCA) at para [11].
4 In Centre for Child Law and Others v Media 24 Ltd and Others 2020 (4) SA 319 (CC) at [37].
does not automatically override other rights as every right is itself capable
of being limited. The word ‘paramount’ does not automatically mean that a
child’s best interests can never be limited by other rights: 5
[60] … Further, given that the right to dignity is extended to include the right to
family life, it is clear that the rights of children protected by s 28(1)(b) and (2) are
limited, in that where a parent is required to leave the Republic in order to apply
for a change of visa status, this may result in the child's family being separated.
Section 28(2) of our Constitution provides that a child's best interests are of
paramount importance in every matter concerning the chi ld. Although the words
''paramount importance'' appear in s 28(2), our jurisprudence holds that they do
not automatically override other rights as every right is itself capable of being
limited. In De Reuck v Director of Public Prosecutions, this Court mad e it clear
that the word ''paramount'' in s 28(2) does not automatically mean that a child's
best interests can never be limited by other rights, and that therefore, in certain
instances, s 28(2) may be subjected to limitations that are reasonable and
justifiable in terms of s 36.
[18] What is in the best interests of a particular child is furthermore a question
of fact in each specific case .6 As such it is incumbent on any applicant,
who seeks to rely on the best -interests-principle to establish urgency by
setting out the necessary facts . Any applicant who does not , runs the risk
that the court will strike the matter from the roll. Section 173 of the
Constitution empowers this Court to regulate its own process in the
interests of justice. I remind the applicants in this matter that section 7 of
the Children’s Act 7 lists no less than 14 factors (from subsection (1)(a) to
(n) with many of the factors having sub -categories) that should be
considered when applying the best-interests-principle.
considered when applying the best-interests-principle.
[19] In this matter, the applicants knew on 29 August 2025 that the twins were
accepted at Rouxville, and they knew on 18 September 2025 that their
applications at the three schools of their choice had been unsuccessful as
5 Nandutu and Others v Minister of Home Affairs and Others 2019 (5) SA 325 (CC).
6 Lubbe v Du Plessis 2001 (4) SA 57 (C) at 66B/C-C and E-E/F.
7 Act 38 of 2005.
the schools were ‘over -subscribed’. Th ey also knew by 22 September
2025, or an unspecified date thereafter – but certainly by 1 October 2025
when they reached out to the circuit manager – that their appeal to the
WCED would not be heard as they were out of time. By then they had
already appointed their attorneys of record.
[20] I well understand, and sympathise with, the respondents’ collective
frustration that the applicants would , in these circumstances, wait until 25
January 2026 (some four months later) to launch their application and
would then give the respondents only four days’ notice . The time periods
imposed on the respondents were wholly unreasonable and largely the
result of the applicants’ own actions in delaying the launching of the
application. It should be noted that the y had al ready threatened legal
action on 1 October 2025 . I agree with the submissions by counsel for
each of the respondents that the applicants created the urgency in this
matter. Setting a matter such as this down on such short notice, is an
abuse of the latitud e afforded to practitioners in deserving cases, in terms
of Rule 6(12) of the Uniform Rules, that regulate timeframes to prosecute
matters ahead of pending cases on the court role. Urgency is not for the
taking and is available only in deserving cases.8
[21] Subrule 6(12)(b) specifically require an applicant who seeks leave from the
court to condone its non -compliance w ith the rules , to set forth explicitly
the circumstances, which render the matter urgent , and why the applicant
claims they cannot be afforded substantial redress at a hearing in due
8 NJBD v CD (unreported case number 8780/2021P) available on Saflii at ZAKZPHC 112, 27
November 2024. See in particular para [19] to [24].
course. In Several Matters 9 the Johannesburg High Court also
emphasised that the procedure set out in Rule 6(12) is not there for the
taking. The rule allows the court to come to the assistance of a litigant
because, if the latter were to wait for the normal course laid down by the
rules, it will not obtain substantial redress. This must be determined by the
facts of each case.
[22] Once again, the applicants’ founding papers fall far short in respect of the
necessary facts. The three principle reasons advanced by them in support
of urgency are (a) the twins are not attending school, (b) it is imperative
that the twins be placed immediately, as Grade 1 learners are undergoing
baseline assessments at this time to deter mine early support needs and to
prevent learning gaps, and (c) the applicants are severely prejudiced by
the respondents’ conduct and (d) they have no alternate remedy. Once
again I find myself sympathetic to the respondents’ complaints that these
few reas ons do not render the matter so urgent as to merit a four -day
notice period to them.
[23] Despite the above , I am willing to grant the relief sought in terms of rule
6(12)(a), in light of the following considerations:
[23.1] The applicants may have create d the urgency but ultimately it is the
best interests of the twins that must be considered. However
unreasonable the applicants’ actions, the twins are currently not
attending school and this cannot be in their best interests. I
acknowledge the WCED submis sion that the children could have
started at Rouxville already but I also acknowledge that it may not
9 In re Several Matters on the Urgent Court Roll 2013 (1) SA 549 (W).
be in their best interests to start at one school, and, if the application
succeeded, to be transferred to another school.
[23.2] In terms of section 7(1)(n) of the Children’s Act I must consider
which action or decision would avoid or minimise further legal or
administrative proceedings in relation to the twins. Striking this
matter from the roll would not minimise further proceedings and will
perpetuate the current uncertainty. I also refer to section 6(4)(b) of
the same Act which require that a delay in any action or decision to
be taken must be avoided as far as possible.
[23.3] The High Court, as upper guardian of all minor children ,10 bears a
duty to ensure that judicial processes do not prejudice a child’s
welfare. As upper guardian the High Court11
‘… has extremely wide powers in establishing what is in the best interests
of minor or dependent children. It is not bound by procedural structures or
by the limitations of the evidence presented or contentions advanced by
the respective parties. It may in fact have recourse to any source of
information, or whatever nature, which may be able to assist it in resolving
custody and related disputes.’
[23.4] In the AD v DW case12 the Constitutional Court endorse d the
minority view in the SCA that the interests of minors should not be
“held to ransom for the sake of legal niceties ” or “ mechanically
sacrificed on the altar of jurisdictional formalism”.
[24] In light of all of the above, and despite the sparsity of facts in the founding
affidavit, I am following the approach of Van Heerden J i n the Lubbe-
10 Fletcher v Fletcher 1948 (1) SA 130 (A).
11 Terblanche v Terblanche 1992 (1) SA 501 (W) at 504.
12 AD and DD v DW and Others (Centre for Child Law as Amicus Curiae; Department for
Social Development as Intervening Party) 2008 (3) SA 183 (CC).
matter and, in terms of Rule 27(3) of the Uniform Rules, I condone the
non-compliance by the applicants with Rule 6(12).
[25] My displeasure with the actions of the applicants, and their non -
compliance with the rules, is , however, expressed in the cost order I am
making.
The use of rule 6 instead of rule 53
[26] I turn to the further in limine submissions of the respondents who – to a
lesser or larger degree – contended that the application had been
improperly brought in terms of Rule 6, rather than Rule 53 of the Uniform
Rules.
[27] It is so that in the ordinary course, applicants in judicial review proceedings
launch those proceedings in terms of Rule 53 and call for a record, which
evidences the decision-making process, to determine whether a decision is
susceptible to review on the grounds contended for . If the review is
successful, the application is remitted to the decision -maker to make the
decision afresh, alternatively, a court may substitute its order for the
decision impugned. The respondents aver that, because the applicants did
not follow the procedure set out in Rule 53, there is no record of the
decision-making process before the court. I was referred to the various
SCA and Constitutional Court authorities, which recognised the importance
of a record in review applications.13
13 Head of Department: Western Cape Education Department and Others v Equal Education
Law Centre and Others 2026 (1) SA 372 (SCA) at para [15]; Helen Suzman Foundation v
Judicial Services Commission 2018 (4) SA 1 (CC) para [16]; Turnbull-Jackson v Hibiscu s
Coast Municipality and Others 2014 (6) SA 592 (CC) at para [37]; Rustenburg Platinum
[28] Mr De Villiers-Jansen SC also submitted, with reference to Front for All v
MEC, Environmental Planning , that judicial reviews are not concerned
with the actual decision but with the decision -making process. I am in
complete agreement with this submission. The submission further w as
that, without the records of the impugned decisions, the applicants cannot
legitimately attack the process followed in making these decisions. This
may be true in respect of the applicants’ contention that the decision by the
WCED (and the respective sc hools) was unreasonable and irrational. I do
not believe that the same is true in respect of the complaint regarding
procedural unfairness.
[29] Mr Oosthuizen SC has, in turn, referred me to the Jockey Club case.14 He
submits that the applicants were fully entitled to proceed with launching
this application in terms of Rule 6 as a party in review proceedings is not
confined to procedures laid down in Rule 53 . The only qualification is that
the Court must be placed in a position to determine the issues raised by all
the respective parties to th e application. His contention is that the Court
has been placed in this position by the respondents who have provided the
reasons upon which the impugned decisions by the schools and the
WCED are based. This appears from the content of the various answering
affidavits as well as the annexures thereto. He also drew my attention to
the Government Body of Mikro case,15 which was also brought on
application in terms of Rule 6 rather than using the processes in terms of
Rule 53, wherein interdictory relief wa s sought by one of the very same
Mines Limited (Rustenburg Section) v Commission for Conciliation, Mediation and
Arbitration and Others 2007 (1) SA 576 (SCA) at para [31].
14 Jockey Club of South Africa v Forbes 1993 (1) SA 649 (AD).
15 Governing Body of Mikro Primary School and Another v Western Cape Minister of
Education and Others 2005 (3) SA 504 (C).
respondents to this matter.
[30] There is no doubt that an applicant in review proceedings are not bound by
Rule 53 and may elect to proceed in terms of Rule 6. The advantage of
Rule 53 is simply that it obviates the delay and expense of an application
to amend a notice of motion and to supplement the founding affidavit –
Rule 53(4) enables an applicant as of right to amend, add or vary the
terms of the notice of motion and to supplement the founding affidavit. In
substance, Rule 53 has done no more than to adapt the ordinary Rule 6
procedure.16 It is understandable, in light of the applicants’ decision to
keep the twins out of school until the review application has been heard,
that the applicants elected to use Rule 6 and to rely on Rule 6(12) to
expedite a hearing – after all, the primary purpose of Rule 53 is to aid an
applicant, “not to sha ckle him”.17 These applicants must, however, accept
the risk associated with this decision, in that the purpose of the judicial
review is to scrutinise the legality of administrative action . In light of the
decision I have reached, I do not need to say more.
The relevant statutory context and legal principles
[31] The Constitution enshrines a child’s right to basic education , further
education, and to receive education in their language of choice. The South
African Schools Act 18 (“SASA”) provides for the organisation, governance
and fu nding of schools to give effect to this constitutional right. Public
schools are run in partnership with national government, provincial
government and the parents of learners with members of the community
16 See the detailed comparison between the rules as set out by the AD at 660H/I to 661E.
17 At 661E-F/G.
18 Act 84 of 1996.
where the school is situated. When SASA addresses issues of admissions
of learners and the capacity of schools to provide placement, it does so
with reference to this partnership.19
[32] Section 3(3) of SASA places an obligation on the MEC for Education at
provincial level to ensure that there are enough school places so that every
child in its province may attend school. At school level it is the governing
bodies of the public schools that determines the admission policy in their
school (section 5(5)) . If a learner is refused a place at the school despite
application, the obligation lies with the Head of Department ( in casu the
first respondent) to inform the paren t in writing and to provide reasons for
such refusal. If a learner has been refused admission, they or their parent
may appeal the decision to the Member of the Executive Council ( in casu
the sixth respondent).
[33] In the discussion above, I have outlined the relevant principles relating to
review. Suffice to say that reviews are not directed at the correctness of a
decision on the merits. The function of the judicial review is to scrutinise
the legality of administrative action, not to secure or substitut e the decision
by a judge in the place of the decision by an administrator.
The grounds for review
[34] The applicants appear to have invoked the grounds of review provided for
in section 6(2)(c) (procedural unfairness), section 6(2)(f)(ii) (rationality) and
section 6(2)(h) (unreasonable administrative action) of PAJA .20 The
respondents oppose the relief sought in respect of each and every ground,
19 MEC for Education, Gauteng Province and Others v Governing Body, Rivonia Primary
School and Others 2013 (6) SA 582 (CC) at para [35] to [37].
20 Promotion of Administrative Justice Act 3 of 2000.
as well as in respect of the interdictory relief.
Procedural unfairness
[35] The applicants’ case in this regard is simply that they were only informed
of the twins’ placement in Rouxville on 29 August 2025 (this was a Friday).
The WCED did not dispute this averment but merely ‘noted’ same. The
date for the appeal closed on 31 August 2025 (the Sunday). The
applicants further averred that they only learned the status of their
applications to the th ree schools of their choice on 18 September 2025,
which was after the last day on which an appeal could be lodged in terms
of section 5(9) of the Schools Act, namely 31 August 2025. The WCED
contends that this statement is disingenuous as the applicants we re
informed on 31 May 2025 that their applications to the three schools of
their choice was unsuccessful. Furthermore, they argue, the applicants
could have accessed the results via the Department’s website, given that
they applied online.
[36] The WCED relies , firstly, on two annexures , dated 30 May 2025 , to their
answering affidavit that read as follows (I only quote the first part):
Dear Sir / Madam
WCED ONLINE ADMISSIONS 2026
OUTCOME OF APPLICATION(S) FOR ADMISSIONS
Re: APPLICATION(S) FOR ADMISSION FOR …. (child’s name)
Your application status for admission for …. (child’s name) for GR1 to school(s)
are listed in the table below, in order of preference:
SCHOOL STATUS
DE KUILEN PRIMARY
SCHOOL
UNSUCCESSFUL – SCHOOL OVERSUBSCRIBED
BASTION PRIMARY SCHOOL UNSUCCESSFUL – SCHOOL OVERSUBSCRIBED
MIKRO LAERSKOOL UNSUCCESSFUL – WAITING LIST
Please note that this is not the end of the process. Places may open as parents
confirm places at schools. Schools will start filling ava ilable Grade R, 1 and 8
spaces after parents confirm by 17 June 2025.
The WCED , secondly, also relies on annexure BW15 in support of their
contention that the applicants were notified on 31 May 2025 of their lack of
success.
[37] Yet this annexure, which appears to be a printout of communications in
terms of an App does not list either 30 May or 31 May 2025 as a date on
which an email was sent to the applicants or a document was uploaded on
the App. Other dates are listed, namely 2 9 April, 13 May, 21 May, and 27
June. A contact number and email address is listed but no confirmation
that any notice was sent at any time to the contact number and email
address. The only date that co -incides more or less with the timeline put
forward by the applicants is 28 August and the status is listed as
“successful”. The information on this document is sparse. By way of
example it does not mention the names of schools. The only “confirmation”
status shows emails on 31 May 2025 to “h[...]”, “m[...]”, and “n[...]”.
[38] Even if, as the WCED contends, the applicants had – or should have had –
knowledge of the outcome of their applications to the schools of their
choice by end May 2025, I am troubled by the w ording employed in th e
above-quoted 30 May -notice. The notice records that the twins are on the
waiting list at Mikro and “Please note that this is not the end of the process.
Places may open as parents confirm places at schools. ” On the face of it,
no person in the applicants’ shoes would have known that their
applications were finally unsuccessful. I am also troubled by the content of
annexure “F” to the founding affidavit, which is the notification the
applicants say they received on 18 September 2025. When compared to
the previous notice (partly reproduced above) this notice does indicate
finality – the former one did not. The notice reads as follows:
Dear Sir / Madam
WCED ONLINE ADMISSIONS 2026
OUTCOME OF APPLICATION(S) FOR ADMISSIONS
Re: APPLICATION(S) FOR ADMISSION FOR …. (child’s name)
Your application status for admission for …. (child’s name) for GR1 to school(s)
are listed in the table below, in order of preference:
SCHOOL STATUS
DE KUILEN PRIMARY SCHOOL UNSUCCESSFUL – SCHOOL IS
OVERSUBSCRIBED
BASTION PRIMARY SCHOOL UNSUCCESSFUL – SCHOOL IS
OVERSUBSCRIBED
MIKRO LAERSKOOL UNSUCCESSFUL – SCHOOL IS
OVERSUBSCRIBED
ROUXVILLE PRIMARY SCHOOL SUCCESSFUL
You are required to make a final choice and accept a plac e offered before
Tuesday, 30 September 2025.
[39] The founding affidavit sets out the many steps taken by the applicants after
they learned of the twins’ placement at Rouxville. These steps commenced
on 2 September 2025. Neither the WCED nor Mikro allege d that the
applicants took any steps prior to this date. It is common cause that the
applicants did not approach Bastion directly with an appeal. Their appeal in
respect of the decision by De Kuilen was directed through the circuit
manager and was in gener al terms. The appeal by their attorney on 22
September 2025 was in respect of Mikro only.
[40] It seems to me that it is probable that the applicants had not known that
their applications had been unsuccessful prior to the 31 August cut -off
date. Certainly, even on the WCED’s papers they would not have known
about the Rouxville placement before 29 August 2025.
[41] The WCED policy for the management of admission and registration of
learners at ordinary public schools record the right of appeal in terms of
SASA. In terms of section 5(9) of SASA any learner or parent of a learner
who has been refused admission to a public school may appeal against
the decision to the Member of the Executive Council. The same policy
document also sets out , in a table, the Annual Admission Time Frames. I
have not, th rough an examination of this table , been able to establish the
cut-off date of 31 August 2025 for appeals or why this date would have
been chosen.
[42] In light of what has been stated above, I am of the view that the applicants
have established, on a balance of probabilities, that they only learned that
the twins were placed at Rouxville on 29 August 2025 and that they were
informed by the WCED of the outcome of their applications to their schools
of choice on 18 September 2025. The section 5(9) right of a ppeal would
thus only have been ‘triggered’ on 18 September 2025 , which is when the
applicants learned that the twins had been refused admission to a public
school. This was after the cut -off date for appeals to the sixth respondent.
In my view this was procedurally unfair.
[43] I am, however, not prepared to substitute my order for the decision
impugned. This is the consequence of the applicants’ decision to utilise
Rule 6 instead of Rule 53. Although the schools have set out their
admission policies, they have not provided a full record of the proceedings
inclusive of the reasoning in preferring each of the successful applications
whilst denying the unsuccessful applications. In this I am mindful of the
view expressed by the Constitutional Court in the Rivonia case.21 The
WCED’s obligation to ensure that there are enough school places for every
child to attend school must take into consideration the fact that
“determination of capacity is a complex process that applies not only to the school
as an entity, but also to each and eve ry grade and class within the school. It
involves a consideration of a range of interw oven factors relating to the planning
and governance of the school as a whole. Planning and coordination in
partnership with school governing bodies is crucial.”
[44] I am thus remitting the applicants’ applications to enrol the twins at Mikro
and De Kuilen (not Bastion) back to the WCED as well as to Mikro and De
Kuilen to consider afresh . My order reflects this. I have also provided
therein that the applicants be afforde d an opportunity to lodge their appeal
against the decisions (lack of success at both Mikro and De Kuilen). In light
thereof that the twins are seemingly not at school I am placing short time
periods on the lodging of the appeal. The applicants are the one s who
have delayed substantially in launching this application.
[45] My order also provides that the sixth respondent, alternatively the second
respondent, report back to court on the outcome of the process. I do so on
the strength of this court’s duty as upper guardian of the twins with
reference to the authorities quoted above and the full court decision in J v
J.22 During the hearing Mr De Villiers -Jansen SC confirmed that Rouxville
is now also over -subscribed (although I should record that at the time the
decision was made on 29 August 2025 the school was apparently not
over-subscribed). It thus seems to me that mer e over -subscription can
therefore not be the defining factor in determining which school the twins
21 At [71].
22 2008 (6) SA 30 (C).
will attend. The respondents have not put up facts showing that it is
physically impossible to put another two children in the facilities utilised as
Grade 1 classrooms in Mikro and De Kuilen.
[46] In light of my decision, I do not believe it is necessary to deal with the other
grounds for review raised by the applicants or with the W CED’s application
to strike out certain paragraphs in the replying affidavit (which deals with
these two grounds of review).
Further submissions received
[47] Finally I record that, I have (with the consent of the applicants) received a
brief note from the W CED’s counsel in respect of the Constitutional Court
judgment in Governing Body of the Juma Musjid Primary School v
Kyubwa.23 They point out , in support of the WCED’s convenience
argument, that the Constitutional Court, having found that the MEC h ad
taken reasonable steps to secure alternative placements for the learners
for the 2011 school year, rejected the complaints from parents about
transport and siblings being split to attend different schools and travelling
at different times, and in differ ent busses. The Constitutional Court
observed that it may well be ideal for siblings to attend the same school
and to travel together in the same bus, but that the applicants had not
persuaded the court that the MEC was constitutionally obliged to provide
transportation for the convenience of each parent and learner.
[48] Mr Oosthuizen SC has filed a supplementary note in reply and referred me
to the doctrine of precedent. He has pointed out that the WCED seeks to
23 2011 (8) BCLR 761 (CC) at para [78].
rely on an obiter remark made by the Constitutional Court, and such
remarks have no binding effect. 24 He also pointed out that the Juma
Musjid-matter is wholly distinguishable from this matter for various
reasons. Firstly, because there were no schools in the immediate vicinity
but numerous schools in the adjoining areas. Secondly, because the i ssue
was whether the school’s conviction was just and equitable – i.e. whether
the MEC had fulfilled the constitutional mandate of providing basic
education by taking reasonable steps to secure alternate placements of
the learners. Thirdly, because there i s no suggestion in this matter that the
WCED is obliged to provide transport for the twins.
[49] These issues are relevant to the review grounds of irrationality and
unreasonableness. In light of my decision regarding the review ground of
procedural unfairness, I do not need to make a determination on the
further arguments advanced.
Costs
[50] The ordinarily rule is that the successful party is entitled to its costs. I am,
however, not prepared to follow the rule in circumstances where I have
found that the applicants should have launched this application on proper
notice to the respondents (without truncating the time period s). I do not
consider four days’ notice in the circumstances of this matter to have been
sufficient. The timeline imposed on the parties by agreement in the
postponement order do es not save the applicants from this court’s
displeasure, which I am expressing by depriving them of costs.
24 Turnbull-Jackson v Hibiscus Court Municipality and Others 2014 (6) SA 592 (CC) at para
[56].
[51] I understand the Biowatch rule to dictate that in South Africa, when private
parties win constitutional litigation against the State, the State usually pays
their costs. If the private part y loses, they generally bear their own costs
and are protected from paying the State's legal fees.
[52] Although I have granted the applicants no relief in respect of Bastion, I am
not prepared to mulct them in costs in this regard. Bastion, being outside
the catchment area, could have abided the court’s decision and relied on
the WCED ’s thorough submissions. I am also not aware of any request
made by the school to the applicants to abandon the relief sought against
the school. It does not appear from the f ounding affidavit that Bastion was
ever a strong choice of the applicants.
[53] It is noted that the applicants’ counsel acted pro bono, for which the court
thanks them.
[54] The order is recorded above.
__________________________
ANDERSSEN J S
Acting Judge of the High Court
Appearances:
For the applicants: Adv A C Oosthuizen SC with Advs M Holland and N Essa
Instructed by Bossr Attorneys Inc
For the first, second, sixth and seventh respondents: Adv E A De Villiers-Jansen
SC with Adv S Mahomed
Instructed by: Office of the State Attorney
For the third and eighth respondents: Adv G Gagiano
Instructed by Laäs & Scholtz Attorneys
For the fourth and ninth respondents: Adv A Christians
Instructed by Carolissen Attorneys Inc
For the fifth and tenth respondents: Adv P Coston
Instructed by Smith & Hugo Attorneys