lN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
SWARTRUGGENS
GEKOMBINEERDE SKOOL
THE SCHOOL GOVERNING
BODY OF SWARTRUGGENS
GEKOMBINEERDE SKOOL
and
THE HEAD OF DEPARTMENT
FOR EDUCATION IN THE
NORTH WEST PROVINCE
THE MEMBER OF THE
EXECUTIVE COUNCIL OF
Not Reportable
CASE NUMBER:2026-015857
FIRST APPLICANT
SECOND APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
EDUCATION IN THE NORTH
WEST PROVINCE
CIRCUIT MANAGER, N.O
BOJANALA DISTRICT
SWARTRUGGENS
INTERMEDIATE SCHOOL
THE SCHOOL GOVERNING
BODY OF SWARTRUGGENS
INTERMEDIATE SCHOOL
ALL PARENTS AND/OR
GUARDIANS OF PLACED
LEARNERS
ALL PARENTS AND/OR
GUARDIANS OF ENROLLED
LEARNERS
LENGANE BOGATSU
Coram: WESSELS AJ
Date of hearing
THIRD RESPONDENT
FOURTH RESPONDENT
FIFTH RESPONDENT
SIXTH RESPONDENT
SEVENTH RESPONDENT
EIGHT RESPONDENT
: 13 February 2026, 19 February
2026 and 12 March 2026
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3
Delivered: This judgment was handed down electronica lly by circulation to the
parties' representatives via email. The date and time for hand-down of the
judgm ent is deemed to be 1 0h00 on 8 April 2026.
Summary: Constitutional law - Right to basic education - Section 29 of the
Constitution - Right to receive education in language of choice - Section 28(2)
Best interests of the child - School governance - Admission and language
policies - Sections 5 and 6 of the South African Schools Act 84 of 1996 - Interim
interdict - Structural interdict - Co-operative governance - Meaningful
engagement - Unilateral placement of learners - Urgency - Sufficiency of
service - Concessions by counsel - Alternative draft order - Application for
urgent interim relief - Application to remove 78 learners from school dismissed
- Structural interdict granted requiring Department to provide infrastructure and
resources - Costs on party and patty Scale B.
JUDGMENT
Wessels AJ
Introduction
[ 1] This matter concerns a dispute between a public school, its governing body,
and the provincial education authorities regarding the placement of 78 learners at
Swartruggens Gekombineerde Skool for the 2026 academic year. The applicants
apply for urgent interim relief and a final review of the administrative decisions
that resulted in this placement of the learners at the school.
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[2] The first applicant is Swartruggens Gekombineerde Skool ('the school'), a
public school situated in Swartruggens in the North West Province. It is a
combined school offering education from Grade R to Grade 12. The second
applicant is the School Governing Body ('SGB '), a juristic person established in
terms of s 16(1) of the South African Schools Act1 ('the Schools Act').
[3] The first respondent is the Head of Department for Education in the North
West Province ('HOD'), cited in his official capacity. The second respondent is
the Member of the Executive Council for Education for the North West Province
('MEC') . The third respondent is the Circuit Manager for the Bojanala District.
Where necessary, I will refer to these parties collectively as 'the first, second and
third respondents.'
[4] The fourth respondent is the Swartruggens Intermediate School, a public
school from which the 78 learners originated (' intermediate school'). The fifth
respondent is its governing body. The sixth respondents are the parents and
guardians of the 78 learners placed at the school. The seventh respondents are the
parents and guardians of learners already enrolled at the School prior to January
2026. The eighth respondent is Mr Lengane Bogatsu (the first respondent in an
official capacity), cited in his personal capacity for purposes of a punitive costs
order.
[5] Two organisations were admitted as am1c1 cunae, being the Equal
Education Law Centre ('EELC ') and the Suid-Afrikaanse Onderwysersunie
('SAOU'). SAOU was admitted as amicus curiae for Part B of the application
and attended the proceeding in Part A as an observer only. The EELC made
valuable written and oral submissions that have assisted this Court in
1 South African Schools Act 84 of 1996.
5
understanding the broader system ic implications of this dispute in relation to the
proceedings before this Court.
[6] The matter was enrolled on the urgent opposed motion roll for 13 February
2026. On that date, the matter was stood down to 19 February 2026, when the
amici were admitted and time frames were set for the filing of further papers and
reports in relation to the then-impending investigation and report by the EELC.
The matter was argued before me on 12 March 2026. Counsel for all relevant
parties presented comprehen sive oral and written submiss ions.
Relief sought
[7] The applicants seek relief in two parts. Jn Part A, which is urgent, they seek
the following orders:
(a) That the application is declared as one of urgency, and the ordinary
forms and service provided for in the rules be dispensed with in terms of
Uniform Rule 6(12).
(b) That service of this application on the sixth and seventh respondents is
effected by affixing a copy thereof at the school hall and at the main
entrance at the first applicant , and at the office of the principal of the first
applicant, and by making a copy of this application available at the
secretary of the first applicant, at no cost, on request thereto by any and/or
all of the sixth and seventh respondents, be regarded as sufficient, and due
service of this application on the sixth and seventh respondents.
( c) That the enforcement of the decision of the HOD to place further
learners for admission with the first applicant is suspended and interdicted
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pending the final determination of the SGB 's appeals and condonation
applications to the MEC in terms of ss 5( 11) and 6( 12) of the South African
Schools Act 84 of 1996, as amended, including the final determination of
any subsequent appeals or review against the decision of the MEC and/or
HOD, alternatively, Part B of the application, including the final
determination of any subsequent appeals.
( d) That the enforcement of the instruction issued by the third respondent
on 12 January 2026 to the Principal of the school to place further learners
for admission with the school is suspended and interdicted pending the
final determination of the SGB's appeals and condonation applications to
the MEC in terms of ss 5( 11) and 6( 12) of the South African Schools Act
84 of 1996, as amended, including the final determination of any
subsequent appeals or review against the decision of the MEC and/or HOD,
alternatively, Part B of the application, including the final determination of
any subsequent appeals.
( e) Pending the final determination of the aforesaid condonation
applications and appeals to the MEC, and any appeal or review thereof,
alternatively, Part B of the application, including the final determination of
any subsequent appeals, the HOD and/or the third respondent are directed
to forthwith and immediately place the 78 learners referred to in the
founding affidavit at the intermediate school.
(f) That the costs of this application on the scale as between attorney and
own client, be paid by the Eighth Respondent, Mr Lengane Bogatsu, the
Head of Department in his personal capacity, de bonis propriis,
alternatively that the HOD pays such costs together with such further
respondents who oppose this application.
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[8] In Part B, the applicants apply for an order reviewing and setting aside the
decisions to place the learners at the school.
Factual background
[9] The schoo l is a single -medium Afrikaans public schoo l. It has an approved
language policy, adopted on 24 April 2025, which designates Afrikaans as the
sole language of instruction from Grade R to Grade 12. It also has an admission
policy, adopted in February 2025, which sets out capacity determinations based
on educational, infrastructural, and operational factors.
[10] The current learner population at the school is 366. Of these learners, 255
are in Grades R to 7, and 110 are in Grades 8 to 12. Approx imately 53% of the
existing learner population consists of black learners, while the remaining 4 7%
consists of white and coloured learners.
[11] At the beginning of January 2025, the North West Department of Education
('NWDoE') engaged the SOB regarding the possible integration of learners from
the intermediate school. On 29 January 2025, the Circuit Manager formally
requested that the SOB introduce a dual-medium-of-instruction system to
accommodate Grade 8 and 9 learners from the intermediate school. The NWDoE
undertook to provide support, including mobile classrooms, furniture, and
additional educator posts. A series of meetings and correspondence fol lowed over
the course of eleven months. The SOB consistently requested written
commitments from the NWDoE regarding infrastructure, funding, human
resources, and the instructional model (parallel versus dual medium). These
engagements are recorded in the minutes of meetings held on 7 May 2025, 19
June 2025, and 30 June 2025.
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[12] On 18 July 2025, Dr SJ Coetzee, a professional engineer, compiled a
structural assessment report ("the Coetzee Report"). The report identified
significant structural defects in the school's buildings, including: deterioration of
reinforced concrete beams and columns in a building described as 3-storey
building with open areas on the ground floor where additional classrooms could
potentially be built, due to con-osion, spalling, and lamination, requiring urgent
repair before any alterations; the wooden school hall being in poor condition, with
timber portals exposed to weather and termites showing total deterioration, and
the structure being at risk of eventual collapse.
[13] On 10 November 2025, the HOD sent a letter to the SGB, which he
described as a 'forma l written commitment ' to the integration process. The letter
gave dates by which the procurement of mobile classrooms would be finalised.
On or about 12 January 2026, the school was notified that the NWDoE had
unilaterally placed 78 learners, specifically English-medium learners in Grades
8, 9, and 10, via the SA-SAMS System2 during the December 2025 holidays. This
placement occurred without prior consultation with the SGB regarding the
specific learners or the finalisation of an-angements. On 12 January 2026, the
applicants' attorneys dispatched a formal demand letter to the HOD, rejecting the
placements as unlawful and demanding their immediate revocation by 14 January
2026 at 08h00. On 14 January 2026, a meeting was held at the school attended
by the HOD, departmental officials, and the SGB. The HOD stated that the
purpose was to ensure the swift implementation of the decision to admit Grades
8 to 10.
[14] At this meeting, the SOB placed on record its concerns regarding structural
defects, the lack of an Electrical Certificate of Compliance, failures in sewerage
2 The South African School Adm inistration and Management System (SA-SAMS) i s a computer programme
developed by the Department of Basic Education (DBE) for school admini stration, governance, and reportin g.
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and ablution facilities, and the absence of classrooms, ablutions, teacher
consultations, and timeframe s. The HOD responded by cautioning the SGB
against litigation, stating that lawyers are there to make money and that he would
use state money to defend the matter.
[15] On 14 January 2026, the 78 learners presented themselves at the school.
They have since been accommodated in the wooden school hall identified in the
Coetzee Report as being at risk of collapse.
[16] The applicants launched this application on 27 January 2026. The HOD,
MEC and third respondent filed notices of intention to oppose and answering
affidavits. The fourth to eighth respondents abided by the decision of this Court.
[17] On 19 February 2026, this Court granted the applications of the EELC and
SAOU to be admitted as amici curiae. The EELC subsequently filed a
supplementary affidavit, dated 6 March 2026, reporting on its engagement with
the 78 learners and their parents. The affidavit records that the overwhelming
majority of the learners expressed a strong desire to remain at the school, that
they feel settled and safe, and that they fear being sent back to the intermediate
school, which they know to be in a state of disrepair.
The issues
[18] The following issues stand to be determined: whether the applicants have
made out a case for the matter to be heard on an urgent basis; whether the
attenuated service on the sixth and seventh respondents should be regarded as
sufficient and due service; whether the applicants have established a clear or
prima facie right to the interim interdictory relief sought in Part A; whether the
balance of convenience favo urs the grant of an interim interdict ; whether the
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applicants have demonstrated that they will suffer irreparable harm if the relief is
not granted; whether there is any other satisfactory remedy available to the
applicants; and what the appropriate order as to costs should be.
Urgency
[ 19] The applicants contend that the matter is urgent because the unlawful
placement of learners has resulted in 78 learners being accommodated in an
unsafe school hall, because the learners' right to a basic education is immediately
threatened and because the administrat ive action, if not suspended, will render
the review application moot.
[20] Although the first, second and third respondents contested the urgency, the
facts of the application strongly support a finding of urgency in favou r of the
applicants. The presence of 78 learners in a structure identified as at risk of
collapse constitutes an immediate concern. The right to a basic education is
foundational to our constitutional order, and any threat to that right must be
addressed without delay. Moreover, if the inter im relief is not granted, the 78
learners will continue to be educated in the current academ ic year under
conditions that may compro mise their safety and educat ional development, and
the review application may become an academic exercise.
[21] I t herefore find that the applicants have made out a proper case for the
matter to be heard on an urgent basis in terms of Uniform Rule 6(12).
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Service on the sixth and seventh respondents
[22] The applicants request an order declaring that service on the sixth and
seventh responde nts, completed by posting copies at the school and providing
copies upon request, is valid and constitutes proper service.
[23] In its written submissions, the EELC raised serious concerns regarding the
adequacy of this service . It submitted that there is no evidence that the manner of
service had the effect of notifying the parents and guardians of the nature and
contents of the application, and that the applicants' claim that they do not have
the full particulars of the parents is untenable, given that the school interacts with
them daily.
[24] The re is substance in the EELC's submissions. The parents and guardians
of the 78 learners are direct ly affected by these proceedings. An order removing
their children from the schoo l wou ld have a profound impact on their family lives
and their children's education. The principle of audi alteram partem requires that
they be given a proper opportunity to be heard, should they so decide.
[25] I am also mindfu l of the practical difficulties , given that the applicants do
not have a complete list of the parents and guardians. The matter is urgent. The
parents and guardians have now received notice of these proceed ings through
their children and through the EELC's engagement. The EELC's supplementary
affidavit records that it engaged with a significant number of parents and learners.
This suggests that the parents are, in fact, aware of the proceedings. Bearing in
mind that the parents and guardians have now had the opportunity to make their
views known through the EELC's intervention, I am prepared to deem the service
effective for the interim relief. However, I must emphasise that this is a pragmatic
decision, given the urgency of the matter and the fact that the parents' voices have
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been heard through the amicus, the EELC. It should not be taken as condoning
the applicants' failure to make more strenuous efforts to identify and directly
serve the affected parents.
Legal principles: the interim interdict
[26] The requirements for an interim interdict are well-established. An applicant
must establish: A prima facie right, even if open to some doubt; A well-grounded
apprehension of irreparable harm if the interim relief is not granted and the
ultimate relief is eventually granted; That the balance of convenience favours the
grant of the interim relief; The absence of any other satisfactory remedy.
[27] These requirements must be considered in the context of the constitutional
rights at play here, particularly to give effect to children's rights to have their best
interests considered and to a basic education.
Prima facie right
(28] The applicants assert a prima facie right to have their statutory powers in
terms of ss 5 and 6 of the Schools Act respected, and to ensure that the school's
infrastructure and capacity are not overburdened in a manner that compromises
the safety and educational well-being of all learners. Section 5(5) of the Schools
Act provides that the admission policy of a public school is determined by its
governing body, subject to the Act and any applicable provincial law. Section 6(2)
of the Schools Act provides that the governing body may determine the language
policy of the school, subject to the Constitution, the Act, and any applicable
provincial law.
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(29] These statutory powers are not absolute and should be exercised in
accordance with the broader educational principles enshrined in the Constitution.
The Constitutional Court in Head of Department: Mpumalanga Department of
Education and Another v Hoerskool Ermelo and Another3 remarked as follows:
·The case arises in the context of continuing deep inequality in our educational system, a
painful legacy of our apartheid history. The school system in Ermelo illustrates the disparities
sharply. The learners per class ratios in Em1elo reveal startling disparities which point to a vast
difference of resources and of the quality of education. It is trite that education is the engine of
any society. And therefore, an unequal access to education entrenches historical inequity as it
perpetuates socio-economic disadvantage. '
(30] The Basic Education Laws Amendment Act 32 of 2024 ('BELA Act') has
now codified these principles. Section 5(5) of the Schools Act, as amended,
requires SGBs, when considering admission policies, to take into account: the
best interests of the child, with emphasis on equality as provided for ins 9 of the
Constitution, and equity; whether there are other schools in the community that
are accessible to learners; the available resources of the school and the efficient
and effective use of state resources; and the space available at the school for
learners.
(31] Section 6(5) imposes similar considerations for language policies,
including "the language needs, in general, of the broader community in the
education district in which the public school is situated."
[32] More recently, in Federation of Governing Bodies for South African
Schools (FEDSAS) v Member of the Executive Council for Education, Gauteng
3 Head of Department : Mpumalanga Department of Education and Another v Hoerskool Ermelo and Another
(CCT40/09) [2009] ZACC 32; 20 I 0 (2) SA 415 (CC) ; 20 I 0 (3) BCLR 177 (CC) ( 14 October 2009) para 2.
14
and Another4 , the Constitutiona l Court affirmed that the power of the SGB to
determine an admission policy of a school is not absolute. The Constitutional
Court remarked as follows:
'[42) The irresolub le conflict of provincial and national law seen by the applicant fails to have
proper regard to how the provis ions of section 5(1) to (3) qualify and limit section 5(5) of the
Schools Act. Section 5 regulates admission to public schools. Its opening provision in section
5(1) is plain and emphatic: "[a] public school must admit learners and serve their educational
requirements without unfairly discriminating in any way". Section 5(2) requires a school
governing body not to administer a test related to the admissio n of a learner. Obviously, a
learner may not be excluded only on account of failing to satisfy a test the school might choose
to put up. Section 5(3) introduces a number of grounds on which a learner may never be refused
admissio n. These include an inability or failure to pay school fees or failure to subscribe to the
mission statement of the school. Then follows section 5(5) whose exact words bear repetition :
"Subject to this Act and any applicable provincial law, the admission policy of a public school
is determined by the governing body of such school."
[43] The provision has at least two important internal qualifiers . First, t he governing bodv
determines admission policy of a school subject to the Schools Act and "any applicable
provincial law". About this, in Rivonia Primary School, Mhlantla AJ (as she then was)
explained that-
"there is an important textual qualifier in section 5(5) subjecting a school governing body 's
power to other provisions of the Schools Act, as well as to applicable provincial law. The effect
of this is that the determination of admissions may be subject to provincial government's
intervention in terms of the Schools Act, or applicable provincial law if the intervention is
provided for in those instruments."
provided for in those instruments."
4 Federation of Governing Bodies for South African Schools (FEDSAS) v Member of the £xec111ive Council for Education, Gauteng and Another (CCT 209/15) [20 16] ZACC 14; 20 16 (4) SA 546 (CC) ; 2016 (8) BCLR I 050 (CC) (20 May 2016) paras 42-45.
15
[44] Secondlv, it is trite that the admission p olicy of a school must conform to all
applicabl e law including provincial law. It cannot be othenvi se because that is what the
rule of law requires. It is s o that when a school fashions its admission p olicy it will be
actuated by the internal interests of its learners. It is also quite in order that a school seeks
to be a centre of excellence and to produce glittering examination and other good outcomes.
But public schools are not rarefied spaces only for the bright, well mannered and financially
well-heeled learners . They are public assets which must advance not only the parochial interest
of its immediate learners but may, by law, also be required to help achieve universal and non
discriminatory access to education.
(45] That, however, must occur within the broader framework of all valid law led by the vision
of universal access to education embraced by the Constit ution. The duty to place unplaced
learners falls on the MEC who must ensure that there are enough school places so that every
child can attend school. Similarly, the power to determine learner enrolment capac ity and
declare a school full or not, in the absence of norms and standards required by the Schools Act
that are in force, rightly falls on the HOD. Absent this power the statutory task of the MEC
and IIOD to place unplaced learners may come to naught.' (own emphasis)
[33] It is clear, therefore, that while the SGB has a prima facie right to have its
statutory powers respected, that right is not unfettered. It must be exercised in a
manner that is consistent with the broader constitutional scheme.
[34] In the present case, the SGB has raised legitimate concerns regard ing the
safety of the school's infrastructure. The Coetzee Report provides object ive,
expert evidence that the wooden school hall is at risk of collapse and that the 3-
storey building, consisting mainly of classrooms, has significant structural
storey building, consisting mainly of classrooms, has significant structural
defects. The 78 learners are currently accommo dated in the schoo l h all. This
situation cannot be allowed to continue.
[35] The SGB also has a legitimate interest in ensuring that the school's capac ity
is not exceeded in a manner that compromises the quality of education. The
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admission policy contains detailed formulas for determining capacity based on
classroom size, sanitation standards, and other factors. The NWDoE's unilateral
placement of 78 learners appears to have disregarded these considerations.
[36] I am satisfied that the applicants have established a prima facie right, albeit
a right that must be balanced against the rights of the 78 learners and the
NWDoE 's constitutional obligations.
Irreparable harm
[37] The applicants contend that if the interim relief is not granted, they will
suffer irreparable harm in several respects: the learners will continue to be
educate d in unsafe conditions; the school's capacity will be exceede d,
compromising the quality of education for all learners; the SGB 's statutory
powers will be effectively usurped, rendering the review application moot.
[38] The most concerning form of harm manifests in the safety risk. The
Coetzee Report is unequivocal in stating that the wooden schoo l hall is at risk of
collapse. The continued accommodation of 78 learners in this structure exposes
them to potential physical harm. If a tragedy were to occur, the conseque nces
would be devastating and irreparable.
[39] The EELC's supplementary affidavit presents a counterargument. The 78
learners strongly wish to stay at the school, feeling comfortable and secure in a
familiar environment despite existing structural issues. They are concerned about
being transferred back to the intermedia te school, which is in poor condition. If
the interim relief requested by the applicants were granted, and the learners were
immediately moved to the intermed iate school, it would cause significant
17
educational disruption and emotional distress. This type of harm would be
irreversible.
[ 40] I am therefore faced with competing claims of irreparable harm. On the
one hand, the physical safety risks identified in the Coetzee Report and on the
other hand, the educational and emotional harm that would result from remov ing
the learners from their current school.
[ 41] In my view, the solution lies not in removing the learners but in compelling
the Department to take immediate steps to address the safety risks. This would
minimise both forms of harm to the extent that the learners would remain in a
fami liar environm ent, but the Depa1tment would b e obliged to make that
environment safe.
Balance of convenience
[ 42] The balance of convenience must be assessed with reference to all the
interests at stake. The interests of the SGB in exerc ising its statutory powers and
ensuring a safe and quality e ducati onal environment, as well as the interests of
the NWDo E in fulfilling its constitutional obligation to provide access to
education, but most importantly, the interests of the 78 learners, whose rights to
basic education , dignity, and safety are directly implicated.
[43] The balance of convenience favours granting inter im relief, but not on the
terms sought by the applicants. To remove the 78 learners forthwith would cause
them considerable harm. To leave the situat ion entirely unaddressed wou ld
expose them to unacceptable safety risks. The appropriate balance is to grant
interim relief that maintains the status quo (the learners remain at the schoo l) but
imposes obligations on the NWDoE to address the safety and capacity concerns.
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[ 44] The approach of this Court must be consistent with the principle of co
operative governance that underpins the Schools Act. This principle has been
emphasised by the Constitutional Court in Head of Department, Department of
Education, Free State Province v Welkom High School and Another; Head of
Department, Department of Education, Free State Province v Harmony High
School and Another5, the relationship between the Depa11ment of Education and
an SGB is a partnership. They are legally obliged to negotiate with one another
in good faith and in the best interests of learners.
Other satisfactory remedy
[ 45] There is no other satisfactory remedy available to the applicants. The safety
risks are immediate and require urgent intervention. The review application, if
successful, would set aside the NWDoE's decisions, but would not, of itself,
address the safety concerns or provide a framework for ensur ing that the school
has the resources necessary to accommodate the learners lawfully and safely.
[ 46] A structural interdict, which requires the NWDoE to take specified steps
within defined timeframes and to report to this Court on its compliance, is an
appropriate remedy in these circumstances. It provides ongoing supervis ion and
ensures that the NWDoE fulfils its constitutional and statutory obligations.
The obligations of the NWDoE
[ 4 7] The Depaitment has a .legal obligation to ensure that the 78 learners receive
a basic education in a safe environment. Section 29( l )(a) of the Constitution
5 Head of Department, Department of Education, Free State Province v Welkom High School and Another; Head of Department , Department of £ducat ion, Free State Province v Harmony High School and A not her (CCT I 03/ 12) (2013) ZACC 25; 2013 (9) BCLR 989 (CC): 20 14 (2) SA 228 (CC) ( 10 July 20 13) para 36.
19
guarantees everyone the right to a basic education . This right imposes obligations
on the NWDoE. These obligations, that rest on the State, are encapsu lated in s
29( I )(b )6 which provides that everyone has the right:
' (b) to further education, which the state, through reasonable measures, must make
progressively available and accessible. '
[ 48] Section 6(11) of the Schools Act, as amended by the BELA Act, provides
that if the HOD directs a school to adopt more than one language of instruction,
he or she must, before the directive is implemente d, ' ... take all necessary steps
to ensure that the public school concerned receives the necessary resources,
including, but not limited to ... ' educators and infrastructure.
[49] In the present case, the HOD has directed the school to admit English
medium learners. Section 6( 11) of the Schools Act, therefore, obliges the HOD
to ensure that the schoo l receives the necessary resources, including
infrastructure, to accommodate these learners safe ly and effectively.
[50] The current circumstances regarding the accommodation of the 78 learners
have been clarified by the EELC's supplementary affidavit. The NWDoE has
prov ided the schoo l with mobile c lassroom units that are connected to an
electric ity supply. The learners are accommo dated in these mobile classrooms,
which are separate from the main school building, and they attend the main
building only for one subject, which is computer literacy. The NWDoE has also
supplied learning resources, furniture, English-medium educators, and the
national school feeding programme for qualifying learners. The EELC's
engagement with the learners reveals that they have become settled at the school,
have formed friendships, and express a strong desire to remain, fearing being sent
6 Section 29(1)(b) of the Constitution.
20
back to intermediate school. Many of the learners and their caregivers were
unaware of these proceedings until the EELC engaged with them.
[51] The failure of the NWDoE to provide these resources timeously is the root
cause of the current impasse. Its obligation is to provide the resources, not to
withdraw the learners.
Address by counsel
[52] During the course of the argument, s ignificant concessions were made by
counsel that have a direct bearing on the appropriate relief to be granted .
[53] Counsel for the applicants, in his oral submiss ions, left an alternative draft
order in the discreti.on of this Court. He submitted that, should the Court not be
persuaded to grant the relief sought in the notice of motion as originally framed,
the Cou1t should grant an order in terms of the alternative draft order. This
alternative draft order moves to suspend the HOD 's decisions provisionally, while
maintaining the learners at the schoo l and imposing a structura l interdict on the
NWDoE to address infrastructure, safety, and capacity concerns.
[54] Importantly, applicants' counsel submitted that the alternative draft order
represents a ' last resort' and that the applicants would seek this alternative relief
should this Court not be with them on the primary relief sought. He emphasised
that the alternative order wou ld not remove the learners but would instead impose
proper responsibility on the respondents to ensure that the children's health and
safety are prioritised and properly attended to.
[55] Counsel for the first, second and third respondents, made equally
significant concessions. He submitted that the respondents were in full agreement
21
with the recommendations made by the EELC in its supplementary affidavit. He
specifica lly referred to the recommendations contained in the EELC's
supplementary affidavit, which propose a joint assessment of infrastructure , the
development of a written infrastructure support plan with clear timelines, the
addressing of urgent safety deficiencies within 30 days, and the implementation
of all other improvements within six months. It was further submitted that the
first, second and third respondents had been engaged with these issues for 11
months and that there had been cooperation in addressing the structural issues
raised in this application . Their counsel referred to the NWDoE's letter dated 11
November 2025 as evidence that his clients had made commitments to address
these concerns. Importantl y, the first, second and third respondents did not oppose
the relief proposed by the applicants in the alternative draft order, as the primary
submission of their counsel was that the application was not urgent and that the
relief sought by the applicants in their notice of motion, specifically the removal
of the learners, was inappropriate.
[56] The EELC's counsel made submissions consistent with the EELC's
supple mentary affidavit. It is recommended that the learners remain where they
are, as they are sett led within the school community and clarified that the mobile
classrooms had been delivered and connected to electricity, and that the learners
were accommodated in these mobile classrooms, which are sepa rate from the
main building , with the excepti on of one subject (computer literacy) taught in the
main buildin g.
Conclusion
[57] Having considered all the evidence and arguments , as well as having regard
to the concessions made by counsel during oral subm issions, I conclude that the
applicants have established a prima facie right to have the school's infrastructure
22
and capacity concerns addressed. The Coetzee Report stands as uncontroverted
expert evidence of the structura l risks, and the first, second and third respondents
did not meaningfully challenge the existence of this right, focusing instead on the
appropriateness of the remedy sought. There is a well-grounded apprehension of
irreparable harm if interim relief is not granted, specifically the continued
exposure of the 78 learners to unsafe condit ions. The first, second and third
respondents did not contest the existence of these risks, and counse l for the first,
second and third respondents effectively conceded the need for remedial action
by fully agreeing with the EELC 's recommendations for a structural intervention.
[58] The balance of convenience favours granting interim relief that maintains
the status quo while imposing positive obligations on the NWDoE to address the
safety and capac ity concerns. Importantly, the applicants' alternative draft order
abandons the primary relief of remov ing the learners and instead seeks a
structura l interdict. This concession aligns the applicants' position with that of the
respondents and the amicus, establi shing a common ground that the learners
should remain at the school while the infrastructure is addressed.
[59] There is no other satisfactory remedy available. The first, second and third
respondents, through their counsel's concessions , acknowledged that the
NWDoE has been engaged with these issues for 11 months and that commitments
were made, yet the safety concerns remain unresolved. This underscores the need
for judicial oversight through a structura l interdict to ensure compliance.
[60] I am not persuaded that the relief sought by the applicants in prayer 5 of
Part A, that the 78 learners be forthwith and immediate ly p laced at intermediate
schoo l, is appropriate or in the best interests of the learners. Moreover , no
evidence was before this Comt to demonstrate that the intermed iate school is
evidence was before this Comt to demonstrate that the intermed iate school is
capable of appropriately accommodating these learners.
23
[61] The just remedy is to grant an interim interdict suspending the
Department's decisions pending the final determination of Part B, and to couple
that interdict with a structural interdict requ iring the Department to take
immediate steps to address the schoo l's infrastructure , staffing, and resource
needs. This remedy is in accordance with the alternative draft order proposed by
the applicants and with the EELC's recommendations, which the first, second and
third respondents have indicated they support.
Costs
[62] The applicants seek a punitive costs order aga inst the eighth respondent,
Mr Lengane Bogatsu, in his personal capac ity, de bonis propriis. They contend
that his conduct was arbitrary, unreasonable, and procedurally unfair, and that he
acted in a manner inconsistent with his constitutional and statutory obligations.
[63] Having disposed of the urgent interim relief in Part A, I consider it
appropr iate that the costs of Part B be reserved for determination by the court that
hears the review application. The merits of the review, including the lawfulness
of the HOD's decision and the quest ion of whether any costs order against the
eighth respondent in his personal capacity is just ified, are best determined once
the full record has been considered and the parties have had an opportunity to
fully ventilate the issues in Part B.
[64] I make no order as to costs in favour of or against the amic us curiae (the
EELC). Its participation has been valuable and has assisted this Court in reaching
a just conclusion, but it did not seek costs, and none of the parties opposed its
admission.
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Order
[72] In the result, I make the following order:
Part A
1. The applicants' non-compliance with the forms and service provided for in
the Uniform Rules of Comt is condoned, and the application is heard as a
matter of urgency in terms of Uniform Rule 6(12).
2. The service effected on the sixth and seventh respondents by affixing a
copy of the applicat ion at the premises of the first applicant and making
copies avai lable upon request is declared suffic ient and due service for the
purposes of these interim proceedings.
3. The enforcement of the decision of the first respondent to place 78 learners
for admission with the first applicant is suspended and interdicted pend ing
the final determination of Part B of this application.
4. The enforcement of the instruction issued by the third responde nt on 12
January 2026 to the Principal of the first applicant to place the 78 learners
for admission with the first app licant is suspended and interdicted pend ing
the final determination of Part B of this application.
5. Pending the final determination of Part B of this application:
5.1 The 78 learners placed at the first applicant shall remain at the first
applicant and shall continue attending classes in English, under the
25
adm inistration of the applicants, in accordance with the status quo
existing on the date of this order.
5.2 The relief granted in paragraphs 6 to 18 of this order constitutes a
supervisory order (structural interdict) to ensure compliance by the
first respondent and the North West Department of Education with
their constitutional and statutory obligations.
5.3 This Court retains supervisory jurisdiction over the implementation of
this Order pending the finalisation of Part B of this application.
6. The first respondent, in his capacity as Head of the Department of
Education, North West Province, shall ensure that the North West
Department of Education immediately provides, funds, and implements all
infrastructure, staffing, educational and support resources reasonably
necessary to accommodate the 78 leamers placed at the first applicant,
without imposing any financial burden on the applicants.
7. Within 7 (seven) calendar days of this Order, the first respondent shall
convene a joint inspection and assessment of the infrastructure, facilities,
staffing, and resource requirements relating to the placement of the 78
learners at the first applicant.
8. The assessment shall be conducted jointly by representatives of:
8.1 The North West Department of Education
8.2 The applicants; and
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8.3 Any suitably qualified technical officials required for the purpose of
assessing infrastructure and service requirements.
9. The assessment referred to in paragraph 7 shall be completed within 30
(thirty) calendar days of this Order.
10.Within 14 (fourteen) calendar days after completion of the assessment, the
first respondent shall ensure that the North West Depai1ment of Educatio n
prepares a written Infrastructure Support Plan.
11.The Infrastructure Support Plan shall:
11.1 Identify all urgent deficiencies requiring immediate remediation.
11.2 Identify all medium-term infrastructure improvements required.
11 .3 Allocate the necessary budgetary resources for each item identified.
11 .4 Identify the officials responsible for implementation.
11.5 specify clear implementation timelines; and
11.6 Provide a mechanism for addressi ng urgent safety, sanitation, or
hygiene-related deficiencies.
12. The Infrastructure Support Plan shall specifically address, where
applicab le:
27
12.1 The electrical capacity of the first applicant and comp liance
with applicab le SANS standards;
12.2 The prov1s10n and installation of further temporary or
permanent classrooms where required;
12.3 The prov1s1on of furthe r class room furniture, learning
materials, and technological resources;
12.4 The adequacy of sanitation facilities , including faci lities for
mobi lity-impaired learners;
12.5 The adequacy of water supply and ptpmg infrastructure,
including fire-fighting water provisions;
12.6 The prov1s1on of teaching posts and l earn ing support
resources required for the 78 learners;
12.7 Any necessary adjustments to the first appl icant 's Post
Provisioning Model;
12.8 The development of a framework addressing:
12.8.1 The payment or subsidisat ion of school fees for
learners transferred from a no-fee ( quintile 3) school
to a fee-paying (quintile 4) schoo l; and
12.8.2 The academic integration of learners current ly in
Grades 9 and 10 when they progress to Grades 11 and
28
12, including staffing, curriculum, and facility
arrangements.
13 .Any urgent safety, sanitation , or hygiene-relate d d eficiencies identified
during the assessment shall be remedied within 30 (thirty) calendar days of
this order.
14.All other infrastructure impro vements identified in the Infrastructure
Support Plan shall commence with in 30 (thirty) calendar days afte r the
Plan has been finalised and shall be fully implemented within 6 (six)
months of this order.
15.The first respondent shall comp ly with the recomme ndations conta ined in
the Structural Assessment for Alterations Rep01t pertaining to
Swartruggens Combined School, compiled by Dr SJ Coetzee (Pr Eng)
dated 18 July 2025 , attached to the appl icants' founding affidavit as
annexure 'F A3' .
16. Comp liance with the recommendations referred to in paragrap h 15 shal l be
ach ieved within 6 (six) months of this order, and the first respondent shall
ensure that the necessary budgetary resources are allocated for the
implementation thereof.
17. Within 60 (sixty) calendar days of this order, the first respondent shall
ensure that the North West Department of Education, in consu ltation with
the appl icants, develops and implements a structu red social cohesion
programme aimed at promoting integrat ion, mutual respect, and the
prevention of bullying amongst all learne rs at the first appl icant.
29
18. Within 30 (thirty) calendar days of this Order, the first respondent shall
ensure that appropriate psychosocial support services, including
counselling and educational support services where necessary, are made
available to any learne r affected by the disruption and uncertainty
associated with the placement of the 78 learners.
19.The first respondent shall file with this Comt and serve on the applicants
the following reports under oath:
19.1 A First Report within 45 (forty -five) calendar days of this Order,
detailing:
19 .1.1 The outcome of the assessment;
19 .1.2 The Infrastructure Support Plan; and
19.1.3 Steps taken to address urgent deficiencies.
19.2 A Second Report within 90 (ninety) calendar days of this Order,
detailing progress in implementing the Infrastructure Support Plan.
19.3 A Final Compliance Report within 180 (one hundr ed and eighty)
calendar days of this Order.
20.Each report shall:
20.1 Be deposed to by the first respondent, or by a senior official duly
authorised by the first respondent responsible for the implementation
of this Order;
30
20.2 Identify the steps taken to comply with each obligation imposed by
this Order; and
20.3 Specify any instances of non-comp liance, the reasons therefor , and
the steps and timelines proposed to achieve compliance .
21. The applicants may file a response to any report filed by the first
respondent within 10 (ten) calendar days, whereafter the first respondent
may file a reply within 5 (five) calendar days.
22. The second appl icant shall enter into a consultation process with the
parents of learners at the first applicant after the first respondent has
substantia lly comp lied with the obligations imposed by this order, which
consultation shall be conducted in accordance with sections 5 and 6 of the
South African Schools Act 84 of 1996 ('South African Schoo ls Act') for
the purpose of cons idering any amendment to the first respondent's
admission or language policies.
23.Any amendment to the admission or language policies sha ll have no legal
effect unless and until such amendment has been forma lly adopted by the
second applicant in accordance with the South Africa n Schools Act.
24.The applicants and/or the respondents are granted leave to approach this
Court on the same papers, duly amplified where necessary , for further
relief, enforcement or variation of this order.
25. The costs of Part A of this application are reserved for determinat ion by the
court hearing Part B.
M
31
26.No order is made as to costs in respect of the amici curiae.
Part B
27. The applicants are directed to file a supplementary affidavit, if any, within
20 (twenty) calendar days of the filing of the first respondent's First Report
referred to in paragraph l 9 .1 above.
28.The responden ts and am1c1 curiae are directed to file any answermg
affidavits, if any, within 20 (twenty) calendar days thereafter.
29. The applicants are directed to file any replying affidavits within I 0 (ten)
calendar days thereafter.
30.The Registrar is directed to allocate a date for the hearing of Part B of this
application as soon as practicable after the expiry of the periods referred to
in paragraphs 27 to 29 above, and in any event not later than 90 (ninety)
calendar days after the filing of the applicants' supplementary affidavit.
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For applicants
Instructed by
For first to third respondents
1 nstructed by
For the first amicus curiae (EELC)
Instructed by
:Adv A Sander
:Horn & Van Rensburg Attorneys
:Bloemfontein
:c/o Loubser-Ellis & Associates Inc
:Mahikeng
32
:Adv JM Gumbi SC and Adv T Sebitlo
:State Attorney
:Mmabatho
Adv L Zikalala and Adv K Dambuza ,
:The Equal Education Law Centre
:Cape Town
:c/o Morweng Attorneys
:Mahikeng
For the second amicus curiae (SAOU) :Adv LM Erasmus SC
Instructed by :Erasmus Inc Attorneys
:Pretoria
:c/o CJ
PO Oelofse Attorneys
:Mahikeng