Laerskool Generaal Hendrik Schoeman v Bastian Financial Services (Pty) Ltd (CCT 22/09) [2009] ZACC 12; 2009 (10) BCLR 1040 (CC) ; 2012 (2) SA 637 (CC) (7 May 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2009
>>
[2009] ZACC 12
|

|

Laerskool Generaal Hendrik Schoeman v Bastian Financial Services (Pty) Ltd (CCT 22/09) [2009] ZACC 12; 2009 (10) BCLR 1040 (CC) ; 2012 (2) SA 637 (CC) (7 May 2009)

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 22/09
[2009] ZACC 12
LAERSKOOL
GENERAAL HENDRIK SCHOEMAN
Applicant
versus
BASTIAN
FINANCIAL SERVICES (PTY) LTD
Respondent
Decided
on: 7 May 2009
JUDGMENT
THE
COURT:
Laerskool Generaal
Hendrik Schoeman (the school) is a public school in Schoemansville,
Hartebeespoort, North West Province.
It applies for leave to
appeal against a decision of the Supreme Court of Appeal (SCA),
holding it liable to the respondent
company for money outstanding
under a lease agreement for a photocopier. The SCA (per Van
Heerden JA, with whom Harms ADP,
Streicher JA and Heher JA
concurred) held that section 60(1) of the South African Schools Act
84 of 1996 (the Act)
1
did not shift to the state liability for contracts properly entered
into by a public school.
2
This judgment, dismissing the school’s special plea, reversed
the decision of the magistrate’s court in Brits and the
North
Gauteng High Court (which had exonerated the school from
contractual liability) and overruled a previous decision, to
the
same effect, by the Eastern Cape High Court in Port Elizabeth in
2005.
3
Since, in addition to the
High Court decisions that were disapproved, one of the judges in
the SCA (Hurt AJA) dissented from
the conclusion the school seeks
to challenge, the question of law the school seeks to pursue is
clearly arguable.
The parties’ dispute
furthermore raises a constitutional issue, namely, the contractual
liability under the Act of governing
bodies at public schools which
are part of the state apparatus designed to secure the provision of
the right to education under
the Bill of Rights.
4
Before we grant leave to
appeal, however, we must be satisfied that the school has brought
its application properly and timeously.
This it has not done. The
application must be refused because the school has failed to
satisfactorily explain its delay in
bringing it. The chronology of
the steps the school took to bring the matter before this Court
reveals many unexplained delays
which disentitle the school from
pursuing its appeal.
The SCA delivered its
judgment on Friday 30 May 2008. The 15-day period specified in
Rule 19(2) of the Rules of this Court,
within which the school
should have lodged its application, elapsed on Monday 23 June 2008.
The school says its attorney wrote
to it only on 4 July to inform
it of the SCA outcome. It ascribes this delay to an oversight in
the corresponding attorneys’
offices in Bloemfontein, though it
fails to attach any affidavit from those attorneys. In any event,
the school’s attorney
on 9 July 2008 directed a follow-up inquiry
to the school. The school says these two letters came to its
attention only on
14 July 2008 because of the mid-year school
vacation.
The school does not claim
that its attorney was unaware or failed to inform it of the time
limits applicable to bringing an
appeal before this Court. That is
hardly conceivable. The suggestive inference is that despite
knowing from the outset of
those time limits the school’s
response to the SCA judgment suffered signally from inaction and
indecision.
Indeed, another eight
days passed before the school consulted its attorney and counsel
about the SCA judgment. Ten days later,
the school says, on 1
August 2008, a conference of school governing bodies took place,
where the effect of the SCA judgment
was discussed. After the
conference, the school’s attorney tried on 5 August 2008 to
schedule a consultation with the chief
executive of FEDSAS, a
national organisation of school governing bodies. Yet it was only
four weeks later – on 2 September
2008 – that the school
obtained a legal opinion on the merits of a possible appeal to this
Court.
A further week later, on
9 September, the school’s attorney made enquiries to determine
whether the governing body had taken
any decision regarding an
appeal. The position was, the school says, that the governing body
was still considering the matter,
but that one Mr Johan Van Wyk
(whose position and authority appear nowhere from the application)
indicated to the attorney
in theory (“in konsep”) that it was
“strongly considering” an appeal.
On 16 September 2008 the
school’s governing body was scheduled to meet. The school says
that the governing body recommended
that a “final decision”
should be taken at this meeting. However, the school’s account
fails to state whether any decision
was taken at the meeting, or
indeed whether the matter was discussed at all. Its account jumps
to 5 October 2008, 21 days
later, when it says a “follow-up
meeting” of the governing body took place. Only then did the
school decide to apply for
leave to appeal to this Court.
In the meanwhile, the
respondent had, quite understandably, taken a default judgment
against the school, which the school managed
to have rescinded only
on 27 February 2009.
The school must obtain
condonation for the nine-month delay between 23 June 2008, when its
application was due, and 23 March
2009, when it was lodged. It is
plain that it must establish that the extent of its default is
pardonable in the light of
its prospects of success on the merits
of the appeal, combined with the strength of its explanation for
its default in order
for condonation to be granted.
In considering whether
the school has established good grounds for condonation, we
overlook the delay between 30 May 2008, when
the SCA handed down
judgment, and 14 July 2008, when the school says it learnt of that
decision. We also leave out of account
the delay between the
meeting on 5 October 2008, when the school decided to appeal, and
27 February 2009, when the default
judgment was eventually
rescinded.
We focus instead on the
school’s failure to take significant action of any nature between
14 July and 5 October 2008, and
the time that elapsed after the
default judgment was rescinded. That is a period of more than
fourteen weeks, or over three
months. The school advances no
acceptable explanation at all for these delays. All we know is
that the mid-year school vacation
was in July, and that the FEDSAS
conference in August discussed the matter.
We do not consider that
either of these factors explains or mitigates the delay. In our
view, the lack of action invites the
inference that the school may
have been ambivalent about appealing, and even that its appeal may
have become perempted. But
it is not necessary for us to decide
the matter on the basis of peremption, since in our view
condonation cannot be granted
because of the failure to explain the
fourteen weeks of seeming indecision and inaction.
As this Court pointed
out in
Van Wyk v Unitas Hospital
,
5
“[a]n applicant for condonation must give a full explanation for
the delay. In addition, the explanation must cover the
entire
period of delay. And, what is more, the explanation given must be
reasonable.”
6
As in
Van Wyk
(though the delay we focus on here is
shorter), we think that the attempt to explain the default “falls
far short of these
requirements.”
7
The question underlying
the condonation applications in both cases is whether an applicant
with an arguable case may regard
a further appeal to this Court as
being there for the asking. The answer must of course be no. The
manifest injustice to
the opposing litigant cries out against any
such conclusion. As was pointed out in
Van Wyk
: “There is
an important principle involved here. An inordinate delay induces
a reasonable belief that the order had become
unassailable.”
8
As
in
Van Wyk
, the correspondence shows that the respondent
entertained this belief, and in our view, as in
Van Wyk
, “it
was reasonable for it to do so.”
9
Even though the period of inaction and indecision is shorter than
in
Van Wyk
, we think the opposing party here was entitled to
conclude that the SCA order had become unassailable. That indeed
explains
why in September the opposing party moved for default
judgment and obtained it (though the school later secured its
rescission).
In these circumstances we
think the injustice to the respondent of permitting further
appellate proceedings will be palpable.
We appreciate that school
governing bodies consist mainly of unremunerated members and that
they may have heavy community and
family responsibilities
elsewhere. But we do not consider that in the absence of
compelling explanation the inevitable difficulties
of corporate
decision-making in a lay body bearing public trust, with which we
are inclined to sympathise, license the absence
of decisive action
over so long a period on so important a matter.
As we indicated earlier,
it is hardly conceivable that the importance of the SCA’s adverse
judgment and the consequences of
inaction were not communicated to
the governing body. The follow-up actions by the school’s
attorney on 9 July and 9 September
2008 compel the inference that
they were.
We think the governing
body was duty-bound to decide promptly whether it wished to appeal.
Yet even after obtaining legal advice
on 2 September 2008, it
failed to do so for another five weeks. And even after the default
judgment was rescinded on 27 February
2009, it lodged its
application only on 23 March 2009. Indeed, it is not clear why the
school chose to launch its application
only after obtaining
rescission. But the time lapse after that date alone falls outside
the 15-day period within which the
application should have been
filed. And again it is entirely unexplained. It underscores the
manifest unacceptability of
the overall delay, the absence of
explanation for it, and the injustice to the respondent if the
school were now allowed to
re-open proceedings.
We point out in this
regard that the parties have already been through an appellate
process in the SCA. The SCA is the final
court of appeal in
non-constitutional matters. Parties who wish to undertake a
further appeal to this Court on a constitutional
issue must be
mindful that it is undesirable to leave matters in abeyance, since
after the period specified by the Rules of
this Court has elapsed,
the successful litigant in the SCA may reasonably infer that the
SCA judgment has become final. To
promote certainty and finality,
litigants should therefore be astute to observe the 15-day period
specified in Rule 19 for
the launch of applications for leave to
appeal to this Court. Parties who disregard that period without
substantial reason,
like the applicant, cannot expect the injustice
of re-opened proceedings to be imposed on the opposing litigant.
The school has thus not
established that it would be justified or fair to grant it
condonation. Our conclusion is based solely
on its absence of
explanation for its default, and we leave aside entirely the merits
of the interpretation of section 60(1)
of the Act.
Condonation is therefore
refused and the application is dismissed.
Langa CJ, Moseneke DCJ,
Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Sachs J,
Skweyiya J, Van der Westhuizen J and
Yacoob J.
1
At the time material to these proceedings, and before amendment by
the
Education Laws Amendment Act 31 of 2007
, which came into effect
on 31 December 2007,
section 60(1)
of the Act
provided:
“
The
State is liable for any damage or loss caused as a result of any
act or omission in connection with any school activity
conducted by
a public school and for which such public school would have been
liable but for the provisions of this section.”
2
Bastian Financial Services (Pty) Ltd v General
Hendrik Schoeman Primary School
[2008]
ZASCA 70
;
2008 (5) SA 1
(SCA) at para 22.
3
Technofin Leasing & Finance (Pty) Ltd v
Framesby High School
2005 (6) SA 87
(SECLD).
4
Section
29(1) of the Constitution provides:
“
Everyone
has the right—
to a
basic education, including adult basic education; and
to further education,
which the state, through reasonable measures, must make
progressively available and accessible.”
5
Van Wyk v Unitas Hospital and Another
[2007] ZACC 24
;
2008
(2) SA 472
(CC);
2008 (4) BCLR 442
(CC).
6
Id at para 22.
7
Id.
8
Id at para 31.
9
Id.