Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011)

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Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 29/10
[2011] ZACC 13
In the matter between:
GOVERNING BODY OF THE JUMA MUSJID
PRIMARY SCHOOL
…...............................................................................
First
Applicant
BEATRICE KISHETA KYUBWA AND OTHERS
…......
Second
and Further Applicants
and
AHMED ASRUFF ESSAY N.O.
…..........................................................
First
Respondent
ABOOBAKER JOOSAB NOOR MOHAMED N.O.
….......................
Second
Respondent
ABDUL VALLY MAHOMED N.O.
…..................................................
Third
Respondent
ABDUL RAHIM MALEK N.O.
…........................................................
Fourth
Respondent
HAROUN MAHOMED GANIE N.O.
….................................................
Fifth
Respondent
MAHOMED ABDOOL GAFFAR JOOSAB N.O.
…..............................
Sixth
Respondent
OMAR ABOOBAKER MOOSA N.O.
…............................................
Seventh
Respondent
GOOLAM ALLY GAFFOOR N.O.
…..................................................
Eighth
Respondent
AHMED YUSSUF LOCKHAT N.O.
…..................................................
Ninth
Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION FOR THE PROVINCE OF
KWAZULU-NATAL
…..........................................................................
Tenth
Respondent
SUPERINTENDENT GENERAL OF THE
DEPARTMENT
OF EDUCATION FOR THE
PROVINCE
OF KWAZULU-NATAL
…..........................................
Eleventh
Respondent
MINISTER FOR EDUCATION
…......................................................
Twelfth
Respondent
together with
CENTRE FOR CHILD LAW
…..........................................................
First
Amicus Curiae
SOCIO-ECONOMIC RIGHTS INSTITUTE
OF SOUTH AFRICA
…..................................................................
Second
Amicus Curiae
Heard on : 31 August 2010
25 November 2010
Decided on : 11 April 2011
JUDGMENT
NKABINDE
J:
Introduction
This
is an application for leave to appeal against the decision of the
KwaZulu-Natal High Court, Pietermaritzburg (High Court).
1
The order of the High Court authorised the
eviction, effectively, of a public school conducted on private
property.
2
The dispute is between the Juma Musjid Trust
(Trust), the owner of the private property, and the Member of the
Executive Council
for Education for KwaZulu-Natal (MEC)
3
as well as the School Governing Body (SGB). The
impasse arose when the MEC failed to conclude an agreement as
required by certain
provisions of the South African Schools Act
4
(Act) setting out the tenancy terms and
conditions. The standoff culminated in a successful eviction claim
by the Trust in the
High Court. This was followed by an
unsuccessful attempt to appeal to the Supreme Court of Appeal.
Hence the present proceedings.
After
the first hearing, this Court was satisfied that:
“
(a)
The Trustees (first to ninth respondents) have a constitutional duty
to respect the learners’ right to a basic education
in terms
of section 29(1) of the Constitution;
(b) Having regard to all the
circumstances of the case, including this obligation, the Trustees
acted reasonably in seeking an
order for eviction; and
(c) In considering the
Trustees’ application and in granting the order of eviction,
the High Court did not properly consider
the best interests of the
learners under section 28(2) and their right to a basic education
under section 29(1) of the Constitution.”
However,
the finding that the Trustees had acted reasonably in seeking the
order for eviction did not entitle the High Court
to make an order
for eviction, because the order had an impact on the learners’
right to a basic education under section
29(1) of the Constitution
and on the learners’ best interests under section 28 of the
Constitution. Therefore, the High
Court ought to have required the
MEC to provide it with information regarding the steps she had
taken to ensure that the learners
would have schools at which they
would be enrolled for the 2011 academic year. As this had not
happened, the order of the High
Court was set aside and the
provisional order dated 7 September 2010 was made.
5
The provisional order required the MEC and the Trustees to
endeavour to conclude a section 14 agreement in terms of the Act

which might have rendered the application for eviction unnecessary
and saved the school from closure.
The Trustees
were granted leave to apply directly to this Court on supplemented
papers for an order that would be just and equitable,
including an
order for eviction.
Following
the information furnished to this Court pursuant to the provisional
order as will appear later in this judgment, it
became clear that
the closure of the school had become inevitable. The
dispute
remained unresolved. As a result, the Trustees applied for an
eviction order. On 11 November 2010, the MEC then arranged
a
meeting to discuss the process concerning the closure of the
school. On the morning of the same day, the applicants
unsuccessfully
sought urgent relief to stop the meeting from taking
place.
6
On
25 November 2010 a further order,
7
which was designed to ensure that the MEC complied with his
obligation to provide information on alternative schooling for
the
children, was made.
Upon
considering the reports and further information furnished as a
result of the order of 25 November 2010, this Court was
satisfied
that the Trustees had made out a case for eviction and that
satisfactory arrangements had been made by the MEC to
ensure that
all learners will be accommodated at other schools during the 2011
school-year. Accordingly, on 10 December 2010
this Court granted an
eviction order.
8
In
this judgment, we provide reasons for this Court’s
provisional order dated 7 September 2010 and for the eviction order

we granted on 10 December 2010. We also address the remaining issue
relating to costs.
Broadly,
the issues relate to: (a) whether the MEC fulfilled the
constitutional obligations in relation to the learners’
right
to a basic education; (b) whether the Trustees, when vindicating
their property rights had any constitutional obligations
vis-à-vis
the learners’ right to a basic education and, if so; (c)
whether the common law remedy of
rei vindicatio
ought to
have been developed in circumstances where the learners’
right to a basic education was likely not to be given
effect to as
a result of an eviction. These questions involve balancing
competing rights: the right to a basic education on
the one hand
and property rights on the other.
Parties
Leave
to appeal is sought by the first applicant, the SGB of the Juma
Musjid Primary School (school), and the second and further

applicants.
The second and further applicants are parents,
guardians and caregivers whose children were enrolled as learners
at the school
for the 2010 school-year.
These
applicants are collectively referred to as the applicants.
The
first to ninth respondents are the Trustees of the Juma Musjid
Trust (Trustees). They oppose the application for leave to
appeal.
The tenth, eleventh, and twelfth respondents (state respondents)
are: the MEC; the Superintendent General of the Department
of
Education for KwaZulu-Natal (Department) and the then-Minister for
Education (Minister), respectively.
The
Centre for Child Law and the Socio-Economic Rights Institute (SERI)
were admitted as amici curiae.
9
This Court is indebted to them for their
valuable submissions.
Factual
background
The
school was officially established in 1957 as a government-aided
school and a Madressa,
10
an Islamic school established to offer education with a distinctive
religious character, for children in Grades 1 to 9. During
1997,
the Trust permitted the Department to enlist the school as a public
school with an Islamic religious ethos
11
on its property in terms of section 14(1) of the Act.
12
The permission, according to the Trustees, was subject to the
conclusion of a written agreement between themselves and the
MEC
under section 14(1). Although the agreement was never concluded,
the school was conducted on the Trust’s property
as a public
school. The Trust paid for certain expenses associated with the
running of the school. These payments were made
allegedly on the
understanding that the Department would reimburse the Trust.
On
28 January 1999, the Trust and the SGB concluded a written
agreement titled “Moral Deed of Agreement” (Moral

Deed). In paragraph A of its preamble, it appears that the coming
into operation of the Moral Deed was dependent upon the conclusion

of a section 14(1) agreement by the MEC and the Trust. On 9 October
2002, the Trust caused a letter to be sent to the Department

indicating that it had taken a decision to establish an independent
school on the property and that it would, in due course,
afford the
Department notice to “close” the existing school. A
copy of the letter was sent to the SGB. On 24 October
2002, the SGB
wrote to the Department noting its concerns about the letter
received from the Trust. In the same month the Department

responded, stating that if the school were to be evicted from the
premises, the Department would either relocate the school
to other
premises or close it.
On
17 July 2003, the Trust sent a notice terminating the
Department’s right of occupation with effect from 31 December
2004.
The Department undertook to vacate the premises. It did not.
It appears that invoices for expenses incurred by the Trust were

sent to the Department from 5 December 2005. On 11 January 2007,
the Department further undertook to pay rentals backdated
to 1998,
but this too did not happen.
Between
February and November 2007, the Department again undertook to pay
rentals and the Trust’s out-of-pocket expenses
incurred by
the latter for the benefit of the school. Once more, the Department
failed to fulfil its undertaking. The Trustees
then asked the
Department to indicate when it would vacate the premises. Instead
of doing so, the Department asked for a meeting.
The Trustees then
launched the application in the High Court on 28 July 2008 for the
eviction of the school from its property.
Proceedings
in the High Court and Supreme Court of Appeal
In
the High Court the Trustees sought and were granted an eviction
order
13
against the SGB and the state respondents. The
eviction application was based on the common law remedy of
rei
vindicatio
.
14
In the alternative, the Trustees claimed that
the MEC had failed to fulfil the various undertakings she had made
and to comply
with her tenancy obligations.
15
The
SGB opposed the application on the basis that the school had
occupied the premises before the Act came into operation.
16
It argued that the school was entitled to remain
on the property because: (a) by providing the premises to a public
school,
the Trust was performing a public function within the
definition of “administrative action” in terms of the
Promotion
of Administrative Justice Act
17
(PAJA); (b) that as a first step towards
resolving the disputes between the MEC and the Trust, recourse
should have been had
to the provisions of the Moral Deed; and (c)
by analogy, the remedies provided for in the Prevention of Illegal
Eviction from
and Unlawful Occupation of Land Act
18
(PIE) should be utilised to assist the Court in
determining the appropriate remedy. The SGB therefore contended
that the Trustees
should have afforded it a hearing prior to a
decision to evict the school.
The
intervening parties (the parents, guardians and caregivers of the
learners who were enrolled at the school) opposed the
eviction
application and contended that the MEC had abdicated her
constitutional responsibility of ensuring that the children’s

best interests were accorded their due importance.
Save
for the costs order sought against the MEC, the MEC did not oppose
the eviction application. The MEC pointed out that although
draft
agreements in terms of section 14(1) had been exchanged, the effort
to finalise them failed because of the Trustees’
insistence
on the payment of certain expenses.
19
The MEC maintained that in terms of her
departmental policy, she was not obliged to pay these expenses and
therefore insisted
on paying a nominal rental in the sum of R3 000
per annum to the Trust. In addition, the MEC undertook to pay
arrear rentals
and contribute to the payment of rates. She pointed
out that an investigation into possible alternative premises for
occupation
by the school had been conducted, and that no
alternative vacant school building within the central or greater
Durban area
had been found to accommodate all the learners.
The
MEC acknowledged the state’s constitutional obligations and
undertook to ensure that the learners’ basic education
would
continue to be provided and facilitated without restrictions. She
urged the High Court to qualify the eviction order
sought by
suspending its execution to enable the Department to finalise a
process of closing the school.
The
High Court held that the existence of the Moral Deed was not raised
by the SGB as a defence against the eviction of the
school and that
the Moral Deed did not comply with the requirements of regulation
2(1),
20
(2),
21
and (5)
22
under the Act.
23
It further held that the moral deed had never
been given effect to because its enforceability was dependent on a
section 14(1)
agreement. Therefore, the argument that the Moral
Deed operated independently had to fail.
In
rejecting the applicants’ argument that the Trust performed a
public function, the High Court held that the obligation
to provide
basic education is the responsibility of the Department and not
that of the Trust. The High Court held:
“
The
Trust owes no constitutional obligation to the first respondent or
to the learners at the school. It has its own constitutional
rights
to property recognised in terms of section 25 of the Constitution.
The obligation to provide compulsory education is an
obligation of
the Department of Education. The intervening respondents and their
children may have relied on the existence of
the school and have an
expectation of education for their children. The Trust has the power
and is at liberty to make its property
available for that purpose,
but it is not, on my reading of the Trust deed, obliged or compelled
to do so. Making premises available
for education is merely one of
the objectives in a range of objectives of the Trust, which the
Trustees may choose to give effect
to from time to time.”
24
The
High Court went on to hold that:
“
The
intervening respondents and/or the learners would clearly be
entitled to enforce their constitutional rights to education
by
claiming appropriate relief, but they must do so against the [MEC]
and/or [the Minister] and any other necessary parties.”
25
It held
that the eviction of the school from the property does not
constitute a closure of the school in terms of section 33
26
of the Act. The High Court further held that the argument that it
had to analogously apply the provisions of PIE had to fail.
As
to costs, the High Court mulcted the MEC with costs on an attorney
and client scale because they failed to provide relevant

information to the Court and to comply with their constitutional
obligations. The SGB was ordered to pay costs on a party and
party
scale because its opposition, albeit in good faith, was misplaced.
No order as to costs was made in respect of the intervening

parties. The eviction order as sought by the Trustees was granted.
The
applicants applied for leave to appeal to the Full Court of the
High Court. That application was dismissed with costs on
the basis
that the applicants sought to advance new grounds on appeal. They
then sought leave to appeal in the Supreme Court
of Appeal. This
application was also dismissed with costs.
Proceedings
in this Court
The
applicants challenged the eviction order on the basis that the
Trust
,
when performing a public function, was constrained by
the requirements of fairness in terms of PAJA. Whilst the Trust
maintained
that the decision of the High Court was correct, the SGB
argued that the High Court had a duty to develop the common law to

ensure that a common law right which violates a fundamental right
is only exercised: (a) when the requirements of procedural
fairness
are complied with; (b) where meaningful engagement has taken place;
and (c) where no other reasonable remedy is available.
It
was contended that the High Court failed to give appropriate
consideration to the impact of its decision upon the rights
of the
learners. The applicants argued that both the Trust and the High
Court failed to appreciate their constitutional duties.
They
submitted further that the High Court failed to exercise judicial
oversight over the eviction application to give effect
to the
rights of the learners and to have regard to the paramountcy of the
best interests of the children.
Relying
on
Khumalo and Others v Holomisa
27
the amici curiae contended that the negative duty not to impair
existing access to basic education binds the Trust. They argued

that the Trust’s decision to evict was unjustifiable.
The
Trustees took a point
in limine
and sought an order
striking-out certain evidence in the applicants’ founding
papers. Given the conclusion I reach, it
is unnecessary to decide
this matter. The Trustees argued that the Trust, as the sole and
exclusive owner of the property,
was entitled to deal with the
property as it saw fit in accordance with the Deed of Trust and
that the applicants had not made
out a case for the development of
the common law.
The
MEC urged this Court to suspend the execution of the eviction order
if it were minded to grant
the application for
leave to appeal. This, according to him, would have enabled the
parties to complete the process concerning
the closure of the
school in terms of section 33 of the Act and to arrange for the
alternative placement of the learners before
the beginning of a new
school term.
Leave
to appeal
It
is settled principle that two questions present themselves when
leave to appeal is sought in this Court. The first relates
to the
jurisdiction of the Court and the second, once a constitutional
issue has been established,
28
is whether the interests of justice warrant the granting of leave
to appeal. The interests of justice depend on a number of
relevant
factors including the prospects of success which, albeit important,
is not necessarily decisive.
29
There
can be no doubt that this case raises important constitutional
issues of public interest. The right to a basic education,
30
property rights
31
and the paramountcy of the child’s best interests
32
are implicated. In addition, the negative obligations of a juristic
person in terms of the Constitution not to impair rights
in the
Bill of Rights, and of a court to develop the common law to give
effect to the rights of the learners, require examination.
Given
the important constitutional issues at stake and the impact of the
eviction order made by the High Court on the rights
of the
learners, the interests of justice warranted the granting of leave
to appeal by this Court.
33
The next preliminary issue relates to the applications for
condonation.
Condonation
applications
In
the directions issued by the Chief Justice dated 3 June 2010, the
applicants were directed to lodge the record by 21 June
2010. They
failed to comply but applied for condonation and an extension of
time for the late filing of the record. The explanation
for the
delay, that the transcribers were unable to meet the deadline in
the time allocated, is satisfactory. None of the respondents
were
prejudiced by the late filing of the record. More importantly,
neither the Trust nor the state respondents opposed the

application. For these reasons, condonation for the late filing of
the record by the applicants was granted.
34
The
Trustees also sought and were granted condonation for the late
filing of their supplementary written submissions. They filed
their
supplementary written submissions on 24 August 2010, instead of 20
August 2010. The delay was occasioned by their failure
to file a
sufficient number of copies and an electronic version of their
supplementary written submissions. The application
was not opposed
and neither of the parties suffered prejudice as a result of the
lateness of the submissions. The delay was,
in any event, short.
Accordingly, this Court condoned the late filing of the
supplementary submissions.
35
Before
discussing the main issues, it is convenient to set out the legal
framework and address the importance of the right to
education,
with specific reference to international law.
The
right to education
Section
29(1) of the Constitution provides:
“
(1)
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.”
It
is important, for the purpose of this judgment, to understand the
nature of the right to “a basic education”
under
section 29(1)(a). Unlike some of the other socio-economic rights,
36
this right is immediately realisable. There is no internal
limitation requiring that the right be “progressively
realised”
within “available resources” subject to
“reasonable legislative measures”. The right to a basic
education
in section 29(1)(a) may be limited only in terms of a law
of general application which is “reasonable and justifiable

in an open and democratic society based on human dignity, equality
and freedom”.
37
This right is therefore distinct from the right to “further
education” provided for in section 29(1)(b). The state
is, in
terms of that right, obliged, through reasonable measures, to make
further education “progressively available
and accessible.”
Section
3(1) of the Act, following the constitutional distinction between
“basic” and “further” education,
makes
school attendance compulsory for learners from the age of seven
years until the age of 15 years or until the learner
reaches the
ninth grade, whichever occurs first. Section 3(3) of the Act
enjoins the MEC to ensure that there are enough school
places so
that every child who lives in his or her province attends school as
required by section 3(1) of that Act. These statutory
provisions
which make school attendance compulsory for learners from ages
seven to 15, read together with the entrenched right
to basic
education in the Constitution
signify the
importance of the right to basic education for the transformation
of our society.
The
MEC is enjoined in terms of section 12 of the Act, to provide
public schools. Section 12(1) and (2) provides:
“
(1) The
Member
of the Executive Counci
l
must provide
public
schools
for the
education of
learners
out of funds appropriated for this purpose by the
provincial
legislature
.
(2) The provision of public
schools referred to in subsection (1) may include the provision of
hostels for the residential accommodation
of learners.”
The
right to education is recognised in both regional
38
and international instruments. Specifically, the Universal
Declaration of Human Rights
39
(UDHR) and the International Covenant on Economic, Social and
Cultural Rights
40
(ICESCR) recognise the right to education without qualification.
The United Nations Convention on the Rights of the Child
41
(Child Rights Convention) also recognises the right of the child to
education. In General Comment No 3 on the national implementation

of the International Covenant on Civil and Political Rights
(ICCPR),
42
the United Nations Human Rights Committee (UNHRC) extends
obligations of the state under the ICCPR to include undertaking
specific activities to realise their rights.
43
Notably,
the ICESCR through the Committee on Economic, Social and Cultural
Rights, monitors socio-economic rights, including
the right to
education. It has issued comments giving content to that right,
stressing its importance. General Comment 13 states:
“
Education
is both a human right in itself and an indispensable means of
realizing other human rights. As an empowerment right,
education is
the primary vehicle by which economically and socially marginalized
adults and children can lift themselves out
of poverty and obtain
the means to participate fully in their communities. Education has a
vital role in empowering women, safeguarding
children from
exploitation and hazardous labour and sexual exploitation, promoting
human rights and democracy, protecting the
environment, and
controlling population growth. Increasingly, education is recognised
as one of the best financial investments
States can make. But the
importance of education is not just practical: a well educated,
enlightened and active mind, able to
wander freely and widely, is
one of the joys and rewards of human existence.”
44
The
significance of education, in particular basic education
45
for individual and societal development in our democratic
dispensation in the light of the legacy of apartheid,
46
cannot be overlooked.
The inadequacy of
schooling facilities, particularly for many blacks
47
was entrenched by the formal institution of
apartheid, after 1948, when segregation even
in
education and schools in South Africa was codified. Today, the
lasting effects of the educational segregation of apartheid
are
discernible in the systemic problems of inadequate facilities and
the discrepancy in the level of basic education for the
majority of
learners.
Indeed,
basic education is an important socio-economic right directed,
among other things, at promoting and developing a child’s

personality, talents and mental and physical abilities to his or
her fullest potential.
48
Basic education also provides a foundation for a
child’s lifetime learning and work opportunities. To this
end, access
to school
– an important component of the
right to a basic education guaranteed to everyone by section
29(1)(a) of the Constitution
– is a necessary condition for
the achievement of this right.
The
importance of the right to a basic education is also foreshadowed
by the fact that any failure by a parent to cause a child
to attend
school renders that parent guilty of an offence and liable, on
conviction, to a fine or imprisonment for a period
not exceeding
six months.
49
Furthermore, “[a]ny other person who,
without just cause, prevents a
learner
who is subject to compulsory attendance from
attending
school
is
also guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding six months.”
50
It is against this framework, having regard to
the facts of this case, that the question whether the MEC has
fulfilled the constitutional
mandate must be determined.
Did the MEC fulfil the constitutional obligation?
The
answer is clearly in the negative. The MEC has a positive
obligation in terms of the Constitution to “respect, protect,

promote and fulfil the rights in the Bill of Rights.”
51
More specifically, for the purpose of this judgment, the MEC must
“respect, protect, promote and fulfil” the learners’

right to a basic education. The source of this positive obligation
is section 8(1) of the Constitution which states that “[t]he

Bill of Rights applies to all law, and binds the legislature, the
executive, the judiciary and all organs of state.”
52
The MEC also has a duty in terms of section 12 of the Act to
provide public schools for the education of the learners.
53
The
MEC adopted an indifferent approach, despite having made numerous
promises between October 2002 and December 2008 to pay
arrear
rentals
54
and maintenance expenses incurred by the Trust. Notably, in the
affidavit before the High Court, she pointed out that she is

acutely aware of the state’s constitutional obligations. She
undertook to pay all outstanding rentals and any amount
payable in
respect of expenditure incurred in maintaining the building,
provided the expenses fell within the category of section
14
expenses.
55
These undertakings came to naught.
The
MEC stated that if the school was to be evicted, there would,
effectively, be no other school into which the current and

prospective learners could be absorbed. According to her, she would
be obliged to close the school in terms of section 33
56
of the Act, if this application were to be dismissed. It is worth
pointing out that although the MEC considered that the dispute

could have been resolved in the best interests of the learners, she
held the view that the school could either be relocated
to other
premises or closed. The MEC’s mere acknowledgement of the
state’s constitutional obligations does not
suffice. She
ought to have taken adequate steps to make alternative arrangements
for the learners. The MEC failed to do so.
Had she done so, the
need for the eviction application might not have arisen.
In
the High Court, the MEC had the opportunity to place relevant
evidence, including a plan setting out the details of how she
was
going to provide alternative education to the affected learners,
before the Court. The MEC failed to do so. More importantly,
the
MEC neglected to take reasonable measures to conclude a section
14(1) agreement.
57
I
therefore share the reproach expressed by the High Court that:
“
It is
unacceptable for the State to fail to put up relevant information
and more importantly to take steps to comply with its
constitutional
obligations where a dispute pertains to the relevant State
department’s performance of its constitutional
mandate. Much
time and effort has been wasted due to, it seems, the [MEC’s]
failure to deal decisively with the issue of
the continued
occupation by the school of the property on terms mutually
acceptable . . . . If the parties could not agree on
mutually
acceptable terms, then the [Department] should have taken steps a
long time ago to make alternative arrangements, but
to at least deal
with the issue. If that was done in accordance with the provisions
of the Act with proper regard to the department’s

constitutional mandate, then the need for the present application
would probably never have arisen.”
58
This
Court in
S v Williams and Others
,
59
quoted with approval the passage in
Olmstead et al. v. United
States
60
that: “Our government is the potent, the omni-present
teacher. For good or for ill, it teaches the whole people by its

example.”
61
Although these remarks were made in the context of crime, they
apply equally here. The MEC has failed to teach by example.
The
intervening parties stated that no alternative arrangements had
been made for the continued education of the learners. By
not
providing a public school
62
and failing to ensure that there are enough school places available
in the affected areas, as required under section 3(3)
63
of the Act, and simply informing the High Court that there are no
other schools in which to absorb all the learners, the MEC
failed
to discharge her constitutional obligation, to “respect,
protect, promote and fulfil”
64
the learners’ right to a basic education.
The
conduct of the MEC on the facts of this case thus fell below the
standard required by the Constitution and the relevant
statutory
provisions.
I
now return to the three findings in the provisional order, namely,
that: (a) the Trustees have a constitutional duty to respect
the
learners’ right to a basic education; (b) the Trustees acted
reasonably in seeking an order for eviction; and (c)
in considering
the Trustees’ application and in granting the eviction order,
the High Court did not properly consider
the best interests of the
learners under section 28(2) and their right to a basic education
under section 29(1) of the Constitution.
The
Trustees’ constitutional duty in relation to the learners’
right to
a basic education
The
High Court concluded that the Trust owed no constitutional
obligations to the learners at the school. This finding was based

squarely on pre-constitutional common law principles. There is no
indication that the High Court had proper regard to section
8(2) of
the Constitution and the impact the eviction would have had on the
learners’ rights.
Traditionally,
because of the clear distinction between public law and private law
realms,
65
a private owner could evict any tenant provided that the
requirements of
rei vindicatio
were satisfied. Private
entities were held to be free to engage in their economic and
social interests without state interference.
66
As a result, over emphasis on the difference
s
between the exercise of private and public power often sheltered
private power
used for public purposes.
67
Section
8 of the Constitution deals with the application and binding nature
of the Bill of Rights. It provides:
“
(1)
The Bill of Rights applies to all law, and binds the legislature,
the executive, the judiciary and all organs of state.
(2) A provision of the Bill of
Rights binds a natural or a juristic person if, and to the extent
that, it is applicable, taking
into account the nature of the right
and the nature of any duty imposed by the right.
(3) When applying a provision
of the Bill of rights to a natural or juristic person in terms of
subsection (2), a court—
(a) in order to give effect to
a right in the Bill, must apply, or if necessary develop, the common
law to the extent that legislation
does not give effect to that
right; and
(b) may develop rules of the
common law to limit the right, provided that the limitation is in
accordance with section 36(1).
(4) A juristic person is
entitled to the rights in the Bill of Rights to the extent required
by the nature of the rights and the
nature of that juristic person.”
In
order to determine whether the right to a basic education in terms
of section 29(1)(a) binds the Trust, section 8(2) requires
that the
nature of the right of the learners to a basic education and the
duty imposed by that right be taken into account.
From the
discussion in the previous paragraphs of the general nature of the
right and the MEC’s obligation in relation
to it, the form of
the duty that the right to a basic education imposed on the
Trustees emerges. It is clear that there is
no primary positive
obligation on the Trust to provide basic education to the learners.
That primary positive obligation rests
on the MEC. There was also
no obligation on the Trust to make its property available to the
MEC for use as a public school.
A private landowner may do so,
however, in accordance with section 14(1) of the Act which provides
that a public school may
be provided on private property only in
terms of an agreement between the MEC and the owner of the
property.
68
This
Court, in
Ex Parte Chairperson of the Constitutional Assembly:
In re Certification of the Constitution of the Republic of South
Africa
,
69
made it clear that socio-economic rights (like the right to a basic
education) may be negatively protected from improper invasion.
70
Breach of this obligation occurs directly when there is a failure
to respect the right, or indirectly, when there is a failure
to
prevent the direct infringement of the right by another
71
or a failure to respect the existing protection of the right by
taking measures that diminish that protection.
72
It needs to be stressed however that the purpose of section 8(2) of
the Constitution is not to obstruct private autonomy or
to impose
on a private party the duties of the state in protecting the Bill
of Rights. It is rather to require private parties
not to interfere
with or diminish the enjoyment of a right. Its application also
depends on the “intensity of the constitutional
right in
question, coupled with the potential invasion of that right which
could be occasioned by persons other than the State
or organs of
State”.
73
The
Trust permitted the Department to enlist the school as a public
school on its property with a distinctive religious character
in
accordance with sections 56
74
and 57
75
of the Act. It also performed the public function of managing,
conducting and transacting all affairs of the Madressas in the
most
advantageous manner, including the payment of the costs of various
items which the SGB and the Department ought to have
provided.
76
By making contributions towards expenses
associated with the running of a public school, the Trust acted
consistently with its
duties: to erect, maintain, control and
manage the school in terms of the Deed of Trust.
77
Notably, counsel for the Trustees conceded
during oral argument that the Trust had a duty not to impair the
learners’
right to a basic education. This concession was
properly made.
The
High Court therefore misdirected itself in finding that the
Trustees had no obligation in relation to the learners’
right
to a basic education. Accordingly, I conclude that the Trust does
have a negative constitutional obligation not to impair
the
learners’ right to a basic education. The next finding in the
provisional order relates to the reasonableness of
the Trustees’
action in seeking an order for eviction in the High Court.
The
reasonableness of the Trustees’ action in seeking an order for
eviction
It
is necessary to acknowledge at the outset that paragraph (b) of the
provisional order, which states that we were satisfied
that
“[h]aving regard to all the circumstances of the case,
including this obligation [the Trust’s constitutional

obligation to respect the learners’ right to a basic
education], the Trustees acted reasonably in seeking an order for

eviction”, is not as clear as it should have been. Accepting
that the Trustees acted reasonably did not imply that they
were
entitled to an eviction order, as the rest of the provisional order
made plain by setting aside the High Court order granted
in their
favour, and by indicating that the High Court did not properly
consider the learners’ best interests. The Trust,
as the
owner of the property, was entitled to seek eviction in view of
their efforts to engage the MEC to alleviate the position
of
learners affected by the proposed eviction.
In
order to assess whether the Trustees acted reasonably in seeking an
order for eviction, one has to be mindful that the primary

obligation in respect of the learners’ right to a basic
education is that of the state. The Trust’s obligation
is
secondary and, important to remember, arises only from its
willingness to allow the property to be used as a public school
and
to enter into a section 14 agreement. It did not give up its rights
of ownership of the property. At most, the Trust’s

constitutional obligation, once it had allowed the school to be
conducted on its property, was to minimise the potential impairment

of the learners’ right to a basic education.
For
many years the Trust was willing to enter into a section 14
agreement with the Department but the latter dragged its feet.
It
is evident from the record that the Trust had extensive
negotiations with the Department before the eviction order was
sought in the High Court. I mention but a few examples of the steps
taken by the Trustees. First, on 9 October 2002 the Trust
notified
the MEC of its intention to establish an independent school on the
property and that it would give her notice in due
course. The SGB
was aware of this letter. In the letter dated 24 October 2002 the
principal expressed concerns about the intended
closure of the
school and stated that the Department had an obligation to provide
alternative premises. In her response dated
31 October 2002, the
MEC informed the Trust that it may refuse to sign an agreement and
eject the Department from its property.
Secondly, when the section
14 agreement could not be concluded, the Trust gave notice to the
Department and the SGB to vacate
the property by no later than 31
December 2004. The Department promised to vacate but failed to do
so. Thirdly, in December
2005 the Trust submitted a schedule to the
Department explaining outstanding payments owed by the latter.
Fourthly, the Department
confirmed delivery of the schedule
reflecting the Trust’s claims in August 2006. Finally, on 23
February 2007 the Trust’s
attorneys notified the Department
that the period of grace afforded to the school for the payment of
outstanding amounts had
expired and they were to vacate the
property within seven days. But Department did not.
The
purpose of these negotiations, even though not stated in these
terms, was to minimise the impairment of the rights of the

learners. More importantly, although the application for eviction
was lodged in July 2008, the Trust did not seek to evict
the MEC
and the school with immediate effect.
78
The Department assumed an uncompromising attitude regarding the
payment of outstanding rentals and the Trust’s out-of-pocket

expenses. It could not have been expected of the Trust to continue
with the negotiations indefinitely. In the circumstances,
it could
hardly be said that the Trust failed to act reasonably before
seeking an order for eviction.
Having
regard to all the circumstances including the obligation not to
impair the learners’ right to a basic education,
the Trustees
acted reasonably in seeking the order for eviction. I now turn to
the third finding in the provisional order,
which relates to
whether the High Court properly considered the best interests of
the children and their right to a basic education.
Connected to
this finding is whether the High Court was obliged to develop the
common law remedy of
rei vindicatio
. I start with the
latter.
Did
the High Court properly consider the best interests of the learners?
In
my view, the High Court failed to give efficacy to guaranteed
rights in sections 29(1) and 28(2) of the Constitution. Section

28(2) provides that “[a] child’s best interests are of
paramount importance in every matter concerning the child.”
79
In
Director of Public Prosecutions, Transvaal v Minister for
Justice and Constitutional Development and Others
,
80
this Court held that although it is neither necessary nor desirable
to define the content of the right in section 28(2), the
right in
that subsection “imposes an obligation on all those who make
decisions concerning a child to ensure that the
best interests of
the child enjoy paramount importance in their decisions.”
81
This Court stressed in
S v M
82
that:
“
While
section 28 undoubtedly serves as a general guideline to the courts,
its normative force does not stop there. On the contrary,
as this
Court has held in
De
Reuck
;
Sonderup
;
and
Fitzpatrick
,
section 28(2), read with section 28(1), establishes a set of
children’s rights that courts are obliged to enforce . .
. .
The ambit of the provisions is
undoubtedly wide. The comprehensive and emphatic language of section
28 indicates that just as
law enforcement must always be
gender-sensitive, so must it always be child-sensitive; that
statutes must be interpreted and
the common law developed in a
manner which favours protecting and advancing the interest of
children; and that courts must function
in a manner which at all
times shows due respect for children’s rights. As
Sloth-Nielsen pointed out:
‘
(T)he
inclusion of a general standard (‘the best interest of a
child’) for the protection of children’s rights
in the
Constitution can become a benchmark for review of all proceedings in
which decisions are taken regarding children. Courts
and
administrative authorities will be constitutionally bound to give
consideration to the effect their decisions will have on
children’s
lives.’”
83
(Footnotes omitted.)
In
opposing the eviction the applicants were, no doubt, acting in the
interests of the learners and to the benefit of their
children. It
is evident that the High Court failed to give consideration to the
impact that the eviction order would have had
on the learners and
their interests. Had the High Court considered the character and
nature of the occupants and the mechanism
in terms of which the
school obtained occupation of the private property, considerations
which the High Court regarded as irrelevant,
it would not have
ordered the eviction.
Although
the High Court correctly recognised the constitutional obligation
on the part of the MEC, it erred by approaching the
matter narrowly
in neglecting to ask the MEC to provide information on how the
constitutional mandate of providing a basic
education was to be
fulfilled.
The
remarks made by this Court, per Sachs J in
Port Elizabeth
Municipality v Various Occupiers
,
84
regarding the role of our courts when confronted with competing
rights find resonance here. The Court elaborated that the
Constitution—
“
imposes
new obligations on the courts concerning rights relating to property
. . . . It counterposes to the normal ownership rights
of
possession, use and occupation, a new and equally relevant right not
arbitrarily to be deprived of a home . . . . The judicial
function
in these circumstances is not to establish a hierarchical
arrangement between the different interests involved, privileging
in
an abstract and mechanical way the rights of ownership over the
right not to be dispossessed of a home, or vice versa. Rather,
it is
to balance out and reconcile the opposed claims in as just a manner
as possible, taking account of all the interests involved
and the
specific factors relevant in each particular case.”
85
(Footnote omitted.)
Although
these remarks were made in relation to housing rights, I consider
that their analogous application to this case is justified.
Indeed,
normal ownership rights are not counterposed only to constitutional
housing rights, but also, as this case shows, to
other fundamental
rights. What must be weighed against the right of ownership, in each
case, will depend on the content of each
specific countervailing
right.
Here,
the High Court privileged the right to property over the learners’
right to a basic education. In doing so, the
Court failed to accord
sufficient weight to the entrenched rights of the learners and to
the paramount importance of their
best interests.
For
all these reasons the order of the High Court was set aside and the
provisional order granted. The question then remains
why this Court
nevertheless considered the eviction to be a just and equitable
remedy in the circumstances.
Reasons
for eviction
When
deciding a constitutional matter, this Court may make any order
that is just and equitable.
86
Following the provisional order we granted on 10 December 2010, we
granted an order of eviction in favour of the Trustees.
The
provisional order setting aside the eviction order by the High
Court was intended to enable the MEC, the Trustees and the
SGB to
engage meaningfully with one another, consider various options
regarding the conclusion of an agreement in terms of
section 14(1)
of the Act and take steps to secure alternative placement for the
learners in accordance with their right to
a basic education. The
order was made in view of the imminent end of the 2010 school-year.
On 8
October 2010 the MEC, in observance of the provisional order, filed
a report, the full details of which need not be mentioned.
It
suffices to mention that the engagement took place but that the
parties were unable to conclude the agreement. The report

reiterated that learners were to be accommodated at Anjuman Islam,
Clayton and Collegevale primary schools. The MEC stressed
his
desire to close the school, a process he anticipated to be
completed by the end of 2010.
As part of the
intended closure process, the MEC scheduled a public meeting for 11
November 2010 at 17h00 to discuss the process.
Having
regard to the way in which the events ultimately unfolded, it is
unnecessary to recount everything that happened after
the
provisional order. Suffice it to say that the provisional order
sought to direct the parties to engage with a view to concluding
a
section 14 agreement, which did not eventuate. On 25 November 2010
the Court ordered the MEC to indicate what steps had been
taken to
accommodate the learners in new schools for the 2011 school-year.
87
Indeed,
the MEC filed a report to this Court on 7 December 2010 indicating
that he had received information from the various
schools showing
the number of children and grades at which they could be enrolled
at those schools. The report also stated
that there were a number
of schools that could accommodate any remaining learners and that
those schools were chosen by the
parents because they are closest
to their places of residence. Ultimately, the report concluded that
because of these preferences
by the parents, the need to provide
transport for the learners did not arise.
There
can be no doubt that the MEC had taken reasonable steps to secure
alternative placements of the learners for the 2011
school-year.
The complaints about transport and siblings being split to attend
different schools and travelling at different
times, and in
different buses, cannot stand. It may well be ideal for siblings to
attend the same school and to travel together
in the same bus.
However, the applicants did not persuade this Court that the MEC
was constitutionally obliged to provide transportation
for the
convenience of each parent and learner.
For
these reasons, this Court concluded that it was just and equitable
to grant an eviction order
88
on 10 December 2010.
In
the view I take of the matter, it is not necessary to canvass the
applicants’ contentions regarding PAJA and the analogous

application of PIE. The remaining issue for determination relates
to costs of this litigation.
Costs
The
High Court ordered the MEC to pay the Trustees’ costs of the
application incurred subsequent to 9 October 2008, on
an attorney
and client scale, including costs of senior counsel. The reason for
the punitive costs order was that the MEC failed
to provide
relevant information and to comply with its constitutional
obligations. The SGB was directed to pay the costs of
the eviction
application, including the costs of senior counsel, on a party and
party scale. The High Court held that the SGB’s
opposition to
the eviction application, albeit in good faith, was misplaced. No
order for costs was made in respect of the
opposition of the
application by the parents and guardians.
Relying
on
Biowatch Trust v Registrar Genetics Resources and Others
89
(Biowatch)
, the applicants appeal the order of costs made
against them. They maintain, correctly, that they stood in a
position of trust
towards the school
90
and acted in the best interests of the learners when they opposed
the eviction application and appealed the decision of the
High
Court. The applicants submitted that the MEC should bear the costs
in the High Court, Supreme Court of Appeal and this
Court on a
punitive scale for having failed to manage the crisis at the school
and to take appropriate steps to safeguard and
protect the rights
of the learners.
The
Trustees sought to defend the High Court costs order but submitted,
in the alternative, that the MEC should be ordered to
pay the
Trust’s costs, including all costs in the High Court, Supreme
Court of Appeal and this Court. As to the eviction
application, the
Trustees contended that the MEC’s obstructive conduct
warrants costs at a punitive scale against the
MEC.
In
Biowatch
, this Court held that the point of departure where
the state is shown to have failed to fulfil its constitutional and
statutory
obligations, and where different private parties are
affected, as is the case in this matter, it is for the state to
bear the
costs of successful litigants. The Court held:
“
[O]rdinarily
there should be no costs orders against any private litigants who
have become involved. This approach locates the
risk for costs at
the correct door—at the end of the day, it was the State that
had control over its conduct.”
91
In
this case, the Trustees have successfully vindicated their property
rights. Had the state acted in accordance with its constitutional

obligation before the High Court, the impasse would have been
resolved without further demur by the applicants. Indeed, the

eviction could not be granted without this Court’s oversight
in ensuring that the learners’ rights in terms of
sections
29(1) and 28(2) of the Constitution were safeguarded.
The
High Court clearly misdirected itself by holding that the SGB’s
opposition of the eviction application was misplaced.
It was not.
As mentioned above, the SGB had a duty in terms of the Act to
ensure that the rights of the learners are given
effect to. In any
event, as correctly submitted by the SGB, no conceivable purpose
can be achieved by mulcting the applicants
with any costs order.
The
Department had full control of the situation, but continually
adopted an uncompromising stance despite the numerous undertakings

to pay rentals and out-of-pocket expenses incurred by the Trustees
for the upkeep of the school. However, this conduct does
not
warrant mulcting the MEC with a costs order as contended for by the
SGB and the Trustees. During oral argument, counsel
for the MEC
correctly tendered to pay the costs of all parties on a party and
party scale. The order we make below reflects
this, which will
supersede the punitive order granted against the MEC in the High
Court. There should be no order as to costs
in relation to the
applicants’ unsuccessful urgent application.
Order
In
the event, we make the following order, which supersedes the
provisional order of 7 September 2010 and the eviction order
of 10
December 2010:
Leave
to appeal is granted.
Condonation
for the late filing of the record is granted.
Condonation
for the late filing of supplementary written submissions is
granted.
The
order of the KwaZulu-Natal High Court, Pietermaritzburg dated 16
September 2009 is set aside.
The
Member of the Executive Committee for Education for the Province of
KwaZulu-Natal (MEC) together with any and all persons who
claim a
right to occupy by, through or under the MEC, are ordered to vacate
the premises known as the Juma Musjid Primary School
situated at
62-64 Cathedral Road, Durban by no later than 31 December 2010.
Failing
compliance with paragraph 5 of this order, the Sheriff of the High
Court, Durban, or his or her Deputy is authorised
and directed to
take all such steps as may be necessary to give effect to the
order.
The
MEC is ordered to pay the costs of the proceedings in the
KwaZulu-Natal High Court, Pietermaritzburg; in the Supreme Court
of
Appeal and in this Court, on a party and party scale.
The
costs referred to in paragraph 7, above, should include costs
consequent upon the employment of two counsel.
There
is no order as to costs in respect of the urgent application lodged
on 11 November 2010.
Ngcobo CJ, Moseneke DCJ, Brand AJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Mogoeng J and Skweyiya J concur in the judgment
of
Nkabinde J.
For the Applicants:
For the First to Ninth Respondents:
For the Tenth Respondent:
For the Amici Curiae:
Advocates GJ Marcus SC and M du Plessis
Instructed by the Legal Resources Centre, Durban.
Advocate VI Gajoo SC
Instructed by JH Nicholson, Stiller and Geshen.
Advocate AG Jeffrey SC
Instructed by the State Attorney, KwaZulu-Natal.
Advocate S Budlender
Instructed
by the Centre for Child Law and the Socio-Economic Rights Institute.
1
Ahmed
Asruff Essay N.O. and Eight Others v The MEC for Education
KwaZulu-Natal and Four Others
, Case No. 10230/2008,
KwaZulu-Natal High Court, Pietermarizburg, 16 September 2009,
unreported.
2
The
order is set out in full at n 13 below.
3
When
these proceedings commenced in the High Court, the MEC was Ms
Catherina Magdalena Cronjé. When the application was
lodged
in this Court, Mr Senzo Mchunu was the MEC. It is for this reason
that this judgment, in the proceedings before the High
Court refers
to the MEC as “she/her” and in the proceedings before
this Court, the MEC is referred to as “he/him”.
4
84
of 1996. The Act came into operation on 1 January 1997.
5
The
provisional order reads:
“
Having heard argument on
behalf of the applicants, respondents and amici curiae, and having
considered the application for leave
to appeal, the Court is
satisfied that—
(a) The Trustees (first to ninth respondents) have a
constitutional duty to respect the learners’ right to a basic
education
in terms of section 29(1) of the Constitution;
(b) Having regard to all the circumstances of the case,
including this obligation, the Trustees acted reasonably in seeking
an
order for eviction; and
(c) In considering the Trustees’ application and
in granting the order of eviction, the High Court did not properly
consider
the best interests of the learners under section 28(2) and
their right to a basic education under section 29(1) of the
Constitution.
In view of the urgency of the matter, the following
provisional order is made, for which reasons will in due course be
furnished:
The application for leave to appeal is granted.
The application for condonation for the late filing of
the record is granted.
The application by the first to ninth respondents for
condonation for the late filing of their supplementary written
submissions
is granted.
The order of the High Court dated 16 September 2009 is
set aside.
In its place, the following provisional order is
granted:
(a) The Tenth Respondent, Member of the Executive
Council for Education for the Province of KwaZulu-Natal (MEC), is
ordered to
engage meaningfully with the first to ninth respondents
(Trustees) and the first applicant (School Governing Body) in an
effort
to resolve the questions arising from the dispute before the
Court, and the options available for its resolution, including—
(i) whether it is possible for the MEC to conclude an
agreement in terms of
section 14
of the
South African Schools Act 84
of 1996
with the Trustees for the continued operation of the school;
and, if not,
(ii) what steps the MEC has taken to secure alternative
placements for the learners enrolled at the school in accordance
with
the learners’ right to a basic education.
(b) The MEC is required to file a written report with
this Court by no later than Friday 8 October 2010 setting out—
(i) the efforts undertaken in terms of paragraph (a) of
this order;
(ii) the conclusions to which the MEC has come; and
(iii) the reasons for those conclusions.
(c) In the light of the MEC’s report, the
Trustees are granted leave to apply directly to this Court before
Friday 29 October
2010, on the papers as suitably supplemented, and
on notice to the other parties, for an order that will be just and
equitable,
including an order for eviction.”
6
The
order dated
11 November 2010 reads:
“
The Constitutional Court has considered the
urgent application filed on 11 November 2010. It has concluded that
the application
should be dismissed.
Order:
(1) The application is dismissed.
(2) Costs are reserved for decision on 25 November 2010
at 10:00 am.”
7
The
order dated 25 November 2010 is set out in full at n 87 below.
8
The
order dated 10 December 2010 is set out in full at n 88 below.
9
The
Centre for Child Law (admitted as the first amicus curiae), is a
registered law clinic of the University of Pretoria.
SERI
(admitted as the second amicus curiae), is a non-profit organisation
providing professional, dedicated and expert socio-economic
rights
assistance to individuals, communities and social movements in South
Africa. SERI conducts research, engages with government,
advocates
for policy and legal reform, facilitates civil society coordination
and mobilisation, and litigates in the public interest.
Its thematic
areas are
housing
and evictions
;
basic
services
(water, sanitation, electricity); and
migrant
rights and livelihoods
.
10
A
Madressa is a place of religious learning for followers of the
Islamic faith. The school is seemingly the only public school
in the
central business district of Durban that provides education in line
with the Islamic faith.
11
Section
57
of the Act deals with transitional provisions relating to private
property owned by religious organisations. It provides:
“
If the owner of the private
property referred to in
section 56
is a religious organisation, such
owner may require that the agreement contemplated in
section 14
must
recognise, in an appropriate manner consistent with
this
Act
, the
distinctive religious character of the
school
.”
A
pro forma agreement in terms of
section 14
, inter alia, provides:
“
Whereas the MEC and the Owner
have agreed to enter into this agreement pursuant to
sections 14(1)
and
57
of the
South African Schools Act (Act
No. 84 of 1996)
(hereafter referred to as ‘the Act’), whereby the school
is
established/deemed
to be established
as a public school on private property.” (Emphasis added.)
Provision
is made in the pro forma agreement for the proprietary rights held
by the school, that the owner gives the right of
use of the property
for the sole purpose of education in a public school on the property
and that the owner lets the property
to the MEC for a certain amount
per month/year. It also makes provision for the recognition by the
MEC of the distinctive religious
character of the school if the
owner of the private property has exercised his or her rights as
contemplated in
section 57
of the Act.
12
Section
14(1)
provides:
“
Subject to the
Constitution
and an expropriation in terms of section 58 of land or a real right
to use the property on which the
public
school
is
situated, a
public
school
may be
provided on private property only in terms of an agreement between
the
Member of the
Executive Council
and the owner of the private property.”
13
The
High Court order reads:
“
1. The respondents and any
and all persons occupying by, through or under the respondents, are
hereby directed to vacate the premises
described as the Juma Musjid
Primary School (including all buildings and any land occupied by the
said School) situated at 62–64
Cathedral Road, Durban, on or
before 15 December 2009;
2. In the event of the respondents or any person or
persons failing, refusing or neglecting to comply with the order
granted in
terms of (1) above, then the Sheriff of this Honourable
Court or his duly authorised deputy is hereby authorised and
directed
to eject the respondents and any other such person or
persons from the aforesaid premises and to hand vacant possession of
the
premises from which the respondents and any other person or
persons have been ejected to the applicants;
3. The third respondent is directed to pay the
applicants’ costs of this application including the costs of
senior counsel,
on the party and party scale;
4. The first respondent is directed to pay the costs of
this application subsequent to 9 October 2008 including the costs of
senior
counsel, on the scale as between attorney and client;
5. The costs order in paragraph 3, insofar as it
relates to costs incurred after 9 October 2008, will be joint with
the costs
order in paragraph 4;
6. No order for costs is made in respect of the
opposition by the intervening respondents.”
14
The
rei vindicatio
remedy is available to an owner to claim back
property in possession of another. In order for the Trustees to
invoke this remedy
they had to prove (a) ownership and (b) that the
respondents were in possession of the property at the time of
instituting the
proceedings. In defending the vindicatory claim, the
respondent bears the onus to justify continued occupation or
possession
of the property. See in this regard LTC Harms
Amler’s
Precedents of Pleadings
(3ed) (Butterworths, Durban 1989) 304-5.
15
In
effect, the applicants’ alternative claim was that the MEC
breached the lease agreement which they duly terminated on
reasonable notice.
The Trustees averred that if
the applicants and the state respondents contend that the agreement
existed, they would be entitled
to an eviction order on the basis
that: (a) the Department had breached the terms of the agreement by
failing to pay rentals
and other charges and costs and (b) no finite
period for occupancy had been discussed or agreed upon. On that
basis, the Trustees
contended that they were entitled to terminate
the tenancy on reasonable notice that was duly given.
16
Above
n 4. According to the SGB the requirement of reducing the agreement
to writing was introduced, in terms of the
South African Schools Act
Regulations
GG 18566 GN R1738, 19 December 1997.
17
3
of 2000.
Section 1
defines an administrative
“decision” as—
“
any decision of an
administrative nature made, proposed to be made, or required to be
made, as the case may be, under an empowering
provision, including a
decision relating to—
(a) making, suspending, revoking or refusing to make an
order, award or determination;
(b) giving, suspending, revoking or refusing to give a
certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue
a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f ) retaining, or refusing to deliver up, an article;
or
(g) doing or refusing to do any other act or thing of
an administrative nature,
and a reference to a failure to take a decision must be
construed accordingly”.
18
19
of 1998.
19
These
expenses relate to cleaning, sanitation, electricity, refuse
removal, telephone, water, insurance and others.
20
Regulation
2(1)
provides:
“
In terms of
section 14
(1) of
the Act a public school may be provided on private property only in
terms of an agreement.”
21
Regulation
2(2)
provides:
“
An agreement between the
State and the owner which existed prior to the commencement of the
Act remains in force to the extent
that it is consistent with the
Act, and may be amended by agreement between the [MEC] and the
owner.”
22
Regulation
2(5)
provides:
“
An agreement and all
amendments thereto must be in writing and signed by both the [MEC]
and the owner.”
23
Above
n 1 at para 14-5.
24
Id
at para 23.
25
Id
at para 26.
26
The
text of
section 33
is set out in full at
n 56
below.
27
[2002]
ZACC 12
;
2002 (8) BCLR 771
(CC);
2002 (5) SA 401
(CC).
28
Section
167(3)(b) of the Constitution provides that the Court “may
decide only constitutional matters, and issues connected
with
decisions on constitutional matters”.
29
Albutt
v Centre for the Study of Violence and Reconciliation and Others
[2010] ZACC 4
;
2010 (5) BCLR 391
(CC);
2010 (3) SA 293
(CC) at para
29;
Phumelela Gaming and Leisure Ltd v Gründlingh and Others
[2006] ZACC 6
;
2006 (8) BCLR 883
(CC);
2007 (6)
SA 350
(CC) at para 24;
S v Boesak
[2000] ZACC 25
;
2001 (1) BCLR 36
(CC);
2001 (1) SA 912
(CC) at para 12; and
Fraser
v Naude and Others
[1998] ZACC 13
;
1998 (11) BCLR 1357
(CC);
1999 (1) SA 1
(CC) at para 7.
30
Section
29(1)(a) of the Constitution is set out in full at [36] below.
31
Section
25(1) of the Constitution provides:
“
No one may be deprived of
property except in terms of law of general application, and no law
may permit arbitrary deprivation
of property.”
32
Section
28(2) of the Constitution is set out at [66] below.
33
Above
n 5 at
para 1.
34
Id
at
para 2.
35
Id
at para 3.
36
For
example, the right to have access to adequate housing under section
26(1) of the Constitution and the right to have access
to health
care services, sufficient food and water, and social security under
section 27 of the Constitution. These rights are
subject to an
internal limitation that the state must take reasonable legislative
measures, within its available resources, to
achieve the progressive
realisation of the right.
37
Section
36(1) of the Constitution.
38
At
a regional level, the promotion and protection of human rights in
Africa is underpinned by the Organisation of African Unity
(OAU)
African Charter on Human and Peoples’ Rights (Banjul Charter),
21 ILM 58 (1982). The Banjul Charter was adopted on
27 June 1981 and
entered into force on 21 October 1986. Article 17 provides that
“[e]very individual shall have the right
to education.”
State parties are obliged, in terms of Article 1, to adopt
legislative or other measures to give effect
to the Charter’s
rights. Another key instrument under the African human rights system
is the OAU African Charter on the
Rights and Welfare of the Child
(Child Welfare Charter), OAU Doc CAB/LEG/24.9/49 (1990). The Child
Welfare Charter was adopted
on 11 July 1990 and entered into force
on 29 November 1999.
Article 11(2) and (3) of the Child Welfare Charter
provides:
“
(2)
The
education of the child shall be directed to:
the promotion and development of the child’s
personality, talents and mental and physical abilities to their
fullest potential;
fostering respect for human rights and fundamental
freedoms with particular reference to those set out in the
provisions of
various African instruments on human and peoples’
rights and international human rights declarations and conventions;
the preservation and strengthening of positive African
morals, traditional values and cultures;
the preparation of the child for responsible life in a
free society, in the spirit of understanding tolerance, dialogue,
mutual
respect and friendship among all peoples ethnic, tribal and
religious groups;
the preservation of national independence and
territorial integrity;
the promotion and achievements of African Unity and
Solidarity;
the development of respect for the environment and
natural resources;
the promotion of the child’s understanding of
primary health care.”
(3) State Parties to the present Charter shall take all
appropriate measures with a view to achieving the full realisation
of
this right and shall in particular:
(a) provide free and compulsory basic education”.
39
UDHR,
GA Res 217A (III), UN Doc A/810 at 71 (1948), concluded on 10
December 1948.
Article
26 provides:
“
1. Everyone has the right to education.
Education shall be free, at least in the elementary and fundamental
stages. Elementary
education shall be compulsory. Technical and
professional education shall be made generally available and higher
education shall
be equally accessible to all on the basis of merit.
Education shall be directed to the full development of
the human personality and to the strengthening of respect for human
rights
and fundamental freedoms. It shall promote understanding,
tolerance and friendship among all nations, racial or religious
groups,
and shall further the activities of the United Nations for
the maintenance of peace.
Parents have a prior right to choose the kind of
education that shall be given to their children.”
40
6
ILM 360 (1967); 993 UNTS 3; adopted on 16 December 1966, entered
into force on 3 January 1976.
Article
13(1) provides:
“
The State Parties to the present Covenant
recognize the right of everyone to education. They agree that
education shall be directed
to the full development of the human
personality and the sense of its dignity, and shall strengthen the
respect for human rights
and fundamental freedoms. They further
agree that education shall enable all persons to participate
effectively in a free society,
promote understanding, tolerance and
friendship among all nations and all racial, ethnic or religious
groups, and further the
activities of the United Nations for the
maintenance of peace.”
Article
14 provides:
“
Each State Party to the present Covenant which,
at the time of becoming a Party, has not been able to secure in its
metropolitan
territory or other territories under its jurisdiction
compulsory primary education, free of charge, undertakes, within two
years,
to work out and adopt a detailed plan of action for the
progressive implementation, within a reasonable number of years, to
be
fixed in the plan, of the principle of compulsory education free
of charge for all.”
41
28
ILM 1456 (1989), 1577 UNTS 3; adopted on 20 November 1989, entered
into force on 2 September 1990.
The Child Rights
Convention was ratified by South Africa on 16 June 1995.
Article
28(1)(a) and (b) provides:
“
1. State Parties recognize the right of the
child to education, and with a view to achieving this right
progressively and on the
basis of equal opportunity, they shall, in
particular:
Make primary education compulsory and available free
to all;
Encourage
the development of different forms of secondary education, including
general and vocational education, make them available
and accessible
to every child, and take appropriate measures such as the
introduction of free education and offering financial
assistance in
case of need”.
42
6
ILM 368 (1967); 999 UNTS 171;
adopted on 16
December 1966, entered into force on 23 March 1976.
43
UNHRC
“General Comment 3, Article 2 Implementation at the national
level” (13
th
Session, 1981),
Compilation of
General Comments and General Recommendations Adopted by Human Rights
Treaty Bodies
, UN Doc HRI/GEN/1/Rev.1 at 4 (1994).
In
General Comment 3 it is stated that:
“
The Committee considers it
necessary to draw the attention of States parties to the fact that
the obligation under the Covenant
is not confined to the respect of
human rights, but that States parties have also undertaken to ensure
the enjoyment of these
rights to all individual under their
jurisdiction. This aspect calls for specific activities by the
States parties to enable
individuals to enjoy their rights. This is
obvious in a number of articles . . . but in principle this
undertaking relates to
all rights set forth in the Covenant.”
44
ICESCR
Committee General Comment 13 (21
st
Session, 1999) “The
Right to Education (art 13)” UN Doc E/C.12/1999/10 at para 1.
45
As
enshrined in section 29(1) of the Constitution.
46
As
pointed out by Berger in ‘The Rights to Education under the
South African Constitution’ (Apr 2003) vol 103, No
3
Columbia
Law Review
, 616
, the separatist
national education policy under apartheid, manifested in the Bantu
Education Act 47 of 1953, was an integral
part of apartheid’s
segregationist objective.
47
Blacks
here also denoting Indians and Coloureds.
48
See
also Article 29(1) of the Child Rights Convention, which provides—
“
States Parties agree that the
education of the child shall be directed to:
The development of the child’s personality,
talents and mental and physical abilities to their fullest
potential;
The development of respect for human rights and
fundamental freedoms, and for the principles enshrined in the
Charter of the
United Nations;
The development of respect for the child’s
parents, his or her own cultural identity, language and values, for
the national
values of the country in which the child is living,
the country from which he or she may originate, and for
civilizations different
from his or her own;
The preparation of the child for responsible life in a
free society, in the spirit of understanding, peace, tolerance,
equality
of sexes, and friendship among all peoples, ethnic,
national and religious groups and persons of indigenous origin;
The development of respect for the natural
environment.”
49
Section
3(6)(a) of the Act provides—
“
any
parent
who, without just
cause and after a written notice from the
Head
of Department
,
fails to comply with subsection (1), is guilty of an offence and
liable on conviction to a fine or to imprisonment for a period
not
exceeding six months”.
50
Section
3(6)(b) of the Act.
51
Section
7(2) of the Constitution.
52
Section
8 of the Constitution is set out in full at
[56]
below.
53
Section
12 of the Act is set out in full at [39] above.
54
The
rentals amounted to merely R3 000 per annum.
55
These
expenses excluded insurance premiums and expenses relating to
cleaning and sanitation, electricity, refuse removal, telephone
and
water charges.
56
Section
33 of the Act provides:
“
Closure of public schools
(1) The [MEC]may, by notice in the Provincial Gazette,
close a public school.
(2) The [MEC] may not act under subsection (1) unless
he or she has—
(a) informed the governing body of the school of his or
her intention so to act and his or her reasons therefor;
(b) granted the governing body of the school a
reasonable opportunity to make representations to him or her in
relation to such
action;
(c) conducted a public hearing on reasonable notice, to
enable the community to make representations to him or her in
relation
to such actions; and
(d) given due consideration to any such representations
received.
(3) If a public school is closed in terms of subsection
(1) all assets and liabilities of such school must, subject to the
conditions
of any donation, bequest or trust contemplated in section
37(4), devolve on the State unless otherwise agreed between the
[MEC]
and the governing body of the school.”
57
Section
56 deals with transitional provisions relating to public schools on
private property. It reads:
“
If an agreement contemplated
in section 14 does not exist at the commencement of
this
Act
in respect of
a
school
,
standing on private property and which is deemed to be a
public
school
in terms of
section 52(1), the [MEC] must take reasonable measures to conclude
such an agreement within six months of the commencement
of
this
Act
.”
58
Above
n 1 at para 28.
59
[1995]
ZACC 6
;
1995 (7) BCLR 861
(CC);
1995 (3) SA 632
(CC) at para 47.
60
[1928] USSC 133
;
277
U.S. 438
(1928).
61
Above
n 59 at para 47.
62
As
required under section
12 of the Act.
63
Above
[38].
64
Above
n 51.
65
Certain
authors
point out that the distinction is
untenable in the realm of constitutional rights. See Woolman et al
Constitutional Law of South Africa
(2 ed) vol 1 (Juta, Cape Town 2006) 31–26-8.
See also, in general, Cockrell “‘Can You
Paradigm?’—Another
Perspective on the Public Law/Private
Law Divide”
(1993)
Acta Juridica
227.
66
See
Woolman above n 65.
67
Hoexter
Administrative Law in South Africa
(Juta, Cape Town 2007)
150.
68
Section
14(1) of the Act is set out in full at
n 12
above.
69
[1996]
ZACC 26
;
1996 (10) BCLR 1253
(CC);
1996 (4) SA 744
(CC)
.
70
Id
at para 78.
See also
Jaftha v
Schoeman and Others, Van Rooyen v Stoltz and Others
[2004] ZACC
25
;
2005 (1) BCLR 78
(CC);
2005 (2) SA 140
(CC) at paras 33-4;
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (4) BCLR
301
(CC)
;
2005 (2) SA 359
(CC)
at paras
68-71;
Minister of
Health and Others v Treatment Action Campaign and Others (1)
[2002]
ZACC 15
;
2002 (10) BCLR 1033
(CC);
2002 (5) SA 721
(CC) at para 46;
Government of the Republic of South Africa and Others v
Grootboom
and Others
[2000]
ZACC 19
;
2000 (11) BCLR 1169
(CC);
2001 (1) SA 46
(CC) at para 34;
and
Van Eeden v Minister of Safety and
Security (Women’s Legal Centre Trust, as
Amicus
Curiae
)
2003
(1) SA 389
(SCA) at paras 13.
Other rights may also carry the
same kind of obligation:
S v Baloyi (Minister of Justice and
Another Intervening)
[1999] ZACC 19
;
2000 (1) BCLR 86
(CC);
2000
(2) SA 425
(CC) at para 11.
71
See
Baloyi
above n 70 at para 11 and
Rail Commuters Action
Group
Id.
72
See
Jaftha
above n 70 at para 33-4.
73
Khumalo
above n 27 at para 33.
74
Section
56 of the Act is set out in full at n 57 above.
75
Section
57 of the Act is set out in full at n 11 above.
76
These
items included religious text books, salaries of teachers and
cleaners, charges in respect of lift maintenance, repairs
and
maintenance of the building generally and cleaning and sanitation,
rates and insurance and other expenses usually associated
with the
running of a school.
77
Its
objects in terms of the Deed of Trust
include the
following:
“
(a) To own and continue the control and
administration of the Grey Street JUMA MUSJID for the benefit of the
followers of the
Sunni Muslim religious faith.
. . . .
(c) To continue to hold as owners the property both
immovable and movable presently owned and held by the Trust.
(d) To erect, maintain, control and manage Mosques,
Madressas (schools of religious instruction) and/or schools for
religious
vernacular or secular education.
. . . .
(h) To acquire by purchase, lease, exchange, donation
or otherwise any land or buildings of any tenure or description in
the Union
of South Africa and any rights over or connected with land
or buildings so situated; and to acquire by purchase, lease,
exchange,
donation or otherwise any furniture, equipment or other
movable property necessary or desirable for the purpose of carrying
on
the objects of the Trust.
. . . .
(j) To improve, manage, turn to account, let on rent,
grant licenses, easements and other rights of and over any of the
property
rights and assets for the time being of the Trust (subject
to sub-clauses (i) and (k) hereof) upon such terms for such
consideration
as the Trust may think fit; and to utilise any of the
property rights and assets for the time being of the Trust in the
best
interests of the Trust and with power to demolish or
reconstruct any buildings and erect new buildings.”
78
In
its application in the High Court,
the Trust
asked that the MEC and all persons occupying the property be evicted
by 19 December 2008.
79
Notably,
Article 3(1) of the Child Rights Convention, above n 41, provides
that “[i]n all actions concerning children, whether
undertaken
by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies,
the best interests
of the child shall be a primary consideration.” Article 4(1)
of the Child Welfare Charter, above n 38,
provides that “[i]n
all actions concerning the child undertaken by any person or
authority the best interests of the child
shall be the primary
consideration.”
80
[2009]
ZACC 8
;
2009 (7) BCLR 637
(CC);
2009 (4) SA 222
(CC)
at para 73.
81
Id.
See also
Centre for Child Law v
Minister for Justice and Constitutional Development and Others
(NICRO as amicus curiae)
[2009] ZACC
18
;
2009 (11) BCLR 1105
(CC);
2009 (6) SA 632
(CC) at paras 25-7
where this Court, per Cameron J, held that the protections in
section 28 are not merely “interpretive
guides”, nor
“advisory” nor are “they exhortatory . . . [but] .
. . are enforceable precepts determining
how officials and judicial
officers should treat children.”
82
S
v M (Centre for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008
(3) SA 232
(CC).
83
Id
at paras 14-5.
84
[2004]
ZACC 7
;
2004 (12) BCLR 1268
(CC);
2005 (1) SA 217
(CC).
85
Id
at para 23.
86
Section
172(1)(b) provides:
“
(1) When deciding a
constitutional matter within its power, a court—
may make any order
that is just and equitable, including—
an order limiting
the retrospective effect of the declaration of invalidity; and
an order suspending
the declaration of invalidity for any period and on any conditions,
to allow the competent authority to correct
the defect.”
87
The
order dated 25 November 2010 reads:
“
1. The Department of
Education (Department) is directed to send on Friday, 26 November
2010, through the principal of the school,
to all parents and
guardians of the learners currently enrolled at the school, a letter
to which is attached a form substantially
in the format and content
of that is found at page 1274 of Volume 13 of the record.
2. The Department is directed, on Monday, 29 November
2010, to establish a dedicated office at the school to enable the
parents
and guardians to engage with officials of the Department on
the enrolment of their children at new schools for the 2011 school

year, including such schools that may be closest to the learners’
residential addresses.
3. The parents and guardians are directed to return
completed forms referred to in paragraph 1 above by noon on Tuesday,
30 November
2010 to the principal of the school, which the
Department must collect from the principal on the same day.
4. The Department is directed to consider the
information in the forms by Friday, 3 December 2010.
5. On Tuesday, 7 December 2010—
(a) the Department must notify all parents and
guardians of the schools at which each learner may be enrolled for
the 2011 school
year and what arrangements will be made for the
transport of the learners to the new schools; and
(b) the MEC for Education for KwaZulu-Natal must file a
report in this Court regarding the steps taken pursuant to this
order.
6. The Trustees and the School Governing Body may each
file a response to the report required in paragraph 5(b) on
Wednesday,
8 December 2010.
7. After considering the report, this Court will make
an order that is just and equitable.”
88
The
order on the 10 December 2010 reads:
“
Having read the papers in the
application for eviction by the first to ninth respondents and
having considered the report by the
tenth respondent and the
response by the applicants, the Court grants the following order
(for which reasons will later be supplied):
The
[MEC] for the Province
of KwaZulu-Natal (MEC) together with any and all persons who claim
a right to occupy by, through or
under the MEC, are ordered to
vacate the premises known as the Juma Musjid Primary School
situated at 62-64 Cathedral Road,
Durban by no later than 31
December 2010.
Failing compliance with paragraph 1 of this order, the
Sheriff of the High Court, Durban, or his or her Deputy is
authorised and
directed to take all such steps as may be necessary
to give effect to the order.”
89
[2009]
ZACC 14
;
2009 (10) BCLR 1014
(CC);
2009 (6) SA 232
(CC).
90
In
terms of section 16(2) of the Act. See also section 20(1)(a) of the
Act in terms of which the SGB must—
“
promote the best interests of the
school
and strive to ensure its development through the provision of
quality education for all
learners
at the
school
”.
91
Biowatch
above
n 89 at para 56.