CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 281/18
In the matter between:
DEVERAJH MOODLEY Applicant
and
KENMONT SCHOOL First Respondent
KENMONT SCHOOL GOVERNING BODY Second Respondent
HEAD OF DEPARTMENT, DEPARTMENT
OF EDUCATION, KWAZULU-NATAL Third Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION, KWAZULU-NATAL Fourth Respondent
MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES Fifth Respondent
MINISTER OF BASIC EDUCATION Sixth Respondent
and
CENTRE FOR CHILD LAW Amicus Curiae
Neutral citation: Moodley v Kenmont School and Others [2019] ZACC 37
Coram: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Ledwaba AJ, Madlanga J, Mhlantla J, Nicholls AJ and Theron J.
Judgments: Madlanga J (unanimous)
2
Heard on: 14 May 2019
Decided on: 9 October 2019
ORDER
On appeal for confirmation of the order of the High Court of South Africa, KwaZulu -
Natal Local Division, Durban:
1. The declaration by the High Court of South Africa, KwaZulu -Natal
Local Division, Durban that section 58A(4) of the South African
Schools Act 84 of 1996 is constitutionally invalid is not confirmed.
2. Kenmont School must pay Mr Deveraj h Moodley’s taxed Supreme
Court of Appeal and High Court costs in the respective amounts of
R173 530.61 and R403 876.78, including accrued interest, not later than
three months from the date of this order.
3. Members of the Kenmont School Governing Body must, individually or
collectively, immediately take all steps that are necessary to ensure that
the payment referred to in paragraph 2 does take place.
4. The appeal by Kenmont School and the Kenmont School Governing
Body is upheld to the extent set out in paragraphs 1 and 5.
5. The costs order granted by the High Court against Kenmont School and
the Kenmont School Governing Body is set aside.
3
JUDGMENT
MADLANGA J ( Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Ledwaba AJ, Mhlantla J, Nicholls AJ and Theron J concurring):
Introduction
[1] Bagotywa bebatsha .1 This old siXhosa adage signifies how important and
effective it is to impart education, life skills and knowledge in the early years of
childhood. I am no expert in childhood development, but I dare say both the receptive
and retentive power of the mind is at its best in our youth. It must be in the best
interests of children then not to miss out on the opportunity to imbibe a wholesome,
undisturbed education in their early years. You interfere unduly with this opportunity,
you imperil the education that children sorely need. Education does not advance only
individual children, it also advances the common good, who we are and must be as a
nation. This finds apt expression in the Sesotho saying thuto ke lesedi la setjhaba ,2
which Ms Judith Sephuma completes with the exhortation ha re ruteng bana ba rona.3
[2] At the heart of this matter are two important constitutional rights: the right that
decrees that “[a] child’s best interests are of paramount importance in every matter
concerning the child”;4 and the right to basic education .5 Section 58A(4) of the South
African Schools Act6 (Schools Act) provides that “[t]he assets of a public school may
not be attached as a result of any legal action taken against the school”. The
1 They are better teachable whilst they are young.
2 Education is the light of the nation. This is rendered also in Federation of Governing Bodies for South African
Schools v Member of the Executive Council for Education, Gauteng [2016] ZACC 14; 2016 (4) SA 546 (CC);
2016 (8) BCLR 1050 (CC) ( FEDSAS) at para 1, although – for “ setjhaba” – Moseneke DCJ uses the old
Sesotho orthography.
3 Let us educate our children. This is from her song Iya iyo in her album A cry a smile a dance.
4 Section 28(2) of the Constitution.
5 Section 29(1)(a) of the Constitution provides that “[e]veryone has the right . . . to a basic education”.
6 84 of 1996.
MADLANGA J
4
High Court of South Africa, KwaZulu -Natal Local Division, Durban (High Court)
declared this section constitutionally invalid. Must we confirm that declaration? 7
That’s the question.
Background
[3] Kenmont School , the first respondent, is a school for learners with special
learning needs. Whilst Remano,8 the son of Mr Deverajh Moodley, the applicant, was
enrolled at the school, he was subjected to a disciplinary enquiry for allegedly
attacking a nother learner with a pair of scissors . D uring the course of the enquiry,
Remano was forc ed to spend every brea k outside the school principal’s office .
This meant that at break time Remano could not interact with other children.
According to the school , the reason for this was that he was posing a danger to the
other children. Mr Moodley launched an urgent application in the High Court. The
High Court ordered by consent that the school: appoint a member of staff to supervise
Remano’s move ment and activities at the school in a manner that would not isolate
him; and proceed with and conclude the di sciplinary enquiry by a specified date. The
application was then postponed indefinitely. It was never set down again.
[4] Instead of finalising the disciplinary hearing, the Kenmont School Governing
Body, the second respondent before us , amended the school’s admission policy .
The amended policy provided for the automatic re -admission of children who were
already in the school’s books. An exception was to not re-admit a child who had
demonstrated “behavioural problems or conduct which . . . seriously interfered with
[the] education of the other learners [or] . . . endangered the psychological health of
the other learners or educators”. The school advised Mr Moodley of this development
by means of a letter. The letter stated that the school was of the view that the new
7 Section 172(2)(a) of the Constitution provides:
“The Supreme Court of Appeal, the High Court of South Africa or a court of similar status may make
an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct
of the President, but an order of constitutional invalidity has no force unless it is confirmed by the
Constitutional Court.”
8 Remano is now an adult.
MADLANGA J
5
policy disqualified Remano from re -admission. It invited Mr Moodley to make
representations as to why Remano should be re-admitted.
[5] Mr Mood ley made no such . Instead , he brought urgent proceedings in t he
High Court seeking t he review and set ting aside of the policy. In addition to the
school and governing b ody (school respondents) , he cited the Head of Department ,
Department of Education, KwaZulu -Natal (HOD) and the M ember of the Executive
Council for Education, KwaZulu-Natal (MEC). He sought no relief against the HOD
and MEC. Before us they are the third and fourth respondents, respectively. The two
filed a notice to abide the judgment of the Court . The Court denied the challenge that
the policy was unlawful. What it adjudged unlawful and set aside with costs was the
decision not to re -admit Remano. By then Remano was in matric. The school
respondents took the matter on appeal to the Supreme Court of Appeal.
[6] By the time Mr Moodley’s heads of argument were filed in that Court, Remano
had matriculated and was no longer at the school. Mr Moodley’s heads of argument
mentioned this fact. Consequently, the Supreme Court of Appeal issued a notice in
terms of whi ch it required the school respondents “to address argument on the
preliminary question . . . whether the appeal and any order made thereon would ,
within the meaning of section 21A of the Supreme Court Act 59 of 1959 , have any
practical effect or result”. 9 After hearing argument on this question, the Supreme
Court of Appeal dismissed the appeal in terms of this section. It ordered the school
respondents to pay Mr Moodley’s costs of appeal.
[7] At taxation the High Court Taxing Master allowed costs in an amount of
R403 876.78. After unsuccessful attempts to get the school respondents to settle this
amount, the Registrar of the High Court issued a warrant of execution. The Sheriff
9 Section 21A(1) of the Supreme Court Act 59 of 1959 provided:
“When at the hearing of any civil appeal to the [Supreme Court of Appeal] or any . . . division
of the [High Court] the issues are of such a nature that the judgment or order sought will have
no practical effect or result, the appeal may be dismissed on this ground alone.”
The Supreme Court Act has since been repealed by the Superior Courts Act 10 of 2013.
MADLANGA J
6
attached a school bus and a sum of R386 710 in the school’s bank account held at
ABSA Bank Limited.
[8] The school respondents approached the High Court on an urgent basis for an
order setting aside the warrant of execution and attachment. The HOD and MEC were
joined as respondents , but only nominally . The school respondents relied on the
prohibition – by section 58A(4) of the Schools Act – of the attachment of assets of a
public school as a result of a legal action taken against the school.
[9] Mr Moodley opposed this application and launched a counter -application.
The main relief sough t in the counter -application was that the school and governing
body must pay the High Court’s taxed costs totalling R403 876.78 plus accrued
interest. In the alternative, Mr Moodley asked that this payment be made by the MEC.
Mr Moodley also sought – against the school and the governing body and,
alternatively, against the MEC – payment of the Supreme Court of Appeal costs plus
interest within 30 days of taxation. At that stage , the bill of costs in respect of the
Supreme Court of Appeal proceedings had not been taxed. It has since been taxed and
R173 530.61 was allowed. That means Mr Moodley is owed a total of R577 409.39 in
costs.
[10] Further, Mr Moodley asked for an order declaring section 58A(4)
unconstitutional. For this he relied on section 9(1) of the Constitution.10 He added to
the litigants who had already been cited the Minister of Justice and Correctional
Services and the Minister of Basic Education, the fifth and sixth respondents before
us. I refer to these respondents, the HOD and MEC as the government respondents.
[11] The High Court made the declaration of constitutional invalidity. It did this on
the basis of section 9(1) and section 165(5) of the Constitution. The latter section
provides that “[a]n order or decision issued by a court binds all persons to whom and
organs of state to which it applies”. In addition, t he Court ordered that to cure the
10 I quote this section in n 12 below.
MADLANGA J
7
constitutional defect, the following words were to be added after the word “school”:
“without 30 days’ notice being provided to the school and the State”. 11 It awarded
costs in Mr Moodley’s favour against the school respondents.
[12] Mr Moodley then approached the Constitutional Co urt for confirmation of the
declaration of invalidity. He contends : that the differential treatment of a public
school with regard to the attachment of assets to satisfy a judgment debt infringes his
right to equality in contravention of section 9(1) of the Constitution; 12 and that his
inability to derive a benefit from the favourable costs order constitutes a violation of
his section 10 right, the right to dignity.13
[13] The school respondents have filed an appeal against the declaration of
constitutional invalidity and the adverse costs order. They counter Mr Mo odley’s
contentions by arguing that: the impugned section 58A(4) must be read in conjunction
with section 60(1) of the Schools Act ; in terms of section 60(1) the state is liable for
any delictual or contractual damage or loss resulting from a school activity; 14 under
this section Mr Moodley does have redress against the government respondents with
the result that it is not necessary to have section 58A(4) declared constitutionally
invalid; the further consequence is that section 58A(4) does not infringe section 9 of
the Constitution; the conjoined reading of sections 58A(4) and 60(1) upholds the right
to education and – at the same time – averts the invalidation of section 58A(4); and, in
terms of section 39(2) of the Constitution , that reading must trump a reading that
results in the invalidation of section 58A(4).15
11 Although the word “school” appears twice in section 58A(4), the insertion ordered by the High Court can only
make sense if it is to come after the second “school”. This means the section was meant to read:
“The assets of a public school may not be attach ed as a result of any legal action taken against the
school without 30 days’ notice being provided to the school and the State.”
12 This section provides:
“Everyone is equal before the law and has the right to equal protection and benefit of the law.”
13 Section 10 of the Constitution provides that “[e]veryone has inherent dignity and the right to have their
dignity respected”.
14 The section is quoted fully later.
15 Section 39(2) provides: “When interpreting any legislation, and when developing the common la w or
customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”
MADLANGA J
8
[14] The government respondents submit that the contention by the school
respondents that Mr Moodley’s costs must be paid by the state i s misconceived as no
costs order was awarded against them. In particular, they lay emphasis on the fact that
the school respondents had been cautioned against engaging in the litigation as their
decision to amend the school policy exceeded the school’s po wers.16 The government
respondents do share the school respondents’ view that section 58A(4) ought not to be
declared constitutionally invalid.
[15] The Centre for Child Law has been admitted as an amicus curiae. It submits
that: under section 60(1) of the Sc hools Act the government respondents can only be
liable in respect of delictual or contractual damage or loss resulting from any act or
omission in connection with a school activity ; the costs awarded pursuant to litigation
that arose from the amendment of the school admission policy are not delictual or
contractual damage or loss, nor is the amendment of the school admission policy a
“school activity” as envisaged in section 60(1) ; t herefore, the school respondents’
suggestion that section 60(1) affords Mr Moodley redress is misconceived; the right to
basic education is so important that there are no less restrictive means to protect it;
and, the declaration of invalidity should not be confirmed.
[16] The written submissions of the Centre for Child Law were one day late.
It seeks condonation. It has given a reasonable explanation for the lateness, which has
not prejudiced anybody. Condonation is granted.
Is section 58A(4) constitutionally invalid?
[17] In answering this question, the starting point must be a brie f background on
statutory prohibitions against the attachment of state assets. On that I borrow liberally
from this Court’s judgment in Nyathi.17 According to that judgment, in South Africa
16 To use the usual legalese, the decision was ultra vires.
17 See Nyathi v Member of the Executive Council for the Department of Health G auteng [2008] ZACC 8; 2008
(5) SA 94 (CC); 2008 (9) BCLR 865 (CC) at para 16.
MADLANGA J
9
these prohibitions were first provided for in the Crown Liabilities Act.18 The section
of that Act relating to the attachment of state assets is similar in content to section 3 of
the State Liability Act19 as it read when Nyathi was decided. The section provided:
“No execution, attachment or like process shall be issued against the defendant or
respondent in any such action or proceedings or against any property of the state, but
the amount, if any, which may be required to satisfy any judgment or order given or
made against the nominal defendant or respondent in any such action or proceedings
may be paid out of the National Revenue Fund or a Provincial Revenue Fund as the
case may require.”
[18] In a constitutional democracy like ours where the rule of law, a founding value
of our Constitution ,20 reigns supreme, one would have expected the state always to
satisfy judgments. Unfortunately, that has not been the case. As this Court’s
judgment observed in Nyathi, “courts have grappled with the issue over many years;
however, it is only in recent ye ars that the courts have been faced with a flood of
litigation of this magnitude in respect of unsatisfied court orders ”.21 Unsurprisingly,
the Court declared section 3 of the State Liability Act constitutionally invalid. It held
that the differential treatment of private litigants, on the one hand, and the state, on the
other, constitutes a limitation of the right to equality. This was so because it was at
variance with sections 8(1), 34 and 165(5) of the Constitution. In terms of section
8(1) “[t]he Bi ll of Rights applies to all law, and binds the legislature, the executive,
the judiciary and all organs of state”. Section 34 enshrines the right of access to
court.22 Section 165(5) provides that “[a]n order or decision issued by a court binds
all persons to whom and organs of state to which it applies”.
18 1 of 1910.
19 20 of 1957.
20 Section 1 of the Constitution provides:
“The Republic of South Africa is one sovereign, democratic state founded on the following values:
. . .
(c) Supremacy of the Constitution and the rule of law.”
21 Nyathi above n 17 at para 16.
22 Section 34 provides:
MADLANGA J
10
[19] The effect of section 3 was that despite the injunction in section 8(1), an order
sounding in money made against the state could well mean empty victory as the
successful litigant could not attach, nor could she or he resort to contempt
proceedings.23 Effectively, this left private litigants at the mercy of state officials who
satisfied judgment debts as and when they pleased. This is highlighted by Madala J
who said:
“But we now have some officials wh o have become a law unto themselves and
openly violate people’s rights in a manner that shows disdain for the law, in the belief
that as state officials they cannot be held responsible for their actions or inaction.
Courts have had to spend too much time in trying to ensure that court orders are
enforceable against the state precisely because a straightforward procedure is not
available.”24
[20] In those instances where attachment would have been necessary and – in the
case of judgment debtors who are private p ersons – available, this rendered the right
of access to court illusory. Indeed, the Nyathi judgment quoted with approval Jafta J
who said in Mjeni:25
“The constitutional right of access to courts would remain an illusion unless orders
made by the courts are capable of being enforced by those in whose favour such
orders were made. The process of adjudication and the resolution of disputes in
courts of law is not an end in itself but only a means thereto; the end being the
enforcement of rights or obligati ons defined in the court order. To a great extent
section 3 of Act 20 of 1957 encroaches upon that enforcement of rights against the
state by judgment creditors.”
“Everyone has the right to have any dispute that can be resolved by the application of law decided in a
fair public hearing before a court or, where appropriate, another independent and impartial tribunal or
forum.”
23 Nyathi above n 17 at paras 59-63.
24 Id at para 63.
25 Mjeni v Minister of Health and Welfare, Eastern Cape 2000 (4) SA 446 (Tk) at 452G-H and 453C-D.
MADLANGA J
11
[21] Nyathi concluded that sec tion 3 failed to treat judgment creditors as equal
before the law, thus limiting the right to equality under section 9(1) of the
Constitution.26 It also concluded that section 3 constitute d a limitation of the right to
dignity protected by section 10 of the Constitution.27
[22] The Court went on to hold that the limitation of the two rights was not
reasonable and justifiable in terms of section 36(1) of the Constitution. 28 The result
was that section 3 was held to be inconsistent with the Constitution “to the extent that
it [did] not allow for execution or attachment against t he state and that it [did] not
provide for an express procedure for the satisfaction of judgment debts”.29
[23] I cannot conceive of any reasons on the basis of which the Nyathi reasoning on
the limitation of the fundamental rights guaranteed in sections 9(1) a nd 10 of the
Constitution cannot apply to section 58A(4) of the Schools Act. Put simply,
section 58A(4) also limits the rights to equality and dignity. The question is whether
this limitation too is not reasonable and justifiable under section 36(1).
[24] The two rights at issue – the rights to equality and dignity – are important. And
this is particularly so in the South African context where inequality was ingrained into
26 Nyathi above n 17 above at para 47.
27 Id at paras 45-7.
28 Id at para 50. Section 36(1) provides:
“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent
that the limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
29 Nyathi id at para 92. Parliament subsequently amended section 3. Now the section provides for an extensive
procedure – containing no less than 16 subsections – in accordance with which judgment debts must be
satisfied. Although the procedure does sanction the attachment of movable state assets, this is a last resort.
Notwithstanding this innovation, the effect of section 58A(4) of the Schools Act is to still bar the attachment of
school assets.
MADLANGA J
12
the legal system;30 and where only the dignity of white people mattered and that of the
majority of the population counted for nothing.31 But why do we have the limitation?
[25] As I said right at the beginning, this matter concerns two crucial constitutional
rights: the right that decrees that “[a] child’s best interests are of paramount
importance in every matter concerning the child”; 32 and the right to basic education. 33
Of particular significance in the present context is the right to basic education.
The purpose of the limitation brought about by section 58A(4) is to avert any adverse
effects that could be caused by the attachment of school assets.
[26] There is no denying that a significant number of South African public schools
operate under conditions of extreme deprivation. Largely, these are schools that
service communities disadvantaged by South Africa’s colonial and apartheid past.
If what meagre resources they have were to be liable to be attached to satisfy
judgment debts, untold misery would be visited upon the already disadvantaged
school children. Imagine a school bereft of all m aterials necessary for education such
as desks, chairs or benches, laboratory apparatus, books, computers, school buses and
other vehicles, and the like. Imagine the spectre of school children who – because of
the lack of desks and chairs or benches – have to sit on the floor and write on their
30 See Prinsloo v Van der Linde [1997] ZACC 5; 1997 (3) SA 1012 (CC ); 1997 (6) BCLR 759 at para 20 where
this Court observed:
“Our country has diverse communities with different historical experiences and living conditions.
Until recently, very many areas of public and private life were invaded by systematic legal separa teness
coupled with legally enforced advantage and disadvantage. The impact of structured and vast
inequality is still with us despite the arrival of the new constitutional order. It is the majority, and not
the minority, which has suffered from this legal separateness and disadvantage.”
31 See S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC) at para 329 where the
following appears:
“Respect for the dignity of all human beings is particularly important in South Africa. For apartheid
was a denial of a common humanity. Black people were refused respect and dignity and thereby the
dignity of all South Africans was diminished. The new constitution rejects this past and affirms the
equal worth of all South Africans. Thus recognit ion and protection of human dignity is the touchstone
of the new political order and is fundamental to the new constitution.”
32 Section 28(2) of the Constitution.
33 Section 29(1)(a) of the Constitution provides that “[e]veryone has the right to a basic education”.
MADLANGA J
13
laps. Imagine a school that has lost its meagre financial resources to an attachment
and cannot buy the barest of necessities.
[27] Yes, it is painfully true that the imagination I am evoking is – at best – close to
the everyday reality of some of our most disadvantaged schools. That does not mean
those schools must be at risk of further deprivation. But I should not be
misunderstood. The availability of attachment to satisfy judgment debts would
certainly have devastating effects even on better resourced schools. They too could be
denied the ability to provide a wholesome education.
[28] You interfere with the basic education of children, you put at risk its potential
to unleash in every child the ability to set her - or himself on the path to a successful,
meaningful, wholesome life. After all, as the hackneyed phrase tells us, education
opens all doors. Quite aptly, the world renowned late statesman, President Nelson
Mandela, said:
“Education is the great engine of p ersonal development. It is through education that
the daughter of a peasant can become a doctor, that the son of a mineworker can
become the head of the mine, that a child of a farmworker can become the president
of a great nation. It is what we make out of what we have, not what we are given,
that separates one person from another.”34
[29] It is also fitting to quote Juma Musjid, which in turn quotes the Committee on
Economic, Social and Cultural Rights:
“[T]he 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 [the right to education], stressing its importance. General
Comment 13 states:
34 Quoted in FEDSAS above n 2 at para 2.
MADLANGA J
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‘Education is both a human right in itself and an indispensable means
of realising other human rights. As an empowerment right, education
is the primary vehicle by which economically and socially
marginalised 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 exploitative and hazardous labour and sexual
exploitation, promoting human rights and democracy, protecting the
environment. . . . 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.’”35
[30] Axiomatically, therefore, the proscription in section 58A(4) of the Schools Act
of the attachment of the assets of public schools is meant to protect this very important
right, the right to basic educ ation. It averts the obvious harm that would surely
eventuate if school assets could be attached.
[31] Although in nature and extent the limitation is absolute, in the light of the right
that it seeks to protect , that is the right to basic education, the limi tation is
understandable. Add to this the cognate right, the right that “[a] child’s best interests
are of paramount importance in every matter concerning the child”. 36 This is by no
means making light of the importan ce of the rights to dignity and equality, both of
which are – as I have said – of particular significance in the South African context.
The reality is that the right that the limitation is seeking to advance cries out for
protection. And that is a cry which we cannot but heed.
35 Governing Body of the Juma Musjid Primary School v Kyubwa [2011] ZACC 13; 2011 JDR 0343 (CC); 2011
(8) BCLR 761 (CC) ( Juma Musjid) at para 41, quoting 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.
36 Section 28(2) of the Constitution.
MADLANGA J
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[32] The limitation is well-tailored to its purpose. And I cannot conceive of any less
restrictive means to achieve this purpose. Even if there were, the section 36(1)
justification exercise is not about ticking boxes ;37 it is a weighing -up or balancing
exercise.38 It is about determining whether overall the limitation is reasonable and
justifiable in an open and democratic society based on human dignity, equality and
freedom. And I conclude that it is.
[33] Does this conclusion mean Mr Moodley cannot recover the costs awarded by
the High Court and Supreme Court of Appeal in the proceedings whose subject was
the review of the school’s amended admission policy?
The fate of Mr Moodley’s costs awards
[34] Two things must not be conflated. What section 58A(4) proscribes is the
attachment of the assets of a public school. It does not outlaw the grant of orders
sounding in money, including costs orders, against public schools.
[35] The central theme of the school respondents’ case is: the school can only use its
funds for school acti vities; payment of costs in terms of the costs orders is not a
school activity; in terms of section 60(1) of the Schools Act it is the state that is liable
to pay costs of this nature; and, therefore, it is to the government respondents that Mr
Moodley must look to recover his costs.
[36] Crucially, the school respondents adopt this stance in the face of the costs
orders. The orders stand; they have not been appealed. I cannot but again refer to
section 165(5) of the Constitution which provides that “[a]n order or decision issued
by a court binds all persons to whom and organs of state to which it applies”. This is
of singular importance under our constitutional dispensation which is founded on,
amongst others, the rule of law. The judicial authority of t he Republic vests in the
37 See S v Manamela [2000] ZACC 5; 2000 (1) SACR 414 (CC); 2000 (5) BCLR 491 (CC) at para 32.
38 Id at para 33. See also Makwanyane above n 31 at para 104.
MADLANGA J
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courts.39 Thus courts are final arbiters on all legal disputes, including constitutional
disputes. If their orders were to be obeyed at will, that would not only be “a recipe for
a constitutional crisis of great magnitude” ,40 “[i]t [would] strike at the very
foundations of the rule of law”41 and of our constitutional democracy. Nyathi says:
“Certain values in the Constitution have been designated as foundational to our
democracy. This in turn means that as pillar -stones of this democracy, they must be
observed scrupulously . . . In a state predicated on a desire to maintain the rule of law,
it is imperative that one and all should be driven by a moral obligation to ensure the
continued survival of our democracy. That, in my view , means at the very least that
there should be strict compliance with court orders.”42
[37] Non-observance of court orders would also render nugatory the right of access
to court. Of this, Mjeni43 tells us:
“A deliberate non-compliance or disobedience of a court order by the state through its
officials amounts to a breach of [a] constitutional duty [imposed by section 165 of the
Constitution]. Such conduct impacts negatively upon the dignity and effectivene ss
of the Courts.”
[38] Not even cases like Changing Tides44 and Motala45 which were referred to in
this Court’s judgment in Tsoga46 suggest that persons – natural or juristic – or organs
of state have an entitlement to ign ore court orders based on their understanding of
their lawfulness. According to Changing Tides and Motala, it is a court that declares
an order previously granted and against which there is no appeal a nullity. In terms of
39 Section 165(1) of the Constitution.
40 Nyathi above n 17 at para 80.
41 S v Mamabolo [2001] ZACC 17; 2001 (3) SA 409 (CC); 2001 (5) BCLR 449 (CC) at para 65.
42 Nyathi above n 17 at para 80.
43 Mjeni above n 25 at 452G-H.
44 City of Johannesburg v Changing Tides 74 (Pty) Ltd [2012] ZASCA 116; 2012 (6) SA 294 (SCA) (Changing
Tides).
45 The Master of the High Court NGP v Motala N.O. [2011] ZASCA 238; 2012 (3) SA 325 (SCA) (Motala).
46 Provincial Government North West v Tsoga Developer s CC [2016] ZACC 9; 2016 JDR 0553 (CC); 2016 (5)
BCLR 687 (CC) (Tsoga) at paras 48-50.
MADLANGA J
17
section 165(5) persons and orga ns of state just must obey court orders whatev er their
view of them might be, subject, of course, to their exercise of the right of appeal.
[39] In Tsoga, without pronouncing on e way or the other on wha t they held, we
distinguished Changing Tides and Motala. Yet again, I do not propose to make a
pronouncement in that regard. What I will do instead is to determine whether there is
any substance in the central theme of the school respondents’ case. This I do because
of the view I take of this central theme, not because I am suggesting that it was
competent for the school respondents to ignore the costs awards . Nor am I suggesting
that they could have approached a court to have them declared nullities.
[40] To recapitulate, the primary submission by the school re spondents is that the
costs orders were incompetent. Were they ? Section 15 of the Schools Act provides
that “every public school is a juristic person, with legal capacity to perform its
functions in terms of [the Schools] Act”. The idea of juristic pers onality ordinarily
implies legal capacity to sue and be sued in one’s own name. 47 I read section 15 to
confer that legal capacity. It cannot be that the words “with legal capacity to perform
its functions in terms of this Act” serve to limit the juristic personality of public
schools to performance of functions in terms of the Schools Act to the exclusion of
suing or being sued . Otherwise t he section w ould simply have read: “Every public
school has capacity to perform its functions in terms of t his Act.” Now it doesn’t; it
makes specific reference to juristic personality. We all know what that means.
Parliament is presumed to know the law. 48 Nothing suggests that in section 15 the
notion of juristic personality was not meant to carry its ordinary meaning.
[41] Implicit in a public school’s legal capacity to sue and be sued in its own name
is the power to engage legal representatives to assist it in litigation. That, in turn,
must mean it has the power to pay the attendant legal costs. In addition, in terms of
section 16(1) of the Schools Act the governance of a public school is vested in its
47 Boezaart Law of Persons 6 ed (Juta, Claremont 2016) at 4-8.
48 Road Accident Fund v Monjane [2007] ZASCA 57; 2010 (3) SA 641 (SCA) at para 12.
MADLANGA J
18
governing body. Surely, deciding to sue or oppose litigation is an exercise of the
governance function. Therefore, in terms of section 37(6)(c) the governin g body of a
public school is empowered to pay legal costs. This section provides that the school
fund may be used for “the performance of the functions of the governing body”.
[42] Thus far reference has been to the public school’ s own legal costs. It is worth
noting that an adverse court order that directs a litigant to pay the costs of an
adversary is commonplace in litigation. By being afforded juristic personality, public
schools are – by implication – empowered to pay the opposing side’s costs if so
ordered by a court. In the absence of a stipulation to the contrary, public schools
cannot possibly be empowered to sue and be sued, but be immune from what is often
a real possibility; an adverse costs order. There is no stipulation to the contrary.
[43] In sum, the costs orders are competent and the governing body has the statu tory
mandate to settle Mr Moodley’s bills of costs that were taxed pursuant to the orders.
[44] This conclusion notwithstanding, does section 60(1) of the Schools Act absolve
public schools from liability for litigation costs? Section 60 is headed “ Liability of
State”. It provides:
“(1) (a) Subject to paragraph (b), the State is liable for any delictual or contractual
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.
(b) Where a public school has taken out insurance and the school activity is an
eventuality covered by the insurance policy, the liability of the State is limited to the
extent that the damage or loss has not been compensated in terms of the policy.
(2) The provisions of the State Liability Act . . . apply to any claim under
subsection (1).
(3) Any claim for damage or loss contemplated in subsection (1) must be
instituted against the Member of the Executive Council concerned.
(4) Despite the provisions of subsection (1), the State is not liable for any
damage or loss caused as a result of any act or omission in connection with any
MADLANGA J
19
enterprise or business operated under the authority of a public school for purposes of
supplementing the resources of the school as contemplated in section 36, including
the offering of practical educational activities relating to that enterprise or business.
(5) Any legal proceedings against a public school for any damage or loss
contemplated in subsection (4), or in respect of any act or omission relating to its
contractual responsibility as employer as contemplated in section 20(10), may only be
instituted after written notice of the intention to institute proceedings against the
school has been given to the Head of Department for his or her information.”49
[45] Going back to whence the costs orders arose, Mr Moodley sought the review of
the amendment of the school’s admission policy. The review of an adverse decision is
ill-suited to the notion of liability for damage or loss. It would be a perversion of
language to say when a litigant is seeking the review of a decision, she or he is
claiming “damage” o r “loss”. It matters not that the decision may potentially cause
damage or loss to the party seeking a review; the review proceedings are still not a
“claim for damage or loss” . In terms of section 60(3) a claim for damage or loss as
envisaged in section 60(1) must – from the onset 50 – be instituted against the MEC
concerned. On the other hand, the obvious and primary target of proceedings for the
review of administrative action is the act itself ; and the proceedings are instituted
against the decision-maker, in this instance the school.51 The decision-maker may not
be the MEC.
[46] My discussion of what section 60 means or does not mean does not purport to
hold that under no circumstances may vicarious liability attach to the state under the
State Liability Act in respect of legal costs arising from litigation involving public
schools. That wider question is not before us.
49 Section 20(10) empowers public schools to employ teachers and other staff additional to the establishment
determined in terms of the Educators’ Employment Act 138 of 1994 and the Public Service Act, Proclamation
103 of 1994, respectively.
50 This is not a pronouncement against joinder where that may be warranted.
51 See de Ville Judicial Review of Administrative Action in South Africa (LexisNexis Butterworths,
Durban 2003) at 305.
MADLANGA J
20
[47] What remains is the school’s claim that it does not have funds to pay the costs.
This claim is rather half-hearted. It is made in addition to the main point raised by the
school respondents; that is the point I have referred to as the central theme of their
case. It is this central theme that the school respondents protested the most. As I have
held, that is untenable.
[48] When the HOD and MEC made an assertion that, despite having litigated on a
large scale, the school did not take the High Court into its confidence and disclose
how it had funded this litigation, the school responded:
“[The school respondents] dispute that they ought to disclose the costs expended by
them and to disclose the method and source of payment of these costs. These matters
are not relevant in respect of [Mr Moodley’s] unlawful c onduct and are not relevant
when considering [the state’s] duty to effect payment of the costs orders. The
provisions of the [Schools] Act are relevant and not the [school’s] past conduct.”52
[49] This does not address the sting in the assertion by the HOD and MEC: how, if
the school lacks funds, did it fund the large scale litigation? 53 The sting is particularly
significant regard being had to the fact that in that litigation the school , on occasion,
engaged two counsel; that does not come cheap.
[50] More directly, Mr Moodley averred that the school has “considerable financial
reserves”. The school respondents were content to say only that this assertion lost
sight of the fact that school funds may be used only for the purposes specified in
section 37(6) of the S chools Act. This is not a denial of the fact that the school has
considerable financial reserves. That the school could fund its own litigation in
respect of the several litigious skirmishes between the parties does indicate that it is
not as impecunious as it would want us to believe.
[51] Thus I do not accept the school’s claim of lack of funds.
52 The unlawful conduct referred to is Mr Moodley’s attachment of the school’s assets.
53 The litigation was Mr Moodley’s challenge of Remano’s isolation at break time, the High Court review of the
school’s amendment of the admission policy, the appeal by the school to the Supreme Court of Appeal and the
school’s High Court challenge of the attachment.
MADLANGA J
21
Remedy
[52] Obviously, we must decline to confirm the High Court’s declaration of
constitutional invalidity.
[53] A matter that requires more attention is how we are to deal with the school
respondents’ recalcitrance to settle Mr Moodley’s bills of costs. I t has now become
necessary to place the school on terms to pay Mr Moodley’s costs within a specified
time. I think three months is a sufficient peri od. To avert a recurrence of the
recalcitrance, a mandamus must be issued requiring all members of the governing
body to take necessary steps to ensure that payment is made. Once the order has been
issued, members are at risk of committal for contempt of court, should the school
continue not to pay. The common law rule that contempt proceedings cannot be used
to enforce court orders sounding in money 54 does not stand in the way of the proposed
order. I say so because Nyathi appears to have accepted that contempt proceedings
could be invoked if a mandamus was first obtained against a specific state functionary.
Here is what the Court said:
“In regard to the possibility of contempt proceedings being instituted against state
functionaries, one must bear in mind that these proceedings would have to be
instituted by the judgment creditor once the relevant state functionary fails to pay the
monies owed. The judgment creditor would have to obtain a mandamus order and if
the state functionary does not comply wi th the mandamus then he or she would be
held in contempt of court. This process is a tedious one which places an onerous
burden on the judgment creditor and does not translate into money in the pocket for
the judgment creditor. Once a litigant is in poss ession of a judgment debt, he or she
should not be expected to pursue the payment thereof ad infinitum . One cannot
expect the creditor who has already gone to a great deal of trouble, and spent both
time and money in litigation, to launch contempt of cour t proceedings against the
defaulting state official in the knowledge that such proceedings are unlikely to ensure
54 Hofmeyr v Fourie; B J B S Contractors (Pty) Limited v Lategan 1975 (2) SA 590 (C); 1975 (2) All SA 438
(C) at 593H.
MADLANGA J
22
that the debt is ultimately paid. This is too onerous a burden to place upon a
successful litigant.”55
[54] The Court chose not to subject success ful litigants , in respect of orders
sounding in money , to the trouble and expense identified in this quote because the
invalidation of section 3 of the State Liability Act was an available option. On the
contrary, the invalidation of section 58A(4) of the Schools Act is not an available
option.
Costs
[55] Although Mr Moodley is successful before us on what this litigation is really
about,56 the school respondents have successfully resisted confirmation of the
declaration of constitutional invalidity. It is fitting that there should be no order as to
costs in the proceedings before us.
[56] The award of costs in the High Court followed on Mr Moo dley’s success in the
challenge that sought the invalidation of section 58A( 4). Now that we are not
confirming that invalidation , it seems to me that the High Court costs order must be
set aside. That means the school respondents’ appeal in this regard s ucceeds. But that
should not translate to Mr Moodley having to pay the school respondents’ High Court
costs. On the authority of Biowatch,57 the school respondents are not entitled to costs
against Mr Moodley. In addition, t he school’s obstinate refusal to comply with the
costs orders placed Mr Moodley in a difficult position. The school should not be
allowed to benefit from this conduct. T hus, there should be no order as to costs in
respect of the High Court proceedings as well.
55 Nyathi above n 17 at para 75.
56 That is, getting redress on the costs orders.
57 Biowatch Trust v Registrar, Genetic Resources \ [2009] ZACC 14; 2009 (6) SA 232 (CC); (2009) (10) BCLR
1014 (Biowatch).
MADLANGA J
23
Order
[57] In the result, the following order is made:
1. The declaration by the High Court of South Africa, KwaZulu -Natal
Local Division, Durban that section 58A(4) of the South African
Schools Act 84 of 1996 is constitutionally invalid is not confirmed.
2. Kenmont School must pay Mr De verajh Moodley’s taxed
Supreme Court of Appeal and High Court costs in the respective
amounts of R173 530.61 and R403 876.78, including accrued interest,
not later than three months from the date of this order.
3. Members of the Kenmont School Governing Body must, individually or
collectively, immediately take all steps that are necessary to ensure that
the payment referred to in paragraph 2 does take place.
4. The appeal by Kenmont School and the Kenmont School Governing
Body is upheld to the extent set out in paragraphs 1 and 5.
5. The costs order granted by the High Court against Kenmont School and
the Kenmont School Governing Body is set aside.
For the Applicant: J Nxusani SC and D Naidoo
instructed by Viren Singh Attorneys,
Notaries & Conveyancers
Incorporated
For the First and Second Respondents: C J Pammenter SC and G M Harrison
instructed by Jailall & Associates
Incorporated
For the Third to Sixth Respondents: R B G Choudree SC and A Moodley
instructed by the State Attorney ,
KwaZulu-Natal
For the Amicus Curiae: R M Courtenay instructed by Centre
for Child Law