Section 58A(4) of the South African Schools Act84 of 1996 (“SASA”), which states “the assets of a public school may not be attached as a result of any legal action taken against the school”, was challenged as being unconstitutional in Kenmont School and Another v Moodley and others(11611/2016)[2018]ZAKZDHC67  (referred to as “Kenmont costs case” to distinguish from the earlier High Court and Supreme Court of Appeal decisions which resulted in the costs order in question here).

Without going into the facts of the initial cases to deeply, Mr Moodley, acting on behalf of his minor son, a learner at Kenmont School (“the School”), brought an urgent application to interdict the school from isolating his son from other learners. The school opposed this application, stating that the learner represented a danger to the other learners.

A settlement agreement between parties failed and the School responded by amending their admission policy. Based on the provisions of the amended admission policy, the School believed that the learner should not be re-admitted. Mr Moodley then launched an urgent application for relief in Moodley v Kenmont School and others 828/2010)[2012]ZAKZDHC 23.

The court held that the amended admission policy was employed “for the ulterior motive of excluding the learner from attending school in 2010” and ordered the re -admission of the learner with costs of the application to be borne by the School and the SGB jointly and severally. The school and SGB lodged an appeal to the Supreme Court of Appeal (SCA).

The SCA rejected the appeal in terms based on the fact that by the time the appeal would be heard the learner would have completed his schooling, rendering the hearing moot. This was pointed out to the School by the Respondent before the appeal and resulted in a further costs order against the School and the SGB.

Mr Moodley issued a writ of execution in an attempt to attach the property of the School, however, the value of the movables judicially attached did not satisfy the claim so he attached the school’s bank account. The school lodged an urgent appeal to set aside the writ . The school alleged that the Department of Education should be responsible for the costs in terms of S60(1)(a) of SASA which stipulates:

“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.”

In October 2018, the Court in the Kenmont Costs Case granted an application sought by Mr Moodley to declare Section 58A(4) of SASA inconsistent with the Constitution, thus invalid. The court held that in order for the defect of Section 58A(4) to be cured, the following words are to be read into S58A(4) of SASA after the word “school”:

“without thirty days’ notice being provided to the school and the state”

The court ordered that the costs of the application be borne by the school and the governing body jointly and severally and that the provisions of Section 60(1) are not applicable in these circumstances as it is not a delictual claim, nor contractual damage or loss.

The court found Section 58A(4) offended against Section 9(1) of the Constitution Act 108 of 1996 which provides that everyone is equal before the law and has a right to equal protection and benefit of the law. Therefore, Section 58A(4) deprived the Respondent from recovery of his costs.

However, the court did not consider Section 29 of the Constitution which provides encompasses the right to basic education. By allowing the assets/bank account of a school to be executed upon, the rights of the general body of learners in the school are being impinged.

In Centre for Applied Legal Studies and Others v Hunt Road Secondary School and Others 2007 ZAKZHC 6 the school in question had not complied with legalities of the SASA prior to legal debt collection, and the emoluments attachment orders obtained in the school’s name were set aside. The former principal of the school advised that this resulted in the school being unable to afford the costs of three SGB employed educators’ services the following year and also lost the ability to offer one of its learning subjects.

The court in trying to interpret Section 60(1)(a), failed to consider its history. The original subsection read:

“(1) The State is liable for any damage or loss caused as a result of any act or omission in connection with any educational activity conducted by a public school and for which such public school would have been liable but for the provisions of this section”

In 2007, the Education Laws Amendment Act,  No. 31 2007 No.31 of 2007 expanded the scope of this subsection to read:

“(1) [a] [The] Subject to paragraph (b), the State is liable for any damage or loss caused as a result of any act or omission in connection with any school activity conducted by a public school and for which such public school would have been liable but for the provisions of this section.”

As a result of Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School (207/07)[2008]ZASCA 70;[2008]4 All SA 117 (SCA);2008 (5) SA 1 (SCA)  holding that the original provision did not mean that the State was liable from contractual obligations arising from a lease of a photocopier, the legislation sort (albeit in very clumsy terms) to expand the scope of the subsection even further to its current version (Para. (a) substituted):

“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.”

To argue the narrow interpretation adopted in the Kenmont Cost Case in light of the legislature’s efforts to cast the net of state liability in terms of Section 60(a) wider is incorrect. If the State can be liable for contractual claims against a public school, why should it not be liable for the school’s legal costs?

This would remove the necessity of the court having to hold Section 58A(4) unconstitutional, in line with the general principles of constitutional interpretation. As Yacoob J stated in De Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association Intervening)(CCT 135/12 ) [2013] ZACC 34; 2013 (6) SA 582 (CC); 2013 (12) BCLR 1365 (CC) , at para 24:

“Where a statutory provision is capable of more than one reasonable construction, one which would lead to constitutional invalidity and the other not, a court ought to favour the construction which avoids constitutional invalidity, provided such interpretation is not unduly strained.”

The court held that the School chose to act on their own by redrafting the admission policy and by litigating further without the authority to do so from the Department of Education. What was not considered was the Constitutional Court decision of Head of Department, Department of Education, Free State Province v Welkom High School and others [2013] ZACC 25; 2014(2) SA228 (CC); 2013 (9) BCLR 989 (CC) which held:

“The school governing bodies and HOD are organs of state. In terms of Section 41(1)(h) [of the Constitution] they have an unequivocal obligation to co-operate with each other in mutual trust and good faith by assisting and supporting one another, informing one another of, and consulting one another on, matters of common interest, co-ordinating their actions, and avoiding legal proceedings against one another”.

The Respondent did not appear to have appealed the decision of the School to the Department of Education, which would have been the correct initial course of action from the Respondent before approaching the court.

With regards to the power that the school and the SGB have to make an admission policy, the following summarises the principles from MEC for Education in Gauteng Province and Other v Governing Body of Rivonia Primary School and Others(CCT 135/12) [2013] ZACC 34;2013 (6) SA 582 (CC); 2013 (12) BCLR 1365 (CC)]

  1. Where the Schools Act empowers a governing body to determine policy in relation to a particular aspect of school functioning, a head of department or other government functionary cannot simply override the policy adopted or act contrary to it. This is even where the functionary is of the view that the policies offend the Schools Act or the Constitution. This does not mean that the school governing body’s powers are unfettered, that the relevant policy is immune to intervention, or that the policy inflexibly binds other decision-makers in all circumstances.

 

  1. A functionary may intervene in a school governing body’s policy making role or depart from a school governing body’s policy, but only where that functionary is entitled to do so in terms of powers afforded to it by the Schools Act or other relevant legislation. This is an essential element of the rule of law.

 

  1. Where it is necessary for a properly empowered functionary to intervene in a policy-making function of the governing body (or to depart from a school governing body’s policy), then the functionary must act reasonably and procedurally fairly.

 

  1. Given the partnership model envisaged by the Schools Act and the co-operative governance scheme set out in the Constitution, the relevant functionary and the school governing body are under a duty to engage with each other in good faith on any disputes, including disputes over policies adopted by the governing body. The engagement must be directed towards furthering the interests of learners

In light of this and (FEDSAS) v Member of the Executive Council for Education, Gauteng and Another(CCT 209/15)[2016]ZACC14; 2016 (4)SA 546(CC); 2016 (8)BCLR 1050 (CC), it is clear that public schools can not operate in an unfettered manner and are ultimately responsible to the Department of Education. The liability of the State in terms of Section 60(1)(a) is broad liability flowing out of this relation and not as held in the Kenmont Costs Case at 51 “in serious doubt if this claim can be categorised as “delictual or contractual damage or loss” as envisaged by the provisions of s 60(1)(a) of SASA.”

The Kenmont Costs Case is problematic in that:

  1. It does not consider the impact of attaching the school’s assets on the other pupils. The right to basic education entails providing the learners with basic learning needs and if the assets/fund of the schools can be attached, it will negatively impact the learners right to education.

 

  1. Fails to consider the progressive efforts by the legislature to widen the liability of the state for acts and omissions in terms of Section 60(1) of SASA.

 

  1. Fails to consider that Schools and their SGBs are ultimately under the authority of the Department of Education and therefore the liability of the State for legal costs is in line with the doctrine of vicarious liability as read with Section 60(1).

 

  1. Choosing an interpretation that finds Section 58A(4) unconstitutional is unnecessary and goes against the dictum (as stated above) held in De Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association Intervening).

 

As the Kenmont Costs Case involves holding that legislation is unconstitutional, it was referred to the Constitutional Court for final determination in terms of Section 167(5) of the Constitution and was heard on the 14th May 2019, we hope that the Constitutional Court comes to a different conclusion to the Durban High Court based on the grounds set out in this article and we await their decision.

 

Kimeshree Pillay (LLB) and Brett Bentley (BA LLB)

BENTLEY ATTORNEYS

Categories: Education

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