BEATRICE KISHETA KYUBWA AND OTHERS Second and Further Applicants
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
PROVINCE OF KWAZULU-NATAL Eleventh Respondent
MINISTER FOR EDUCATION Twelfth Respondent
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
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 Act4 (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.
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 ethos11 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 order13 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 Act17 (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 Act18 (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 3326 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 Holomisa27 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 rights31 and the paramountcy of the child’s best interests32 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.