Department of Education: Eastern Cape v Siyaphambili Trading 98 CC and Another (1718/2019) [2020] ZAECGHC 67 (23 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No: 1718/2019

In the matter between:

THE DEPARTMENT OF EDUCATION:

EASTERN CAPE Applicant

And

SIYAPHAMBILI TRADING 98 CC

First Respondent

JERRY SIFANELE Second

Respondent

JUDGMENT

BESHE J:

[1] On the 9 June 2020, Lowe J issued a rule nisi calling upon respondents to show cause on 17 June 2020 why a final order in the following terms should not be issued:

“2.1 the First and Second Respondent’s cause the ablution facilities at Tantseka Junior Secondary School, Julukuqu Junior Secondary School and Xwili Junior Secondary, all of O.R. Tambo District, to be repaired and/or replaced and/or reinstated to the building

specification’s and condition which the First Respondent was originally contracted to effect, within 20 days of this Order.

2.2 the First and Second Respondent’s pay the costs of the application on a scale as between attorney and client, jointly and severally the one paying the other to be absolved, such costs to include the costs consequent upon the employment of two Counsel.”

This in addition to another part of the rule nisi that is returnable on the 28 July 2020 in respect of which the respondents are required to show cause why an order in the following terms should not be issued:

“1.1 The First and Second Respondent’s be declared to be in contempt of the Order of this Court of 7th June 2020;

1.2 The Second Respondent be incarcerated for a period of 6 (SIX) months;

1.3 The Second Respondent be declared to have breached the condition of suspension at paragraph 3.2 of the Order of this Court of 30th August 2019; and

1.4 The Second Respondent be incarcerated for 6 (SIX) months.”

[2] The respondents did not file any opposing papers in respect of both the application for a rule nisi and in relation to the application for the confirmation thereof.

[3] On the return date, the managing member of first respondent Mr Ntaphane and second respondent appeared in person. They handed up a bundle of documents as annexures to or document entitled “Affidavit". More about this document later.

[4] A number of orders have been issued by this court interdicting the respondents from inter alia dismantling or removing building materials or components thereof from four schools in the O.RO Tambo district. The order of the 7 June 2019 was in respect of the following public schools:

Gwengwe,

Julukuqu,

Tantseka, and

Xwili Junior Secondary Schools.

The order amongst other things interdicted the respondent / their agents / employees from entering the premises of these public schools.

Once again on the 19 August 2019 an order emanated from this court calling upon the respondents to show cause why they should not be interdicted and restrained from taking any steps or performing any conduct to dismantle or remove or deal with any portion or component or building material from any structure at the four aforementioned schools. This order was confirmed on the 30 August 2019. In addition thereto, the second respondent was declared to be in contempt of court order of the 7 June 2019 and sentenced to six (6) months’ imprisonment which was suspended on certain conditions. One of which was to the effect that second respondent effects repairs to the ablution facilities at Gwengwe Junior Secondary School.

[5] According to Mr Edward Wilhelm Sheun, Head of Legal Services of the applicant, the respondents did comply with the order to repair and re-instate the ablution facilities at Gwengwe Junior Secondary School. However during first the school holiday and then the lockdown period, the respondents dismantled the ablution facilities at Tsantseka, Julukunqu and Xwili Junior Secondary Schools. As a result of this, the schools’ ablution facilities were rendered to be non-compliant with the requirements for re-opening following the closure / shutdown due to the Covid-19

pandemic. Functional toilets being one of these requirements. Consequently, the three schools will not re-open until there are

proper ablution facilities in place. In that way, the learners’ rights to basic education will be compromised.

[6] The second respondent is reported to have given the reason for the dismantling of the ablution facilities as failure by the applicant to pay the respondents in full for the work they performed. I have already alluded to the fact that the respondents did not file any opposing papers. During the hearing, they handed up a document entitled “AFFIDAVIT” and addressed to The Honourable Justice Lowe and the Honourable Court and ends with the words Best Regards

Jerry Sefanele

Siyaphambili Trading 98.

It bears a SAPS date stamp from the Grahamstown police station, the date being 17 June 2020. It is not commissioned and therefore not an affidavit in the true sense of the word. For what it is worth, a reading of the “affidavit” reveals that the respondents do not dispute that they acted in the manner alleged by the applicant. It also reveals that the respondents suggest that they were justified in acting in the manner they did because they had not been paid by the Mvula Trust for the work they had performed at the four schools. That they do not deny the actions attributed to them becomes even clearer where they suggest:

“We also want to bring to the attention of this court that the roofs that we are removing were not part of the initial contract and drawing / building plans of those ablution facilities, we were instructed through instruction book by all stakeholders which are Mayenzeke QS (the principal agent), Nemarango engineers (Structural engineer), The Mvula Trust (My Client) to also do the roofing to all the schools (Julukuqu Junior Secondary School, Tsantseka Junior Secondary School, Xwili Junior Secondary School and Gwegwe Junior Secondary School).”

[7] The respondents seem to lose sight of or simply ignore the fact that there are court orders that interdict and restrain them from acting in this fashion in relation to these four schools. They may well have a claim valid or otherwise against some party, Mvula Trust or the applicant department or any party, that hardly bestows them a right to take the law into their hands, to resort to self-help. Through their actions, the ablution facilities of at least three of the schools have been rendered not to conform with the standard required of ablution facilities for the re-opening of a school in light of a raging Covid-19 pandemic that is besetting the world. Obviously, if the schools cannot reopen, the pupils cannot go to school. Section 29 of the Constitution grants everyone the right to basic education. As to what the nature of the right entails, in Governing Body of Juma Musjid Primary School v Essay NO[1] the following was stated:

“[37] 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, 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”.

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”.”

And later at paragraph 43 the following was stressed:

“[43] 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. 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.”

As indicated, respondents’ actions have the effect of denying scholars at these schools access to basic education and they had no right to do so. This is further underscored by Nkabinde J’s further remarks in the Juma Musjid matter supra when she stated:[2]

“[44] 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. 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.” 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.”

This ranging pandemic (Covid-19) has exacerbated matters. It requires that we observe high standards of cleanliness and hygiene. Besides the pandemic, the best interest of the children which are paramount dictates that their rights to inter alia education and dignity be safe guarded.

[8] There are lawful means of resolving disputes between parties, and that is not by taking the law into one’ hands.

[9] For the reasons stated above, I am not persuaded that the respondents have shown cause why the rule nisi that was issued on the 9 June 2020 should not be confirmed. It is accordingly confirmed.

Order

[10] Accordingly, the following order will issue:

10.1 The First and Second Respondents are directed to cause the ablution facilities at Tantseka Junior Secondary School, Julukuqu Junior Secondary School and Xwili Junior Secondary, all of O.R. Tambo District, to be repaired and/or replaced and/or reinstated to the building specification’s and condition which the First Respondent was originally contracted to effect, within 20 days of this Order.

10.2 The First and Second Respondents are directed to pay the costs of the application on a scale as between attorney and client, jointly and severally the one paying the other to be absolved, such costs to include the costs consequent upon the employment of two Counsel where utilised.

_____________

NG BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant : Adv: Quinn SC

Instructed by :

NN DULLABHS ATTORNEYS

53 Bertrams Street

GRAHAMSTOWN

Ref: Mr. Wolmarans

Tel.: 046 – 622 6611 / 9966

For the Respondent/s: Mr. J Sifanele

Instructed by : SECOND RESPONDENT IN PERSON

11 Kingfisher Street

Southernwood

MTHATHA

Ref: Mr J Sifanele

Tel.: 072 017 9644 / 073 150 9841

jerrysifanele@gmail.com

Date Heard : 17 June 2020

Date Reserved : 17 June

2020

Date Delivered : 23 June 2020

[1] 2011 (8) BCLR 761 CC at [37].

[2] Paragraph 44.