Ed-u College (Port Elizabth) NPC v Transnet Limited and Another (135/13,212/13) [2015] ZAECPEHC 2 (13 January 2015)

Not Reportable

IN

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION – PORT

ELIZABETH

Case No: 135/13

212//13

In the matter between:

ED-U COLLEGE (PORT ELIZABETH) NPC

(Registration No: 1995/011813/08) …..............................................................................Applicant

and

TRANSNET

LIMITED

(Registration No: 1990/0090/06)...........................................................................First Respondent

SHERRIF

OF THE HIGH COURT

PORT ELIZABETH...........................................................................................Second Respondent

JUDGMENT

REVELAS J

[1] On the 15th of December 2014 the applicant applied for an order setting aside a writ of execution issued in pursuance of a court order evicting the applicant, a private school, from premises owned by the respondent. The eviction was to take place on 15 December 2014 in terms of a court order obtained by agreement between the parties. The application was dismissed and the application for leave to appeal was brought on the same day.

[2] The applicant raised a litany of grounds of appeal, referring to the many instances where, it contended, I erred. The application, which is one of several urgent applications I had to deal with in a very short space of time during the first week of the court recess.

[3] The judgment was also one of several that had to be handed down in a very short time and therefore not all aspects were dealt with as comprehensive as I would have liked them to be dealt with. I do not intend to carry out that exercise in this judgment.

[4] The applicant contends that, despite an existing court order, in terms of which it should vacate the premises, the writ of execution

ought to be set aside because the respondent, as an organ of state, had a constitutional obligation not to infringe upon the constitutional right of children to basic education. Relying on the decision in Governing Body of the Juma Musjid Primary School v Essay NO 2011 (8) BCLR 761 (CC), the applicant referred me to the Constitutional Court’s critism of the High Court’s granting an eviction order in that matter, despite having found that the trustees acted reasonably in seeking such an order. The Constitutional Court in that

matter directed the MEC to engage meaningfully with the trustees and the school’s governing body in an effort to resolve the dispute about certain moneys owed by the school to the Trust, so as to enable the continued operation of the school. Should this fail, the MEC was ordered to take steps to secure alternative placements for the learners. The MEC was also ordered to file a report setting out what steps had been taken to ensure that the learners’ right to a basic education was respected. The applicant argued that I ought to have granted a similar order which would have made it possible for the applicant to find alternative premises for its school.

[5] In addition to the aforesaid, the applicant submitted that I ought to have developed the common law to deal with the matter as one under the PIE Act, and interdicted the eviction pending the availability of suitable alternative premises.

[6] The lease agreements entered into between the applicant and the respondent were commercial lease agreements which had been cancelled

some time ago. There have been four agreements between the parties which were made orders of court and which pertained to arrear rentals and the eviction of the applicant. The applicant did not comply with any of them. When the present application was brought, the applicant was in arrears with four month’s rental and boldly stated that based on legal advice, it would not pay the rental.

[7] The respondent has on many occasions agreed to postpone the inevitable, until alternative accommodation or premises for the

school has been found. It no longer wishes grant any further extensions because the present ongoing situation is highly prejudicial to it from a financial point of view. The respondent is an organ of State concerned with transport. As such it could only have a negative, and not a positive obligation, to ensure that the right of children to a basic education is respected. The applicant

has a much stronger contractual and positive obligation in that regard and has flouted them by not adhering to its agreements with

the respondent. Based on the particular facts of this matter, the principle of pacta sunt servanda clearly outweighs any negative obligation the respondent may have. In any event it is not the applicant’s case that the affected learners will not be able to attend a public school.

[8] If the arguments advanced are taken to their logical conclusion, any private school can demand that an organ of State must provide it with continued use of its premises, irrespective of whether there is a lease in place and irrespective of whether it has to pay rental or not.

[9] For the above reasons, I am of the view that the applicant has no prospects in an appeal and therefore application for leave to appeal is dismissed with costs.

______

E REVELAS

Judge of the High Court

Counsel for the applicant, Adv Veldsman, instructed by Liston, Brewis & Company.

Counsel for the respondent, Adv Rorke and Adv Mullins, instructed by Burmeister de Lange Soni Inc.

Date Heard: 23December 2014

Date Delivered: 13 January 2015