Independent Institute of Education (Pty) Ltd v University of Sport South Africa (NPO) and Others (76139/17) [2020] ZAGPPHC 371 (13 July 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA.

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

CASE NUMBER: 76139/17

13/7/2020

In the matter between:

THE INDEPENDENT INSTITUTE OF

APPLICANT

EDUCATION (PTY) LTD

and

UNIVERSITY SPORT SOUTH AFRICA (NPO)

FIRST RESPONDENT

UNIVERSITY SPORT COMPLANY

SECOND RESPONDENT

(RF) (PTY) LTD

ASEM VARSITY SPORTS (PTY) LTD

THIRD RESPONDENT

FNB VARSITY CUP PRESENTED BY

FOURTH RESPONDENT

STEINHOFF INTERNATIONAL NPC

ADVENT SPORT ENTERTAINMENT AND

FIFTH RESPONDENT

MEDIA (PTY) LTD

MINISTER OF SPORT AND RECREATION

SIXTH RESPONDENT

MINISTER OF HIGHER EDUCATION AND

SEVENTH RESPONDENT

TRAINING

APPLICATION FOR LEAVE TO APPEAL

TLHAPI J

[1] An application for leave to appeal is premised on section 17(1) of the Superior Courts Act 10 of 2013 as set out below:

"Section 17 (1)

(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that:

(a)(i) the appeal would have reasonable prospect of success; or

(ii)there is some other compelling reasons why the appeal should be heard, including conflicting judgments on the matter under consideration;

b) the decision sought on appeal does not fall within the ambit of section 16(2); and

(c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties."

[2] The test previously applied was where is was said that there were reasonable prospects that another court may come to a different conclusion, Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T). The threshold has now been raised by the use and meaning attached to the words "only" in section 17 (1) and "would" in section 17 (1)(a)(i). Therefore, there should be certainty that another would come to a different conclusion from what the applicant seeks to appeal against. In Mont Chevaux Trust v Tina Goosen and 18 Others 2014 JDR 2325 (LCC) at para [6] is stated:

"It is clear that the threshold for granting leave to appeal a judgement of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cronwright & Others 1985 (2) SA 342 (T) at 343 H. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgement is sought to be appealed against."

[3] In S v Smith 2012 (1) SACR 567 (SCA) at para 7, a more stringent test is called for, in that an applicant must convince a court, on proper grounds that there are prospects of success which are not remote, a mere possibility is not sufficient. Therefore, where the applicant has satisfied either of the two identified requirements in the Act, leave to appeal should be granted, Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others 2016 (3) SA 317 (SCA).

[4] It was contended by counsel for the applicant that there were reasonable prospects that another court is likely to reach a different conclusion to each of the findings against which leave to appeal is sought. In my view and as stated in the cases above, the use of the word 'likely' was not the determining factor. In this instance the applicant seeks that the appeal be referred to the Supreme Court of appeal.

The application is premised on six grounds stated hereunder:

(a) The finding that the first respondent is not an organ of state

The first respondent was implicated through the Higher Education Act 101 of 1997 and the Sports and Recreation Act 110 of 1998 and regulations. The impact of the finding was that it precluded the application of section 9 of the Bill of Rights. The mere undertaking of activities in the public sphere did not require that it be demonstrated the first respondent had to have a direct legislative basis to be regarded as an organ of state as indicated in the decisions in AIIPay Consolidated Investment Holdings Pty Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others (No.2) 2014 (4) SA 179 (CC) and Mittalsteel South Africa Limited v Hlatshwayo 2007 (1) SA 66 (SCA). The finding that the relief sought was a vague and an ineffective futile order, was erroneous.

(b) The finding that the second to the fifth respondents were private actors and not involved in the public sphere

In terms of a Memorandum of Understanding the second respondent provided more than half of the funding of the first respondent for the year 2017 in return for endorsement for the Varsity Cup and Varsity Sports competitions. The sporting events were hosted by the first respondent and selection was based on performance and participation was limited to students from Public Institutions of Higher Learning. The applicant's students were excluded even where they excelled at some events on ground that they studied at Private Higher Education Institutions. The sporting events were held at public campuses where the state had invested capital and the revenue generated from such events were from the public. The finding that (i) the above respondents were private actors and were not exercising public power or performing a public function and not bound by the provisions of section 9 of the Bill of Rights nor the Equality Act, and (ii) that the relief sought against the first respondent was vague and an ineffective futile order, was erroneous.

(c) The finding that it is permissible to differentiate between Public and Private Higher Education Institutions

The above findings were erroneous.

There was no difference in sporting ability and potential between students from the two institutions of higher learning. Furthermore, there was also no difference between the two types of higher education institutions in the constitutional commitment to equality, having regard to 'the requirements in section 29 (3) of the Bill of Rights and the equality and governance provisions in the Higher Education Act.

The above finding was erroneous when viewed against the distribution of revenue amongst the third to the fourth respondents and member universities which did 'not translate into the empowerment of previously disadvantaged student and previously disadvantaged higher education institutions.

Furthermore, it was contended that the tax-exempt status of the above respondent which was engaged in matters of public interest could not be advanced to infringe the right to equality and, that no evidence had been advanced as to how the exempt status would be compromised.

(e) The mischaracterisation of the applicant's Equality case

The application in the first leg related to the equality of treatment and equality of opportunity as guaranteed by section 9(1) of the Bill of Rights (and provisions of the Equality Act which have yet to be brought into force) and in the second leg to indirect discrimination on the basis of race in relation to the applicant's students comprised largely of previously disadvantaged individuals. The test in Harsken v Lane was conflated by the court resulting in a lack of application of section 9(1) from the first to the fifth respondent respondents. There was therefore no rational for the differentiation between the applicant's students and those in public institutions.

(f) Other findings in the Judgement

I shall not state all the reasons for the contended erroneous finding under this heading save to mention that these related to findings made in paras 59-61;77; 73 and 84.

[5] This application was opposed by the first to the fifth respondents. Counsel for the said respondents contended that the applicant had failed to meet the test for the grant of leave that there "would" be prospects on appeal as set out above. Further, that there were no prospects in the appeal.

(i) That the remedy sought by the applicant was not competent because, although the relief sought was aimed at addressing the position of the students enrolled with the applicant by the 'wrong party' and not those affected (the unidentified students) and respondents described the application as being for, "the wrong remedy sought by the wrong party in the wrong proceedings." It was contended that the applicant "could not assert an own interest given that the relief sought was based in alleged race- based discrimination against its students, not itself."

(ii) A complainant in terms of the Equality Act must institute proceedings relating to infringements in terms of sections 6 to 12 of the Equality Act and there was no allegation made by the applicant of any contravention with regard to these sections, therefore no allegations were made which triggered the jurisdiction of the Equality Court. The applicant framed the application by invoking directly section 9 of the Constitution. In this regard the applicant approached the wrong forum. The Equality Act must be interpreted to give effect to the equality right as in the Constitution and, it was argued that 'no power is conferred on the court to determine the constitutionality of the conduct complained about by direct reference to the Constitution."

(iii) The debate that the first respondent was an organ of state had not merit and no version advanced by the applicants had semblance to it performing or exercising powers in terms of legislation. Even if it determined that it was an organ of state, it would not be in that position have the capacity interfere in the business of the second to the fifth respondent and, even if it were in a position to interfere the applicant has failed to make out a case that the Equality Act has been contravened.

(iv) The second to the fifth respondents were not organs of state because they do no perform any public function under any legislation.

[6] I have considered the above grounds and reasons for opposition and revisited the papers and my Judgement. I am of the view that the applicant and respondents have raised certain issues which call for a pronouncement on appeal and would lay to rest the position relating to sporting events is public and private institutions of higher learning. Some of the reasons for the grant pertain to:

(a) whether the respondents in their capacities and functions performed are organs of state;

(b) Whether it was in the competency of the first respondent to direct how the second to the fifth respondent are to conduct their business and what relevance if any the Memorandum of Understanding played a role and, whether the first respondent was bound by law to remedy the exclusion of the students of the applicants;

(c) Whether the applicant has made out a case establishing that the application was in the public interest and whether by invoking section 9 of the Constitution whether the applicant was in the correct forum.

(d) whether the applicant has made out a case that there was or is in any respect a contravention by the respondents based on the Equality Act and as to who the rightful complainants in this regard are or should have been.

(e) whether the students of the applicant have been unfairly discriminated against on the basis of race; and whether such students or the applicant's have on the papers established a right for them to be included in the sporting events based purely on the possibility of participating in premier sporting events, and where there was no interest in the prize money and where the applicant was not or could not be a member in the second respondent. Does the differentiation amount to an unfair discrimination based on any constitutional grounds and has this case been made out in the Equality Court.

[7] For the reasons stated I am of the view that leave to appeal be granted to the Full Court of this Division and that costs be costs in the appeal.

TLHAPI V V

(JUDGE OF THE HIGH COURT)