Kenmont School and Another v Moodley and Others (11611/2016) [2018] ZAKZDHC 67 (11 October 2018)

Kenmont School and Another v Moodley and Others (11611/2016) [2018] ZAKZDHC 67 (11 October 2018)

The court found that section 58A(4) of the South African Schools Act, which prohibits attachment of public school assets, creates an unconstitutional differentiation between judgment creditors against public schools and those against other litigants, violating the equality clause in section 9(1) of the Constitution....

Source-derived case information.

Citation
[2018] ZAKZDHC 67
Parties
Applicant: Kenmont School; Applicant: Kenmont School Governing Body; Respondent: Deverajh Moodley; Respondent: Sheriff of the High Court, Durban South; Respondent: ABSA Bank; Respondent: Provincial Head of Department of Education Kwazulu-Natal; Respondent: Member of the Executive Council for Education, Kwazulu-Natal
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
11 October 2018
Case Number
11611/2016
Procedural Posture
Review Application / Judgment After Main Application and Counter Application
Outcome
Section 58A(4) of the South African Schools Act declared unconstitutional and invalid; costs orders to be satisfied by the first and second applicants; interim order discharged with costs; counter-application granted; declaration of invalidity referred to the Constitutional Court for confirmation.
Judges
Hadebe
Legal Topics
Execution Against State Assets, Constitutional Invalidity, Equality Clause, School Governance, Costs Orders, Remedies for Judgment Creditors
Constitutional Law Civil Procedure Administrative Law Execution Against State Assets Constitutional Invalidity Equality Clause School Governance Costs Orders +1 more

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Parties

Kenmont School

Applicant

Kenmont School Governing Body

Applicant

Deverajh Moodley

Respondent

Sheriff of the High Court, Durban South

Respondent

ABSA Bank

Respondent

Provincial Head of Department of Education Kwazulu-Natal

Respondent

Member of the Executive Council for Education, Kwazulu-Natal

Respondent

Procedural Posture

Review Application / Judgment After Main Application and Counter Application

Legal Issues

  1. 1 Whether section 58A(4) of the South African Schools Act is unconstitutional for preventing execution against public school assets.
  2. 2 Whether the costs orders against the applicants can be satisfied given the statutory protections invoked.
  3. 3 Whether the State is liable for costs orders arising from litigation between a school/governing body and a parent.

Ratio Decidendi

The court found that section 58A(4) of the South African Schools Act, which prohibits attachment of public school assets, creates an unconstitutional differentiation between judgment creditors against public schools and those against other litigants, violating the equality clause in section 9(1) of the Constitution. The inability to execute against school assets renders court orders unenforceable and undermines judicial authority as protected by section 165(5) of the Constitution. The court rejected the argument that the State is liable for costs orders under section 60(1)(a), as such orders do not constitute delictual or contractual damages. The court declared section 58A(4) invalid and...

Court Disposition

Section 58A(4) of the South African Schools Act declared unconstitutional and invalid; costs orders to be satisfied by the first and second applicants; interim order discharged with costs; counter-application granted; declaration of invalidity referred to the Constitutional Court for confirmation.

Orders

  • The interim order made by Olsen J on 11 November 2016 is discharged with costs, including costs of two counsel where applicable, to be paid by the first and second applicants jointly and severally.
  • The main application is dismissed with costs.