Member of the Executive Council of the Eastern Cape Department of Education and Another v Nobantu Bota t/a Vision Christian Independent School and Others (1771/2019; 1772/2019; 1773/2019; 1774/2019; 1775/2019; 1776/2019 & 1777/2019) [2019] ZAECGHC 76 (25 June 2019)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE Nos. 1771/2019; 1772/2019; 1773/2019; 1774/2019; 1775/2019; 1776/2019 & 1777/2019

Date heard: 20 June 2019

Date delivered: 25 June 2019

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL

OF THE EASTERN CAPE DEPARTMENT

OF EDUCATION First

Applicant

THE HEAD OF DEPARTMENT OF THE

EASTERN CAPE DEPARTMENT OF

EDUCATION Second

Applicant

and

NOBANTU BOTA T/A VISION CHRISTIAN

INDEPENDENT SCHOOL Respondent in Case No. 1771/2019

MARTHA KIROADE T/A

ST. CAROLINE PRIMARY SCHOOL Respondent in Case No. 1772/2019

NOBENDIBA MKHATSHANA First Respondent in Case No. 1773/2019

ST. BENFORD CHRISTIAN

ACADEMY (PTY) LTD Second Respondent in Case No. 1773/2019

DUMALISILE NOLWAZI

T/A LUMINUS CHRISTIAN SCHOOL Respondent in Case No. 1774/2019

ESME MCGOWAN First

Respondent in Case No. 1775/2019

LO-MEG FOUNDATION PHASE

(PTY) LTD

Second Respondent in Case No. 1775/2019

NOMBONGI SOPHINA NTOZINI First Respondent in Case No. 1776/2019

MALAIKA CHRISTIAN

ACADEMY NPC Second Respondent in Case No. 1776/2019

NAOMI WINIFRED ADDISON First Respondent in Case No. 1777/2019

BEULAH LAND CHRISTIAN

ACADEMY NPC Second Respondent in Case No. 1777/2019

JUDGMENT

RUGUNANAN, AJ

[1] Before me are seven substantially similar applications launched on urgency by the applicants against various respondents on the basis that the respondents are unlawfully operating independent schools without being legally registered. In their notices of motion the applicants, who are the Member of the Executive Council for Education in the Eastern Cape and the Head of the Department of Education, seek orders in the following terms:

“1. That the application be heard as a matter of urgency in terms of rule 6(12) with the abridgement of the time periods provided in the Uniform Rules of Court as contained herein;

2. It be declared that the conduct and operation by the First and / or Second Respondent of an independent school without being registered by the Second Applicant is unlawful;

3. The First and / or Second Respondent be interdicted and prohibited from conducting and / or operating as an independent school, as defined in the Schools Act (sic) 84 of 1996 until such time that it is registered by the Second Applicant in terms of section 46(1) of the Act;

4. The First and / or Second Respondent pay the costs of the application on an attorney and client scale;

5. Further and / or alternative relief.”

[2] The applications were launched on 11 June 2019. In each case the respondents were required to file notices of opposition on or before 12h00 noon on 14 June 2019 and answering affidavits by 16h00 on 17 June 2019 with the applicants undertaking to file replying affidavits by 12h00 noon on 19 June 2019.

[3] In Case Nos. 1771, 1775 and 1777 the respondents appeared in person. Except for 1777, opposing affidavits were not filed in 1771 and 1775. In 1772, 1773 and 1774 notices of opposition were filed on 19 June

2019. In 1776 no appearance was made nor was notice of opposition filed. In each of these matters proper service of the notice of motion and founding affidavit was effected on the respondents in accordance with the uniform rules of court on 13 June 2019.

[4] At the outset the question of urgency necessitates preliminary consideration. In addressing this issue, the deponent to the founding affidavit in each case states:

“[14] I now turn to the facts which led up to the launching of this application, which dates are also relevant to the urgency of the matter. During May 2019 the Department launched a project whereby it was deemed necessary to start formal investigations into schools which may be operating without being registered with the Department. It was necessary to compile a register of such schools, to investigate whether they were operating without being registered and, if necessary, to stop such unlawful activity. On 28 May 2019 the Department accordingly requested such an investigation regarding the School which would consist of the completion of a checklist / questionnaire and that photographs be taken at the School.

[17] The completed checklist / questionnaire and photographs were provided to Mr Edward Scheun, the director of legal services of the Department on 3 June 2019. Mr Scheun, after considering the documentation, contacted the department’s legal representatives on 5 June 2019 to obtain advices as to the possible way forward and forwarded all relevant documentation on the same day.

[18] The Department cannot condone the… respondents unlawful conduct by allowing them to continue operating the school. As soon as it became apparent and evidence was available that the school was operating unlawfully, legal advice was sought and this application was launched as soon as possible thereafter. I, and the Department, have a legal obligation to have launched this application and to bring the unlawful conduct to the attention of this Honourable Court.

[19] This application has been launched on truncated time periods due to the urgency of the relief being sought. The matter is urgent as the interdict is directed at the unlawful conduct of the school which should not be able to continue for any longer and should cease as soon as possible. The learners currently registered with the school may not receive any credit for any purported education received due to the school not being registered and the Department has a responsibility to approach this Honourable Court for the relief sought as it cannot ignore, and by doing so approve and condone the unlawful conduct. Not only is the respondent’s conduct unlawful but also criminal as provided for in the legislation.

[20] The further aspect relating to urgency is that the second term ends on 14 June 2019 and the third term resumes on 9 July 2019. Relief needs to be obtained urgently so that the students and their parents can be informed thereof and be given adequate time and opportunity to register at a lawful school in time for the beginning of the third term and thereby not lose any significant portion of the academic year. The Department undertakes to do all things reasonably necessary to ensure alternative registration at lawful schools for such students.”

[5] These averments were supplemented by additional factual matter in a supplementary affidavit by Mr Scheun that was handed up in court by Ms Watt who appeared for the applicants. What emerges in the supplementary affidavit is the assurance,

“that there are enough lawfully operating schools [in the Amathole East District] within short distances of the Respondents which have the capacity and resources to register and enrol .. students for the third term which begins in July 2019”.

[6] In each of the matters, the Applicants’ Department compiled a comprehensive investigation report that included inter alia a checklist completed on interview with the owner or principal of the school concerned. A full rendition of the material contained in each report would serve no practical purpose other than elongate this judgment. What suffices for present purposes is that none of the schools operated by the various respondents assumed a recent existence. The photographic material indicates buildings and

infrastructure, albeit rudimentary in most instances, which have been in existence for a considerable while. I do not profess to suggest that the infrastructure and buildings may be compliant with regulatory and building standards; the point, quite simply, is that their existence has endured through passage of time. This is evidenced by the duration over which the schools have been operating in each of the matters tabulated as follows:

Case No. 1771/2019 - in operation for 3 years since 2016;

Case No. 1772/2019 - almost 10 years;

Case No. 1773/2019 - approximately 9 years since 2010;

Case No. 1774/2019 - approximately 15 years since 2004;

Case No. 1775/2019 - 11 years since 2008;

Case No. 1776/2019 - approximately 7 years since 2012; and

Case No. 1777/2019 - operating since 2010.[1]

[7] When interposing these facts in the narrative sketched by the deponent to the founding affidavits, the explanation proffered by him to demonstrate urgency is, at first blush, rendered questionable. I raised it with Ms Watt that the duration of the existence and operation of the schools begs the obvious question as to what has the Department (and by implication the applicants) been doing all the while for ensuring that regulatory legislation has been implemented. On reflection, this question assumes neutrality for determining urgency. Ms Watt contended that the case put forward by the applicants is that they only became aware of the unlawful status of the schools consequent to the investigations undertaken by the Department. The narrative shows that in the period 3-5 June 2019 the director of legal services acted swiftly and with a sense of purpose. The applications were launched on 11 June 2019. In each case the respondents were required to file notices of opposition and opposing affidavits in accordance with specified time frames. Apart from the action taken by the director of legal services, there is an inherent element of urgency if one considers that the fundamental right of a very substantial number of learners [2] has and continues to be compromised and criminal offences for transgression of the relevant legislation continues to be committed

for so long as the schools have an intake of learners and are conducting operations while not being registered.[3] In the circumstances I am satisfied that urgency has been established and that the abridgement of the time periods as determined by the applicants is not unreasonable.

LEGISLATION

[8] The establishment, registration, operation and maintenance of an independent school is regulated by legislation.

Section 29(3)(c) of the Constitution[4] states:

“Everyone has the right to establish and maintain, at their own expense, independent educational institutions that:

(a) …

(b) are registered with the state…”

[9] Section 46 of the South African Schools Act[5] dealing with the registration of an independent school, provides as follows:

“(1) No person may establish or maintain an independent school unless it is registered by the head of Department.

(2) The Member of the Executive Council must, by notice in the Provincial Gazette, determine the grounds on which the registration of an independent school may be granted or withdrawn by the Head of Department.

(3) A Head of Department must register an independent school if he or she is satisfied that –

(a) the standards to be maintained by such schools will not be inferior to the standards in comparable public schools;

(b) the admission policy of the schools does not discriminate on the grounds of race; and

(c) the school complies with the grounds for registration contemplated in subsection (2).

(4) Any person who contravenes subsection (1) is guilty of an offence and upon conviction liable to a fine or imprisonment for a period of three months.”

[10] Complementing the above legislation, is the Eastern Cape Schools Education Act [6] which regulates the registration of independent schools in this province.

Section 27(2) thereof provides that:

“No person shall establish, conduct or maintain an independent school unless that independent school is registered in terms of this Act.”

[11] Section 28 specifically obliges any person intending to establish, conduct or maintain an independent school to apply to the head of Department (in this instance the second applicant) in writing for the

registration of that school, and in doing so that person “shall furnish such additional particulars … as the head of Department may require.”

[12] Section 30(5) declares that:

“Any person who contravenes … section 27 and any person who admits anyone to a school which is not registered or exempted from registration in terms of this act shall be guilty of an offence.”

[13] Section 30(5), evidently creates two offences; (i) the establishment,

conduct or maintaining of an independent school that is not registered and, (ii) the admission of a person to an unregistered independent school.

[14] Section 3 of the Provincial Gazette[7] lays down the requirements for the registration of a school. Subsection (1)(b) specifically provides that the application, completed on the prescribed form (Form EGF/IS), must be lodged with the district office of the Department in which the proposed school is

to be established by not later than 31 March of the year preceding the year of the proposed operation of the school.

[15] The legislative scheme indicates that an independent school must be registered before it commences operation and that no person may be admitted to a school which is not registered.

[16] Each of the matters fall to be decided on the limited fact that none of the schools operated by the respondents are legally registered in accordance with the Eastern Cape Schools Education Act[8] and the regulations promulgated in the Provincial Gazette.[9] This is not disputed by any of the respondents who appeared personally in cases 1771, 1775 and 1777.

CASES 1771, 1775 AND 1777

[17] The arguments put forward by the respondents in 1771 and 1775 laid emphasis on the avoidance of a costs order against them in the event of the applicants being successful in obtaining final relief. In the

main, they emphasised however that their efforts in seeking to register the schools being operated by them have been frustrated by ongoing tardiness and lack of co-operation and guidance from officialdom within the applicants’ Department. While this state of affairs endured for an extended period, the respondents candidly conceded that it did not occur to them to seek professional legal intervention. It also became obvious, to a degree, that the respondents were not entirely familiar with the legislation pertaining to the registration of independent schools, particularly the registration process and requirements for registration as are detailed in the applicable Provincial Gazette. As with the respondent in 1777, their plea to this court to refuse final relief is premised on their idiosyncratic belief that such refusal would be in the best interests of the learners currently enrolled in their schools.

[18] For her part, the respondent in 1777 acknowledges that the school owned and operated by her remains unregistered despite ongoing efforts since 2009. Her opposing affidavit (to which the applicants did not reply) explains that roundabout that time she was given the “go ahead” by an official of the Department whose name is known to her but does not wish to disclose for “fear of retaliation”. She attributes the current unregistered status of the school to the lack of co-operation from departmental officials which, from what I am able to discern, has been ongoing for the last 10 years. Her reluctance to disclose the identity of the official whom she alleges gave her the go ahead, is inexplicable. I have no doubt that the applicants would take appropriate action if she had taken this court into her confidence and made appropriate disclosure. She declined the invitation to do so in open court, notwithstanding the presence of the applicants’ director of legal services and the legal representatives of the applicants.

[19] In addition, the respondent stated that following lodgement of her application for registration (per Form EGF/IS) on 11 December 2018, she received telephonic communication from an official on 10 January 2019 that she could apply for provisional registration of her school. She maintains that she subsequently established that she was ill-advised. There is no express averment by the respondent that she made application for provisional registration. Even if one assumes that such application was made, it does not cure the fact that her school was and remains unregistered. The respondent avers that she

has complied with “all relevant laws” pertaining to registration. During her address, she elaborated that she complied

with the prescribed regulations for registration of her school. On my reading of the regulations, the head of department may provisionally

register a school “where such school has failed to comply with the requirements for registration.” There is a disconnect between the respondent’s avowed compliance with all relevant laws and her assertion that she has made application for provisional registration (assuming that she did so). Her protestation that she has complied with “all relevant laws” raises the obvious question as to whether she ever considered obtaining professional legal assistance in seeking redress against the applicants’ Department or in seeking clarity on where she might have failed to have complied with requirements prescribed in the regulations. As with the respondent in 1775, her plea to this court is that it should permit her school to continue to remain operational.

[20] The hard fact of the matter for the respondents in 1771, 1775 and 1777 is that their schools are operating unlawfully. They know this. For them to expect this court to indulge them, particularly the

respondents in 1775 and 1777, by permitting the schools to continue operating is tantamount to sanctioning conduct that is inimical to the rule of law. This court cannot shirk from its duty to enforce the law by coming to the assistance of the applicants who have shown that they have acted appropriately and with urgency in seeking to protect the public interest.

THE OPPOSITION IN CASES 1772, 1773 AND 1774

[21] Mr Qumntu who appeared for these respondents addressed the court and sought a postponement from the bar. The move for a postponement was resisted by the applicants primarily on the basis that the finalisation of the matters would be delayed to the detriment and prejudice of affected learners attending the respondents’

schools, this in the light of the imminent commencement of the third term on 9 July 2019 and that the applicants require relief to enable parents of affected learners proper opportunity to register at a lawful school.

[22] The principles governing the granting or refusal of a postponement were summarised by the Constitutional Court in National Police Service Union & Others v Minister of Safety and Security & Others:[10]

“The postponement of a matter set down for hearing on a particular date cannot be claimed as of right. An applicant for a postponement seeks an indulgence from the Court. Such postponement will not be granted unless this Court is satisfied that it is in the interests of justice to do so. In this respect the applicant must show that there is good cause for the postponement. In order to satisfy the Court that good cause does exist, it will be necessary to furnish a full and satisfactory explanation of the circumstances that give rise to the application. Whether a postponement will be granted is therefore in the discretion of the Court and cannot be secured by mere agreement between the parties. In exercising that discretion, this Court will take into account a number of factors, including (but not limited to): whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is any prejudice to any of the parties and whether the application is opposed.”

[23] The threshold requirement an applicant for a postponement must meet was expressed more robustly in McCarthy Retail Ltd v Shortdistance Carriers CC[11] where it is stated that:

“In order for an applicant for a postponement to succeed he [or she] must show a ‘good strong reason’ for the grant of such relief.”

[24] The explanation given for the indulgence sought and for the late filing of the notices of opposition and failure to file opposing affidavits, is that the respondents were unable to raise funds to procure legal representation timeously. None of the respondents have deposed to an affidavit to give effect to this explanation or to elaborate on their conduct upon the application papers being served on them. In seeking the postponement Mr Qumntu offered no indication of the period in which opposing affidavits would be filed other than stating that counsel was in the process of drafting them. Moreover,

other than vacuously contending that the standard of education being offered by the schools operated by the respondents was comparable to any of the other schools contemplated by the applicants, he could not unequivocally state if any of the respondents represented by him could refute the investigative finding that each of their schools is unregistered and operating unlawfully. In this regard, the following excerpts are revealing.

[25] In 1772, the Executive Summary of the Independent School Verification

Checklist states:

“The school is not registered as an independent school … There are 8 educators employed. Two South African citizens and six foreigners. None of the foreign educators are qualified to teach. They had no passports and work permits could not be verified … Although the learners have files there are no copies of academic results or proof of grades … No running water was found by the investigator. The school makes use of pit toilets. Electricity … does not comply to any safety measures … Half the classrooms do not have ceilings … the school should be closed down with immediate effect.”

[26] In 1773, paragraph 2 of the Independent School Verification Checklist[12] contains the following comment:

“Owner applied for registration end 2014. Application was nullified because it did not meet statutory demands… owner has not taken any further steps to re-apply. Application was only processed and nullified on 26-11-2018 … letter of closure was handed to the school.”

Furthermore, the following information is disclosed in the Executive Summary:

“[The] Department of Health and Social Services would not give a positive report for attachment to the application for registration … learners are taught in rooms that are not conducive to learning. These include outbuildings at the back of the shop located right next to the school. It could not be determined how many educators are actually qualified as there are no files for educators. There is also no documentation available to suggest that … the principal and a Zimbabwean citizen, has any educational qualifications, is SACE registered, and has a work permit.”

[27] In 1774 the Executive Summary states:

“The school is not registered as an independent school … there are eight educators of which three are foreigners. The principal’s

highest qualification is a Diploma in Agriculture. Six of the educators do not have teaching qualifications … There are no text books available for the learners… There is no clarity which curriculum the school is using … There is no record of learner’s academic result (sic) available for verification … the school should be closed down and all learners transferred.”

[28] The excerpts reveal a gross failure to comply with any of the criteria and standards set in the Provincial Gazette.[13] I am not satisfied that Mr Qumntu has demonstrated good cause nor has it been shown that there are good and strong reasons to enable me to exercise a discretion in favour of granting the abovementioned respondents a postponement. Their strategy is self-serving and dilatory and does not conduce to the best interests of affected learners enrolled in their schools.

CASE 1776

[29] The respondent made no appearance in these proceedings, presumably having realised that closure of the school owned and operated by her would be an inevitable outcome of these proceedings. The Executive

Summary pertaining to the investigation of her school is revealing. It states:

“The school is not registered … [She] received a checklist from the Department of Education … she has not been able to comply with these requirements which included issues pointed out by the Department of Health… learners are taught in rooms that are not conducive to learning. These include corrugated shacks and the owner’s house’s (sic) outbuildings to be able to accommodate 229 learners … the owner does not have financial or managerial capabilities … to upgrade the school and its functions to such a level to successfully apply for registration. [The school] is not in a position to acquire registration.”

Costs

[30] I turn to deal with the question of costs. In their notices of motion

the applicants seek attorney and client costs against the respondents in each matter. This is on the incontrovertible fact that the respondents have contravened section 30(5) of the Eastern Cape Schools Education Act.

[31] In her opposing affidavit the respondent in 1777 alludes to the numerous frustrations experienced by her when having dealt with various officials in the applicants’ department. A reading of the affidavit admits of her school being unregistered but throws light on the lack of co-operation and response from numerous officials with whom she has dealt with. It raises ire when a well-meaning person in genuine need of assistance is shunted around by officialdom. The same theme became apparent from the address by the respondents in 1771 and 1775. The respondent in 1775 stated openly in court that she was “treated like a criminal” by the departmental officials from whom she sought assistance during her registration endeavours. I can only surmise of the frustration and disappointment, and perhaps humiliation, experienced by the other respondents in 1772, 1773 and 1774 (and perhaps 1776 who made no appearance in these proceedings).

[32] The norm is that costs follow the result. However, I do not think costs on the attorney and client scale is justified in any of the matters, nor do I believe that costs on the usual scale is justified.

The applicants’ Department is an organ of state. Not only does it bear the primary responsibility for ensuring that the law is upheld, it also bears the responsibility for ensuring that the conduct of its employees and officials is consistent with the

Constitution when dealing with members of the public. For this reason I think the respondents should be shielded from the consequences of an adverse costs order.

[33] In all the circumstances an order issues in terms of paragraphs 1, 2 and 3 of the notices of motion in Case Numbers 1771/2019, 1772/2019, 1773/2019, 1774/2019, 1775/2019, 1776/2019, and 1777/2019.

_______________________________

M. S. RUGUNANAN

ACTING JUDGE OF THE HIGH COURT

Appearances

For Applicants: Adv. K. Watt

Instructed by N.N. Dullabh & Co

Makhanda / Grahamstown

For Respondents: In person (Case Numbers 1771, 1775 and 1777)

No appearance (Case No. 1776)

Mr Qumntu (Case Numbers 1772, 1773 and 1774)

Instructed by M. Nohesi Attorneys

c/o Yokwana Attorneys

Makhanda / Grahamstown

[1] See Independent School Verification Checklist, Founding Affidavit, page 23

[2] Some 819 according to Ms Watt by count on the papers

[3] MEC, Department of Education, Eastern Cape Province & Another v Eduplanet (Pty) Ltd Case 189/17, ECD, unreported, delivered 1 February 2017

[4] Constitution of the Republic of South Africa, 1996

[5] Act No. 84 of 1996

[6] Act No. 1 of 1999

[7] Province of the Eastern Cape, Provincial Notice No. 27 published in Gazette No. 766 on 12 July 2001

[8] Act No. 1 of 1999

[9] Province of the Eastern Cape, Provincial Notice No. 27 published in Gazette No. 766 on 12 July 2001

[10] 2000 (4) SA 1110 (CC) paragraph [4]

[11] 2001 (3) SA 482 (SCA) paragraph [28]

[12] Attached to the founding affidavit

[13] per regulation 3