Moodley v Kenmont School and Others (CCT281/18) [2019] ZACC 37; 2020 (1) SA 410 (CC); 2020 (1) BCLR 74 (CC) (9 October 2019)

Moodley v Kenmont School and Others (CCT281/18) [2019] ZACC 37; 2020 (1) SA 410 (CC); 2020 (1) BCLR 74 (CC) (9 October 2019)

Section 58A(4) of the Schools Act, which prohibits the attachment of public school assets, does limit the rights to equality and dignity. However, this limitation is justified under section 36(1) of the Constitution because it serves the crucial purpose of protecting the right to basic education and the best interests of children. Attachment of school assets would undermine the ability of schools, especially those serving disadvantaged communities, to provide education. The limitation is well-tailored to its purpose and no less restrictive means exist. The costs orders against Kenmont School and its Governing Body are competent and enforceable; public schools, as juristic persons, have...

Citation
[2019] ZACC 37
Parties
Applicant: Deverajh Moodley; Respondent: Kenmont School; Respondent: Kenmont School Governing Body; Respondent: Head of Department, Department of Education, KwaZulu-Natal; Respondent: Member of the Executive Council for Education, KwaZulu-Natal; Respondent: Minister of Justice and Correctional Services; Respondent: Minister of Basic Education; Amicus Curiae: Centre for Child Law
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
9 October 2019
Case Number
CCT 281/18
Procedural Posture
Constitutional Confirmation / Appeal for Confirmation of High Court Order
Outcome
The declaration of constitutional invalidity of section 58A(4) of the Schools Act is not confirmed. Kenmont School is ordered to pay the applicant's taxed costs within three months. The High Court's costs order against Kenmont School and its Governing Body is set aside. No order as to costs in the Constitutional...
Judges
Mogoeng, Cameron, Froneman, Jafta, Khampepe, Ledwaba, Madlanga, Mhlantla, Nicholls, Theron
Legal Topics
Constitutional Invalidity, Right to Basic Education, Best Interests of Child, Costs Orders, State Liability, School Governance
Constitutional Law Civil Procedure Family and Children Constitutional Invalidity Right to Basic Education Best Interests of Child Costs Orders State Liability +1 more

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Parties

Deverajh Moodley

Applicant

Kenmont School

Respondent

Kenmont School Governing Body

Respondent

Head of Department, Department of Education, KwaZulu-Natal

Respondent

Member of the Executive Council for Education, KwaZulu-Natal

Respondent

Minister of Justice and Correctional Services

Respondent

Minister of Basic Education

Respondent

Centre for Child Law

Amicus Curiae

Procedural Posture

Constitutional Confirmation / Appeal for Confirmation of High Court Order

Legal Issues

  1. 1 Is section 58A(4) of the South African Schools Act 84 of 1996 constitutionally invalid?
  2. 2 Does the prohibition on attachment of public school assets infringe the rights to equality and dignity?
  3. 3 Are public schools liable for litigation costs orders, or does liability fall to the state under section 60(1) of the Schools Act?

Ratio Decidendi

Section 58A(4) of the Schools Act, which prohibits the attachment of public school assets, does limit the rights to equality and dignity. However, this limitation is justified under section 36(1) of the Constitution because it serves the crucial purpose of protecting the right to basic education and the best interests of children. Attachment of school assets would undermine the ability of schools, especially those serving disadvantaged communities, to provide education. The limitation is well-tailored to its purpose and no less restrictive means exist. The costs orders against Kenmont School and its Governing Body are competent and enforceable; public schools, as juristic persons, have...

Court Disposition

The declaration of constitutional invalidity of section 58A(4) of the Schools Act is not confirmed. Kenmont School is ordered to pay the applicant's taxed costs within three months. The High Court's costs order against Kenmont School and its Governing Body is set aside. No order as to costs in the Constitutional...

Orders

  • Kenmont School must pay Mr Deverajh Moodley’s taxed Supreme Court of Appeal and High Court costs in the respective amounts of R173 530.61 and R403 876.78, including accrued interest, not later than three months from the date of this order.
  • Members of the Kenmont School Governing Body must, individually or collectively, immediately take all steps necessary to ensure that the payment referred to above takes place.