Saviour Association of School Governing Bodies and Another v Head of Department of Education, Limpopo and Others - Leave to Appeal (1902/2023) [2023] ZALMPPHC 50 (20 July 2023)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(LIMPOPO DIVISION, POLOKWANE)

Case Number: 1902/2023

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: NO

DATE:20/7/2023

In the matter between: SAVIOUR ASSOCIATION OF SCHOOL GOVERNING BODIES First Applicant SCHOOL GOVERNING BODY OF MMAMOLOPE Second Applicant AND HEAD OF DEPARTMENT OF EDUCATION, LIMPOPO First Respondent MEC FOR EDUCATION, LIMPOPO Second Respondent MEC FOR PUBLIC WORKS, ROADS AND TRANSPORT, LIMPOPO Third Respondent MEC FOR LIMPOPO PROVINCIAL TREASURY Fourth Respondent

JUDGMENT – LEAVE TO APPEAL

MTHIMKULU SS AJ:

INTRODUCTION:

[1] This is an application for leave to appeal to the Supreme Court of Appeal (“SCA”), alternatively to the full Bench of the above Honourable Court in terms of section 17(1)(a)(i) and section 17(1)(a)(ii) of the Superior Courts Act 10 of 2013 (“the Superior Courts Act”), against the whole judgment and orders of this Court handed down on 16 May 2023. The First and Second Applicants have filed their application for leave to appeal. The First and Second Respondents opposed the application. The Applicants were the Respondents in the main application and the Respondents, the Applicants. For the sake of

convenience, I will refer to the parties as they were in the main application.

GROUNDS OF APPEAL:

[2] The grounds of appeal filed on behalf of the Respondents can be summarized briefly as follows: the Respondents contend that this Court erred in not finding that the Applicants were negligent in addressing their letters to the incorrect circuit office and to request reasons why their letters were not being attended to. They contended that the Court should have accepted the Respondents submissions against such failure and find the Applicants to have to have taken an irregular step and subsequently dismiss the Applicants’ urgent application.

[3] The Respondents contended that this Court erred in finding that the application was urgent and submitted that the application ought to have been brought on the normal court roll for lack of urgency. In support of this contention the Court was referred to the following authorities:

· Schweizer Reneke Vleismaatskappy (EDMS) BPK v Die Minister Van Landbou (1971) PH F11(T) where it was held that: “It is trite law that an Applicant cannot create his own urgency by simply waiting until the normal rules can no longer be applied”.

· In Chetty v Chetty and Another (1362/202) [2020] ZAMPMHC 30 (24 June 2020) the Court held that: “Urgency is a matter of degree…. Some Applicants who abuse the court process should be penalised and the matters should be struck off the roll with costs for lack of urgency”.

[4] The contention is that the Applicants failed to make out a case for urgency in this application. The Respondent argued that the urgency pleaded by the Applicants was self-created and this Court erred in finding that “the argument by the Respondents that the urgency in this matter is self-created is misplaced” (Paragraph 9 of the judgment).

[5] The Respondents further argued that this Court erred in dismissing the points in limine raised in respect of the Applicant’s failure to bring a notice in terms of Rule 16A. They argued that this Court erred in finding that “to refuse to entertain this matter solely because the applicants failed to comply with the Rule 16A notice would place the applicants and the learners especially in an undesirable situation” (Paragraph 11 of the judgment).

[6] The Respondents argued that this Court erred in granting the application as one of urgency on behalf of the Applicants when it ought to have upheld the point in limine of an irregular process by failure to first bring the application in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). It is therefore the Respondents submission that another Court will dismiss this application on this point in limine alone, since PAJA is relevant and applicable in this matter on the basis that the decision that was taken by the department to withdraw the school transportation was based primarily on the fact that such transportation was not in line with the department policy.

[7] Finally, the Respondents argued that this Court erred in ordering them to pay the costs of this application.

PRINCIPAL SUBMISSIONS OF THE PARTIES:

[8] At the hearing of this application, Advocate Seleso contended on behalf of the Respondents (Applicants in the application for leave to appeal) that this Court erred in granting the application and ordering that the Respondents pay the costs of the application. It is her submission that there are reasonable prospects of success in the matter based on the grounds of appeal stated supra.

[9] Advocate Tebeile on behalf of the Applicants contended that the grounds for leave to appeal as enunciated by the Respondents are not on the merits of this application but are solely based on the points in limine that were raised by the Respondents. He further contended that findings of urgency or rulings on urgency by themselves are not appealable. It was further his contention that no other court will come to a different finding on urgency and on the Rule 16A notice as the two are intertwined.

[10] Advocate Tebeile further contended that section 38 of the Constitution was designed to give effect to constitutional rights, including the right to education which was the subject matter in the urgent application. Furthermore, that the Applicants sought a declaratory order in terms of section 38 of the Constitution and this Court was correct in finding that the High Court is best suited to pronounce on a constitutional matter. He further contended that this court was correct in dismissing the point in limine raised that the Applicants ought to have brought a review application.

[11] He contended that the merits of this application were not substantially addressed and dealt with by the Respondents and that this, per se, is a compelling reason for this Court not to grant the application for leave to appeal.

[12] On the issue of costs Advocate Tebeile contended that this Court correctly ordered the Respondents to pay the costs of the application because the cost order granted constitutes a court order in a constitutional matter between a private client and the State.

APPLICABLE LEGAL PRINCIPLES AND DISCUSSION:

[13] The Respondents application for leave to appeal is based on section 17(1)(a) of the Superior Courts Act. Section 17 of the Superior Courts Act regulates applications for leave to appeal from a decision of a High Court. It provides as follows:

“(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 a reasonable prospect of success; or

(ii) there is some other compelling reason 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) (a);

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.”

[14] Previously the test that was applied in applications of this nature, was whether there were reasonable prospects that another court may come to a different conclusion. With the enactment of section 17 of the Superior Courts Act, the threshold for granting leave to appeal a judgment of the High Court has been significantly raised. The use of the word ‘would’ in subsection 17 (1) (a) (i) of the Superior Courts Act imposes a more stringent threshold in terms of the Act, compared to the provisions of the repealed Supreme Court Act 59 of 1959.

[15] In Mount Chevaux Trust [IT 2012/28 v Tina Goosen and 18 Others, 2014 JDR 2325 (LCC) at para 6, Bertelsmann J stated as follows:

“It is clear that the threshold for granting leave to appeal against a judgment 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 may come to a different conclusion, see Van Heerden v Cronwright and Others 1985 (2) SA 342 (T) at 343H.

The use of the word ‘would’ in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.”

[16] What is required of this Court is to consider whether there are reasonable prospects that another court will find merit in the arguments advanced by the Respondents.

[17] The Respondents submitted that they have strong prospects of success in the matter based on their grounds of appeal.

[18] In respect of the points in limine raised, this Court is persuaded by the argument on behalf of the Respondents in respect of the non-compliance with Rule 16A, that the issue is not the failure by the Applicants to comply with Rule 16A, but the failure to bring a condonation application and substantiate in their founding affidavit why the condonation application should be granted and giving reasons for the failure to comply with Rule 16A. The Applicants failed to appreciate that such non-compliance may be detrimental as the matter is of public interest.

[19] This Court was referred to a plethora of cases that point to the importance of Rule 16A in applications relating to the declaration of a constitutional issue. As the Constitutional Court noted in Shaik v Minister of Justice and Constitutional Development 2004 (3) 559 (CC) at 610H, “The purpose of the Rule is to bring to the attention of persons who may be affected by or have a legitimate interest in the case the particularity of the constitutional challenge, in order that they may take steps to protect their interests.”

[20] The Supreme Court of Appeal in Phillips v SA Reserve Bank 2013 (6) SA 450 (SCA) at 459B-d and 466H-I held as follows:

“Rule 16A(1)(i) has accordingly to be interpreted in the light of the purpose for which it was enacted, viz to bring cases involving

constitutional issues to the attention of the persons who may be affected by or have a legitimate interest in such cases, so that they may take steps to protect their interests by seeking to be admitted as amici curiae with a view to drawing the attention of the court to relevant matters of fact and law to which attention would not otherwise be drawn.”

CONCLUSION:

[21] Pursuant to the authorities cited above, I am of the view that a reasonable prospect of success does exist and there are reasonable prospects that another court may come to a different conclusion.

ORDER:

[22] In the result the following order is granted:

22.1 The application for leave to appeal to the Full bench of the above Honourable Court is granted.

22.2 Costs to be costs in the appeal.

SS MTHIMKULU

ACTING JUDGE OF THE HIGH COURT

LIMPOPO DIVISION, POLOKWANE

This judgment was handed down electronically by circulation to the parties’ representatives by email. The date and time for hand-down is deemed to be 16h00pm on 20 July 2023.

DATE OF HEARING:

29 June 2023

DATE JUDGMENT DELIVERED: 20 July 2023

APPEARANCES:

Attorney for the Applicant: RJ PHAKOAGO ATTORNEYS Counsel for the Applicant: ADV. SS TEBEILE Email Address: phakoagoattorneys@gmail.com Attorney for the Respondents: STATE ATTORNEY, POLOKWANE Counsel for the Respondents: ADV. NM SELESO Email address: PMalatji@justice.gov.za