ConCourt orders school to pay Durban dad in landmark ruling

10 October 2019 - 07:00 By Tania Broughton
The Constitutional Court has ruled that school assets cannot be sold to pay costs when litigated against.
The Constitutional Court has ruled that school assets cannot be sold to pay costs when litigated against.
Image: PaylessImages

A law that precludes the attachment and sale of assets of public schools by those who have successfully litigated against them has passed constitutional muster.

But the Constitutional Court on Wednesday said the school in question - the Kenmont School on Durban’s Bluff, which caters for special-needs children - was not absolved from paying about R577,000 owed to a father of a former pupil.

The court has instructed the governing body to settle his bill within three months - or face possible contempt of court proceedings.

The attack on section 58A(4) of the South African Schools Act was launched by Deverajh Moodley, who successfully litigated against the school after his son was excluded for bad behaviour.

The school and its governing body approached the Supreme Court of Appeal to appeal a Durban high court ruling that he be readmitted, but by then the learner had already matriculated. The court found that any ruling would have no practical effect and ordered the school to pay Moodley’s legal costs.

Moodley’s attempts to get the school to settle were unsuccessful. He eventually secured a court order attaching the school bus and cash in a bank account.

The school went back to court, relying on the prohibitions in the SA Schools Act. Durban high court Judge Khosi Hadebe ruled that the prohibition was unconstitutional.

The matter then came before the ConCourt for confirmation. In a unanimous judgment, penned by judge Mbuyiseli Madlanga, the court said while the section limited the rights of equality and dignity, these were “reasonable and justifiable”.

“The purpose is to avert any adverse effects which could be caused by the attachment of school assets. There is no denying that a significant number of SA public schools operate under conditions of extreme deprivation. And untold misery could be visited on already disadvantaged schoolchildren if meagre resources were liable to attachment to satisfy judgment debts,” the judges ruled.

“If you interfere with basic education, you put at risk the potential to unleash in every child the ability to set her or himself on the path of a successful, meaningful, wholesome life. So the section is meant to protect the important right of basic education. The limitation is understandable. That which it seeks to advance cries out for protection - and that is a cry which we cannot but heed.”

However, this did not absolve the school from paying its debt to Moodley, the judges said.

“The act does not outlaw the granting of orders sounding in money, including costs orders, against schools. Public schools cannot possibly be empowered to sue and be sued, but be immune from what is often a real possibility - an adverse costs order.”

They said the costs orders were competent and the governing body had the statutory mandate to settle Moodley’s bills. They said the school’s claim that it did not have the funds was "untenable".

“It does not address the sting of how it funded large-scale litigation involving engaging two counsel. That does not come cheap. That the school could fund its own litigation in respect of the several litigious skirmishes between the parties does indicate that it is not as poor as it would want us to believe,” said Madlanga.

The Centre for Child Law, which entered the legal battle as a friend of the court - arguing for the retention of the prohibition - said it was pleased with the outcome.