Case CCT281/18 
[2019] ZACC 37

 Date of Hearing:  14 May 2019
Judgement Date: 09 October 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Wednesday, 9 October 2019 at 10h00, the Constitutional Court handed down judgment in an application for confirmation of an order by the High Court of South Africa, KwaZulu-Natal Local Division, Durban, declaring section 58A(4) of the South African Schools Act 84 of 1996 (Schools Act) constitutionally invalid. Kenmont School and the Kenmont School Governing Body (school respondents) applied for leave to appeal against the judgment of the High Court.

The applicant, Mr Deverajh Moodley, successfully challenged the admission policy of Kenmont School in the High Court which ordered the school respondents to pay his legal costs. The school respondents took the matter on appeal to the Supreme Court of Appeal, which dismissed the appeal and, like the High Court, made a costs order in favour of the applicant.

The applicant’s taxed bill of costs amounted close to R600 000, excluding interest. After unsuccessfully seeking satisfaction of his costs award from the school respondents, the applicant obtained a warrant of execution against the school and attached the school’s bank account as well as a motor vehicle belonging to the school. The school respondents approached the High Court, on an urgent basis, seeking a court order setting aside the warrant of execution and subsequent attachment of its property. The school respondents relied on section 58A(4) of the Schools Act, which protects the assets of public schools from attachment as a result of any legal action taken against the school. The applicant filed a counter-application seeking, among others, an order declaring section 58A(4) of the Schools Act unconstitutional. The High Court granted the applicant’s counter-application and declared the section constitutionally invalid.

The applicant then approached the Constitutional Court for confirmation of the declaration of invalidity. He contended that the differential treatment of a public school with regard to the attachment of assets to satisfy a judgment debt infringes his right to equality in contravention of section 9(1) of the Constitution and that his inability to derive a benefit from the favourable costs order constitutes a violation of his section 10 right to dignity. In their appeal against the confirmation, the school respondents argued that under section 60(1) of the Schools Act, the State is liable for any delictual or contractual damage or loss resulting from a school activity. On their interpretation, that meant the State, and not the school, was liable for the applicant’s costs. Therefore the applicant had redress under this section and his section 9(1) right was not infringed. The school respondents further argued that section 58A(4) read with section 60(1) of the Schools Act upholds the right to education. Thus it was not necessary to have section 58A(4) declared constitutionally invalid.

The Head of Department, Department of Education, KwaZulu-Natal, the MEC for Education, the Minister of Justice and Correctional Services and the Minister of Basic Education (government respondents), the third to sixth respondents, argued that it was misconceived to contend that the applicant’s costs must be paid by the State as no costs order was awarded against the State. They further submitted that the school respondents were cautioned against engaging in the litigation. The government respondents took the view that section 58A(4) ought not to be declared constitutionally invalid. The Centre for Child Law, admitted as a friend of the Court, argued that the costs awarded pursuant to litigation that arose from the amendment of the school admission policy are not delictual or contractual damage or loss, nor is the amendment of the school admission policy a “school activity” as envisaged in section 60(1) of the Schools Act. Therefore, the school respondents’ suggestion that section 60(1) affords the applicant redress is misconceived. Furthermore, the right to basic education is so important that there are no less restrictive means to protect it, and the declaration of invalidity should not be confirmed.

In a unanimous judgment penned by Madlanga J, the Constitutional Court declined to confirm the High Court’s declaration of constitutional invalidity. The Court held that although section 58A(4) limits the rights to equality and dignity, in light of the right that it seeks to protect – the right to basic education – the limitation is reasonable and justifiable under section 36(1) of the Constitution. It concluded that the purpose of the limitation brought about by the prohibition in section 58A(4) is to avoid any adverse effects that could be caused by the attachment of school assets, thereby protecting the right to basic education and ensuring that the children’s best interests are afforded paramount importance. The limitation is therefore well-tailored to its purpose and there are no less restrictive means to achieve this purpose.

With regards to the fate of the applicant’s costs awards, the Court held that despite its prohibition of the attachment of assets of a public school, section 58A(4) does not outlaw the grant of orders sounding in money, including costs orders, against public schools.

The Court found that implicit in a public school’s legal capacity to sue and be sued in its own name is the power to pay the opposing side’s costs if so ordered by a court. Public schools cannot be empowered to sue and be sued, but be immune from adverse costs orders. In terms of section 37(6)(c) of the Schools Act, the governing body of a public school is empowered to pay legal costs. The Court therefore, concluded that the Kenmont School Governing Body had the statutory mandate to settle the applicant’s bills of costs. The Court ordered that Kenmont School must pay the applicant’s High Court and Supreme Court of Appeal costs. It further ordered that the members of the Kenmont School Governing Body must, individually or collectively, take the necessary steps to ensure that the payment does take place.


The Full judgment  here