In the ex parte application of:-
CENTRE FOR CHILD LAW First applicant for admission as amicus curiae SOCIO-ECONOMIC RIGHTS INSTITUTE Second applicant for admission
OF SOUTH AFRICA as amicus curiae
In the matter between:
THE GOVERNING BODY OF THE JUMA
MUSJID PRIMARY SCHOOL First Applicant BEATRICE KISHETAKYUBWA
AND OTHERS Second and further Applicants
and
AHMED ASRUFF ESSAY N.O. AND OTHERS First to Ninth Respondents THE MEMBER OF THE EXECUTIVE COMMITTEE
FOR EDUCATION FOR THE PROVINCE OF
KWAZULU-NATAL Tenth Respondent THE SUPERINTENDENT GENERAL OF THE
DEPARTMENT OF EDUCATION FOR THE
PROVINCE OF KWAZULU-NATAL Eleventh Respondent THE MINISTER OF EDUCATION FOR THE
REPUBLIC OF SOUTH AFRICA Twelfth Respondent
FOUNDING AFFIDAVIT
1. I, the undersigned,
ANN MARIE SKELTON
2. state under oath the following:
3. I am an adult woman, and the Director of the Centre for Child Law.
4. I have been duly authorised to depose to this affidavit on behalf of the Centre for Child Law and Socio-Economic Rights Institute of South Africa.
5. The facts contained herein are, to the best of my knowledge, true and correct and, unless otherwise stated or indicated by the context, are within my personal knowledge.
6. This is an application in which the Centre for Child Law and Socio-Economic Rights Institute of South Africa seek admission as amici curiae in the present proceedings.
7. The purpose of this affidavit is to set out the basis of the application as per requirements listed in Rule 10 of the Rules of this Court.
LOCUS STANDI
8. The first applicant is the Centre for Child Law (“the CCL”).
The CCL was established in terms of a constitution by the University of Pretoria. The CCL is also a registered law clinic with the Law Society of the Northern Provinces.
The main objective of the CCL is to contribute within its means to establish and promote the best interests of children in South Africa, more particularly to use the law as an instrument to advance such interests.
The CCL has been authorised to bring this application.
9. The second applicant is the Socio-Economic Rights Institute of South Africa (SERI).
SERI is a new non-profit organisation providing professional, dedicated and expert socio-economic rights assistance to individuals, communities and social movements in South Africa. SERI conducts research, engages with government, advocates for policy and legal reform, facilitates civil society coordination and mobilisation, and litigates in the public interest.
SERI is represented in these proceedings by Jackie Dugard, who is the Executive Director, and who is duly authorised to act on behalf of the SERI. The confirmatory affidavit of Jackie Dugard is attached hereto as annexure “AMS1”.
THE SUBMISSIONS WHICH THE APPLICANTS SEEK TO MAKE
10.The CCL and SERI have considered the judgment of the High Court, the written arguments filed by both parties in this Court, and certain key parts of the record before this Court. The CCL and SERI are mindful of the duty of amici curiae not to repeat any submissions made by the parties. We are of the respectful view that we can make submissions of substance which would be helpful to this Court in dealing with this matter.
11. The issues raised by this case are, in the view of the CCL and SERI, of considerable significance. This will this be one of the first cases dealing with the obligations that flow from the right to education. Moreover, it will have a potential impact on parties beyond those directly involved here – for example in the context of farm schools located on private land where similar disputes to the present matter may well arise.
12.Against this backdrop, the submissions that the CCL and SERI wish to make fall into three main areas.
13.First, the Trust, represented by the first to ninth respondents, appears to regard itself as having no obligations arising from the right to education at all.
The CCL and SERI are of the view that this is patently incorrect and wish to present argument on the appropriate approach to the obligations of private parties in terms of the Constitution, particularly concerning the “horizontal”
application of socio-economic rights.
14.Second, the government respondents, the tenth to twelfth respondents, appear to accept that they bear obligations in terms of the Constitution.
However, the approach taken by the government respondents in their approach to this case appears to be at odds with such obligations. The CCL and SERI therefore wish to present argument on:
The state’s obligation to provide education to the maximum extent of its available resources, in keeping with the Constitution and article 4 of the UN Convention on the Rights of the Child; and
The potential unconstitutionality and unlawfulness arising from the rigid and inflexible approach of the state respondents to the dispute between them and the Trust concerning the negotiation of any rental payable in respect of Juma Musjid Primary School;
15.Finally, there are certain statutory and constitutional obligations that affect both the Trust and the State Respondents. CCL and SERI wish to advance arguments on the effect of these obligations, which arise from:
The provisions of 33 of the South African Schools Act dealing with the process for closure of a public school; and
The provisions of section 28(2) of the Constitution.
16.The issues raised fall squarely within the stated aim of the CCL to advance children’s rights in South Africa through litigation. The CCL applicant has knowledge of, interest in and experience with these issues. The CCL has a manifest interest in the matter.
17.The mission of SERI includes providing professional, dedicated and expert socio-economic rights assistance to individuals, communities and social movements in South Africa. The issues raised fall squarely within the stated aim of SERI to research and litigate in public interest for the protection of socio-economic rights. SERI also has a manifest interest in the matter.
18.
APPLICATION TO BE ADMITTED AS AMICI CURIAE IN TERMS OF RULE 10
19.The applicants wrote to all the parties pursuant to Rule 10(1) to request written consent for the first and the second applicants to enter as amici curiae in the abovementioned matter. The letters to the attorneys and the State Attorney, Kwazulu-Natal are attached hereto as annexure “AMS2”, “AMS3”
and “AMS4”.
20.The terms and conditions proposed by the applicants are as follows:
The Centre for Child Law and Socio-Economic Rights Institute of South Africa are permitted to enter as amici curiae and to present both written and oral argument;
Written submissions will, with the leave of the court, be lodged by the amici curiae with the registrar on the date directed by the court.
Counsel for the amici curiae will, with the leave of the Court, present oral argument on 31 August 2010.
21.On 27 July 2010 the applicants received a letter from the attorney for the Applicants, in the main matter, that they have no objection to the Centre for Child Law and SERI intervening as amici curiae. The letter is attached hereto as annexure “AMS 5”.
22.The First to Ninth Respondents in the main matter indicated that they had no objection to the Centre for Child Law and SERI intervening as amici curiae.
The letter from their attorney is attached as “AMS 6”.
23.There has been no response from the Government Respondents.
24.The applicants now apply in terms of Rule 10(4) for leave to enter as amici curiae in the abovementioned matter.
25.In terms of Rule 10(5) of the Rules of the Court, a party that wishes to intervene as amicus curiae shall make an application not later than five days after the lodging of the respondent's written submissions or after the time for lodging such submissions has expired. The respondents’ written submissions were lodged on 21 July 2010 and therefore this application is within the prescribed time frames.
26.
27.
CONCLUSION
28.In light of the above, I pray for an order in terms of the notice of motion.
1.
2.
3.
4. _____________________________
ANN MARIE SKELTON
I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of her knowledge both true and correct. This affidavit was signed and affirmed to before me at PRETORIA on this the 28th day of
July 2010, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.
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