SUPREME COURT OF APPEAL CASE NO: 670/2009 HIGH COURT CASE NO: 10230/2008
In the matter between:
THE GOVERNING BODY OF THE JUMA
MUSJID PRIMARY SCHOOL First Applicant BEATRICE KITSHETA KYUBWA AND OTHERS Second and further Applicants and
AHMED ASRUFF ESSAY N.O. First Respondent
ABOOBAKER JOOSAB NOOR MAHOMED N.O. Second Respondent
AHMED VALLY MAHOMED N.O. Third Respondent ABDUL RAHIM MALEK N.O. Fourth Respondent
HAROUN MAHOMED GANIE N.O. Fifth Respondent
MAHOMED ABDOOL GAFFAR JOOSAB N.O. Sixth Respondent OMAR ABOOBAKER MOOSA N.O. Seventh Respondent
GOOLAM ALLY GAFFOOR N.O. Eighth Applicant
AHMED YUSUFF LOCKHAT N.O. Ninth Applicant
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
FIRST TO THE NINTH RESPONDENTS’ PRACTICE NOTE
THE NAMES OF THE PARTIES AND THE CASE NUMBER
1. These particulars appear from the heading.
THE NATURE OF THE PROCEEDINGS
2. The applicants (being the Governing Body of the Juma Musjid Primary School (“the school”) and the parents, guardians and/or caregivers of the learners at the school) seek leave to appeal against an ejectment order
granted by the High Court, leave having been refused by the High Court
and the Supreme Court of Appeal. The ejectment order was granted at the instance of a private land-owner (“the Trust”) against the MEC for Education for the Province of KwaZulu-Natal (“the MEC”). The applicants assert that the High Court failed to take account of the learners’
constitutional rights and, in particular, the rights foreshadowed by section 28(2) and section 29(1)(a) of the Constitution. The first to the ninth respondents (the trustees of the Trust) assert that the High Court took into account all relevant considerations including the constitutional rights of the learners in granting the eviction order and that no case has been made out for the grant of leave to appeal.
THE ISSUES THAT WILL BE ARGUED, CLEARLY AND SUCCINCTLY STATED
3. A private land-owner whose ownership is admitted is entitled to the grant of an eviction order against persons in occupation of such owner’s property who fail to establish a right justifying their continued occupation thereof. Such land-owners’ rights are entrenched in section 25(1) of the Constitution.
4. The section 29(1)(a) right to education sought to be asserted on behalf of the learners is enforceable as against the State but does not entail a right to demand that such education be provided at a particular school (on premises which are not longer available to the State) or that such education be provided with a particular religious ethos. Nor does such right extend to include the entitlement to require a private land-owner to let such land-owner’s property to the State for the conduct of a school.
5. The section 28(2) right of the learners at the school has to yield to the Trust’s section 25(1) right and in any event is subject to being limited in terms of section 36 of the Constitution.
6. The ejectment order granted by the High Court afforded the applicants more than a reasonable opportunity to seek education for their children or wards at alternative schools which, on the undisputed evidence, were available for such purposes. Furthermore, the MEC reaffirmed the State’s constitutional obligation to ensure that the learners’ rights in this regard were properly fulfilled.
AN INDICATION OF THE PORTIONS OF THE RECORD THAT ARE NOT NECESSARY FOR THE DETERMINATION OF THE MATTER
7. With the exception of items 23, 24, 25, 31, 32, 33 (and the annexures thereto), 34, 35 (and the annexures thereto), 36, 37, 38, 39, 40, 41 (and the annexures thereto), 42, 43, 45 (and the annexures thereto), 46 (and the annexures thereto) and 47, the remainder of the record is necessary for the determination of the matter.
AN ESTIMATE OF THE DURATION OF ORAL ARGUMENT
8. Not more than one day.
A SUMMARY OF THE ARGUMENT
9. The Trust sought the eviction of the MEC from the premises occupied by the MEC for the purposes of the operation of the school.
10. It was common cause upon the hearing of the application that the Trust was the owner of the property on which the premises were located and
that no agreement, as foreshadowed by section 14(1) of the South African Schools Act, No. 84 of 1996 (“the Act”) had been concluded between the Trust and the MEC regulating the MEC’s occupation of the premises.
11. In seeking the eviction of the MEC the Trust relied, inter alia, upon the rei vindicatio.
12. On 9 October 2008 the MEC agreed to vacate the premises by 28 February 2009 (as opposed to 19 December 2008) being the date proposed for the execution of the eviction order sought in the application.
13. The MEC put up an affidavit noting, inter alia, that it was not the intention of the MEC to oppose the application but to abide by the decision of the Court therein and wherein the MEC sought to advance a proposal for the resolution of the application.
14. The Governing Body and the second and further applicants put up answering affidavits in opposing the application.
15. The High Court, with respect correctly, concluded that inasmuch as the Trust’s ownership of the property was admitted, the onus rested on the parties who sought to oppose the application to establish a right justifying their further occupation of the property.
16. The High Court, with respect correctly, concluded that no such right was established by the MEC or the applicants.
17. It is submitted that the Trust’s right in and to the property is entrenched by the provisions of section 25(1) of the Constitution. The Trust was not obliged against its wishes to countenance the occupation of its property by the MEC and/or the applicants.
18. The Governing Body’s rights were constrained by the fact that its powers were limited in terms of section 16 read with section 20 of the Act to the governance and management of the school itself. It was not entitled to conclude any agreement regulating the occupation by the school of private property or to require the MEC to do so.
19. Although section 29(1)(a) of the Constitution entitles the learners at the school to a basic education, such right does not entail the right to demand that:
19.1. such education be provided at a school of the learners’ choice in circumstances where the premises from which such school is operated is no longer available to the State;
19.2. a private land-owner such as a Trust continues to make its property available to the State for the purposes of the provision of such education, particularly in circumstances where alternative schooling is available for the provision thereof;
19.3. such education be provided with a particular religious ethos.
20. The principal ground of opposition advanced by the second and further applicants was that no provision had been made for the education of their children or wards for the 2009 academic year.
21. The facts revealed that alternative schools were available for the education of the learners at the school. One of such schools provides education with an Islamic ethos as does the school in question.
22. Furthermore, the MEC has maintained that the MEC will adopt all reasonable measures to ensure the fulfilment of the learners’ right to education.
23. The eviction order was granted on 16 September 2009 and rendered executable on 15 December 2009 (at the end of the 2009 academic year) and therefore afforded the applicants timeous opportunity to make provision for the education of the learners at alternative schools.
24. The eviction order was properly granted after a proper consideration of all relevant facts.
25. This application should accordingly be dismissed.
LIST OF AUTHORITIES TO WHICH PARTICULAR RELIANCE WILL BE PLACED DURING ORAL ARGUMENT
1. Firstrand Bank Ltd v Chaucer Publications (Pty) Ltd 2008 (2) SA 592 C at [26]-[29] (fn 45).
2. Chetty v Naidoo 1974 (3) SA 13 AD at 20A-21H (fn 48).
3. Minister of Land Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 SCA @ [43] (fn 55).
26. First National Bank of South Africa Ltd trading as Wesbank v Minister of Finance 2002 (4) SA 768 CC at [57] (fn 61).
27. Brisley v Drotsky 2002 (4) SA 1 SCA at paragraphs [41]-[45] (fn 62).
28. De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) and Others (2) 2004 (1) SA 406 CC at paragraph [55] (fn 67).
29. S v M 1995 (3) SA 632 CC at paragraphs [23], [25]-[26] and [42] (fn 68).
30. Jafta v Schoeman and Others 2005 (2) SA 140 CC, paragraphs [31]-[34] and [47]-[49] (fn 73).
31. Yorigami Maritime Construction Company Ltd v Nissho-IWAI Company Ltd 1977 (4) SA 682 C @ 692E-693G (fn 84).
V. I. GAJOO S.C.
COUNSEL FOR THE FIRST TO THE NINTH RESPONDENTS
CHAMBERS DURBAN 20 JULY 2010
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