High School Ermelo and Another v Head of the Department Mpumalanga Department of Education and Others (30627/07)  ZAGPHC 165;  1 All SA 139 (T) (29 August 2007)
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IN THE HIGH COURT OF SOUTH AFRICA/ie
(TRANSVAAL PROVINCIAL DIVISION)
DATE: 29 August 2007
CASE NO: 30627/07
In the matter between:
THE HEAD OF THE DEPARTMENT
MPUMALANGA DEPARTMENT OF EDUCATION 1ST Respondent
MS JINA KHUDAIJA 2ND Respondent
MR DANKA MUNERA 3RD Respondent
MR ESSAY YAOOD 4TH Respondent
MR COENIE VAN GREUNEN 5TH Respondent
MS QUEEN NQOELE 6TH Respondent
JACOBUS KRUGER 7TH Respondent
THE MINISTER OF EDUCATION 8TH Respondent
NCANE ELIZABETH MASILELA 9TH Respondent
NGOEPE JP, SERITI J, RANCHOD AJ
 At the beginning of this year when schools reopened, the applicants obtained an order by PRINSLOO J, on an urgent basis prohibiting the enrollment of any student to be taught in English at the Ermelo High School; no student was to be taught in any language other than Afrikaans. The interim order was to hold, pending the outcome of the main application for the same relief.
 The eighth and nineth respondents, both originally not joined, brought an urgent application to rescind the order of PRINSLOO J, and to be granted leave to join in the matter and to oppose the applicants’ application. This court granted the remedies sought by the respondents: the order of PRINSLOO J was rescinded, and the applicants were joined as further respondents. The applicants’ prayer before PRINSLOO J for an interim relief was re-opened, re-argued and re-considered by this court. After taking into account a number of factors, requirements for an interim interdict, (such as the balance of convenience) this court dismissed the applicants’ prayer for an interim relief.
 The applicants then filed what they described as an application for leave to appeal (against the refusal of an interim relief). Two members of this court (SERITI J and RANCHOD AJ) heard the application in the absence of NGOEPE JP who was out of the country on other duties. The notice of application for leave to appeal was found to be fatally defective in that it did not even begin to set out the grounds of appeal. SERITI J and RANCHOD AJ also mentioned, obiter, that the orders were not appeallable. As already mentioned, these orders were: the rescission of the interim order of PRINSLOO J, leave to the eight and nineth respondents to join in the proceedings, and the refusal of the interim relief.
 After the above ruling by SERITI J and RANCHOD AJ, the applicants quickly petitioned the Supreme Court of Appeal. They were sent back to this court as it could not be said that they had been refused leave since their application could not have been considered as their notice had been fatally defective. By the time they returned to this court, they were out of time.
 In a clear attempt to circumvent the need for condonation, the applicants, before the hearing of their belated application for leave to appeal, sought to amend their initial defective notice of application for leave to appeal. This move was opposed by the respondents. The matter was then stood down to enable the applicants to file an application for condonation; they did so, together with a fresh application for leave to appeal.
 On 13 July 2007, this court heard both the application for condonation and the fresh application for leave to appeal. After argument, the court reserved its judgment. The Judge President later had a meeting in his chambers with the parties in an attempt to facilitate the hearing and finalization of the main application, his view being that the parties were expending too much time and resources on the fight around an interim relief; a fight which, as the above history shows, had been dragging on since the beginning of the year. His concern was, since the beginning of the year, nothing was being done by the parties to bring the main application to hearing and finalization; soon the beginning of the next year would be upon us with the main application still unresolved! The matter had attracted public interest.
 Given the fact that the main application is to be heard soon, this court will not give its reasons for the orders made below; it deems it inappropriate to do so, though we will consider doing so if requested. This is therefore not a full judgment as the reasons for the orders made are not fully given herein.
 At the meeting with the Judge President, the parties not only agreed on a time-table for the exchange of affidavits in the main application, but also agreed that the matter would be heard on 4 September 2007. At the meeting, the legal representatives of the applicants advised that they had no instructions from their clients on whether to call a halt to the handing down of this judgment and rather focus on the forthcoming hearing of the main application. On 23 August 2007 the court received a letter from the applicants’ attorneys asking for the judgment, notwithstanding the fact that the main application was going to be heard in less than two weeks’ time.
 The application for condonation cannot succeed. We are aware that usually, a court adopts a robust attitude by granting the condonation, sothat the matter is disposed of; for example, in an appeal. However, care must be taken not to create an impression that an application for condonation is a mere formality. An applicant must still make out its case. It is a requirement that for an application for condonation to succeed, an applicant must show reasonable prospects of success; in casu, there are none. Secondly, the explanation for the delay is not reasonable; the cause thereof was gross ineptitude on the part of the applicants’ legal representatives in putting in an obviously fatally defective notice of application for leave to appeal. They then wasted time by prematurely rushing to the Supreme Court of Appeal. Thirdly, they caused even a further delay by, instead of filing a fresh valid notice, attempting to amend an unamendable defective notice. A court cannot accept this. Finally, in considering any possible prejudice to the applicants, we took into account the fact that the main application is about to be heard. In the event of judgment going against the applicants, they would, if so still advised, appeal on grounds that would include the ones they presently want to raise. The door is not permanently shut against them.
The following orders are made:
The applicants’ application for the condonation of the late filing of notice of application for leave to appeal against the orders made by this court on 13 February 2007 is dismissed;
The applicants’ application for leave to appeal filed on 14 February 2007, is struck from the roll.
The applicants are ordered to pay costs of the two applications, as well as the costs of 18 June 2007, such costs to include costs consequent upon the employment of two counsel.
B M NGOEPE
HIGH COURT OF SOUTH AFRICA, TRANSVAAL PROVINCIAL DIVISION
W L SERITI
JUDGE OF THE HIGH COURT
ACTING JUDGE OF THE HIGH COURT
Heard on 13 July 2007
Representation for the applicant
Attorneys: Johan van der Wath Attorneys
Counsel: C R van Onselen
Representation for respondents
Attorneys: State Attorneys
Counsel B R Tokota SC
D T Skosana
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